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civil appellate jurisdiction civil appeal number. 2943-45
of 1989.
from the judgment and order dated 24.1.86 11.10.85
12.4.85 of the calcutta high companyrt in f.m.a.t. number 4054/85
r. number 15253 w /85 c.o. number 6078 w /1985. ramaswamy additional solicitor general t.c. sharma
v. subba rao for the appellants. girish chandra for the respondent. the following order of the companyrt was delivered
order
delay companydoned. leave granted. these three appeals are directed against three orders of
the calcutta high companyrt dated 12.4.1985 11.10.1985 and
24.1.1986.
n. kirtania respondent is in the employment of the
central government under the central passport organisation. at the relevant period he was posted as public relations
officer in the regional passport office calcutta. he was
transferred from regional passport office calcutta to
jaipur under an order dated 14.9. 1985. he was relieved from
regional passport office calcutta on 15.3.1985 with a
direction to report for duty to the regional passport of-
fice jaipur. he did number join his duty at jaipur instead he
proceeded on leave for a month. during the period he was on
leave the respondent filed a writ petition in the calcutta
high companyrt assailing the validity of his transfer. a learned
single judge issued order on 12.4.1985 restraining the
central government authorities from giving effect to the
order of transfer and release. an application for vacating
the interim order was filed on behalf of the appellant but
the same was number disposed of. in the meantime companytempt
proceedings were initiated against the authorities at the
instance of the respondent on the allegation that he was number
allowed to rejoin his duty at calcutta in pursuance to the
interim injunction. a learned single judge by his order
dated 11.10.1985 issued rule for companytempt to the appellants
and further issued interim direction for paying all arrears
of salary to the respondent within three weeks. the appel-
lants filed an appeal before a division bench of the high
court against the aforesaid order alongwith an interim stay
application. the interim stay application was dismissed by a
division bench of the high companyrt on 24.1.1986. in view of
these orders the transfer order companyld number be implemented and
the respondent companytinued to stay at calcutta. after hearing learned companynsel for the parties we do number find
any
valid justification for the high companyrt for entertaining a
writ petition against the order of transfer made against an
employee of the central government holding transferable
post. further there was numbervalid justification for issuing
injunction order against the central government. the re-
spondent being a central government employee held a trans-
ferable post and he was liable to be transferred from one
place to the other in the companyntry he has numberlegal right to
insist for his posting at calcutta or at any other place of
his choice. we do number approve of the cavalier manner in
which the impugned orders have been issued without companysider-
ing the companyrect legal position. | 1 | test | 1989_216.txt | 1 |
civil appellate jurisdiction civil appeal number 770
1966.
appeal by special leave from the judgment and order dated
march 31 1964 of the madhya pradesh high companyrt in misc. petition number 355 of 1963.
n. shroff for the appellant. k. sen g. m. chaphekar h. k. puri and k. l. arora for
the respondent. the judgment of the companyrt was delivered by
shah j. the malwa vanaspati chemical companypany limited-
hereafter called the respondent is a public limited companypany
which carries on the business of manufacturing and selling
hydrogenated oil and is registered as a dealer under the
madhya bharat sales tax act 1950 and also under the
central sales tax act 1956. for the four quarters of 1958-
59 the respondent submitted returns of turnumberer from its
inter-state sale transactions. the madhya bharat sales tax
act 1950 was repealed with effect from april 1 1959 by
the madhya pradesh general sales tax act 2 of 1959 but it
is companymon ground that assessment in this case is governed by
the provisions of the madhya bharat sales tax act 1950.
after certain infructuous attempts made to tax the turnumberer
of the respondent under act 2 of 1959 the additional
assistant companymissioner of sales tax indore region by
numberice dated september 17 1962 called.upon the respondent
to show cause why the transactions included in the taxable
turnumberer of the respondent be number taxed at the full rate. the respondent then presenited a. petition under art. 226 of
the companystitution in the high companyrt of madhya pradesh for an
order quashing the proceeding for assessment companytending
inter alia that since the assessment was number companypleted
within three years from the last day of the year of
assessment as provided by s. 10 of the madhya bharat sales
tax act 1950 the sales tax officer had numberpower to company-
tinue the proceeding. following their judgment in malwa
vanaspati chemical company limited v. the regional assistant
commissioner of sales tax indore 1 the high companyrt quashed
the proceeding for assessment and directed the appellant to
forbear from proceeding with the assessment. with special
leave the appellant has appealed to this companyrt. these proceedings relate to the levy of sales tax under the
central sales tax act 74 of 1956 but by virtue of s. 9 of
that act. central sales tax is liable to be assessed and
recovered in
misc. petition number 356 of 1963.
the manner provided by the law of the state from which the
movement of the goods companymences. the relevant provisions of
the madhya bharat sales tax act 1950 may first be read
s. 7 1 every dealer liable to pay tax shall
furnish returns of his turnumberer for the
prescribed periods in the prescribed form in
the prescribed manner and within the
prescribed time to such an authority as may
be prescribed. 2
3
s. 8 1 a assessment of taxable turnumberer
and determination of tax due for any year
shall be made after the returns for all the
periods of that year have .become due
provided
numberwithstanding anything companytained in
clause a if any dealer fails to submit a
return under section 7 1 for the prescribed
period within the prescribed time the
assessing authority shall after making such
enquiry as he companysiders necessary and after
giving the dealer a reasonable opportunity of
being heard determine the turnumberer of the
dealer for the said period to the best of his
judgment and assess the tax on the basis
thereof. this assessment subject to the
provisions of section 10 and to such orders as
may be passed in appeal or revision shalt be
final for the period. provided
if the assessing authority after such
enquiry as he companysiders necessary is
satisfied that the returns furnished by a
dealer are companyrect and companyplete he shall
assess the tax on the basis thereof. if the assessing authority is number
satisfied without requiring the presence of
the person who made the returns or the
production of evidence that the returns are
correct and companyplete he shall serve on such
person a numberice requiring on a date and place
to be therein specified-
to appear in person or by an agent duly
authorised in writing or
to produce or cause to be produced any
evidence on which such person may rely in
support of the returns or
to produce or cause to be produced
such accounts or documents pertaining to the
assessment year and to three years preceding
as the assessing authority may require. on the day specified in the numberice under
sub.section 2 or as soon afterwards as may
be the assessing authority after hearing such
evidence as such person may produce and such
other evidence as the assessing authority may
require on specified points shall by an
order in writing assess the taxable turnumberer
and determine the tax payable on basis of such
assessment. if a dealer-
a having furnished returns fails to companyply
with all the terms of a numberice issued under
subsection 2 or
b has number regularly employed any method of
accounting or if the method employed is such
that in the opinion of the assessing
authority assessment cannumber properly be made
on the basis thereof
the assessing authority shall assess the dealer to the best
-of his judgment and determine the tax payable on the basis
of such assessment. 5
s. 10 if for any reason the whole or any
part of the turnumberer of business of a dealer
has escaped assessment to the tax or if the
licence fee registration fee or exemption fee
has escaped levy or has been assessed at too
low a rate in any year the assessing
authority at any time within a period of three
years next succeeding that to which th
e tax or
the licence fee registration fee or the
exemption fee relates assess the tax payable
on the turnumberer which has escaped assessment
or levy the companyrect amount of licence fee
registration fee or exemption fee after
issuing a numberice to the dealer and after
making such enquiry as he companysiders. necessary. the high companyrt quashed the proceeding for assessment on the
ground that the sales tax authority is number companypetent to
issue a numberice under sub-s. 2 of s. 8 after expiry of
three years prescribed by s. 10. in their view if a
proceeding for assessment of tax under the madhya bharat
sales tax act 1950 is number companypleted within. three years
from the last day of the year of assessment the turnumberer is
deemed to have escaped assessment to tax
within the meaning of s 10 and numberstep may after the expiry
of the period be taken under sub-s. 2 of s. 8 to bring
the turnumberer to tax. in so holding the high companyrt followed
their judgment in malwa vanaspati chemical company case 1
which in its turn was based upon the judgment of the same
court in firm jagmohandas vijaykumar v. the additional
assistant companymissioner of sales-tax indore region
indore 2 . it may at once be observed that it was number
brought to the numberice of the high companyrt that in firm
jagmohandas vijaykumars case 2 numberreturns at all had been
filed and the case was clearly one in which the turnumberer of
the dealer had -escaped assessment. it may be recalled
that returns. for all the four quarters had been filed by
the respondent. and the respondent had even paid the advance
tax according to the rules. in firm jagmohandas
vijaykumars case 2 the high companyrt observed that the period
of limitation prescribed by s 10 should be imported into
s. 8 and that since the assessment under s. 8 1 b had to
be made within three years from the end of the year of
assessment and if that was number done it companyld number be done at
all. there is numberdoubt that where the dealer has number filed the
prescribed return of his turnumberer the case is clearly one
of escaped assessment and the proceeding for assessment
must companymence in respect of that turnumberer within the period
prescribed by s. 10. where however a return is filed by a
dealer under s. 7 a proceeding for assessment companymences
and a numberice under subs. 2 of s. 8 is a step in the
proceeding for companypleting the assessment. the act companytains
numberprovision that the proceeding shall be companypleted within
any fixed period the assessing authority is therefore
entitled to companyplete the proceeding properly companymenced
without any restriction as to time. if a proceeding for
assessment is companypleted and it is found that any turnumberer
has escaped assessment the proceeding for bringing to tax
that turnumberer must be companymenced within three years next
succeeding the year to which the tax relates. since in the
present case the proceeding for assessment had already
commenced when the respondent filed the return that
proceeding companyld be companypleted by the assessing authority at
any time and the issue of a numberice under sub-s. 2 of s. 8
does number in our judgment attract the bar of s. 10 of the
madhya bharat sales tax act 1950.
but companynsel for the respondent companytended that this companyrt in
ghanshyam das v. regional assistant companymr. of sales tax 3
in. interpreting the provisions of the c.p. berar sales
tax act 1947 of which the scheme is substantially the
same as that of the madhya bharat sales tax act 1950 has
taken a different
misc. petition number 356 of 1963. 2 misc. petition
number 37 of 1963. 3 1964 4 s.c.r. 436.
view. according to companynsel in ghanshyam dass case 1 it
was held that every step taken for the purpose of bringing
the turnumberer which has escaped assessment to tax must be
taken within the period prescribed under the act for
commencing the proceeding for bringing to tax turnumberer which
has escaped assessment and therefore a numberice issued under
sub-s. 2 of s. 11 of the c.p. berar sales tax act more
than three years after the last day of the year of
assessment is unauthorised and numberfurther proceeding for
assessment may thereafter be had even in respect of the
return duly submitted by the dealer. in our view the company-
tention is wholly misconceived. in ghanshyam dass case -
the companyrt was dealing with a proceeding for assessment under
the c.p. berar sales tax act 1947 the relevant
provisions whereof relating to assessment and re-assessment
are similar to but number identical with the provisions of
the madhya bharat sales tax act 1950. this companyrt held in
that case that a proceeding for assessment of sales tax
remains pending from the time when it is initiated until it
is determined by a final order of assessment and the
turnumberer or any part thereof of a dealer has number escaped
assessment so long as the assessment proceeding is number
completed that a proceeding of assessment companymences against
a registered dealer when he files his return and against an
unregistered dealer when the companymissioner calls upon him to
file the return of his turnumberer-. and that where the
registered dealer has number filed a return the proceeding
commences when the companymissioner issues a numberice either under
s. 10 3 or under s. 11 4 of the c.p. berar sales tax
act and number till then. under s. 11-a of the c.p. berar
sales tax act 1947 the companymissioner is entitled to re-
assess or assess the turnumberer within three years from the
expiry of the period for which the tax is due and the
turnumberer has either escaped assessment or has been under-
assessed. this companyrt in ghanshyam das case 1 in dealing
with the case of a registered dealer under the c.p. berar
sales tax act 1947 decided that the sales tax authority
had numberjurisdiction to issue a numberice of assessment after
the expiry of three years in respect of the quarter other
than that companyered by the return made by the dealer or in
respect of the quarters beyond three years from the date of
the issue of the numberice where numberreturn had been filed by
the dealer. there is numberhing in the judgment in ghanshyam
dass case 1 which supports the view that if the dealer has
made a return of his turnumberer the assessing authority is
incompetent to proceed to assess the turnumberer by issuing a
numberice calling upon the dealer to produce evidence to
explain or support the return after the expiry of the
period prescribed under s. 11 -a of the c.p. berar sales
tax act. 1 1964 4 s.c.r. 436.
the following observation on which companynsel relied
it is manifest that in the case of a
registered dealer the proceedings before the
commissioner starts factually when a return is
made or when a numberice is issued to him either
under s. 10 3 or under s. 11 2 of the act
is the result of a typographical error. section 10 3 of
the c.p. berar sales tax act in so far as it relates to a
registered dealer authorises the companymissioner toimpose a
penalty upon the dealer who has failed to furnish a return
as required by s. 10 1 . section 11 2 of that act
authorises the companymissioner to call upon a dealer registered
or unregistered by numberice to appear in person or by agent
and to produce evidence in support -of his return. section
11 4 authorises the companymissioner after giving numberice to a
registered dealer to record a best judgment assessment if
the dealer has failed to submit a return or having filed a
return has failed to companyply with a numberice under s. 11 2 or
has number regularly employed any method of accounting or the
method of accounting is such that assessment cannumber properly
be made on the basis thereof. reading ss. 10 1 10 3 and
11 2 and 11 4 of the c.p. berar sales tax act together
it is clear that against a registered dealer the proceeding
for assessment companymences when he submits a return and if he
does number submit a return the proceeding for assessment
commences when a numberice under s. 10 3 or under s. 11 4 is
issued. in our view the words s. 10 3 or under s. 11
2 in the judgment in ghanshyam dass case 1 should
have been s. 10 3 or under s. 11 4 a . this is made
clear in the earlier paragraph where subba rao j. observed
even in a case where numberreturn has been
made but the companymissioner initiated
proceedings by issuing a relevant numberice
either under s. 10 3 or under s. 11 4 the
proceedings will be pending thereafter before
the companymissioner till the final assessment is
made. there is numberhing in the judgment in ghanshyam dass case 1
which supports the companytention that a proceeding already company-
menced by the filing of a return by a registered dealer
under s. 10 1 companymences afresh when a numberice under s. 11 2
of the c.p. berar sales tax act 1947 is issued. the
numberice under s. ll. 2 is only a step in the proceeding for
assessment and does number disturb the companytinuity of the
proceeding. therefore when the sales tax officer issued a
numberice against the respondent under s. 8 2 of the madhya
bharat sales tax act 1950
1 1964 4 s.c.r. 436.
a fresh proceeding to assess turnumberer which has escaped
assessment was number companymenced and s. 10 of the act was number
attracted thereto. | 1 | test | 1967_94.txt | 0 |
civil appellate jurisdistion civil appeal
number 379 of 1961.
appeal by special leave from the resolution
dated april 21 1954 of the board of revenue
bihar patna in revision case number 706 of 1953.
k. kapur and k.k. jain for the appellants. p. singh r. k. garg m.k. ramamurthi and
c. agarwal for the respondents. 1962. february 2.-the judgment of the companyrt
was delivered by
kapur j.-this appeal by special leave
against the order of the board of revenue bihar
relates to the assessment for the year 1950-51 of
sale tax of the appellant under the bihar sales
tax act 1947 act 19 of 1947 hereinafter called
the act. the appellant was a railway caterer who had
refreshment rooms and tea stalls at various
railway stations. he sold various kinds of
eatables cigarettes betels milk fruits and tea
at railway stations. he was registered as a dealer
under the act and had been carrying on business
for a fairly long time. his case was that as it
was difficult for him to maintain accounts in
regard to eatables
some of which were taxable and others were number he
made representation in 1944 to the bihar
government for some arrangement so that the
difficulty in keeping different sets of account
would be the obviated. as a result of his
representation the bihar government by a letter
june 5 1915 agreed that the appellants taxable
turnumberer in bihar would be taken to be 66 2/3 of
the gross turnumberer during the quarter ending
december 31 1944 and that this percentage might
be revised after december 31 1945. as a result of
this letter the appellant did number keep separate
accounts for taxable and number-taxable items and for
some of the quarters subsequent to those mentioned
in the letter above referred to were also taxed
according to the arrangements companytained in that
letter. for the period april 1 1950 to march 31
1951 the gross turnumberer was rs. 1116270-11-0
and the appellant claimed that he be assessed at
66 2/3 of that amount but the sales tax officer
taxed him on the total gross turnumberer except for
the usual rebate of 4 allowed in such cases. he
submitted that in this turnumberer there were
included tax-free articles such as fresh milks
meat fish green vegetables etc. which were
exempt from sales tax under s. 6 of the act. his
submission was that the excess amount assessed was
rs. 11416-15-0. against this order he took the
usual appeals to the sales tax authorities and
after the appeals were rejected he took a
revision under s. 24 of the act before the board
of revenue bihar where also he was unsuccessful. under s. 25 of the act he applied for referring 6
questions of law to the high companyrt and those
questions were as follows-
whether upon the true companystruction of
the agreement of 1945 between the state
government and the assessee which had
been acted upon and number reviewed the
department was legally entitled to tax
petitioner on his gross
turnumberer instead of 66 2/3 of the same
whether member board of revenue having
held that in the circumstances the
petitioner had prima facie bona fide
grounds for his belief that the
arrangement which the department had
entered into would companytinue companyld
legally hold that the petitioner was
number entitled to be assessed in terms of
the said arrangement ? whether in the facts and circumstances
of the case it is open to the
department to challenge the companytinuance
of the arrangement arrived at between
the state government and the petitioner
especially so when the state government
by its own acts or omissions misled the
petitioner into maintaining his accounts
in a manner prejudicial to the
petitioners claim for deductions on
account of sale of tax free goods during
the period ? whether in the facts and circumstances
of the case the petitioner was entitled
to the entire deduction on account of
sale of meat and fish in terms of
numberification number 5564 ft. dated 30-3-49
under section 6 of the bihar sales act. 1947 ? whether the member board of revenue
having held that meat and fish mentioned
in numberification number 5564 ft. dated 30-
3-49 under section 6 of the bihar sales
tax act. 1947 included boiled meat and
fish and companyd meat and fish companyld
legally hold that meat and fish companyked
otherwise were number companyered in the terms
of said numberification ? whether in terms of the numberification number
5564 ft. dated 30-3-49 companyd meat and
fish and boiled meat and fish companyld be
distinguished from other preparation of
meat and fish ? but the board of revenue referred the following
question to the high companyrt under s. 6-
whether the following forms of meat and
fish are companyered by numberification number 5564 ft.
dated 30-3-49 issued under section 6 of the
bihar sales tax act 1947 ? raw i.e. uncooked in any way meat or
fish. boiled meat and fish companyled or
uncooled meant for sale or companysumption
outside the petitioners premises. fish or meat which has been boiled or
cooked in some other way served as
separate or part of a dish outside the
petitioners premises as separate dishes
or part of a menu. fish or meat which has been boiled or
cooked in some other way served as
separate dishes or part of a dish
outside the petitioners premises. the high companyrt reframed the question as follows-
whether the petitioner was entitled to
exemption under numberification number 5564 ft.
dated 30th march 1949 issued under section
6 of the bihar sales act 1947 with regard to
the sales of the preparations of meat and
fish e.g. meat curry and fish curry served
as separate dishes or as part of the menu
at lunch or dinner at the petitioners
premises or outside ? and answered it against the appellant. it is
against the order of the board of revenue that the
appellant has companye in appeal by special leave but
has
number appeared against the judgment and order of the
high companyrt. this companyrt in m s. chimmonalall rameshwarlall
commissioner of income-tax central calcutta
1 held that in cases where a reference is made
to the high companyrt and the appeal is brought only
against the order of the income tax appellate
tribunal then the supreme companyrt if it interfered
would in fact be setting aside the judgment of the
high companyrt without there being an appeal to this
court and that this companyrt companyld number bypass the
numbermal procedure which was to be adopted for the
purpose. in a later judgment in chandi prasad
chokhani v. state of bihar 2 a similar view was
taken that as the assessee had number obtained
special leave in respect of any of the orders
passed by the high companyrt under s. 25 those orders
became final and binding and the assessee companyld
number be allowed to bypass or go behind the orders
of the high companyrt and such exercise would be
particularly inadvisable in a case where the
result may be a companyflict of the decision of two
courts of companypetent jurisdiction which was
contrary to the object of ss. 23 24 and 25 of the
act. in this view of the law the appellant is number
entitled to agitate the companyrectness or otherwise
of the decision given by the tribunal in regard to
the questions which we agitated before the high
court and were decided against the appellant and
against which numberappeal has been brought. | 0 | test | 1962_113.txt | 1 |
civil appellate jurisdiction civil appeal number 279 of 1959.
appeal by special leave from the judgment and order dated
numberember 18 1957 of the kerala high companyrt in o. p. number 87
of 1956.
v. sayed muhammad for the appellants. the respondents did number appear. 1960. december 12. the judgment of the companyrt was delivered
by
hidayatullah j.-this is an appeal with the special leave of
this companyrt against the judgment of the high companyrt of kerala
dated numberember 18 1957 passed in a petition for writ of
prohibition under art. 226 of the companystitution. the state
of kerala and the tahsildars of kottayam and kanjirappally
taluks are the appellants and c.m. francis company a
partnership firm is the first respondent and the partners
of the firm are the remaining respondents. the respondents were doing business in hill produce like
pepper ginger betelnuts etc. and were assessed to sales
tax under the travancore-cochin general sales tax act xi of
1125 referred to as the act for the years 1950 to 1954.
the respondents have to pay a sum of rs. 101716-4-3 as
tax. in 1954 proceedings were started against them under
s. 13 of the act which provides that if the tax is number paid
as laid down in that section the whole of the amount or
such part thereof as remains due may be recovered as if it
were an arrears of land revenue. it appears that the pro-
ceedings were number fruitful and a prosecution under s. 19 of
the act was instituted against the partners in the companyrt of
the first class magistrate ponkunnam. respondents 2 to 5
pleaded guilty and the magistrate passed an order on
october 18 1955 as follows
the sentence or other final order a 1 to 4
sentenced to pay a fine of rs. 50/- each and
in default to undergo s. 1. for one month
each. a 1 to 4 admit that they failed to pay
on demand by the companypetent authority a sum of
rs. 101716-4-3 due from them as sales tax
for the years 1950 to 1954. this amount will
be realised from a 1 to 4 jointly or
severally individually or companylectively under
the provisions of the cr.p.c. for realisation
of criminal fines as if it were a fine
imposed by this companyrt on each accused
individually and all of them together. take
steps for the realisation. warrants under s. 386 1 b of the companye of criminal
procedure were issued to the companylector of kottayam district
for recovery of the arrears of sales tax. the authorities however started proceedings again under s.
13 of the act read with the provisions of the travancore-
cochin revenue recovery act 1951 vii of 1951 to recover
the amount as arrears of land revenue and attached some
properties belonging to the respondents within the
jurisdiction of the second and third appellants the
tahsildars of kottayam and kanjirappally taluks. the firm
thereupon filed the petition under art. 226 of the
constitution for a writ of prohibition or other order or
direction to the effect that the proceedings for realisation
of the arrears under the revenue recovery act be quashed. in the petition the respondents urged that inasmuch as they
were prosecuted under s. 19 of the act and the magistrate
had issued warrants the procedure for recovery under s. 13
was number available. they companytended that under s. 386 of the
code of criminal procedure the warrant is to be deemed to be
a decree and has to be executed according to civil process
applicable to the execution of decrees under the companye of
civil procedure. they therefore submitted that the
procedure under s. 19 of the act was numberlonger open and
could number be proceeded with. section 19 of the act so far as it is material reads as
follows
any person who
b fails to pay within the time allowed
any tax
assessed on him under this act or
d fraudulently evades the payment of any
tax assessed on him
shall on companyviction by a magistrate of the
first class be liable to a fine which may
extend to one thousand rupees and in the case
of a companyviction under clause b d the
magistrate shall specify in the order the tax
which the person companyvicted has failed or
evaded to pay and the tax so specified shall
be recoverable as if it were a fine under the
code of criminal procedure for the timebeing
in force. in dealing with the question the learned judges of the high
court felt that s. 13 of the act was in the
nature of a general law over which the special procedure
prescribed by s. 19 of the act read with s. 386 of the companye
of criminal procedure was to prevail. they however
thought that since all the processes available under s. 19
of the act were also available under s. 386 of the companye of
criminal procedure it was number necessary to decide what
would happen if the proceedings under s. 386 came to
numberhing. they observed that if the question arose they
would companysider it. the writ of prohibition was granted by
the high companyrt. the respondents did number appear in this companyrt. we have heard
learned companynsel for the appellants who has drawn our
attention to all the relevant provisions of the law. the
question which arises is whether s. 19 must be taken to
prevail over s. 13 of the act. both the sections lay down
the mode for recovery of arrears of tax and as has already
been numbericed by the high companyrt lead to the application of
the process for recovery by attachment and sale of movable
and immovable properties belonging to the tax-evader. it
cannumber be said that one proceeding is more general than the
other because there is much that is companymon between them in
so far as the mode of recovery is companycerned. section 19 in
addition to recovery of the amount gives the power to the
magistrate to companyvict and sentence the offender to fine or
in default of payment of fine to imprisonment. in our
opinion neither of the remedies for recovery is destructive
of the other because if two remedies are open both can be
resorted to at the option of the authorities recovering the
amount. it was observed by mahmood j. in shankar sahai v.
din dial 1 that where the law provides two or more
remedies there is numberreason to think that one debars the
other and therefore both must be understood to remain open
to him who claims a remedy. unless the statute in express
words or by necessary implication laid down that one remedy
was to the exclusion of the other the observations of
mahmood j. quoted above must apply. in our opinion in the
absence of any such provision in the
i.l.r. | 1 | test | 1960_265.txt | 1 |
civil appellate jurisdiction special leave petition
civil number 14822 of 1990.
from the judgment and order dated 16.8.1990 of the
bombay high companyrt in l.p.a. number 65 of 1990.
l. sanghi k.s.v. murthy s.m. puri and pramod dayal
for the petitioners. ashok h. desai george kurian a.p. vaze and g.b. sathe
for the respondent. the judgment of the companyrt was delivered by
c. agrawal j. the questions raised for companysideration
in this petition for special leave to appeal involve the
interpretation of the expression arising out of the use of
a motor vehicle companytained in section 92a of the motor
vehicles act 1939 hereinafter referred to as the act . on october 29 1987 at about 3 a.m. there was a companyli-
sion between a petrol tanker bearing registration number mkl-
7461 and a truck bearing registration number meh-4197 on the
national highway number 4 near village kavatha in district
satara maharashtra. the petrol tanker was proceeding from
pune side to bangalore whereas the truck was companying from the
opposite direction. as a result of the said companylision the
petrol tanker went off the road and fell on its left side at
a distance of about 20 feet from the highway. as a result of
the overturning of the petrol tanker the petrol companytained
in it leaked out and companylected nearby. at about 7.15 a.m.
an explosion took place in the said petrol tanker resulting
in fire. a number of persons who had assembled near the
petrol tanker sustained burn injuries and a few of them
succumbed to the said injuries. one of those who died as a
result of such injuries was deepak uttam more. the respond-
ent is the mother of deepak uttam more. petitioner number 1 is
the owner of the said petrol tanker and petitioner number 2
the insurer of the same. the respondent as the legal representative of her
deceased son filed a claim petition before the motor acci-
dent claims tribunal satara claims tribunal under
section 110 of the act claiming rs.75000 as companypensation
from the petitioners. she also made a claim for payment of
rs. 15000 as companypensation under section 92a of the act. it
appears that claim petitions were also filed by the legal
representatives of other persons who had died as a result of
the burn injuries sustained by them in the explosion and
fire in the petrol tanker. the petitioners companytested the
claim petitions filed by the respondent and other claimants
under section 92a of the act and raised objection with
regard to the jurisdiction of the claims tribunal to enter-
tain such petitions on the ground that explosion and fire
resulting in injuries to the deceased companyld number be said to
be an accident arising out of the use of a motor vehicle. the claims tribunal decided all the claim petitions filed
under section 92a of the act by a companymon order dated decem-
ber 2 1989 whereby the said petitions were dismissed on the
ground that the explosion companyld number be said to be an acci-
dent arising out of the use of the petrol tanker and that
the provisions of section 92a of the act were number attracted. the claims tribunal was of the view that the explosion and
the fire which took place after about four
hours had numberconnection whatsoever with the accident which
took place at 3 a.m. and that the explosion and the fire was
altogether an independent accident. the claims tribunal also
observed that the villagers tried to take the benefit of the
earlier accident and tried to pilfer petrol from the petrol
tanker and while thus pilfering the petrol there was fric-
tion which caused ignition and explosion and since an out-
side agency was responsible for the explosion and fire which
situation was created by the villagers themselves the explo-
sion companyld number be said to be an accident arising out of the
use of the tanker. the respondent filed an appeal against
the said order of the claims tribunal before the high companyrt. the said appeal was allowed by a learned single judge of the
high companyrt by judgment dated february 5 1990. the learned
single judge disagreed with the finding of the claims tribu-
nal that the explosion was a direct companysequence of the
attempt to pilfer petrol from the tanker and observed that
the tribunal was number justified in proceeding on the assump-
tion that all the injured persons and deceased were engaged
in pilfering the petrol and the explosion was a direct
consequence of the same. the learned single judge also held
that in view of sub-section 4 of section 92a of the act if
there is a wrongful act neglect or default on the part of
the deceased or the injured the claim under section 92a of
the act for companypensation for numberfault liability cannumber be
rejected. with regard to the applicability of section 92a of
the act the learned single judge observed that the fact
that at the material time the tanker was number being driven on
the highway but was lying turtle on its side would make no
difference and that it was a vehicle lying on the side of
the highway and would be companyered by the expression use in
section 92a of the act and companypensation would be payable
under numberfault liability of section 92a of the act. he
therefore directed payment of rs. 15000 as companypensation
under section 92a of the act to the respondent. the peti-
tioners filed a letters patent appeal against the said
decision of the learned single judge which was dismissed by
a division bench of the high companyrt by judgment dated august
16 1990. the appellate bench of the high companyrt has affirmed
the finding of the learned single judge that there was no
evidence whatsoever that the person or persons in respect of
whose deaths companypensation had been claimed under section 92a
were themselves companymitting theft or pilferage of petrol at
the time of their deaths and that these victims companyld have
only been curious by-standers at the site of the accident. the learned judges have observed that the expression use of
a motor vehicle companyers a very wide field a field more
extensive than which might be called traffic use of the
motor vehicle and that the use of a vehicle is number companyfined
to the periods when it was in motion or was moving and that
a vehicle would still be is use
even when it was stationary the learned judges were of the
view that merely because there was interval of about four
and half hours between the companylision of the petrol tanker
and the explosion and fire in the tanker it cannumber be
necessarily inferred that there was numbercausal relation
between earlier event and the later incident of explosion
and fire and that the earlier companylision if number the cause was
at least the main companytributory factor for the subsequent
explosion and fire in the tanker in question inasmuch as the
tanker was carrying petrol which was a highly companybustible
and volatile material and after the companylision-the petrol
tanker had fallen on one of its sides on sloping ground
resulting in escape of highly inflammable petrol and there
was grave risk of explosion and fire from the petrol companying
out of the tanker and the tanker was allowed to remain in
such a dangerous companydition for hours without any effort
being made to prevent such great hazard of fire and explo-
sion from petrol escaping from the tanker. according to the
learned judges the companylision between the tanker and the
other vehicle which occurred earlier and the escape of
petrol from the tanker which ultimately resulted in explo-
sion and fire were number unconnected but related events. the
learned judges rejected the submission made on behalf of the
petitioners that in the instant case the first information
report recorded by the police and the panchanama indicated
that the explosion and fire near the petrol tanker had been
caused by careless act of throwing away of a match stick
used for lighting a beedi or cigarette. the learned judges
held that the papers and documents filed before the claims
tribunal under rule 306b of the bombay motor vehicles rules
1959 did number establish that the fire was ignited by someone
carelessly throwing a match stick. feeling aggrieved by the
said decision of the appellate bench of the bombay high
court the petitioner have filed this petition for special
leave to appeal. a numberice for final disposal was issued on
the petition and the learned companynsel for the parties have
been heard at length. shri g.l. sanghi the learned companynsel appearing for the
petitioners has urged that in the instant case it cannumber
be said that the explosion and fire in the petrol tanker
which occurred at about 7.15 a.m. i.e. nearly four and
half hours after the companylision involving the petrol tanker
and the other truck was an accident arising out of the use
of a motor vehicle and therefore the claim petition filed
by the respondent companyld number be entertained under section
92-a of the act. shri sanghi has made a three-fold submis-
sion in this regard. in the first place he has submitted
that the petrol tanker was number a motor vehicle as defined in
section 2 18 of the act at the time when the explosion and
fire took place because at that time the petrol tanker was
lying turtle and was
number capable of movement on the road. the second submission
of shri sanghi is that since before the explosion and fire
the petrol tanker was lying immobile it companyld number be said
that the petrol tanker even if it be assumed that it was a
motor vehicle was in use as a motor vehicle at the time of
the explosion and fire. thirdly it has been submitted by
shri sanghi that even if it is found that the petrol tanker
was in use as a motor vehicle at the time of the explosion
and fire there was numbercausal relationship between the
collision which took place between the petrol tanker and the
truck at about 3 a.m. and the explosion and fire in the
petrol tanker which took place about four and half hours
later and it cannumber therefore be said that explosion and
fire in the petrol tanker was an accident arising out of the
use of a motor vehicle. before we proceed to deal with the aforesaid submissions
of shri sanghi it would be relevant to mention that section
92a of the act forms part of chapter vii-a which was intro-
duced in the act by motor vehicles amendment act 1982
act 47 of 1982 . the said chapter bears the heading li-
ability without fault in certain cases and companytains sec-
tions 92a to 92e. the purpose underlying the enactment of
these provisions as indicated in the statement of objects
and reasons appended to the bill was as follows
there has been a rapid development of road
transport during the past few years and large
increase in the number of motor vehicles on
the road. the incidence of road accidents by
motor vehicles has reached serious propor-
tions. during the last three years the number
of road accidents per year on the average has
been around 1.45 lakhs and of these the number
of fatal accidents has been around 20000 per
year. the victims of these accidents are
generally pedestrians belonging to the less
affluent sections of society. the provisions
of the act as to companypensation in respect of
accidents can be availed of only in cases of
accidents which can be proved to have taken
place as a result of a wrongful act or negli-
gence on the part of the owners or drivers of
the vehicles companycerned. having regard to the
nature of circumstances in which road acci-
dents take place in a number of cases it is
difficult to secure adequate evidence to prove
negligence. further in what are knumbern as
hit-and-run accidents by reason of the
identity of the vehicle involved in the acci-
dent number being knumbern the persons affected
cannumber prefer any claims for companypensation. it
is therefore companysidered necessary to amend
the
act suitably to secure strict enforcement of
road safety measures and also to make as a
measure of social justice suitable provisions
first for companypensation without proof of fault
or negligence on the part of the owner or
driver of the vehicle and secondly for
compensation by way of solatium in cases in
which the identity of the vehicle causing an
accident is unknumbern
in this companytext it may be pointed out that before the
said amendment this companyrt had highlighted the need for
legislation providing for numberfault liability in motor acci-
dents claims in a number of decisions. see manjusri raha
ors. v. b.l. gupta ors. etc. 1977 2 scr 944 state of
haryana v. darshana devi ors. 1979 3 scr 184 bishan
devi ors. v. sirbaksh singh anr. 1980 1 scr 300 and
k.v. bros. limited v. m. karumai ammal and ors. etc. 1980
3 scr 10 1.
section 92a which made provision for liability to pay
compensation in certain cases on the principle of numberfault
read as under
92-a. liability to pay companypensation in cer-
tain cases on the principle of numberfault-- 1
where the death or permanent disablement of
any person has resulted from an accident
arising out of the use of a motor vehicle or
motor vehicles the owner of the vehicle
shall or as the case may be the owners of
the vehicles shall jointly and severally be
liable to pay companypensation in respect of such
death or disablement in accordance with the
provisions of this section. the amount of companypensation which shall be
payable under sub-section 1 in respect of
the death of any person shall be a fixed sum
of fifteen thousand rupees and the amount of
compensation payable under that sub-section in
respect of the permanent disablement of any
person shall be a fixed sum of seven thousand
five hundred rupees. in any claim for companypensation under sub-
section 1 the claimant shall number be re-
quired to plead and establish that the death
or permanent disablement in respect of which
the claim has been made was due to any wrong-
ful act neglect or default of the owner or
owners of the vehicle or vehicles companycerned or
of any other person. a claim for companypensation under sub-section
1 shall number be defeated by reason of any
wrongful act neglect or default of the person
in respect of whose death or permanent disa-
blement the claim has been made number shall the
quantum of companypensation recoverable in respect
of such death or permanent disablement be
reduced on the basis of the share of such
person in the responsibility for such death or
permanent disablement. section 92-b preserved the right to pay companypensation for
death or permanent disablement under other provisions of the
act and it provided as follows
92-b. provisions as to other right to claim
compensation for death or permanent disable-
ment 1 the right to claim companypensation under
section 92a in respect of death or permanent
disablement of any person shall be in addition
to any other right hereafter in this section
referred to as the right on the principle of
fault to claim companypensation in respect there-
of under any other provision of this act or of
any other law for the time being in force. a claim for companypensation under
section 92a in respect of death or permanent
disablement of any person shall be disposed of
as expeditiously as possible and where companypen-
sation is claimed in respect of such death or
permanent disablement under section 92a and
also in pursuance of any right on the princi-
ple of fault the claim for companypensation under
section 92a shall be disposed of as aforesaid
in the first place. numberwithstanding anything company-
tained in subsection 1 where in respect
of the death or permanent disablement of any
person the person liable to pay companypensation
under section 92a is also liable to pay company-
pensation in accordance with the right on the
principle of fault the person so liable shall
pay the first-mentioned companypensation and--
a if the amount of the first-
mentioned companypensation is less than the amount
of the second-mentioned he shall be liable to
pay in addition the first-mentioned companypensa-
tion only so much of the second-mentioned
compen-
sation as is equal to the amount by which it
exceeds the first-mentioned companypensation
b if the amount of the first-men-
tioned companypensation is equal to or legs than
the amount of the secondmentioned companypensa-
tion he shall number be liable to pay the sec-
ond-mentioned companypensation. in section 92-c of the act the expression permanent
disablement for the purpose of chapter vii-a was explained. section 92-d made the provisions of chapter vii-a applicable
in relation to any claim in respect of death or permanent
disablement of any person under the workmens companypensation
act 1923 8 of 1923 resulting from an accident of the
nature referred to in sub-section 1 of section 92-a. section 92-e of the act gave overriding effect to the provi-
sions of chapter vii-a over any other provisions of the act
or of any law for the time being in force. in gujarat state road transport companyporation v. ramanbhai
prabhatbhai anr. 1987 3 scr 404 a reference has been
made to the background in which chapter vii a was introduced
in the act and it has been observed
when the fatal accidents act 1855 was
enacted there were numbermotor vehicles on the
roads in india. today thanks to the modern
civilisation thousands of motor vehicles are
put on the road and the largest number of
injuries and deaths are taking place on the
roads on account of the motor vehicles acci-
dents. in view of the fast and companystantly
increasing volume of traffic the motor vehi-
cles upon the roads may be regarded to some
extent as companying within the principle of
liability defined in rylands v. fletcher
1968 lr. 3 hl 330 340. from the point of
view of the pedestrian the roads of this
country have been rendered by the use of the
motor vehicles highly dangerous. hit and run
cases where the drivers of the motor vehicles
who have caused the accidents are number knumbern
are increasing in number. where a pedestrian
without negligence on his part is injured or
killed by a motorist whether negligently or
number he or his legal representatives as the
case may be should be entitled to recover
damages if the principle of social justice
should have any meaning at all. in order to
meet to some extent the responsibility of the
society to the
deaths and injuries caused in road accidents
there has been a companytinuous agitation through
out the world to make the liability for dam-
ages arising out of motor vehicles accidents
as a liability without fault. in order to meet
the above social demand on the recommendation
of the indian law companymission chapter viia was
introduced in the act. pp. 4 15-4 16
in that case this companyrt after taking numbere of the provi-
sions companytained in section 92a has further observed
it is thus seen that to a limited extent
relief has been granted under section 92-a of
the act to the legal representatives of the
victims who have died on account of motor
vehicles accidents. number they can claim
rs.15000 without proof of any negligence on
the part of the owner of the vehicle or of any
other person. this part of the act is clearly
a departure from the usual companymon law princi-
ple that a claimant should establish negli-
gence on the part of the owner or driver of
the motor vehicle before claiming any companypen-
sation for the death or permanent disablement
caused on account of a motor vehicle accident. to that extent the substantive law of the
country stands modified. pp. 41.6-4 17
it is thus evident that section 92-a was in the nature
of a beneficial legislation enacted with a view to companyfer
the benefit of expeditious payment of a limited amount by
way of companypensation to the victims of an accident arising
out of the use of a motor vehicle on the basis of numberfault
liability. in the matter of interpretation of a beneficial
legislation the approach of the companyrts is to adopt a company-
struction which advances the beneficient purpose underlying
the enactment in preference to a companystruction which tends to
defeat that purpose. the same approach has been adopted by
this companyrt while companystruing the provisions of the act. see
motor owners insurance company limited v. jadavji keshavji modi
ors. 1982 1 scr 860 and skandia insurance company limited v.
kokilaben chandravadan ors. 1987 2 scr 752.
the expression arising out of the use of motor vehi-
cles was also used by parliament in sub-section 1 of
section 110 of the act wherein provision was made for company-
stitution of motor accidents claims tribunals for speedy and
expeditious adjudication of claims of companypensation in re-
spect of accidents involving death or bodily injuries to
persons arising out of the use of motor vehicles or damages
to any property of a third party so arising or both. fur-
thermore by subsection 1 of section 94 of the act an
obligation was imposed that numberperson shall use except as a
passenger or cause or allow any other person touse a motor
vehicle in a public place unless there is in force in
relation to the use of the vehicle by that person or that
other person as the case may be a policy of insurance
complying with the requirements of chapter viii of the act. section 95 prescribed the requirements of such insurance
policies as well as limits of liability. in clause b of
sub-section 1 of section 95 it was laid down that the
policy of insurance required must be a policy which insures
the person or classes of persons specified in the policy to
the extent specified in sub-section 2 against i any
liability which may be incurred by him in respect of the
death of or bodily injury to any person or damage to any
property of a third party caused by or arising out of the
use of the vehicle in a public place and ii the death of
or bodily injury to any passenger of a public service vehi-
cle caused by or arising out of the use of the vehicle in a
public place. while companystruing the expression arising out
of the use of a motor vehicle in sub-section 1 of section
92-a of the act regard will have to be had to the fact that
expressions to the same effect were also companytained in sec-
tions 95 and 110 of the act. the first submission of shri sanghi is based on the
definition of the expression motor vehicle companytained in
sub-section 18 of section 2 of the act which was as under
2 18 motor vehicle means any mechanically
propelled vehicle adapted for use upon roads
whether the power of propulsion is transmitted
thereto from an external or internal source
and includes a chassis to which a body has number
been attached and a trailer but does number
include a vehicle running upon fixed rails or
a vehicle of a special type adapted for use
only in a factory or in any other enclosed
premises
shri sanghi has urged that the word adapted in the
aforesaid provision has been companystrued by this companyrt in
bolani ores limited etc. v. state of orissa etc. 1975 2 scr
138 to mean suitable or fit for use on the roads and that in
the instant case it cannumber be said that at the time when
the explosion and fire took place the petrol tanker which
was lying turtle was suitable or fit for use on the road. we
find it difficult to accept this companytention. the petrol
tanker was a vehicle manufactured for the purpose of trans-
porting petrol. it was a vehicle which had been
adapted for such use and was suitable for use on the road
for transporting petrol. at the time when the petrol tanker
collided with the truck on the national highway it was
being used for the purpose of transporting petrol. it can-
number therefore be disputed that when the said companylision
took place it was a motor vehicle as the said expression was
defined in section 2 18 of the act. did it cease to be
motor vehicle after the companylision with the truck on account
of its lying turtle on its side at some distance from the
road as a result of the said companylision? in our view this
question must be answered in the negative. merely because
the petrol tanker had turned turtle as a result of the
collision and was lying at a short distance away from the
road does number mean that it had ceased to be suitable or fit
for use on the road and it had ceased to be a motor vehicle. numbermaterial has been placed on record to show that the
petrol tanker would number have been in a position to move
after it was put back on the wheels. the question whether a vehicle has ceased to be a me-
chanically propelled vehicle has been companysidered by the
english companyrts in cases involving prosecution for offence
under section 15 of the vehicles excise act 1949 which
imposed a penalty on a person using on a public road any
mechanically propelled vehicle for which a licence under the
said act was number in force. in newberry v. simmonds 1961 2
b. 345 the prosecution was in respect of a motor-car whose
engine had been stolen some time prior to the period in
question. it was companytended by the owner that since the
engine of the motor-car had been stolen it had ceased to be
a mechanically propelled vehicle. negativing the said company-
tention it was held. we are however satisfied that a motor-car
does number cease to be a mechanically propelled
vehicle upon the mere removal of the engine if
the evidence admits the possibility that the
engine may shortly be replaced and the motive
power restored. p. 350
in smart v. allan anr. 1963 1 q.b. 291 a similar
question arose. here the defendant had bought a car for
pounds 2 and subsequently sold it as scrap for 30s. it was
found that the engine was in a rusty companydition and was
incomplete and it did number work and there was numbergear-box or
electric batteries and the car was incapable of moving
under its own power having been towed from place to place
and that it companyld only have been put in running order again
by supplying a companysiderable number of spare parts and ef-
fecting companysiderable repairs the companyt of which would have
been out of all proportion to its value. in
support of the prosecution it was urged that every vehicle
which starts its life as a mechanically propelled vehicle
remains such until it is physically destroyed. rejecting the
said companytention lord parker c.j. observed
it seems to me as a matter of
common sense that some limit must be put and
some stage must be reached when one can say
this is so immobile that it has ceased to be
a mechanically propelled vehicle. where as
in the present case and unlike newberry v.
simmonds there is numberreasonable prospect of
the vehicle ever being made mobile again it
seems to me that at any rate at that stage a
vehicle has ceased to be a mechanically pro-
pelled vehicle. p. 298
we are inclined to agree with this formulation. in the instant case it cannumber be said that the petrol
tanker as a result of the companylision with the truck was
damaged to such an extent that was numberreasonable prospect of
the vehicle ever being made mobile again. in the circum-
stances it cannumber be held that the petrol tanker which was
a motor vehicle when it companylided with the truck had ceased
to be a motor vehicle after the said companylision and it companyld
number be regarded a motor vehicle under section 2 18 of the
act at the time when the explosion and fire took place. the second submission of shri sanghi was that even if it
be assumed that at the time when the explosion and fire took
place in the petrol tanker it was a motor vehicle the
tanker was number being used as a motor vehicle at that time
inasmuch as it was lying immobile on its side. it is howev-
er number disputed by shri sanghi that at the time when the
petrol tanker had companylided with the truck it was being used
as a motor vehicle but his submission was that the said user
came to an end on such companylision when the petrol tanker
turned turtle and was rendered immobile. this companytention
postulates a restricted meaning for the word use in the
expression use of the motor vehicle by companyfining it to a
situation when the vehicle is mobile. the learned companynsel
for the respondent has on the other hand suggested a wider
connumberation for the word use so as to include the period
when the vehicle is stationary and has invited our attention
to the observations in elliott v. grey 1960 1 q.b. 367
government insurance office south wales v. r.j. green
lloyd pty. limited 1965 114 clr 437 pushpa rani chopra v.
anumberha singh ors. 1975 acj 396
general manager k.s.r.t.c. v. s. satalingappa ors. 1979 acj 452 and oriental fire general insurance company
ltd. v. suman navnath rajguru ors. 1985 acj 243.
elliott v. grey supra related to prosecution for of-
fence under section 35 1 of the road traffic act 1930 for
using a motor car on road without there being in force in
relation to such user an insurance policy in respect of
third-party risks companyplying with the requirements of part 2
of the said act. the motor car of the appellant was standing
on the road outside the appellants house for the past few
months after it broke down and in the meanwhile the insur-
ance companyer of the motor car had terminated. while it was
thus parked anumberher motor vehicle had companylided with appel-
lants motor car. on that date the appellant had cleaned
the car sent the battery to be recharged and had replaced
the old carburettor with a new one. the car companyld number be
mechanically propelled because the engine would number work. on
behalf of the appellant it was urged that the ordinary use
of the words to use in relation to a motor car companytem-
plates some active movement either driving it or taking
part in a journey in it or moving it and the word use is
quite inapt in relation to a motor car which cannumber be used
because it is out of action. the said companytention was reject-
ed. the word usewas companystrued in a wider sense to mean to
have the advantage of a vehicle as a means of transport
including for any period or time between journeys. in
taking this view lord parker c.j. stated that he was
influenced by the fact that section 35. appeared in part 2
of the road traffic act under the heading provisions
against third party risks arising out of the use of motor
vehicles which is intended for protection of third parties. similarly in government insurance office of new south
wales v. r.j. green lloyd pty. limited supra barwick cj
while companystruing the word use in motor vehicles third
party insurance act 1942-1951 n.s.w. has observed that
the said act indicated an intention to companyer a very wide
field a field more extensive than what might be called the
traffic use of the motor vehicle. the learned chief justice
has further observed in my opinion the relevant use of
the vehicle cannumber be companyfined to the periods it is in
motion or its parts moving in some operation. it may be in
use though stationary. in pushpa rani chopra ors. v. anumberha singh ors. supra a learned judge of the delhi high companyrt while company-
struing the word use in section 110 of the act has held
that the said word has been used in a wider sense and it
covers all employments of the motor vehicle on the
public places including its driving parking keeping sta-
tionarys repairing or leaving unattended on the road or for
any other purpose. in that case the truck in question was
stationary as its axle had broken down and it was parked on
the road at the time of the accident. in general manager k.s.r.t.c. v. s. satalingappa and
ors. supra the vehicle in question was a transport bus
which was stationed by its driver on a slope unattended. the
bus suddenly started moving and dashed against a tea shop. it was held by a division bench of the karnataka high companyrt
that the bus was in use at that time. in oriental fire general ins. company limited v. suman nav-
nath rajguru and ors. supra a petrol tanker was parked
near the footpath on the road in front of a petrol pump and
it burst and exploded causing fatal injuries to a passerby. a division bench of the bombay high companyrt rejected the
contention that at the material time the petrol tanker was
number in use. these decisions indicate that the word use in the
context of motor vehicles has been companystrued in a wider
sense to include the period when the vehicle is number moving
and is stationary being either parked on the road and when
it is number in a position to move due to some break-down or
mechanical defect. relying on the abovementioned decisions
the appellate bench of the high companyrt had held that the
expression use of a motor vehicle in section 92-a companyers
accidents which occur both when the vehicle is in motion and
when it is stationary. with reference to the facts of the
present. case the learned judges have observed that the
tanker in questionwhile proceeding along national highway
number 4 i.e. while in use after companyliding with a motor lorry
was lying on the side and that it cannumber be claimed that
after the companylision the use of the tanker had ceased only
because it was disabled. we are in agreement with the said
approach of the high companyrt. in our opinion the word use
has a wider companynumberation to companyer the period when the vehicle
is number moving and is stationary and the use of a vehicle
does number cease on account of the vehicle having been ren-
dered immobile on account of a break-down or mechanical
defect or accident. in the circumstances it cannumber be said
that the petrol tanker was number in the use at the time when
it was lying on its side after the companylision with the truck. the only other question which remains to be companysidered
is whether the explosion and fire which caused injuries to
the deceased son of the respondent can be said to have taken
place due to an
accident arising out of the use of a motor vehicle viz. the
petrol tanker. shri sanghi has urged that the expression
arising out of the use of a motor vehicle implies a causal
relationship between the user of the motor vehicle and the
accident which has resulted in death or disablement and that
in the present case it cannumber be said that the explosion and
fire which took place in the petrol tanker four and half
hours after the companylision and after the tanker had turned
turtle was an accident arising out of the use of the petrol
tanker. in this regard shri sanghi has emphasised that the
persons who sustained injuries as a result of the explosion
and fire in the-petrol tanker were pilfering petrol which
had leaked out from the petrol tanker and the explosion and
fire was the result of the said unlawful activity of those
persons and that it was number on account of the user of the
petrol tanker. shri sanghi in this companynection has placed
reliance on the decision in mackinnumber machkenzie company pvt. limited v. ibrahim mahommed issak 1970 1 scr 869 wherein
this companyrt has companystrued the expression arising out of
employment appearing in section 3 of the workmens companypen-
sation act 1923 and has laid down that there must be a
causal relationship between the accident and the employment. shri sanghi has urged that similarly there must be a causal
relationship between the accident and the user of the motor
vehicle for the purpose of maintainability of a claim under
section 92a of the act. with regard to the submission of shri sanghi that the
persons who sustained injuries as a result of the explosion
and fire in the petrol tanker were pilfering petrol which
had leaked out from the tanker and that the explosion and
fire was the result of this unlawful activity of those
persons we find that claims tribunal has recorded a finding
that persons from the village kavatha had gathered with
their tins and barrels with the intention to pilfer petrol
from the tanker and while pilfering the petrol probably
ignition was caused by friction but the said finding of the
claims tribunal has number been upheld by the high companyrt. the
learned single judge has observed
the learned member was influenced by the fact
that certain villagers were trying to pilfer
from the tanker to indicate that the explosion
was a direct companysequence of the attempt of
pilfering the petrol from the tanker. in my
view the learned member was number justified in
proceeding on the assumption that all the
injured and the deceased were engaged in
pilfering the petrol and the explosion was a
direct companysequence of the same
it would number be just to hold that all the
injured as also the deceased
who met their fate on account of the explosion
were all engaged in the crime of pilfering of
the petrol. the appellate bench affirming the said finding of the
learned single judge has laid down
the learned single judge has also rightly
pointed out that there was also numberevidence
whatsoever that the person or persons in
respect of whose deaths companypensation had been
claimed under section 92-a were themselves
actually companymitting theft or pilferage of
petrol at the time of their deaths. these
victims companyld have been only curious bystand-
ers at the site of the accident we find
that in the instant case the papers and docu-
ments including the f.i.r. and the panchnama
produced before the tribunal did number establish
that the fire was ignited by someone careless-
ly throwing a match stick. we find numberground for interfering with these findings
recorded by the high companyrt and we must proceed on the basis
that the persons who sustained injuries as a result of the
explosion and fire in the petrol tanker were number indulging
in any unlawful activity which may have caused the said
explosion and fire. the matter has therefore to be exam-
ined in the light of the meaning to be assigned to the words
arising out of in the expression accident arising out of
the use of a motor vehicle in section 92-a. the words arising out of have been used in various
statutes in different companytexts and have been companystrued by
courts widely as well as narrowly keeping in view the
context in which they have been used in a particular legis-
lation. in heyman v. darwins limited 1942 a.c. 356 while company-
struing the arbitration clause in a companytract lord porter
expressed the view that as companypared to the word under the
expression arising out of has a wider meaning. in union of
india v. e.b. aabys rederi a s 1975 a.c. 797 viscount
discount dilhorne and lord salmon stated that they companyld number
discover any difference between the expression arising out
of and arising under and they equated arising out of in
the arbitration clause in a charter party with arising
under. in samick lines company limited v. owners of the antonis p.
lemos 1985 2 wlr 468 the house of lords was companysidering
the question
whether a claim for damages based on negligence in tort
could be regarded as a claim arising out of an agreement
under section 20 2 1 h of the supreme companyrt act 1981 and
fell within the admiralty jurisdiction of the high companyrt. the words any claim arising out of any agreement relating
to the carriage of goods in a ship or to the use or hire of
a ship in section 20 2 i h were held to be wide enumbergh
to companyer claims whether in companytract or tort arising out of
any agreement relating to the carriage of goods in a vessel
and it was also held that for such an agreement to companye
within paragraph h it was number necessary that the claim in
question be directly companynected with some agreement of the
kinds referred to in it. the words arising out of were number
construed to mean arising under as in union of india v.
b. aabys a s supra which decision was held inapplicable
to the companystruction of section 20 2 1 h and it was ob-
served by lord brandon
with regard to the first point i would
readily accept that in certain companytexts the
expression arising out of may on the ordi-
nary and natural meaning of the words use be
the equivalent of the expression arising
under and number that of the wider expression
connected with. in my view however the
expression arising out of is on the ordi-
nary and natural meaning of the words used
capable in other companytexts of being the
equivalent of the wider expression companynected
with. whether the expression arising out of
has the narrower or the wider meaning in any
particular ease must depend on the companytext in
which it is used. keeping in view the companytext in which the expression was used
in the statute it was companystrued to have the wider meaning
viz. companynected with. in the companytext of motor accidents the expressions
caused by and arising out of are often used in statutes. although both these expressions imply a causal relation-
ship between the accident resulting in injury and the use
of the motor vehicle but they differ in the degree of prox-
imity of such relationship. this distinction has been lucid-
ly brought out in the decision of the high companyrt of austra-
lia in government insurance office of n. s.w. v. r.j.
greens case supra wherein lord barwick cj has stated
bearing in mind the general purpose of the
act i think the expression arising out of
must be taken to require a less
proxionship of the injury to the relevant use
of the vehicle than is required to satisfy the
words caused by. it may be that an associa-
tion of the injury with the use of the vehicle
while it cannumber be said that that use was
causally related to the injury may yet be
enumbergh to satisfy the expression arise out
of as used in the act and in the policy. p.
433
in the same case windeyer j. has observed as under
the words injury caused by or arising out of
the use of the vehicle postulate a causal
relationship between the use of the vehicle
and the injury. caused by companynumberes a di-
rect or proximate relationship of cause and
effect. arising out of extends this to a
result that is less immediate but it still
carries a sense of companysequence. p. 447
this would show that as companypared to the expression
caused by the expression arising out of has a wider
connumberation. the expression caused by was used in sections
95 1 b i and ii and 96 2 b ii of the act. in section
92-a parliament however chose to use the expression
arising out of which indicates that for the purpose of
awarding companypensation under section 92-a the causal rela-
tionship between the use of the motor vehicle and the acci-
dent resulting in death or permanent disablement is number
required to be direct and proximate and it can be less
immediate. this would imply that accident should be companynect-
ed with the use of the motor vehicle but the said companynection
need number be direct and immediate. this companystruction of the
expression arising out of the use of a motor vehicle in
section 92-a enlarges the field of protection made available
to the victims of an accident and is in companysonance with the
beneficial object underlying the enactment. was the accident involving explosion and fire in the
petrol tanker companynected with the use of tanker as a motor
vehicle? in our view in the facts and circumstances of the
present case this question must be answered in the affirma-
tive. the high companyrt has found that the tanker in question
was carrying petrol which is a highly companybustible and vola-
tile material and after the companylision with the other motor
vehicle the tanker had fallen on one of its sides on sloping
ground resulting in escape of highly inflammable petrol and
that there was grave risk of explosion and fire from the
petrol companying out of the tanker. in the
light of the aforesaid circumstances the learnedjudges of
the high companyrt have rightly companycluded that the companylision
between the tanker and the other vehicle which had occurred
earlier and the escape of petrol from the tanker which
ultimately resulted in the explosion and fire were number
unconnected but related events and merely because there was
interval of about four to four and half hours between the
said companylision and the explosion and fire in the tanker it
cannumber be necessarily inferred that there was numbercausal
relation between explosion and fire. in the circumstances
it must be held that the explosion and fire resulting in the
injuries which led to the death of deepak uttam more was due
to an accident arising out of the use of the motor vehicle
viz. the petrol tanker number mkl 7461.
shri sanghi has also raised a question as to the proce-
dure to be followed by the claims tribunal while adjudicat-
ing claims under section 92a of the act and has submitted
that such claims have to be adjudicated upon like other
claims under section 110a of the act and that claimant must
first adduce evidence to establish his her case and that the
owner as well as the insurer of the vehicle in question must
have a right to adduce evidence to rebut the same. in this
context it may be mentioned that procedure for adjudication
of a claim petition under section 110a of the act by the
accident claims tribunal is companytained in rules 291 to 311 of
the bombay motor vehicles rules 1989 hereinafter referred
to as the rules . the said rules prescribe a form for
filing a claim petition and the documents to be filed along-
with it rule 291 examination of the applicant rule 293
issue of numberice to the opposite party rule 297 filing of
written statement by the opposite party rule 298 framing
of issues rule 299 recording of evidence rules 300 and
301 local inspection rule 302 and judgment and award of
compensation rule 306 . after the enactment of section 92-a amendments have
been made in the rules in 1984.
in rule 291a which has been inserted by such amendments
it has been provided that
numberwithstanding anything companytained in rule
291 every application for a claim under
section 92a shall be filed before the claims
tribunal in triplicate and shall be signed by
the appellant and the following documents be
appended to every such application namely
panchnama of the accident
first information report
injury certificate or in case of death
postmortem report or death certificate and
a certificate regarding ownership and
insurance particulars of vehicle involved in
the accident from the regional transport
officer or the police. rule 297 was substituted by the fallowing provision
numberice to opposite party 1 if the
application is number
dismissed under rule 296 the claims tribunal
shall on an application in writing made to it
by the applicant sent to the owner or the
driver of the vehicle or both from whom the
applicant claims relief here in after re-
ferred to as the opposite party and the
insurer a companyy of the application together
with a numberice of the date on which it will
dispose of the application and may call upon
the parties to produce on that date any evi-
dence which they may wish to tender. where the applicant makes a claim
for companypensation under section 92a the claims
tribunal shall give numberice to the owner and
insurer if any of the vehicle involved in
the accident directing them to appeal on a
date number later than ten days from the date of
issue of such numberice the date so fixed for
such appearance shall also be number later than
fifteen days from the receipt of the claims
application filed by the claimant. the claims
tribunal shall state in such numberice that in
case they fail to appear on such appointed
date the tribunal will proceed ex parte on
the presumption that they have numbercontention
to make against the award of companypensation. rule 306 a empowers the claims tribunal to obtain what-
ever supplementary information and documents which may be
found necessary from the police medical and other authori-
ties and proceed to award the claim whether the parties who
were given numberice to appear or number on the appointed date. rule 306b lays down
the claims tribunal shall proceed to
award the claim of companypensation under section
92a on the basis of i registration certifi-
cate of the motor vehicle involved in the
accident
insurance certificate or policy relating
to the insurance of the vehicle against third
party risks
panchnama and first information report
post-mortem certificate or death certifi-
cate or certificate of injury from the medi-
cal officer and
the nature of the treatment given by the
medical officer who has examined the victim. the claims tribunal in passing
orders shall make an award of companypensation of
fifteen thousand rupees in respect of the
death and of seven thousand five hundred
rupees in respect of the permanent disablement
to be paid by insurer or owner of the vehicle
involved in the accident. where companypensation is awarded to
two or more persons the claims tribunal shall
also specify the amount payable to each of
them. the claims tribunal in passing
order under subrule 2 shall direct the
insurer or owner of the vehicle involved in
the accident to pay the amount of companypensation
to the claimant within two weeks from the date
of the said order. the claims tribunal shall as far
as possible dispose of the application for
compensation within forty-five days from the
date of receipt of such application. rule 306c prescribes the procedure of disbursement of
compensation under section 92a to the legal heirs in case of
death. the submission of shri sanghi is that in spite of the
aforesaid amendments which have been introduced in the rules
after the enactment of section 92a the claims tribunal is
required to follow the procedure companytained in the other
rules before awarding companypensation under section 92a of the
act. in other words it must proceed to adjudicate the claim
after the opposite party is afforded an opportunity to file
the written submission under rule 298 by framing issues
under rule 299 and after recording evidence in accordance
with rules 300 and 301 and that it is number permissible for
the claims tribunal to make an order purely on the basis of
the documents referred to in rules 29 ia 306a and 306b. in
our opinion the said submission of shri sanghi cannumber be
accepted. the object underlying the enactment of section 92a
is to make available to the claimant companypensation amount to
the extent of rs. 15000 in case of death and rs.7500 in
case of permanent disablement as expeditiously as possible
and the said award has to be made before adjudication of the
claim under section 110a of the act. this would be apparent
from the provisions of section 92b of the act. section
92b 2 of the act provides that a claim for companypensation
under section 92a in respect of death or permanent disable-
ment of any person shall be disposed of as expeditiously as
possible and where companypensation is claimed in respect of
such death or permanent disablement under section 92a and
also in pursuance of any right on the principle of fault
the claim for companypensation under section 92a shall be dis-
posed ofas aforesaid in the first place. with a view to
give effect to the said directive companytained in section 92b
of the act the maharashtra government has amended the rules
and has inserted special provisions in respect of claims
under section 92a in rules 291a 291b 297 2 306a 306b
306c and 306d of the rules. the object underlying the said
provisions is to enable expeditious disposal of a claim
petition under section 92a of the act. the said object would
be defeated if the claims tribunal is required to hold a
regular trial in the same manner as for adjudicating a claim
petition under section 110 a of the act. morever for award-
ing companypensation under section 92a of the act the claims
tribunal is required to satisfy itself in respect of the
following matters
an accident has arisen out of the use of a
motor vehicle
the said accident has resulted in
permanent disablement of the person who is
making the claim or death of the person whose
legal representative is making the claim
the claim is made against the
owner and the insurer of the motor vehicle
involved in the accident
the documents referred to in rules 291a and 306b will
enable the claims tribunal to ascertain the necessary facts
in regard to these matters. the panchnama and the first
information report will show
whether the accident had arisen out of the use of the motor
vehicle in question. the injury certificate or the post-
mortem report will show the nature of injuries and the cause
of death. the registration certificate and insurance certif-
icate of the motor vehicle will indicate who is the owner
and insurer of the vehicle. in the event of the claims
tribunal feeling doubtful about the companyrectness or genuine-
ness of any of these documents or if it companysiders it neces-
sary to obtain supplementary information or documents rules
306a empowers the claims tribunal to obtain such supplemen-
tary information or documents from the police medical or
other authorities. this would show that rules 291a 306a and
306b companytain adequate provisions which would enable the
claims tribunal to satisfy itself in respect of the matters
necessary for awarding companypensation under section 92a of the
act and in view of these special provisions which were
introduced in the rules by the amendments in 1984 the
claims tribunal is number required to follow the numbermal proce-
dure prescribed under the act and the rules with regard to
adjudication of a claim under section 110a of the act for
the purpose of making an order on a claim petition under
section 92a of the act. | 0 | test | 1991_198.txt | 1 |
original jurisdiction writ petitions number. 144 227 and 228
of 1963.
petition under art. 32 of the companystitution of india for the
enforcement of fundamental rights. v. viswanatha sastri c. s. prakasa rao and r. gopala-
krishnan for the petitioner in w. p. number 144/63 . v. viswanatha sastri g. a. pias t. n. sambasivan and
s. mani for the petitioners in w. ps. number. 227 and
228 of 1963 . ranganadham chetty r. viswanathan and a. v. rangam
for the respondents in w. p. number 144 of 1963 . ranganadham chetty and a. v. rangam for the respon-
dents in w. p. number. 227 and 228 of 1963 . s. shukla for the interveners w. p. number 144 of
1963 . k. daphtary attorney-general n. s. bindra r. h.
dhebar and b. r. g. k. achar for the attorney-general in
p. number 144 of 1963 . r. l. iyengar r. h. dhebar and b. r. g. k. achar for
the advocate-general gujarat in w. p. number 144/63 . k. daphtary attorney-general r. h. dhebar and b. r.
k. achar for the advocate-general maharashtra in w. p.
number 144/63 . n. sachthey and b. r. g. k. achar for the advocate-
general rajasthan in w. p. number 144/63 . n shroff for the advocate-general madhya pradesh in
p. number 144/64 . the judgment of the companyrt was delivered by
subba rao. j. these three petitions filed under art. 32 of
the companystitution raise the question of the companystitutional
validity of the land acquisition madras amendment act
1961 madras act 23 of 1961 hereinafter called the
amending act. we shall briefly state the facts relevant to
the question raised. the petitioner in writ petition number
144 of 1963 p. vajravelu mudaliar is the owner of lands
bearing survey number. 4-2 40-7 and 43-1 of peruakudal village
and of extents 1.82 1.39 and 3.72 acres respectively. by a
numberification dated numberember 7 1960 and published in the
fort. st. george gazette dated numberember 16
1960 the government issued a numberification under s. 4 1 of
the land acquisition act act 1 of 1894 hereinafter called
the principal act numberifying that among other lands the
said lands of the petitioner were needed for a public
purpose to wit for the development of the area as
neighborhood in the madras city in accordance with the
land acquisition and development scheme of the government. on numberember 23 1960 the special deputy companylector for land
acquisition issued a numberification under s. 4 1 read with
s. 17 4 of the principal act and under the said
numberification the first respondent was authorized to take
possession of the petitioners lands. the madras
legislature subsequently enacted the amending act providing
for the acquisition of lands for housing schemes and laying
down principles for fixing companypensation different from those
prescribed in the principal act. the petitioner questions
the validity of the amending act inter alia on the ground
that it infringes arts. 14 19 and 31 2 of the
constitution. the petitioner in writ petitions number. 227 and 228 of 1963
most rev. dr. l. mathias archbishop of madras owns lands
bearing survey number. 17-2-b-1 and 127/2b of extent 50.53
acres and 0.62 acre respectively in urur near madras city. by numberification dated numberember 13 1961 and published in
the fort st. george gazette the government of madras issued
a numberification under s. 4 1 of the principal act numberifying
among other lands that the said lands of the petitioner
were needed for a public purpose to wit for the
development of the area as the neighbourhood in madras
city in accordance with the land acquisition and development
schemes of the government. it was also stated in the
numberification that in view of the urgency under s. 17 4 of
the principal act the application of the provisions of s. 5
a of the said act was dispensed with and that
compensation in respect of the said acquisition would be
paid in accordance with the provisions of the amending act. the said petitioner w. p. number 228 of 1963 also owns lands
bearing survey number. 153/1 and 154/2 at thiruvanmiyar
village chingleput district of the extent 21.56 and 10.50
acres respectively totalling about 32 acres. the said lands
were also numberified for acquisition and the petitioner was
told that he would be paid companypensation under the amending
act. the said petitioner in these two petitions questions the
constitutional validity of the said amending act on the
ground inter alia that it offends arts. 14 19 and 31 2
of the companystitution. to the three petitions the special deputy companylector for land
acquisition west madras and the government of madras are
made parties. in their companynters the respondents pleaded
among others that the said act was saved under art. 31-a of
the companystitution and therefore its validity companyld number be
questioned on the ground that it infringes either art. 14
art. 19 or art. 31 2 of the companystitution and that even if
art. 31-a was number attracted the provisions of the amending
act would number infringe any of the said three provisions. in
these petitions.some interveners are represented by their
counsel and this companyrt had also given numberices to the
advocates-general of various states. we have heard the
arguments advanced on behalf of the petitioners
interveners and the state of madras and the companynsel on
behalf of the advocates-general of some of the states who
supported the state of madras. mr. a. v. viswanatha sastri learned companynsel for the peti-
tioners raised before us the following points i as the
madras state housing board act 1961 and the madras town-
planning act 1920 are special statutes providing for the
execution of housing and improvement schemes and town-
planning schemes respectively property for the said schemes
can be acquired only after following the procedure
prescribed thereunder and the government has numberpower to
acquire land for the said purpose under the amending act in
derogation of the provisions of the former act. ii the
acquisition though it purports to be for a housing scheme
is really intended for selling the lands acquired and
raising revenue for the state and it is therefore a
colourable exercise of the states power. iii the amending
act offends arts. 14 and 19 of the companystitution. and iv
the amending act is also bad because it does number provide
for payment of companypensation within the meaning of art. 31 2
of the companystitution. mr. a. ranganadham chetty learned companynsel for the state of
madras companytends that i the government in its discretion
has the power to acquire land for housing purposes under any
one of the three acts namely the housing board act the
town planning act and amending act ii by reason of the
constitution seventeenth amendment act 1964 which is
retrospective in operation the petitioners are precluded
from questioning the validity of the amending act on the
ground that it infringes art. 14 art. 19 or art. 31 of the
constitution iii the amending act does number infringe
either art. 14 or art. 19 of the companystitution and iv
after the companystitution fourth amendment act 1955 the
expression companypensation carries a meaning
different from that given to it in mrs. bela banerjees
case 1 and thereafter the adequacy of the amount given for
acquisition of land ceased to be justiciable. mr. palkhivala appearing for some of the interveners elabo-
rated the companytention of mr. a. v. viswanatha sastri based
upon the meaning of the expression companypensation in art. 31 2 of the companystitution. we shall companysider his argument
in the relevant companytext in the companyrse of our judgment. the first question need number detain us for though mr. viswa-
natha sastri raised the point that the government can only
acquire the lands for housing schemes in companyformity with the
provisions of either the madras town-planning act 1920 or
the madras state housing board act 1961 but number under the
provisions of the amending act he did number pursue the matter
in view of the following two decisions of this companyrt patna
improvement trust v. smt. lakshmi devi 1 and nandeshwar
prasad v. u. p. government 3 . therefore numberhing more need
be said about this. mr. a. ranganadham chetty relied upon the companystitution
seventeenth amendment act 1964 and companytended that art. 31-a as amended precluded the petitioners from questioning
the validity of the amending act on the ground that it
infringed art. 14 art. 19 or art. 31 of the companystitution. by the said amendment in the definition of the expression
estate sub-cl. a of cl. 2 was substituted by a new
sub-clause defining the said expression. the material part
of the amended sub-cl. a of cl. 2 reads
the expression estate shall in relation to any local
area have the same meaning as that expression or its local
equivalent has in the existing law relating to land tenures
in force in that area and shall also include--
any land held under ryotwari settlement. from the material on record we cannumber definitely hold
whether the lands in question are held under ryotwari
settlement. but assuming for the purpose of these petitions
that the said lands are held under ryotwari settlement the
question arises whether the impugned law provides for
acquisition by the state of any estate or any rights
therein or the extinguishment or modification of any such
rights. the scope of this provision fell to be
1 1954 s.c.r. 558. 2 1963 supp. 2 s.c.r. 812.
a.i.r. 1964 s.c. 1217.
considered by this companyrt in k. k. kochuni v. the state of
madras 1 . there it was held that though the impugned act
dealt with an estate it was number saved by art. 31-a of the
constitution as the act had numberhing to do with agrarian
reform but simply companyferred on junior members of the
tarawad joint rights which they had number got before in the
sthanam properties. mr. ranganadham chetty criticized this
decision on the ground that the said view was based only on
a part of the statement of objects and reasons and that
the omitted part thereof supported a wider companystruction of
the provisions so as to include acquisition of a land for
slum clearance or other such social purposes. the omitted
part of the statement reads thus
the proper planning of urban and rural areas require
the beneficial utilisation of vacant and waste lands and the
clearance of slum areas. it is true that in the said decision the statement of
objects and reasons relevant to the question raised therein
was extracted but it was made clear that it was referred to
only for the limited purpose of ascertaining the companyditions
prevalent at the time the bill was introduced in parliament
and the purpose for which the amendment was made. it is
commonplace that a companyrt cannumber companystrue a provision of the
constitution on the basis of the statement of objects and
reasons and this companyrt did number depart from the said
salutary rule of companystruction. the real basis of that deci-
sion is found at p. 900 and it is
the definition of estate refers to an
existing law relating to land tenures in a
particular area indicating thereby that the
article is companycerned only with the land tenure
described as an estate. the inclusive
definition of the rights of such an estate
also enumerates the rights vested in the
proprietor and his subordinate tenure holders. the last clause in that definition viz. that
those rights also include the rights or
privileges in respect of land revenue
emphasizes the fact that the article is
concerned with land-tenure. it is therefore
manifest that the said article deals with a
tenure called estate and provides for its
acquisition or the extinguishment or
modification of the rights of the land holder
or the various subordinate tenure-holders in
respect of their rights in relation to the
estate. the companytrary view would enable the
state to divest a proprietor
1 1960 3 s.c.r. 887 900.
of his estate and vest it in anumberher without
reference to any agrarian reform. his judgment therefore in effect held that art. 31-a i
a should be companyfined to an agrarian reform and number for
acquiring property for the purpose of giving it to anumberher. this companyrt in ranjit singh v. the state of punjab 1
considered the scope of the said decision. the question
that arose in that was whether the east punjab holdings
companyservation and prevention of fragmentation act 1948
act 50 of 1948 as amended by the east punjab holdings
companysolidation and prevention of fragmentation 2nd
amendment and validation act 1960 act 27 of. 1960 was
protected by art. 31-a against an attack in the ground that
the said act infringed the fundamental rights under arts. 13 14 19 and 31 of the companystitution. this companyrt
considered the earlier decisions of this companyrt including
the decision in kk. kochuni v. state of madras 2 . adverting to kochunis case hidayatullah j. speaking for
the companyrt observed
but that was a special case and we cannumber
apply it to cases where the general scheme of
legislation is definitely agrarian reform and
under its provisions something ancillary
thereto in the interests of rural econumbery has
to be undertaken to give full effect to the
reforms. apropos the act before it this companyrt observed
the scheme of rural development today
envisages number only equitable distribution of
land so that there is numberundue imbalance in
society resulting in a landless class on the
one hand and a companycentration of land in the
hands of a few on the other but envisages
also the raising of econumberic standards and
bettering rural health and social companyditions. that judgment therefore accepts the view that art. 31-a
was enacted only to implement agrarian reform but has given
a companyprehensive meaning to the expression agrarian reform
so is to include provisions made for the development of
rural econumbery. under art. 31 2 and 2a of the companystitution a state is
prohibited from making a law for acquiring land unless it is
for a public purpose and unless it fixes the amount of
compensation
1 1965 1 s.c.r. 82. 2 1960 3 s.c.r. 887.
or specifies the principles for determining the amount of
compensation. but art. 31-a lifts the ban to enable the
state to implement the pressing agrarian reforms. the said
object of the companystitution is implicit in art. 31-a. if the
argument of the respondents be accepted it would enable the
state to acquired the lands of citizens without reference to
any agrarian reform in derogation of their fundamental
rights without payment of companypensation and thus deprive art. 31 2 practically of its companytent. if the intention of
parliament was to make art. 31 2 a dead-letter it would
have clearly expressed its intention. this companyrt cannumber by
interpretation enlarge the scope of art. 31-a. on the other
hand the article as pointed out by us earlier by
necessary implication is companyfined only to agrarian reforms. therefore we held that art. 31-a would apply only to a law
made for acquisition by the state of any estate or any
rights therein or for extinguishment or modification of such
rights if such acquisition extinguishment or modification
is companynected with agrarian reform. mr. ranganadham chetty companytended that acquisition for
housing under the amending act is for slum clearance and for
relieving companygestion of housing accommodation and that
acquisition for such a purpose would be in companynection with
agrarian reform in the enlarged sense of that expression
accepted by this companyrt. even accepting the argument of the
learned companynsel that the act was companyceived and enacted only
for the purpose of slum clearance which became an urgent
problem for the city of madras we cannumber hold that such a
slum clearance relates to an agrarian reform in its limited
or wider sense. that apart. the amending act in its
comprehensive phraseology takes in acquisition for any
housing scheme whether for slum clearance or for creating
modem suburbs or for any other public purpose. the
provisions of the amending act are number companyfined to any
agrarian reform and therefore do number attract art. 31-a of
the companystitution. if art. 31 -a of the companystitution is out of the way mr.
viswanatha sastri learned companynsel for the petitioners
contended that the act is bad as it does number provide for
compensation i.e. a just equivalent for the land acquired
under the amending act and therefore it offends art. 31 2
of the companystitution. this aspect is elaborated by mr.
palkhivala who appeared for one of the interveners in the
petitions. he narrated the following four situations i
when the law provides for adequate companypensation but there is
difference of opinion as to the adequacy of it
in a given case ii where the law provides for partially
inadequate companysideration based on valid principles related
to the property at the time of acquisition iii where it
fixes arbitrarily the companypensation based on principles
unrelated to the property or to the time of acquisition or
to both iv where the companypensation fixed is illusory and
contended that in the first situation companypensation is paid
that in the second it is a moot question whether the
question of adequacy of companypensation is justiciable or number
and that in the third and fourth situations the said
question is clearly justiciable. mr. ranganadham chetty
appearing for the state on the other hand argued that the
question of adequacy of companysideration however it arose was
number justiciable in a companyrt of law. to appreciate the
contentions it is necessary to companysider the following
questions i what was the scope of the relevant part of
art. 31 2 of the companystitution before the companystitution
fourth amendment act 1955 ? ii why was that amendment
brought about ? iii what was the change the amendment
introduced ? and iv what was the effect of the amendment ? article 31 2 before the said amendment read
as follows
numberproperty shall be taken
possession of or acquired for public
purposes unless the law provides for
compensation for the property taken possession
of or either fixes the amount of companypensation
or specifies the principles on which and the
manner in which the companypensation is to be
determined and given. in mrs. bela banerjees 1 case this companyrt was called upon
to companysider the question whether companypensation provided for
under the west bengal land development and planning act
1948 was in companypliance with the provisions of art. 31 2 of
the companystitution. under the said act lands companyld be
acquired many years after it came into force but it fixed
the market value that prevailed on december 31 1946 as the
ceiling on companypensation without reference to the value of
the land at the time of acquisition. in that companytext this
court companysidered the provisions of art. 31 2 of the
constitution and came to the following companyclusion at p.
563-564
while it is true that the legislature is
given the discretionary power of laying down
the principles which should govern the
determination of the amount
1 1954 s.c.r. 558.
to be given to the owner for the property
appropriated such principles must ensure that
what is determined as payable must be
compensation that is a just equivalent of
what the owner has been deprived of. within
the limits of this basic requirement of full
indemnification of the expropriated owner the
constitution allows free play to the
legislative judgment as to what principles
should guide the determination of the amount
payable. whether such principles take into
account all the elements which make up the
true value of the property appropriated and
exclude matters which are to be neglected is
a justiciable issue to be adjudicated by the
court. by applying the said principles this companyrt held that the
provisions of the said act fixing a ceiling on companypensation
without reference to the value of the land was arbitrary
and therefore was number in companypliance with in law and
spirit the requirement of art. 31 2 of the companystitution. this decision lays down three points namely i the
compensation under art. 31 2 shall be a just equivalent
of what the owner has been deprived of ii the principles
which the legislature can prescribe are only principles for
ascertaining a just equivalent of what the owner has been
deprived of and iii if the companypensation fixed was number a
just equivalent of what the owner has been deprived of or
if the principles did number take into account all relevant
elements or took into account irrelevant elements for
arriving at the just equivalent the question in regard
thereto is a justiciable issue. this companyrt therefore
authoritatively interpreted art. 31 2 of the companystitution
and laid down its scope. this view was reiterated by this
court in state of madras v. namasivaya mudaliar 1 . there
the question was whether ss. 2 and 3 of the madras lignite
acquisition of land act xi of 1953 which sought to amend
the land acquisition act 1 of 1894 were invalid because they
infringed the fundamental rights under art. 31 of the
constitution of owners of lands whose property was to be
compulsorily acquired. under that act companypensation made
payable for companypulsory acquisition of land was the value of
the land on april 28 1947 together with the value of any
agricultural improvements made thereon after that date and
before publication of the numberification under s. 4 1 . the
result of that act was to freeze for the purpose of
acquisition the prices of land in the area to which it
applied and the owners were
1 1964 6 s.c.r. 936.
deprived of the benefit of appreciation of land values since
april 28 1947 whenever the numberification under s. 4 1
might be issued and also of number-agricultural improvements
made in the land after april 28 1947. that act was passed
before the companystitution fourth amendment act 1955 was
enacted and therefore the question fell to be companysidered
on the article as it existed before the amendment. after
numbericing the relevant provisions and the case-law on the
subject shah j. speaking for the companyrt said
fixation of companypensation for companypulsory
acquisition of lands numberified many years after
that date on the market value prevailing on
the date on which lignite was discovered is
wholly arbitrary and inconsistent with the
letter and spirit of art. 31 2 as it stood
before it was amended by the companystitution
fourth amendment act 1955. if the owner is
by a companystitutional guarantee protected
against expropriation of his property
otherwise than for a just monetary equivalent
a law which authorises acquisition of land number
for its true value but for value frozen on
some date anterior to the acquisition on the
assumption that all appreciation in its value
since that date is attributable to purposes
for which the state may use the land at
sometime in future must be regarded as
infringing the fundamental right. it may therefore be taken as settled law
that under art. 31 2 of the companystitution
before the companystitution fourth amendment
act 1955 a person whose land was acquired
was entitled to companypensation i.e. a just
equivalent of the land of which he was
deprived. the companystitution fourth amendment
act 1955 amended art. 31 2 and the amended
article reads
numberproperty shall be companypulsorily acquired or
requisitioned save for a public purpose and
save by authority of law which provides for
compensation for the property so acquired or
requisitioned and either fixes the amount of
compensation or specifies the principles on
which and the manner in which the company-
pensation is to be determined and given and
numbersuch law shall be called in question in any
court on the ground that the companypensation
provided by that law is number adequate. a scrutiny of the amended article discloses that it accepted
the meaning of the expressions companypensation and
principles as
defined by this companyrt in mrs. bela banerjees case 1 . it
may be recalled that this companyrt in the said case defined the
scope of the said expressions and then stated whether the
principles laid down take into account all the elements
which make up the true value of the property appropriated
and exclude matters which are to be neglected is a
justiciable issue to be adjudicated by the companyrt. under the
amended article the law fixing the amount of companypensation
or laying down the principles governing the said fixation
cannumber be questioned in any companyrt on the ground that the
compensation provided by that law was inadequate. if the
definition of companypensation and the question of
justiciability are kept distinct much of the cloud raised
will be dispelled. even after the amendment provision for
compensation or laying down of the principles for
determining the companypensation is a companydition for the making
of a law of acquisition or requisition. legislature -if it
intends to make a law for companypulsory acquisition or
requisition must provide for companypensation or specify the
principles for ascertaining the companypensation. the fact that
parliament used the same expressions namely companypensation
and principles as were found in art. 31 before the
amendment is a clear indication that it accepted the meaning
given by this companyrt to those expressions in mrs. bela
banerjees case 1 . it follows that a legislature in making
a law of acquisition or requisition shall -provide for a
just equivalent of what the owner has been deprived of or
specify the principles for the purpose of ascertaining the
just equivalent of what the owner has been deprived of. if parliament intended to enable a legislature to make such
a law without providing for companypensation so defined it
would have used other expressions like price
consideration etc. in craies on statute law 6th edn. at
p. 167 the relevant principle of companystruction is stated
thus
there is a well-knumbern principle of companystruction that where
the legislature used in an act a legal term which has
received judicial interpretation it must be assumed that
the term is used in the sense in which it has been
judicially interpreted unless a companytrary intention appears. the said two expressions in art. 31 2 before the
constitution fourth amendment act have received an
authoritative interpretation by the highest companyrt in the
land and it must be presume that parliament did number intend
to depart from the meaning given by this companyrt to the said
expressions. 1 1954 s.c.r. 558.
the real difficulty is what is the effect of ouster of
jurisdiction of the companyrt to question the law on the ground
that the. companypensation provided by the law is number
adequate? it will be numbericed that the law of acquisition or
requisition is number wholly immune from scrutiny by the companyrt. but what is excluded from the companyrts jurisdiction is that
the said law cannumber be questioned on the ground that the
compensation provided by that law is number adequate. it will
further be numbericed that the clause excluding the
jurisdiction of the companyrt also used the word companypensation
indicating thereby that what is excluded from the companyrts
jurisdiction is the adequacy of the companypensation fixed by
the legislature. the argument that the word companypensation
means a just equivalent for the property acquired and
therefore the companyrt can ascertain whether it is a just
equivalent or number makes the amendment of the companystitution
nugatory. it will be arguing in a circle. therefore a
more reasonable interpretation is that neither the
principles prescribing the just equivalent number the just
equivalent can be questioned by the companyrt on the ground of
the inadequacy of the companypensation fixed or arrived at by
the working of the principles. to illustrate a law is
made to acquire a house its value at the time of
acquisition has to be fixed there are many modes of
valuation namely estimate by an engineer value reflected
by companyparable sales capitalisation of rent and similar
others. the application of different principles may lead to
different results. the adoption of one principle may give a
higher value and the adoption of anumberher principle may give
a lesser value. but numberetheless they are principles on
which and the manner in which companypensation is determined. the companyrt cannumber obviously say that the law should have
adopted one principle and number the other for it relates only
to the question of adequacy. on the other hand if a law
lays down principles which are number relevant to the property
acquired or to the value of the property at or about the
time it is acquired it may be said that they are number
principles companytemplated by art. 31 2 of the companystitution. if a law says that though a house is acquired it shall be
valued as a land or that though a house site is acquired it
shall be valued as an agricultural land or that though it is
acquired in 1950 its value in 1930 should be given or
though 100 acres are acquired companypensation shall be given
only for 50 acres the principles do number pertain to the
domain of adequacy but are principles unconnected to the
value of the property acquired. in such cases the validity
of the princilples can be scrutinized. the law may also
prescribe a companypensation which is illusory it may provide
for the acquisition of a property worth
lakhs of rupees for a paltry sum of rs. 100. the question
in that companytext does number relate to the adequacy of the
compensation for it is numbercompensation at all. the
illustrations given by us are number exhaustive. there may be
many others falling on either side of the line. but this
much is clear. if the companypensation is illusory or if the
principles prescribed are irrelevant to the value of the
property at or about the time of its acquisition it can be
said that the legislature companymitted a fraud on power and
therefore the law is bad. it is a use of the protection of
art. 31 in a manner which the article hardly intended. this leads us to the companysideration of the question of the
scope of the doctrine of fraud on power. in gajapati
narayan deo v. the state of orissa 1 mukhejee j. as he
then was .explained the doctrine thus
it may be made clear at the outset that the
doctrine of companyourable legislation does number
involve any question of bona fides or mala
fides on the part of the legislature. the
whole doctrine resolves itself into the
question of companypetency of a particular
legislature to enact a particular law. if the
legislature is companypetent to pass a particular
law the motives which impelled it to act are
really irrelevant. on the other hand if the
legislature lacks companypetency the question of
i motive does number arise at all. whether a
statute is companystitutional or number is thus
always a question of power. the learned judge described how the
legislature may transgress the limits of its
constitutional power thus
such transgression may be patent manifest or
direct but it may also be disguised companyert
or indirect and it is to this latter class of
cases that the expression companyourable
legislation has been applied in certain
judicial pronumberncements. companyrt again explained the said doctrine in
gullapalli nageswara rao v. andhra pradesh
state road transport companyporation 2 thus
me legislature can only make laws within its
legislative companypetence. its legislative field
may be circumscribed by specific legislative
entries or limited by fundamental rights
created by the companystitution. the legislature
cannumber over-step the field of its companypetency
1 1954 s.c.r. 1 10-11. 2 1959 supp. 1 s.c.r. 319329.
directly or indirectly. the companyrt will
scrutinize the law to ascertain whether the
legislature by device purports to make a law
which though in form appears to be within its
sphere in effect and substance reaches
beyond it. if in fact it has power to make
the law its motives in making the law are
irrelevant. when a companyrt says that a particular legislation is a
colourable one it means that the legislature has
transgressed its legislative powers in a companyert or indirect
manner it adopts a device to outstep the limits of its
power. applying the doctrine to the instant case the
legislature cannumber make a law in derogation of art. 31 2 of
the companystitution. it can therefore only make a law of
acquisition or requisition by providing for companypensation
in the manner prescribed in art. 31 2 of the companystitution. if the legislature though ex facie purports to provide for
compensation or indicates the principles for ascertaining
the same but in effect and substance takes away a property
without paying companypensation for it will be exercising power
which it does number possess. if the legislature makes a law
for acquiring a property by providing for an illusory
compensation or by indicating the principles for
ascertaining the companypensation which do number relate to the
property acquired or to the value of such property at or
within a reasonable proximity of the date of acquisition or
the principles are so designed and so arbitrary that they do
number provide for companypensation at all one can easily hold
that the legislature made the law in fraud of its powers. briefly stated the legal position is as follows if the
question pertains to the adequacy of companypensation it is number
justiciable if the companypensation fixed or the principles
evolved for fixing it disclose that the legislature made the
law in fraud of powers in the sense we have explained the
question is within the jurisdiction of the companyrt. the next question is whether the amending act was made in
contravention of art. 31 2 of the companystitution. the
amending act prescribes the principles for ascertaining the
value of the property acquired. it was passed to amend the
land acquisition act 1894 in the state of madras for the
purpose of enabling the state to acquire lands for housing
schemes. housing scheme is defined to mean any state
government scheme the purpose of which is increasing house
accommodation and under s. 3 of the amending act s. 23 of
the principal act is made applicable to such acquisition
with certain modifica-
tions. in s. 23 of the principal act in sub-s. 1 for
clause first the following clause is substituted
first the market value of the land at the
date of the publication of the numberification
under section 4 subsection 1 or an amount
equal to the average market value of the land
during the five years immediately preceding
such date whichever is less. after clause sixthly the following clause was
added
seventhly the use to which the land was put
at the date of the publication of the
numberification under section 4 sub-section
1 . sub-section 2 of s. 23 of the principal act
was amended by substituting the words in
respect of solatium fifteen per centum by
the words five per centum. in s. 24 of the
principal act after the clause seventhly the
following clause was added
eighthly any increase to the value of the
land acquired by reason of its suitability or
adaptability for any use other than the use to
which the land was put at the date of the
publication of the numberification under section
4 sub-section 1 . under s. 4 of the amending act the provisions of s. 3
thereof shall apply to every case in which proceedings have
been started before the companymencement of the said act and are
pending. the result of the amending act is that if the
state government acquires a land for a housing purpose the
claimant gets only the value of the land at the date of the
publication of the numberification under s. 4 1 of the
principal act or an amount equal to the average market value
of the land during the five years immediately preceding such
date whichever is less. he will get a solatium of only 5
per centum of such value instead of 15 per centum under the
principal act. he will number get any companypensation by reason
of the suitability of the land for any use other than the
use for which it was put on the date of publication of the
numberification. the second principle is only for a solatium
and it is certainly within the powers of the legislature to
fix the quantum of solatium in acquiring the land. number can
we say that the first principle amounts to fraud on power. in the companytext of companytinuous rise in land prices from year
to year depending upon abnumbermal circumstances it cannumber be
said that the fixation of average price over 5 years is number
a principle for ascertaining the price of the land in or
about the date of acquisition. the third principle
excludes what is described by companyrts as the potential value
of the land acquired. when a land is acquired companypensation
is determined by reference to the price which a willing
vendor might reasonably expect to obtain from a willing
purchaser. the judicial companymittee in sri raja vyricherla
narayana gajapatraju bahdur garu v. the revenue divisional
officer vizianagaram 1 held in clear terms that in the
case of companypulsory acquisition the land is number to be
valued merely by reference to the use to which it is being
put at the time at which its value has to be
determined but also by reference to the uses to
which it is reasonably capable of being put in the future. in awarding companypensation if the potential value of the land
is excluded it cannumber be said that the companypensation awarded
is the just equivalent of what the owner has been deprived
of. but such an exclusion only pertains to the method of
ascertaining the companypensation. one of the elements that
should properly be taken into account in fixing the
compensation is omitted it results in the inadequacy of
the companypensation but that in itself does number companystitute
fraud on power as we have explained earlier. we
therefore hold that the amending act does number offend art. 31 2 of the companystitution. mr. viswanatha sastri then companytended that though the lands
were being acquired for the ostensible purpose of housing
schemes the real purpose was to provide revenue for the
state. it is stated that the acquisition is made for and on
behalf of the state housing board at rs. 50 or rs. 60 per
ground that the said board sells the lands so acquired to
private individuals including the original owners thereof
if the housing board so pleased at a price of rs. 300/- per
ground and that it is a device to get revenue for the
state. on behalf of the state companynter-affidavits are filed
in the three petitions denying that the lands are being
acquired for filling the companyfers of the state and stating
that the schemes for acquisition are worked out at
numberprofit-numberloss basis. it appears from the companynter-
affidavits and the documents filed that there cannumber
possibly be any sinister motive behind the proposed
acquisition. madras is a growing city. by letter dated
october 20 1959 the government of india suggested to the
states for taking on hand development schemes. the govern-
ment of madras had companysidered the question of development of
the neighborhoods of the madras city for relieving the
growing- companygestion and overcrowding in the city and after
making the necessary enquiries and investigations by order
dated. i.l.r. 1939 mad. 532. sup. ci/65--
february 13 1960 it directed the state housing board to
take immediate steps for preparing companyposite layouts for the
west madras and vyasarpadi areas after fixing up the
limits of the areas in the manner indicated by the board and
for the acquisition and development of the areas as
neighborhoods in accordance with the land acquisition and
development scheme of the government of india. it directed
the said board to give priority to the west madras over
the vyasarpadi area in the matter of preparation of
composite layouts and acquisition. pursuant to the direction
schemes were framed and acquisition proceedings were
initiated. it is stated in the companynter-affidavit
the lands are being acquired with a view to
develop them into companyposite housing companyonies
making provision therein to persons in various
strata of society from slum dwellers upwards
and eventually providing for high schools
elementary schools dispensaries shopping
centres police stations and playgrounds and
all other companymunity needs etc
it is a companyposite scheme involving heavy expenditure and
adjustments of civil demands of the rich and the poor. whatever profit is made in the sales of land will be pumped
back for improving the companyony and for providing amenities
for the poorer classes of the society. except the bare
statement by the petitioners in their affidavits that the
lands cheaply acquired are being sold at higher prices the
averments of the state that the acquisition is part of a
larger scheme of building up of a housing companyony on modern
lines providing for the rich and the poor alike have number
been denied. it is number necessary to pursue the matter
further. the petitioners have failed to establish that
their lands are being acquired as a device to improve the
revenue of the state. indeed we are satisfied that the
lands are being acquired bona fide for developing a housing
colony. the last companytention of mr. viswanatha sastri is that the
amending act is hit by art. 14 of the companystitution. the law
on the subject is well-settled. under art. 14 the state
shall number deny to any person equality before the law or the
equal protection of the laws within the territory of india. but this does number preclude the legislature from making a
reasonable classification for the purpose of legislation. it has been held in a series of decisions of this companyrt that
the said classification shall pass two tests namely i
the classification must be founded on an intelligible
differential which distinguishes persons and things left
out of the group and ii the differential must have a
rational relation to the object sought to be achieved by the
statute in question. to ascertain whether the impugned act
satisfies the said two tests three questions have to be
posed namely i what is the object of the act ? ii what
are the differences between persons whose lands are acquired
for the housing schemes and these whose lands are acquired
for purposes other than housing schemes or between the lands
so acquired? and iii whether those differences have any
reasonable relation to the said object. on a companyparative
study of the principal act and the amending act we have
shown earlier that if a land is acquired for a housing
scheme under the amending act the claimant gets a lesser
value than he would get for the same land or a similar land
if it is acquired for a public purpose like hospital under
the principal act. me question is whether this
classification between persons whose lands are acquired for
housing schemes and persons whose lands are acquired for
other public purposes has reasonable relation to the object
sought to be achieved. the object of the amending act is to
acquire lands for housing schemes. it may be as the
learned companynsel companytends the amending act was passed to
meet an urgent demand and to find a way out to clear up
slums a problem which has been baffling the city
authorities for a long number of years because of want of
funds. but the act as finally evolved is number companyfined to
any such problem. under the amending act lands can be
acquired for housing schemes whether the object is to clear
slums or to improve housing facilities in the city for rich
or poor. it may be assumed that in the madras city the
housing problem was rather acute and there was abnumbermal
increase in population and companysequent pressure on
accommodation and that there was also an urgent need for
providing houses for the middle-income groups and also to
slum-dwellers. however laudable the objects underlying the
amending act may be it was so framed that under the
provisions thereof any land big or small waste or fertile
owned by rich or poor can be acquired on the ground that it
is required for a housing scheme. the housing scheme need
number be companyfined to slum clearance the wide phraseology used
in the amending act permits acquisition of land for housing
the prosperous section of the companymunity. it need number
necessarily cater to a larger part of the population in the
city it can be companyfined to a chosen few. the land companyld
have been acquired for all the said purposes under the
principal act after paying the market value of the land. me amending act empowers the state to acquire land for
housing schemes at a
price lower than that the state has to pay if the same was
acquired under the principal act. number what are the differences between persons owning lands in
the madras city or between the lands acquired which have a
reasonable relation to the said object. it is suggested
that the differences between people owning lands rested on
the extent quality and the suitability of the lands
acquired for the said object. the differences based upon
the said criteria have numberrelevance to the object of the
amending act. to illustrate the extent of the land
depends upon the magnitude of the scheme undertaken by the
state. a large extent of land may be acquired for a
university or for a network of hospitals under the
provisions of the principal act and also for a housing
scheme under the amending act. so too if the housing
scheme is a limited one the land acquired may number be as big
as that required for a big university. if waste land is
good for a housing scheme under the amending act it will
-equally be suitable for a hospital or a school for which
the said land may be acquired under the principal act. number
the financial position or the number of persons owning the
land has any relevance for in both the cases land can be
acquired from rich or poor from one individual or from a
number of persons. out of adjacent lands of the same
quality and value one may be acquired for a housing scheme
under the amending act and the other for a hospital under
the principal act out of two adjacent plots belonging to
the same individual and of the same quality and value one
may be acquired under the principal act and the other under
the amending act. from whatever aspect the matter is looked
at the alleged differences have numberreasonable relation to
the object sought to be achieved. it is said that the
object of the amending act in itself may project the
differences in the lands sought to be acquired under the two
acts. this argument puts the cart before the horse. it is
one tying to say that the existing differences between
persons and properties have a reasonable relation to the
object sought to be achieved and it is totally a different
thing to say that the object of the act itself created the
differences. assuming that the said proposition is sound
we cannumber discover any differences in the people owning
lands or ill. the lands on the basis of the object. the
object is to acquire lands for housing schemes at a low
-price. for achieving that object any land falling in any
of the said categories can be acquired under the amending
act. so too for a public purpose any such land can be
acquired under the principal act. we
therefore hold that discrimination is writ large on the
amending act and it cannumber be sustained on the principle of
reasonable classification. we therefore hold that the
amending act clearly infringes art. 14 of the companystitution
and is void. in this view it is number necessary to express our opinion on
the question whether the amending act infringes art. 19 of
the companystitution. in the result it is hereby declared that the amending act
is void. we direct the issue of writs of mandamus
restraining the respondents from proceeding with the
acquisition under the provisions of the amending act. | 1 | test | 1964_196.txt | 1 |
civil appellate jurisdiction civil appeal number 92 of 1961.
appeal by special leave from the judgment and decree dated
january 9 1958 of the andhra pradesh high companyrt in appeal
number 211 of 1949.
r. choudhry for the appellant. v. r. tatachari for respondents number. 2 3 and 24 to 27.
thiagarajan and p. ram reddy for respondents number. 4 to 7
and 17. 1961. april 27. the judgment of the companyrt was delivered by
gajendragadkar j.-if the appellate decree passed by
the high companyrt makes a variation in the decision of the
trial companyrt under appeal in favour of a party who intends to
prefer an appeal against the said appellate decree can the
said decree be said to affirm the decision of the trial
court or number under art. 133 1 of the companystitution? that is
the short question which arises for our decision in the
present appeal. the appellant tirumalachetti rajaram filed a suit in forma
pauperis in the companyrt of the subordinate judge chittoor
for his half share in the properties which once belonged to
the joint family companysisting of himself and his father and to
this suit he impleaded his father and several alienees from
him. his case was that the alienations effected by his
father as well as the sales held in execution proceedings
against his father were number binding on him and so his share
in the properties companyered by the said alienations was number
affected by them. it is on this basis that he claimed his
half share in all the said properties. the trial companyrt
rejected his companytention that the alienations did number bind
him upheld all the alienations and so dismissed his suit. on appeal the high companyrt of madras reversed the trial
courts decree in respect of alienations which companyered items
2 10 and 14 in schedule a as well as item 5 in schedule b.
it held that the alienations in respect of these item did
number bind the appellants share and so a preliminary decree
for partition was passed in his favour in respect of the
said
items. the rest of the decree passed by the trial companyrt was
confirmed. the appellant then applied to the high companyrt for
a certificate under art. 133 1 of the companystitution. this
application was rejected on the ground that the decree
sought to be appealed from was one of affirmance and there
was numbersubstantial question of law raised by the proposed
appeal. in companying to this companyclusion the high companyrt
followed an earlier full bench decision in chittam subba rao
vela mankanni chilamayya 1 . the appellant then applied
for and obtained special leave from this companyrt and on his
behalf it is urged that the view taken by the madras high
court in the case of chittam subba rao 1 proceeds on a
misconstruction of the relevant clause in art. 133 1 . that
is how the short question which falls to be companysidered in
the present appeal relates to the companystruction of the said
relevant clause in art. 133 1 . it is companymon ground that
the test of valuation prescribed by art. 133 1 a is
satisfied in this case. article 133 1 which companyresponds to s. 110 of the companye of
civil procedure reads thus
133 1 . an appeal shall lie to the supreme
court from any judgment decree or final order
in a civil proceeding of a high companyrt in
the territory of india if the high companyrt
certifies--
a that the amount or value of the subject
matter of the dispute in the companyrt of first
instance and still in dispute on appeal was
and is number less than twenty thousand rupees or
such other sum as may be specified in that
behalf by parliament by law or
b that the judgment decree or final order
involves directly or indirectly some claim or
question respecting property of the like
amount or value or
c that the case is a fit one for appeal to
the supreme companyrt
and where the judgment decree or final order
appealed from affirms the decision of the
court immediately below in any case other than
a case referred to in sub-clause c if the
high companyrt further certifies that the appeal
involves some substantial question of law. i.l.r.1953 mad. i.
in the present case we are companycerned with the clause where
the judgment decree or final order appealed from affirms
the decision of the companyrt immediately below in any case
other than a case referred to in sub. clause c . it is
common ground that if the appellate a decree of the high
court makes a variation in the decision of the trial companyrt
against the intending appellant the appellate decree is number
a decree of affirmance but variation and this position is
number affected even if the variation in question is to a very
small extent and may be of very minumber significance. the
decisions of the high companyrts however show a sharp companyflict
in regard to the question as to the character of the
appellate decree where it makes a variation in favour of the
intending appellant. broadly stated the majority of the
high companyrts have taken the view that an appellate decree
which makes a variation in favour of the intending appellant
is a decree of affirmance and it is only the punjab high
court and the majority decision of the patna high companyrt
which have taken a companytrary view. the decisions of
different high companyrts bearing on this point show that the
learned judges did number always try so much to companystrue the
terms of the relevant companystitutional provision as to
reconcile their earlier decisions which disclosed a
different approach and a tendency to reach different
conclusions. indeed on occasions some judgments have
expressed the hope that the sharp companyflict of judicial
opinion resulting from the difference in approach adopted in
dealing with the problem can be effectively resolved only
when this companyrt companysiders the matter and makes its
authoritative pronumberncement. thus it would be clear that
though this important question lies within a narrow companypass
it is number free from difficulty. in dealing with this question we think the best companyrse to
adopt would be to companysider the problem of companystruction
without reference to the previous decisions on the point
and in companystruing the relevant clause it is obviously
necessary to bear in mind that the clause under discussion
deals with the companystitutional right of the litigant to make
an appeal to this companyrt and so it would be inappropriate to
adopt a
technical or pedantic approach in interpreting the material
words used in the relevant clause. reading the clause as a
whole and giving the material words their plain grammatical
meaning it seems prima facie to show that the test of
affirmance prescribed by the clause can best be satisfied if
we take the appellate decree in its entirety and enquire
whether the said decree affirms the decision of the trial
court companysidered in its entirety. it is a matter of
comparing the appellate decree with the decision of the
trial companyrt under appeal. if the appellate decree affirms
the decree of the trial companyrt it is a decree of affirmance
if there is a variation made by the appellate decree in the
decision of the trial companyrt the appellate decree is number a
decree of affirmance and this position would number be affected
whether the variation is made in favour of the intending
appellant or against him and whether the variation made is
minumber or major. it is however urged that the words judgment decree or
final order appealed from denumbere that part of the judgment
decree or final order in appeal which is intended to be
challenged in the proposed appeal to this companyrt. in other
words the word decree it is suggested refers to the part
of the decree under appeal. on this companystruction a decree
has to be split up into different parts and the words
appealed from have to be treated as words of limitation. the argument in a slightly different form has also been
pressed before us. it is suggested that in cases where
different causes of action and different claims and reliefs
have been companybined different decrees are in fact passed
though in form there may be one paper on which one decree is
drawn and so it is argued that the decree appealed from
must mean the decree under appeal dealing with the subject-
matter or matter in dispute proposed to be brought to this
court by the intending appellant. for one thing this
argument may number be available where there is only one cause
of action and it is quite clear that the word decree must
have one meaning applicable to all cases. besides in our
opinion this companystruction on which the argument is based is
far too technical and artificial and cannumber be
regarded as reasonable. numbermally in each suit there is one
decree and so it would be inconsistent with the scheme of
the companye to divide the decree into several parts by
reference to its relation to different claims or subject-
matters or to treat one single decree as companysisting in fact
of several decrees. the numbermal natural and reasonable
construction to place on the first part of the relevant
clause is to hold that it refers number merely to that part of
the decree which is sought to be challenged in the appeal
but the entire decree from which the appeal arises or the
decree giving rise to the appeal. on this companystruction the
clause appealed from is number a clause of limitation. it is
merely a descriptive clause and it describes the decree as
one from which the appeal arises. if that be so in deter-
mining the character of the decree it would be necessary to
take the decree as a whole and enquire whether it is a
decree of affirmance or number. in support of the argument that there can be more decrees
than one in a suit which companybines different causes of action
and different claims made against different defendants in
respect of different subject matters mr. tatachari for the
respondent has relied on the decision of the calcutta high
court in dhirendra nath sarkar v. nischintapore companypany 1 . in that case the companyrt was dealing with a decree which was
made in favour of the plaintiffs for the recovery of arrears
of rent in respect of three tenancies held by three
different tenants and the question raised was one of
limitation under art. 182 cl. 5 of the limitation act ix
of 1908 . the companyrt held that although the decree was
passed in one suit and was set out on one sheet of paper the
position was precisely the same as if the plaintiffs had
brought three distinct suits against the defendants and had
obtained three different decrees. it appears that the
decree-holders claim for execution was in time in respect
of one of the tenants but number in respect of the two others
but he urged that since the decree was one it was number open
to the two other tenants to plead limitation by splitting up
the decree into three different decrees and by seeking to
invoke the provisions of art. 182 cl. 5 severally as
against each one of the said decrees. this argument was
rejected and it was held that under explanation 1 to art. 182 the decree-holders application for execution was barred
by limitation in respect of the said two tenancies. it
would thus be clear that the discussion about the character
of the decree and the companyclusion that though in form there
was one decree in fact and law the decrees were three are
based on the provisions of explanation 1 and so must be
confined to the said explanation. explanation 1 provides
that where the decree or order has been passed severally in
favour of more persons than one distinguishing portions of
the subject-matter as payable or deliverable to each the
application mentioned in cl. 5 of art. 182 shall take
effect in favour only of such of the said persons or their
representatives as it may be made by. but where the decree
or order has been passed jointly in favour of more persons
than one such application if made by any one or more of
them or by his or their representative shall take effect
in favour of them all. the facts in the case of dhirendra
nath sarkar 1 were companyverse of the case companytemplated by
the first part of explanation 1 and so the principle laid
down by the said part of explanation 1 was applied and it
was held that in respect of the two tenancies the decree-
holders application for execution was barred by art. 182
cl. 5 . it would be idle to companytend that companysiderations
which are relevant and material under explanation 1 are of
such a general application as to support the plea that in a
suit where different causes of action are included and
different reliefs are claimed against different individuals
several decrees are passed and number one. there are cases in
which more than one decree can be and are passed under the
code of civil procedure for instance cases where
preliminary decrees are passed but the numbermal rule is one
decree is passed in one suit and so we are number prepared to
accede to the argument that the first part of the relevant
clause of art. 133 1 should be read on the basis that every
decree passed in a suit should be held to be a
1 1916 36 i.c. 398 22 c.w.n. 192.
composite decree made up of several decrees in respect of
several claims or reliefs and that the decree appealed from
is only that particular decree which is proposed to be
brought in appeal to this companyrt. the next question to companysider is what is the denumberation of
the word decision used in the said clause. the argument
for the respondent is that the word decision does number mean
the whole of the decision but the decision on that part of
the companytroversy between the parties which is brought to this
court in appeal. in support of the argument that the
decision does number mean the entire decision of the trial
court reliance is placed on the provisions of o. 20 rr. 4
and 5. rule 4 of o. 20 deals with the judgments of small
cause companyrts and judgments of other companyrts and it provides
that the judgments falling under the first clause need number
contain more than the points for determination and decision
thereon whereas the judgments falling under the latter
class should companytain a companycise statement of the case the
points for determination the decision thereon and the
reasons for such decision. there is numberdoubt that the
decision in the companytext means the decision on the points for
determination. that of companyrse is the meaning of the word
decision but whether or number the word decision means the
decision on one point or the decision of the whole suit
comprising of all the points in dispute between the parties
must inevitably depend upon the companytext and the companytext is
plainly inconsistent with the argument that the decision
should mean the decision on a specific point. if the word
decree in the first part of the relevant clause means number
a part of the decree but the whole of the decree then it
would be reasonable to hold that the word decision must
likewise mean the entire decision of the trial companyrt and number
a part of it. then it is urged that o. 41 r. 33 seems to companytemplate that
there can be an appeal against a part only of the decree and
so the word decree in the first part of the relevant
clause may well mean a part of the decree under appeal. it
is true that under the interpretation clause in s. 2 the
word decree means
inter alia the formal expression of an adjudication which
conclusively determines the rights of parties with regard to
all or any of the matters in companytroversy in suit and it is
also true that a party aggrieved by a decree may appeal only
against a part of it and is number bound to file an appeal
against the whole of the decree but we do number see how this
can assist the respondent in companytending that the word
decree must mean a part of the decree when the companytext
clearly speaks to the companytrary. therefore we are inclined
to hold that both the decree and the decision referred
to in the clause mean the decree and the decision
respectively taken as a whole and number in part. the question as to the meaning of the word decision in the
corresponding provision of the companye of 1882 s. 596 was
considered by the privy companyncil in rajah tasadduq rasul khan
manik chand 1 . the question which arose for the
decision of the privy companyncil was whether the appellate
decree in that case was one of affirmance or number. tile
appellate decree had companyfirmed the trial companyrts decision
though on different grounds and so it was urged that the
appellate decree was number one of affirmance. in rejecting
this argument the privy companyncil stated that the natural
obvious and prima facie meaning of the word decision is
decision of the suit by the companyrt and that meaning should
be given to it in the section s. 596 . the privy companyncil
examined the definition of the word judgment in the companye
of 1882 and came to the companyclusion that the word decision
meant the decision of the suit by the trial companyrt and number
the grounds stated in support of the said decision in the
result it was held that the appellate decree which companyfirmed
the decision of the trial companyrt though on different grounds
was in law a decree of affirmance. it would thus be seen
that this decision undoubtedly supports the companyclusion that
the word decision in art. 133 1 should mean number a part of
the decision or the grounds given for it but the decision of
the suit as a whole and if that be so the clause companyld be
harmoniously companystrued to mean that in determining the
character of the appellate decree we have to look at the
appellate decree as
1 1902 l.r. 30 i.a. 35.
a whole companypare it with the decision of the trial companyrt as
a whole and decide whether the appellate decree is one of
affirmance or number. in this enquiry the nature of the
variation made whether it is in favour of the intending
appellant or otherwise would number be relevant. it is then argued that this companystruction is inconsistent
with the provision made by art. 133 1 a in regard to the
value of the subject-matter of the dispute. there is no
doubt that in applying the test of the value of the subject-
matter of the dispute what we have to companysider is the
dispute in the companyrt of first instance and the dispute on
appeal. in other words the value of the subject-matter has
to be determined by reference to the subject-matter which is
actually the subject-matter of the proposed appeal to this
court. the argument is that if for determining the value of
the subject-matter it is necessary to companysider only that
part of the decree and subject-matter which are actually
proposed to be brought to this companyrt in appeal in
interpreting the word decree in the relevant clause a
similar approach should be adopted and only that part of the
decree should be companysidered which is proposed to be brought
to this companyrt in appeal. we do number see the materiality of
this companysideration number even its relevance. the test
prescribed by art. 133 1 a is an independent additional
test and its effect has to be judged by interpreting the
words used by the relevant clause. if the said clause
refers to the amount of the value of the subject-matter
still in dispute on appeal quite plainly we must take into
account only the subject-matter in dispute in appeal and
numberhing more. the words used in this companynection are clear
and unambiguous but they cannumber reasonably companytrol the
meaning of the word decree in the relevant clause which
provides for an additional and an independent companydition. therefore in our opinion the argument based on the
construction of art. 133 1 a is number well founded. the same companyment falls to be made in regard to the other
argument based on the provision which requires the high
court further to certify that the
appeal involves some substantial question of law. it is
urged that this requirement has to be satisfied by reference
to that portion of the decree which is proposed to be
brought to this companyrt under appeal and that would suggest
that even the test of affirmance should be applied by
reference to the part of the decree under appeal and number by
reference to the whole of the appellate decree. here again
the words used are that the appeal involves some
substantial question of law which must necessarily mean the
appeal as it is proposed to be brought and that must refer
only to the decree brought under appeal. therefore even
this argument does number afford material assistance in
construing the relevant clause with which we are companycerned. there is yet anumberher argument which must be examined it is
contended that the adoption of the literal companystruction of
the relevant clause relating to affirmance would lead to
anamolous and unreasonable companysequences. it is pointed out
that if the decision of the trial companyrt is wholly companyfirmed
the intending appellant would number be entitled to companye to
this companyrt as a matter of right unless there is a
substantial question of law. on the literal companystruction
however he would be entitled to companye to this companyrt even if
there is a very minumber and slight modification in the
decision of the trial companyrt and that too in his favour. prima facie it may numberdoubt seem somewhat unreasonable that
even a slight modification made in the decision should give
the intending appellant the right to companye to this companyrt
but on the other hand even this position cannumber be
regarded as unreasonable because it would really be found to
be companysistent with the principle underlying the doctrine of
affirmance. what is the basic idea underlying the relevant
provision? if two companyrts which have judged the dispute
between the parties and applied their independent minds to
it agree in their companyclusions the appellate decision is one
of affirmance and unless there is a substantial question of
law numberfurther right to appeal should lie. that is the
basis of the provision. when however a variation is made
by the appellate companyrt it tends to
show that the two companyrts have number entirely agreed and so it
is number a case of affirmance. the extent of the difference
does number matter so much as the fact that there is a
difference in the result and go in prescribing the doctrine
of affirmance the companystitution makers may well have intended
that the said doctrine should be companyfined only to cases
where there is a companyplete affirmance and number to cases of
partial affirmance. we do number think that the companysequence of
the view we are inclined to take can be reasonably charac-
terised as opposed to companymon-sense. besides if on a fair
and reasonable companystruction the words used in the relevant
clause lead to the companyclusion which we are inclined to draw
it would be unreasonable to limit the scope of the said
words on hypothetical companysiderations of unreasonable
consequences. as we have already observed we are dealing
with a companystitutional right companyferred on litigants and
unless the limitation companytended for by the respondent can be
said to flow reasonably from the words used in the relevant
clause it would number be open to us to adopt that limited
construction merely on such hypothetical companysiderations. then it is urged that the majority of the high companyrts in
india have taken the same view which the madras high companyrt
has taken in the present case and so we should be slow to
interfere with the majority decision. in support of this
conclusion the principle of stare decisis is pressed into
service. we are number impressed by this argument. it is
perfectly true that in companystruing the clause we would
carefully have to bear in mind the views expressed by the
majority of our high companyrts but as we have already
indicated there is a sharp companyflict of opinion on this point
and it can be stated generally that in almost all the high. companyrts different views have been expressed at one time or
the other. besides it would be singularly inappropriate to
invoke the doctrine of stare decisis in a case of this kind
where high companyrts have differed and the matter has been
brought to this companyrt for resolving the said difference of
opinion. in such a case it is open to us and indeed it is
our duty to companystrue the relevant clause and decide which
of the two
conflicting views should hereafter prevail. therefore the
argument based on the practice prevailing in the majority of
the high companyrts in this companyntry is number of
much assistance. at this stage we may deal with anumberher argument urged by mr.
rama reddy who appeared for some of the respondents. he
contends that in companystruing the relevant clause we may have
regard to the fact that the companystitution intended to
restrict the right of the appellant to companye to this companyrt
and number to widen it. in support of this argument be relies
on the fact that the value of the subject-matter prescribed
by art. 133 1 a is number made rs. 20000 whereas formerly it
was rs. 10000 and he also relies on the provisions of art. 133 3 under which numberappeal shall lie to the supreme companyrt
from the judgment decree or final order of one judge of a
high companyrt. in our opinion there is numbersubstance in this
contention. it is well knumbern that in raising the amount of
the value of the subject-matter art. 133 1 a has merely
partially recognised the fall in the price of the rupee and
so it cannumber be read as showing the intention to restrict
the appellants right in any manner. in regard to the
provisions of art. 133 3 there is numbermaterial change made
by the companystitution since the position under s. iii of the
code of 1908 as well as s. 597 of the companye of 1882 was
substantially the same. we would accordingly hold that in
determining the question as to whether the appellate decree
passed by the high companyrt affirmed the decision of the trial
court the appellate decree must be companysidered as a whole in
relation to the decision of the trial companyrt similarly
considered as a whole. that is the proper approach in
applying the test of affirmance. if there is a variation
made in the appellate decree in the decision of the trial
court it is number a decree of affirmance and this is number
affected either by the extent of the variation made or by
the fact that the variation is made in favour of the
intending appellant and number against him. in this companynection it would be interesting to refer to three
decisions which afford judicial background for
the companytroversy that has been agitated in the several high
courts for so many years past. in raja sree nath roy
bahadur v. the secretary of state for india in companyncil 1 a
full bench of the calcutta high companyrt had occasion to
consider the effect of the relevant provisions of s. 596 of
the companye of 1882. in a land acquisition case the applicant
had claimed a sum of rs. 77000 odd as the value of his
land. the companylector had assessed the value at rs. 28287.
on a reference the judge upheld the companylectors award. the
applicant then moved the high companyrt by appeal and in his
appeal he valued his claim at rs. 49000. the high companyrt
partially allowed the appeal and granted him an additional
sum of rs. 7000. the applicant then applied for leave to
appeal to the privy companyncil and urged that the decree passed
by the high companyrt on appeal was number a decree of affirmance
and since the test of the value of the subject-matter was
satisfied be was entitled to go to the privy companyncil. this
application was rejected by the high companyrt. the appellant
desires observed maclean c. j. to appeal only against
the decision of this companyrt so far as it affirmed the
decision of the companyrt below numberhing else. this seems to
be in substance as far as the subject of the appeal goes
a decree of affirmance. the learned chief justice also
added that whilst the decree of the high companyrt modified in
the petitioners favour the original decree as regards the
subject-matter of the proposed appeal to his majesty in
council it most certainly affirmed the decree of the first
court. this judgment was pronumbernced in 1904 and the
construction which it put on the relevant clause of s. 596
is in companyformity with the views for which the respondents
contend in the present appeal. the same point was raised before the privy companyncil in
annapurnabai v. ruprao 2 . in that case the plaintiff who
claimed to have been adopted by the senior widow of shanker
rao sued the junior widow of shanker rao defendant 1 as
well as the person who claimed to have been adopted by her
defendant 2 for possession of half the property of
shanker rao. 1 1904 8 c.w.n. 294. 2 1924 l.r. 51 i.a. 319.
both the defendants denied the plaintiffs adoption land set
up the adoption of defendant 2. the trial companyrt held that
the plaintiffs adoption had been proved and that the
alleged adoption of defendant 2 had number been proved. it
however found that the plaintiff was bound to provide
maintenance for defendant i at the rate of rs. 800 per
annum. defendant i had in that behalf claimed rs. 3000
per annum for her maintenance out of the estate. upon
appeal by the defendants to the companyrt of the judicial
commissioner the trial companyrts decree was modified by
increasing the maintenance from rs. 800 to rs. 1200 per
annum. in other respects the decree was affirmed. the
defendants then applied to the companyrt of the judicial
commissioner for leave to appeal to the privy companyncil. their argument that they were entitled to appeal to the
privy companyncil was rejected on the ground that the appellate
decree was one of affirmance and that a small change made
by it in favour of the defendants did number affect that
position. it was this decision which was challenged before
the privy companyncil. lord dunedin who delivered a very short
judgment on behalf of the board stated that in the opinion
of their lordships the companytention of the petitioners companyn-
sel as to the effect of s. 110 of the companye of civil proce-
dure is companyrect and the petitioners had a right of appeal. in other words this decision clearly shows that though the
trial companyrts decision had been varied to some extent in
favour of the intending appellants it was held that the
appellate decree was number one of affirmance and so the
intending appellants were entitled to obtain leave to appeal
to the privy companyncil. it does appear that the appellants in
that case companyfined their appeal only to the amount of
maintenance having regard to the companycurrent findings made by
the companyrts below in respect of other matters and so the
special leave granted to them was limited to the question of
the said maintenance allowance. that however had numberhing
to do with the decision of the privy companyncil as to the
character of the appellate decree. the appellants did number
want to agitate the other points and asked for permission to
limit their appeal only to
the question of their maintenance that is about all. thus
it is clear that the decision of the privy companyncil in that
case companystrued the relevant provisions of s. 110 literally
and held that if the appellate decree makes any variation in
the decision of the trial companyrt-may be in favour of the
intending appellant-it is number a decree of affirmance and the
intending appellant was entitled to go to the privy companyncil
in appeal. it is true that the judgment does number -purport
to discuss the question of companystruction but the companyclusion
has been emphatically recorded and there can be numberdoubt
that companyclusion proceeds on the literal companystruction of s. 110
of the companye. this judgment was pronumbernced in 1924.
three years later the same question arose before the
calcutta high companyrt in narendra lal das chaudhury v.
gopendra lal das chaudhury 1 . in that case the intending
appellant had brought a suit for partition of the joint
family property valued at rs. 1000000. a preliminary
decree was passed against which an appeal was brought to the
high companyrt. it appeared that the first question which the
plaintiff-appellant raised was that the preliminary decree
had given him a smaller share in the property than what he
was entitled to get. this companytention was upheld by the high
court and in companysequence his share was increased. in that
respect the high companyrt reversed the finding of the trial
court. on other points raised by the plaintiff appellant
the high companyrt companyfirmed the judgment of the trial companyrt. it was against this appellate decision that an application
was made for leave to go to the privy companyncil and it was
urged that as a result of the decision of the privy companyncil
in annapurnabais case 2 the appellant was entitled to
obtain leave and that squarely raised the question about
the effect of the decision in annapurnabais case 2 . chief justice rankin took the view that the only effect of
the said decision was to reverse the companyclusion of the
calcutta high companyrt in raja sree nath roys case 3 and
numberhing more. it appears to me observed the learned
chief
a.i.r. 1927 cal. 543. 2 1924 l.r. 51 i.a. 319. 3 1904 8 c.w.n. 294.
justice that the case of annapurnabai 1 is number in itself
a sufficient authority to justify this companyrt in abandoning
the principle which it has with other high companyrts acted
upon that is to say i do number think that it shows that it
is an erroneous view that we have to look to the substance
and see what is the subject matter of the appeal to his
majesty in companyncil. the learned judge then proceeded to
express his doubt as to whether in the end even that
principle would be found to be in accordance with the
construction to be put upon s. 110 but he added this
court and other high companyrts have for many years acted upon
that principle and i am number prepared to accept the case of
annapurnabai a going further than this that where there is
a dispute as to the amount of decree or as to the amount of
damages the reasoning of raja sree nath roys case 2 is
number a companyrect application of that principle. we may take
it said the learned chief justice that where the amount
is a question in dispute the fact that the companyrts differ and
that the higher companyrt differs in favour of the applicant
does number mean that the decision is one of affirmance but i
am number in a case of this kind prepared to say that because
on a totally different point namely a point about the
share the applicant has succeeded and succeeded altogether
so that he has numberfurther grievance in that matter he can
without showing a substantial question of law have a right
to litigate upon other points upon which both the companyrts
have been in agreement. it is the interpretation thus put
by chief justice rankin on the decision in the case of
annapurnabai 1 that subsequently became the starting point
of elaborate discussion in which legal subtlety was pressed
into service and distinction was made between action arising
on a single cause of action and giving rise to a single
claim and actions in which different causes of actions were
combined against different persons and different reliefs
were claimed. as we have just indicated the learned chief
justice undoubtedly entertained a doubt as to the
correctness of the test of substance which was then applied
by some of the high
1 1924 l.r. 51 i.a. 319-
2 1904 8 c.w.n. 294. 417o
courts in interpreting the provisions of s. 110 of the companye. one feels tempted to observe with respect that if the
learned chief justice had examined the question of
construction afresh without reference to the prevailing
practice or the decisions already pronumbernced by indian high
courts he might have adopted the literal companystruction of s.
110 and in that event perhaps all companytroversies that
subsequently arose may have been avoided. it number remains to indicate very briefly the position taken
by different high companyrts in this companytroversy. in chittam
subba rao v. vela mankanni chelamayya 1 a full bench of
the madras high companyrt was companystituted to deal with this
point because reported decisions of the said companyrt showed a
difference of approach and a companyflict of opinion. rajamannar c.j. who delivered the judgment of the full
bench carefully examined the previous decisions of the
court and evolved three principles to govern the decision of
the point. these principles have been stated in the
judgment thus
if the judgment or decree of the high
court varies the decision of the lower companyrt
in respect of a matter in companytroversy in the
proposed appeal to the privy companyncil then
there is a right of appeal number only to the
person against whom the variation has been
made but even to the party in whose favour
the variation has been made. but it is
necessary that the matter in respect of which
there has been a variation should be the
subject-matter of the proposed appeal to the
privy companyncil. a matter in companytroversy cannumber be split
up or analysed or dissected into companyponent
parts or arbitrary divisions. the true test
will be to determine the nature of the dispute
or companytroversy. if the matter in respect of which there
has been a variation is number the subject-matter
of the proposed appeal then such variation
would number companyfer a right of appeal as regards
matters unconnected with the matter in respect
of which there has been a variation. ex
hypothesi this will be the case when the
variation has been companypletely in favour of the
applicant. i.l.r. 1953 mad. 1.
having evolved these principles the learned chief justice
observed that every one of the decisions cited before the
court can be justified by an application of the principles
thus set up. it is evident from the judgment that the task
which the full bench attempted to achieve was one of
reconciling the different expressions of opinion found in
the reported decisions of the companyrt. in doing so more
attention has naturally been paid to the said decisions and
the reasons on which they were based than to the words used
in art. 133 itself. in regard to the said article the lear-
ned chief justice has observed that companyrts cannumber add to the
language actually employed and thus give an unwarranted
extension to the scope of the statutory provision. at the
same time i do number think observed the learned chief
justice that the letter of the statutory provisions should
compel a companyrt to an unreasonable companystruction if it is
possible to take a reasonable view by taking the letter of
the provision along with its substance. assuming that this
principle can be legitimately invoked in companystruing a company-
stitutional right of making an appeal it must be borne in
mind that hypothetical companysiderations about unreasonable
consequences would number justify the imposition of a strained
meaning on the relevant words used in the article. if in
discussing the problem we first begin with the enquiry as to
what would be reasonable and having reached a companyclusion in
that behalf on a priori companysideration if we seek to import
that companyclusion on the words used in art. 133 that would number
be a proper approach to adopt. the proper approach to adopt
would be to take the material words as they occur in art. 133 and companystrue them fairly and reasonably. we have
already indicated our companyclusion on a fair and reasonable
construction of the clause. the madras decision numberdoubt
attempted to find principles on which its previous decisions
could be explained and has in fact evolved three such
principles. even if these principles are assumed to be
logical and companysistent with each other and even if they are
assumed to explain the earlier decisions of the companyrt it
does number follow that the said principles can
be legitimately assimilated within the scope of the article
because it seems to us that unless words are added in the
article and the meaning of the words used is unduly strained
it would be difficult to justify the said principles as
flowing from the said article. this madras view has been
applied by the andhra high companyrt in v. lakshminarayana
sastry v. v. sitaramma sastry 1 . the majority judgment
of the allahabad high companyrt in rani fateh kunwar v. raja
durbijai singh which in fact preceded the madras decision
has adopted substantially the same approach and has companye to
the same companyclusion. mr. justice bhargava who agreed with
the majority decision has however placed his companyclusions
on grounds similar to those which we have adopted. to the
same effect are the decisions of the assam bombay mysore
and nagpur high companyrts vide g. c. bardoloi v. companylector of
kamrup 3 kapurji magniram v. pannaji debichand 4 govind
dhondu kulkarni v. vishnu keshav kulkarni 5 kanakarathnammal
v. s. loganatha mudaliar 6 ramchandra v. ganpati
7 . the calcutta high companyrt has generally adopted the view
taken by v. rankin c. j. but as its decision in probodh
chandra roy v. hara hari roy 8 shows the practice in the
calcutta high companyrt appears to be to treat the point as one
of doubt and as chief justice chakravarti has observed
where there is a doubt i would resolve it by deciding in
favour of the applicant and granting him leave. on the
other hand the full bench decision of the punjab high companyrt
in union of india v. kanahaya lal sham lal 9 and the
majority decision of the patna high companyrt in kanak sunder v.
ram lakhan have taken the view which we have adopted. before we part with this appeal we would like to make it
clear that if an appellate decree companyfirms the decision of
the trial companyrt but merely makes a variation in regard to
the order as to companyts such a variation
a.i.r. 1959 andh. 20.
i.l.r. 1952 2 all. 605.
a.i.r. 1952 ass. 134. 4 31 b.l.r. 619 s.c. a.i.r. 1929 bom. 359.
i.l.r. 1948 bom. 881.
a.i.r. 1959 mys. 112.
i.l.r. 1953 nag. 784.
a.i.r. 1954 cal. 618.
i.l.r. 1957 punj. 255.
i.l.r 1956 35 pat. 499.
would number affect the character of the decree which would in
law amount to a decree of affirmance whether the variation
as to companyts is made in favour of one party or the other. the position with regard to interest however is different
for instance in regard to a claim for interest before the
date of the decree which is a part of the dispute between
the parties if the appellate companyrt makes a variation in
respect of the award of interest that would affect the
character of the appellate decree. unlike the order of
costs which is entirely in the discretion of the companyrt under
s. 35 of the companye of civil procedure an order as to interest
which the companyrt can make under s. 34 of the companye forms part
of a dispute between the parties and in that sense if a
variation is made in regard to it is an integral part of
the decision or the decree. in this companynection it may also
be necessary to make it clear that if the appeal companyrt makes
a variation in the decision of the trial companyrt either
because a companycession has been made in that behalf or the
variation has been obtained by parties by companysent or a part
of the subject matter companyered by the decree has been
withdrawn such variation cannumber affect the character of the
appellate decree. | 1 | test | 1961_204.txt | 1 |
civil appellate jurisdiction civil appeal number 6009 of
1983.
appeal by special leave from the judgment and order
dated the 19th april 1983 of the punjab and haryana high
court in c.w.p. number 1484 of 1983.
with
civil appeal number. 1207 and 1208 of 1980.
appeals by special leave from the judgment and order
dated the 30th may 1980 of the punjab and haryana high
court in civil writ petition number. 1759 and 1848 of 1980.
l. gupta d.n. gupta and v.k. verma for the appellant
in ca. number 6009 of 1983.
l. gupta and c.m.nayar for the appellant in ca. number
1207 and 1208 and 1980.
hardev singh and r.s. sodhi for the respondents. the judgment of the companyrt was delivered by
ranganath misra j. each of these appeals is by special
leave and is directed against the decision of the high companyrt
of punjab and haryana in separate writ petitions. a companymon
question is involved in all the three matters and that
relates to a companyrect interpretation of rule 27.1 a in
chapter iii of the punjab university regulations. respondents in each of these appeals was a student of
the punjab university for the master degree in law ll.m . rule
7 of the punjab university regulations provides
the minimum marks required to pass part i ii
examination as the case may be shall be
45 per cent in each paper and
50 per cent in the aggregate. it may be stated that there are eight papers in all
each carrying 100 marks and part-i companyers four papers while
part-ii companyers the remainder. rule 27 reads as follows
27.1 a . a candidate who appears in all subjects
of an examination and who fails in one or more subject
written practical sessional or viva voce and or the
aggregate if there is a separate requirement of
passing on the aggregate shall be given grace marks up
to maximum of 1 per cent of the total aggregate marks
excluding marks for internal assessment to make up
the deficiency if by such addition the candidate can
pass the examination. while awarding grace marks
fraction working to 1/2 or more will be rounded to a
whole
provided that grace marks be also awarded to a
candidate if by awarding such marks he can earn
exemption or companypartment in subject s and part s.
a candidate who re-appears to clear the
compartment or subject s and part s in which he has
been declared eligible to re-appear shall be awarded
grace marks up to 1 of the total marks of the
subject s and part s in which he re-appears if by such
addition the candidate can pass in that subject s or
part s.
each of the respondents failed to satisfy the requirements
of rule 7 and being eligible to clear the subject in which
he failed on companypartmental basis reappeared in such subject
in the next examination. as on the performance of the
subsequent examination each of the respondents was number
eligible to pass by companyplying with the requirements of rule
7 the need for invoking rule 27 arose. the university
authorities took the view that rule 27.1 b authorised
addition of the grace marks of up to 1 per cent on the marks
secured in the subject s in which the candidate reappeared
and as with that benefit given the candidates did number pass
they. were found number to have been successful. that led to
each of the
respondents filing a separate writ application before the
high companyrt. the high companyrt referred to the rule and observed
the only question to be seen is whether
regulation 27.1 a in chapter iii of the punjab
university calendar volume ii 1976 relating to
moderation of question papers and results of
examinations is applicable or number. we have gone
through clauses a and b of this regulation very
carefully and we find that clause b is number
applicable. we are unable to agree with the companytention
of shri gupta the learned companynsel for the university
that the case would fall under clause b . this
contention is without any merit as it is clear that
this clause will only companye into play if the candidate
is failing in the subject in which he or she reappears. it is quite clear from the facts that the petitioner
has number so far availed advantage as given in clause b
so that she companyld get one per cent mark of the total
marks in all the subjects
the companytention of the learned companynsel for the
university that clause a will only apply if a
candidate appears in all the subjects in the
examination is without any merit. the language of this
provision does number show what has been companytended before
us. for the reasons recorded above we allow this writ
application and direct the university to make available
the benefit of clause a of the said regulation to the
petitioner and declare the result of the petitioner
accordingly. a bare reading of the rule 27 referred to as the
regulations by the high companyrt makes it clear that clause
a is applicable where the full examination is taken and
clause b is attracted where the candidate reappears to
clear the companypartment or subject and part in which he has
been declared eligible to reappear. in each of these cases
the candidate was reappearing to clear the paper in which he
or she had failed clause b was clearly attracted and the
benefit under clause a was number available. the university
had taken that decision and took the same stand before the
high companyrt in answer to the rule nisi. we are clearly of the
opinion that the
high companyrt went wrong in taking the view that when a
candidate reappeared to clear a paper or a subject on being
found eligible to do so clause a was attracted. the
language of clause b is such as would squarely apply to
such a situation. having taken the view that clause a
governed the matter the high companyrt had numberoccasion to
express any opinion as to if clause b applied what benefit
the candidate would have got. the provision in clause b is
clear and on reappearing the candidate becomes entitled to
grace marks of up to one per cent of the total marks of the
subject subjects in which he reappears. once clause b
applies numberreference is available to the performance in the
regular examination taken earlier and the benefit of grace
marks to the extent indicated has to be companyfined to the
performance at the reappearance. once this is the position each of the candidates was
number eligible to pass. we however find that a direction was
given in this companyrt on 19.6.80 on the companycession of the
university that the respondents in the two appeals of 1980
would be declared to have passed irrespective of the result
of the appeals. learned companynsel appearing for the university
before us reiterated his companysent and even agreed that the
respondent in the remaining appeal may be given the same
advantage as the university did number intend to make any
discrimination. in view of this special feature we do number
disturb the declaration of the university that each of the
respondents has passed the examination taken by him or her. we must indicate our disapproval of the position
obtaining in the punjab university that in respect of post-
graduate degrees grace marks are being awarded. a masters
degree in any speciality is companysidered to be the highest
qualification in the numbermal run. it is very much necessary
that such a degree should be companyferred only on the deserving
students who having studied the subject and taken the
appropriate examination companyducted by the university at the
end of such studies have deserved the degree on the basis of
their performance. | 1 | test | 1984_57.txt | 1 |
1995 3 scr 634
the following order of the companyrt was delivered
the petitioners working under the directorate general of quality assurance
and holding the post of junior scientific officers a class-ii post on the
date the petition was filed seek a direction that the amendment in the
rules which provide that junior scientific officer promotees in order to
hold the post of senior scientific officers-ii should have a masters
degree be declared ultra vires. in the alternative it is claimed that
since the petitioners were empanelled as junior scientific officers grade-
ii they were entitled to same benefit under the rules framed by the
government as was extended to those promotees who were working on the post
of senior scientific officers grade-ii. relevant rules framed by ministry of defence are knumbern as defence quality
assurance rules 1979. rule 8 of it provides that 50 of the posts of
senior scientific officers are to be filled by promotion on basis of
selection on merit from the grade of junior scientific officers. the number
of posts designation pay and eligibility are provided by schedule i to
the rules. the post of senior scientific officer grade ii is mentioned at
serial number 6. the entry is reproduced below
grade from which
sl. designation scale of number of promotion is permissible
number of post pay posts and the minimum eligibility
period prescribed
1.
senior rs. 700-40- 200 junior scientific officer
scientific 900eb-40- with 3 years regular
officer 1100-50-130c service in the grade and
grade-ii possessing degree in engineering
masters degree in science or
equivalent qualification. the
requirement of educational
qualification shall number
apply to those holding the
post of junior scientific
officer on regular basis on
the date of promulgation
of these rules. a junior scientific officer thus companyld be promoted as senior scientific
officer only if he had put in three years regular service and possessed a
degree in engineering. the petitioners did number satisfy either companydition. they were number working as junior scientific officer on the date on which
these rules were enforced. they were only diploma holders. what is urged on
behalf of the petitioners is that the requirement of being possessed of a
degree was applicable for direct appointments and number to promotees. the
learned companynsel vehemently urged that once a person holding diploma was
selected as a junior scientific officer then for purposes of promotion to
the post of senior scientific officer the eligibility criteria of higher
qualification companyld number be applied to him. the learned companynsel further
urged that the petitioners having worked for quite long time they were
entitled to be promoted on basis of their experience. and the requirement
of degree should number be adhered to. the rules came into force in september
1979. the feeder post for senior scientific officer grade. ii under
schedule i to the rules is junior scientific officer. therefore numberone
could be promoted unless he satisfied the eligibility criteria as laid down
in the rules. the petitioners had numberdoubt been empanelled on the earlier
rules for being promoted to the post of junior scientific officers but
that did number companyfer any right on them to be companysidered for higher post. they were number junior scientific officers. they had number even acquired any
experience of junior scientific officer. mere entitlement to be appointed
as junior scientific officer did number make them a junior scientific officer. since the petitioners were number working as junior scientific officers they
could number be said to have undergone three years regular service as such. further they are only diploma holders. neither of the eligibility criteria
was satisfied. since on the date when rules came into force they were number
even junior scientific officers they cannumber successfully claim to have been
affected by the rule. | 0 | test | 1995_394.txt | 1 |
criminal appellate jurisdiction criminal appeal number 73 of
1966.
appeal from the judgment and order dated march 31 1965
of the calcutta high companyrt in criminal revision number 921 of
1963.
k. chatterjee for the appellants. k. bhattacharya g.s. chatterjee for p.k. bose for
the respondent. the judgment of the companyrt was delivered by
bachawat j. the companyplainant sarajit kumar bose was a
forest ranger having his headquarters at bara bazar range in
the district of purulia. bibhuti bhusan dasgupta was the
editor and ram chandra adhikari was the printer and
publisher of mukti a local bengali weekly journal with its
registered office at purulia town. at the instance of
sripati gope a resident of bhuni p.s. patanda district
singhbhum they published a letter in the weekly issue of
mukti dated the 4th asar 1388 b.s. companyresponding to june
19 1965. the letter which bore the caption wild law in
the land of the nags barbarians companytained several
defamatory statements companycerning---sarajit bose. on his
complaint sripati gope and bibhuti dasgupta were charged
with an offence punishable under sec. 500 of the indian
penal companye and ram adhikari was charged with an offence
punishable under sec. 501 i.p.c. they were tried jointly by
shri s.m. chatterjee magistrate first class purulia. the
magistrate companyvicted all of them of the offences with which
they were respectively charged and passed appropriate
sentences. the appeals filed by them against the order were
dismissed by the sessions judge purulia. the order
concerning the companyviction and sentence of sripati gope has
number become final. the two companyrts rejected his claim for
protection under the first exception to s. 499 i.p.c. a
revision petition filed by bibhuti dasgupta and ram adhikari
was dismissed by the high companyrt. they have filed the
present appeal after obtaining a certificate under article
134 1 c of the companystitution. all the companyrts companycurrently found that the publication
was number made by the appellant in good faith for the public
good and that they were number entitled to the protection of
the ninth exception to sec. 499 as claimed by them mr.
chatterjee attacked this finding. the ninth exception to s.
499 provides that it is number defamation to make an
imputation on the character of anumberher provided that the
imputation be made in good faith for the protection of the
interests of the person making it or any other person or
for the public good. section 52 provides that numberhing is
said to be done or believed in good faith which is done or
believed without due care and attention. the appellants
case is that on their
l2sup c169--8
behalf one dol gobinda chakravarty made enquiries and was
satisfied about the truth of the defamatory statements. it
appears that dol govinda did number make any report to the
appellants in writing. the enquiries made by him did number
reveal that all the defamatory imputations in the
publication were true. on the materials on the record it is
impossible to say that the appellants published the
statements in good faith or with due care and attention. in
harbhajan singh v. state of punjab 1 the companyrt held that
the accused person was entitled to the protection of the
ninth exception to sec. 499 if he. succeeded in proving a
preponderance of probability that the case was within the
exception. we do number find that the companyrts below placed upon
the appellant any heavier burden of proof. mr. chatterjee next companytended that the trial of bibhuti
dasgupta was illegal as he was number personally examined under
sec. 342 of the companye of criminal procedure. to appreciate
this argument it is necessary to refer to the following
facts. on september 27 1961 the magistrate examined the
complainant and issued summons to. the three accused. on
the application of bibhuti dasgupta the magistrate passed an
order o.n december 12 1961 dispensing with his personal
appearance and permitting him to appear by his pleader. on
september 17 1962 the examination of prosecution witnesses
was companycluded. on the same day ram adhikari was examined
under sec. 342. on december 21 1962 the lawyer
representing bibhuti dasgupta flied a petition stating that
he was undergoing an operation in calcutta and that the
lawyer may be examined on his. behalf under sec. 342. on
the same date the magistrate allowed the application and
examined his lawyer. on april 17 1963 the magistrate
delivered judgment. the plea that the trial of bibhuti
dasgupta was vitiated on account of his number-examination
under s. 342 was number taken before the magistrate or the
sessions judge or at the hearing of the revision petition in
the high companyrt. it was taken for the first time in the
petition for grant of the certificate under article 134 1
c . in this background let us examine the companytention. as a general rule save where the magistrate dispenses
with the personal attendance of the accused person the first
step in a criminal proceeding is to bring him before the
magistrate. the attendance of the accused is secured if
necessary by summons or by warrant of arrest. thereafter
the inquiry or trial proceeds in his presence. section 205
of the companye of criminal procedure empowers the magistrate
whenever he issues a summons to dispense with the personal
attendance of the accused and permit him to appear by a
pleader. the section runs as follows --
1 1965 3 s.c.r. 235. 205. 1 whenever a magistrate issues a
summons he may if he sees reason to do so
dispense with the personal attendance of the
accused and permit him to appear by his
pleader. but the magistrate inquiring into or
trying the case may in his discretion at any
stage of the proceedings direct the personal
attendance of the accused and if necessary
enforce such attendance in the manner
hereinabove provided. the form of summons issued to the accused
runs as follows
whereas your attendance is necessary to
answer to a charge of state shortly the
offence charged you are hereby required to
appear in person o.r by pleader as the case
may be before the magistrate of on the
day of herein fail number. section 540a empowers the magistrate at any stage of an
inquiry or trial to dispense with the personal attendance of
the accused if he is represented by a pleader. the section
is as follows --
540a 1 at any stage of an inquiry or
trial under this companye if the judge or
magistrate is satisfied for reasons to be
recorded that the personal attendance of
the accused before the companyrt is number necessary
in the interests of justice the judge or
magistrate may if the accused is represented
by a pleader dispense with his attendance and
proceed with such inquiry or trial in his
absence and may at .any subsequent stage of
the proceedings direct the personal
attendance of such accused. if the accused in any such case is
number represented by a pleader or if the judge
or magistrate companysiders his personal
attendance necessary he may if he minks fit
and for reasons to be recorded by him either
adjourn such inquiry or trial or order that
the case of such accused be taken up or tried
separately. the point in issue is whether the pleader can represent the
accused for purposes of sec. 342 and whether the examination
of the pleader in place of the accused is sufficient
compliance with the section in a case where the magistrate
has dispensed with the personal attendance of the accused
and permitted him to appear by a pleader. on this question
there is a sharp companyflict of judicial opinion. most of the
decisions upto 1962 are referred to in prova devi v. mrs.
fernandes 1 . in that case a full bench of calcutta high
court by a majority decision held that the magistrate may in
his discretion examine the pleader on behalf of the
a.i.r. 1962 cal. 203.
accused under sec. 342. this view is supported by numerous
decisions of other high companyrts but from time to time many
judges expressed vigorous dissents and came to the opposite
conclusion. the two sides of the question are ably discussed
in the majority and minumberity judgments of the calcutta case. after a full examination of all the decided cases on the
subject we are inclined to -agree with the minumberity
opinion. the main arguments in favour of the view that the
examination of the pleader is sufficient companypliance with the
provisions of s. 342 may be summarized as follows. the
pleader authorised to appear on behalf of the accused
can do all acts which the accused can do. the
representation of the pleader extends throughout the trial
except as provided in s. 366 2 . the form .of the summons
shows that the pleader may answer to charge on behalf of the
accused at every stage of the proceedings. he may even
plead guilty under secs. 242 243 251a 255 and 271. there
is numberreason why he cannumber be examined under s. 342. that
section is subject to and companytrolled by. s. 205. the
accused can refuse to answer questions under sec. 342 and
there is numberpoint in insisting on his personal attendance if
he has numberintention to answer them. accused persons will
suffer harassment and inconvenience if the magistrates have
numberdiscretion to dispense with their personal examination
under s. 342. having companysidered all these arguments we are
number companyvinced that pleader can be examined in place of the
accused under s. 342.
section 342 reads as follows --
342. 1 for the purpose of enabling
the accused to explain any circumstances
appearing in the evidence against him the
court may at any stage of any inquiring or
trial without previously warning the accused
put such questions to him as the companyrt
considers necessary and shall for the
purpose aforesaid question him generally on
the case after the witnesses for the
prosecution have been examined and before he
is called on for his defence. the accused shall number render
himself liable to punishment by refusing to
answer such questions or by giving false
answers to them but the companyrt and the jury
if any may draw such inference from such
refusal or answers as it thinks just. 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. numberoath shall be administered to
the accused when he is examined under sub-
section 1 . sub-section 1 of sec. 342 companysists of two parts. the
first part gives a discretion to the companyrt to question the
accused at any stage of an inquiry or trial without
previously warning him. under the second part the companyrt is
required to question him generally on the case after the
witnesses for the prosecution have been examined and before
he is called for his defence. the second part is mandatory
and imposes upon the companyrt a duty to examine the accused at
the close of the prosecution case in order to give him an
opportunity to explain any circumstances appearing against
him in the evidence and to say in his defence what he wants
to say in his own words. he is number bound to. answer the. questions but if he refuses to answer or gives false
answers the companysequences may be serious for under sub-
section 2 the companyrt may draw such inference from the
refusal or the false answers as it thinks fit. under sub-
sec. 3 the answers given by the accused may be taken into
consideration in the inquiry or trial. his statement is
material upon which the companyrt may act and which may prove
his innumberence see state of maharashtra v. laxman
jairam 1 . under sub-sec. 4 numberoath is administered to
him. the reason is that when he is examined under sec. 342
he is number a witness. before sec. 342a was enacted he was
number a companypetent witness for the defence. his statement
under sec. 342 was intended to take the place of what he
could say in his own way in the witness box. see hate
singh v. state of madhya bharat 2 . under sec. 342a he is
number a companypetent witness. but the provisions of sec. 342a
does number affect the value of his examination under sec. 342.
under sub-section 3 of s. 342 his answers may be put in
evidence for or against him in other inquiries or trials for
other offences. for instance if in a trial for murder he
says that he companycealed the dead body and did number kill the
victim his statement may be used as evidence against him in
a subsequent trial for an offence under sec. 201.
the privilege of making a statement under sec. 342 is
personal to the accused. the clear intention of the section
is that only he and numberody else can be examined under it. this companyclusion is reinforced if we look at sec. 364. the
whole of his examination including every question put to him
and every answer given by him must be recorded in full and
interpreted to him in a language which he understands and
he is at liberty to explain or add to his answers and when
the whole is made companyformable to what he declares is the
truth the record has to be signed by him and the magistrate. the idea that the pleader can be examined on his behalf is
foreign to the language of secs. 342 and 364. it was well
observed by rankin j. in promotha nath v. emperor 3 that
1 1962 supp. 3 s.c.r. 230. 2 a.i.r. 1953
c. 468 470.
a.i.r. 1923 cal. 470 481.
the intention of the statute is
that at a certain stage in the case the companyrt
itself shall put aside all companynsel all
pleaders all witnesses all representatives
and shall call upon an individual accused with
the authority of the companyrts own voice to
take advantage of the opportunity which then
arises to. state in his own way anything which
he may be desirous. of stating what is
necessary is. that the accused shall be
brought face to face solemnly with an
opportunity given to him to make a statement
from his place in the dock in order that the
court may have the advantage of hearing his
defence if he is willing to make one with his
own lips? the proposition that a pleader authorised to appear on
behalf of the accused can do all acts which the accused
himself can do at the trial is too wide. if the statute
gives the accused a personal privilege or imposes upon him a
personal duty only he can exercise the privilege or
perform the duty. thus under sec. 366 2 the accused must
hear the judgment in person unless the sentence is one of
fine only or unless he is acquitted. under sec. 342a only
the accused can give evidence in person and his pleaders
evidence cannumber be treated as his. the answers of the
accused under s. 342 is intended to be a substitute for the
evidence which he can give as a witness under sec. 342a. the privilege and the. duty of answering questions under
sec. 342 cannumber be delegated to a pleader. numberdoubt the
form of the summons show that the pleader may answer the
charges against the accused but in so answering the
charges he cannumber do. what only the accused can do
personally. the pleader may be permitted to represent the
accused while the prosecution evidence is being taken. but
at the close of the prosecution evidence the accused must be
questioned and his pleader cannumber be examined in his place. sections 205 and 540a do number expressly mention that the
pleader cannumber be examined under sec. 342 but this does number
lead to the inference that the pleader can be so examined. on the other hand secs. 353 360 361 and 366 expressly
provide that the pleader may represent the accused for
certain purposes but from this fact alone numberinference can
be drawn that the pleader cannumber represent the accused for
purposes of s. 342 or other sections. it is from the
scheme purpose and language of sec. 342 that we are driven
to the companyclusion that the examination under the section
must be of the accused person and number his pleader. in dorabshah v. emperor 1 the bombay high companyrt held
that where the accused is permitted to appear by his
pleader
a.i.r. 1926 bom. 218.
under sec. 205 the pleader may on his behalf be examined and
may plead guilty under secs. 242 and 243. whether the companyrt
can act upon an admission of guilt by the pleader under
secs. 242 243 251a 255 and 271 does number directly arise in
this case and we express numberopinion on it. it is sufficient
to say that the language of those sections and the effect of
admissions under them are entirely different. we are number impressed with the argument that an accused
person will suffer inconvenience and harassment if the companyrt
cannumber dispense with his attendance for purposes of sec. the examination under the section becomes necessary
when at the close of the prosecution evidence the magistrate
finds. that there are incriminating circumstances requiring
an explanation by the accused. if there is. numberevidence
implicating the accused numberexplanation from him is
necessary and he need number be examined under s. 342. if
there is evidence implicating him it is in his interest
that he should be examined personally. there are exceptional cases when an examination of the
accused personally under sec. 342 is number necessary or
possible. where the accused is a companypany or other juridical
person it cannumber be examined personally. it may be that the
court may then examine a director or some other agent on its
behalf see express diary limited v. companyporation of
calcutta 1 . exceptional cases apart only the accused in
person can be examined under s. 342. we therefore hold that
the magistrate should have examined bibhuti dasgupta
personally and the examination of his pleader was number
sufficient companypliance with sec. 342.
this companyclusion does number dispose of bibhuti dasguptas
appeal. under sec. 537 the companyviction and sentence are. number
reversable on account of any error omission or irregularity
in any proceedings during the trial unless the error
omission or irregularity has in fact occasioned a failure
of justice. mere number-examination or defective examination
under sec. 342 is number a ground for interference unless
prejudice is established. see tilakeshwar singh v. the
state of bihar 2 k.c. mathew v. the state of travancore-
cochin 3 ram shankar singh v. state west bengal 4 . looking at the facts of this case we do number find that any
prejudice was caused to bibhuti dasgupta by his number-
examination under sec. 342. the prosecution evidence was
closed on september 17 1962. ram adhikari appeared in
court and was examined personally. bibhuti dasgupta did number
appear in companyrt on that date. after 3 months o.n december
21 1962 his pleader was examined on his behalf at his
express request. the magistrate delivered judgment on april
17 1963.
i.l.r. 1959 2 cat. 622. 2 1955 2
c.r. 105. 3 1955 2 s.c.r. 1057 1061-2. 4 1962 supp. s.c.r. 49 64
on that date bibhuti dasgupta was. present in companyrt. he
made numbercomplaint at any time before the magistrate or the
sessions judge or the high companyrt that he had suffered any
prejudice. even in this companyrt mr. chatterjee companyld number point
out what further explanation companyld have been given by
bibhuti dasgupta if he had been examined personally. we are
satisfied that the omission to examine him under sec. | 0 | test | 1968_371.txt | 1 |
civil appellate jurisdiction civil appeal number 1303 of
1967.
appeal under s. 116-a of the representation of people act
1951 from the judgment and order dated july 24 1967 of the
mysore high companyrt bangalore in election petition number .10 of
1967.
s. javali and m. veerappa for the appellant. gopalakrishnan for respondent number 1.
the judgment of the companyrt was delivered by
hidayatullah j. this is an appeal under s. 116-a of the
representation of the people act 1951 against the judgment
and order july 24 1967 of the high companyrt of mysore in
election petition number 10 of 1967 . the high companyrt has set
aside the election of laxman siddappa naik who is the
appellant before us. the appellant had stood from gokak
constituency of the mysore legislative assembly for a seat
reserved for a member of the scheduled tribes specified in
part viii para 2 of the companystitution scheduled tribes
order 1950. five others had filed numberination papers. the
numberination paper of one kaushalya devi was rejected by the
returning officer and one bhimgouda mallagouda patil
withdrew from the companytest within the time permitted by the
act. there were thus four companytesting candidates. the
result of the poll was as follows -
shri laxman siddappa naik 17522
shri parasappa hanmantha karaing7044
shri patel shivangowd malgowd 5996
shri kattimani chandappa jampanna620
the election petition was filed by the last candidate who
had received only 620 votes. the main companytention and on
which his election petition in the high companyrt succeeded was
that the appellant and the other two were number members of the
scheduled tribes and were number thus entitled to stand for the
reserved seat. this objection was also taken before the
returning officer but was rejected by him. the case of the election petitioner was that the appellant
did number belong to the tribe shown as nayaka including
cholivala nayaka kapadia nayaka mota nayaka and nana
nayaka mentioned at number 13 in part viii 2 of the order. he was on the other hand a bedar which tribe is number
mentioned in the order. the election petitioner also urged
that the other two candidates also did number belong to any
scheduled tribes but to the bedar caste. he therefore
asked that he himself should be declared elected treating
the votes cast in favour of his opponents as thrown away
since the voters knew this fact and voted with this
knumberledge. in answer to the petition the appellant asserted
that he was a nayaka although he stated that nayakas are
also
called bedars. the high companyrt on an appraisal of the
evidence and after looking into census reports and certain
writers on the subject of castes and tribes has companye to the
conclusion that there is numbernayaka in this area and that the
appellant is a bedar. the appellant number appeals against the
order of the high companyrt. under art. 332 of the companystitution seats are reserved for
scheduled tribes in the legislative assemblies of the states
and under art. 342 of the companystitution the president has-
with respect to the states after companysultation with the
governumbers by public numberification specified the tribal
communities which are deemed to be the scheduled tribes in
relation to a particular state. parliament has power by law
to include in or exclude from the list of scheduled tribes
specified in the presidents order any tribe or tribal
community or part of or group within any tribe -or tribal
community. the presidential order was modified in 1956 and
1960. the district in which gokak is situated was formerly
part of the bombay state. 24 tribes were named in the
original presidential order. in 1956 this part was
incorporated in the state of mysore. in 1960 the bombay
state was bifurcated into two. as a result the presidential
order was suitably amended. para 2 of part viii number refers
to the area formerly in bombay -state which number is a part of
the mysore state. this part number shows 19 tribes instead of
an identical list of tribes is also shown in certain
districts of maharashtra and rajasthan. formerly the entry
read only naikda or nayaka but number it reads naikda or
nayaka including cholivala nayaka kapadia nayaka mota
nayaka and nana nayaka. the nayaka also means a
chieftain and the word naikda means a petty nayaka but
that obviously is number intended to be its meaning. these
words definitely refer to tribal companymunities which the
presidents order shows are autochthonumbers in the
respective areas. the appellant claimed to be a nayaka. in
his evidence he denied that he was a naikda. he did number
knumber the other tribal companymunities included in he expression
naikda or nayaka by the entry. in abhoy pada saha v.
sudhir kumar mondal 1 the question had arisen what was
meant by the entry sunri excluding saha. the plea of the
election petitioner in that case was that the candidate was
a saba. he failed to prove it and it was held that he
belonged to the sunri caste. it was pointed out that where
the entry excluded a certain sub-caste the candidate must be
taken to belong to the original caste if his exclusion as a
member of that sub-caste was number proved. in other words
the matter was treated as a question of fact. similarly in
basavalingappa v. d. munichinnappa and others 2 the
voddar caste of mysore state before the state
reorganization in 1956 was held on evidence to be the same
as
1 1966 supp. s.c.r. 387.
a.i.r. 1965 s.c. 1269.
the bhovi caste mentioned in the companystitution scheduled
castes order 1950. again the matter was treated as a
question of fact. this companyrt has finally decided in bhaiya
lal v. harikishan singh and others 1 that what caste a
candidate belongs to is a question of fact. starting from this companyclusion that the matter in companytroversy
between the election petitioner and the appellant is a
question of fact we have to address ourselves to the right
questions in this case. these questions are to what
tribal companymunity if any does the appellant belong- and who
is to prove the necessary facts? these questions obviously
have to be resolved on certain principles. the ordinary
rule is that a person who as a plaintiff asserts a fact
has to prove it. the election petitioner here asserts two
facts a that the appellant is number a nayaka as mentioned in
the order and b that he is a bedar. the first is a
negative fact and the second a positive one. it is said
that the proof of the negative was number only difficult but
impossible. we do number agree. the election petitioner
could have proved by positive evidence that the petitioner
was a bedar. that would have proved that he was number a
nayaka. to establish the fact evidence was required to show
the characteristics such as customs of marriages births
deaths worship dress occupation and the like which
distinguish a bedar from a nayaka. evidence was also
possible to show that the petitioner was received in the
bedar companymunity. this was capable of being proved by
showing intermarriage inter-dining companymunity of worship
residence in a particular place and the like. such facts
would have led to the drawing of an inference one way or the
other. a bare assertion that the appellant is a bedar does
number suffice to displace the acceptance of the numberination
paper or the claim of the appellant that he is a nayaka. we shall number see what the election petitioner did to
establish that the appellant was a bedar which would have
proved companyclusively that he was number a nayaka. the election
petitioner examined five witnesses including himself and
filed two documents. the first document ex.p.-i was a
certified extract of births and deaths register of arbhani
village issued by the tehsildar gokak regarding the birth of
a child anasuya by name. it was alleged that anasuya was
the daughter of the appellant and the caste was described as
bedar. the appellant denied that it related to his
daughter. he said that he had only one daughter by name
shankuntala and that the certificate produced was number of his
daughter. numberevidence was led to establish that the
certificate related to the daughter of the appellant. the
other document ex. p-2 was a certified extract of a
school leaving certificate
a.i.r. 1965 s.c. 1557.
relating to one lakshmappa siddappa naik. the appellant
denied that it was his school leaving certificate. again no
attempt was made to companynect the certificate with him. the
original of ex. p-2 was number summoned from the school
office. these facts were capable of being proved. there
was number even cross-examination of the appellant with
reference to these documents. the high companyrt rejected both
the documents. as regards the oral evidence it is
sufficient to say that it did number exist. the four witnesses
summoned by the election petitioner only proved that
cholivadi lamani and kurubar were also called nayaka and
that the bedars had sub-castes knumbern as talawars valmiki
and nayaka makkalu. numbere of these witnesses however
displayed any knumberledge of the gokak area or the position of
the bedars and nayakas in that area. in fact they clearly
stated that they knew numberhing about it. the election
petitioner as witness stated that he had heard that the
appellant was a bedar and he did number examine any person in
support of his statement. his evidence was obviously
hearsay and when he was questioned he companyld number even name
the person from whom he had learnt these facts. the evidence on the part of the appellant was also numberhing
on both the points. he filed a document ex. r- 1 said to
be a certified companyy of the extract relating to his birth
from the births and deaths register issued by the tehsildar
gokak. the high companyrt summoned the original which we have
also seen. there is a companyrection in the appropriate companyumn. some writing appears to have been erased where nayaka is
mentioned and it is possible to read the first letter which
is w equal to b and this shows that the original writing
was perhaps bedar. there is numberhing to show when the
correction was made. in the register there are 58 entries
and many of them relate to bedars but there is numberother
entry of a nayaka. numberdoubt this is a suspicious
circumstance but the question still is does the appellant
suffer ? in a case of this type when both sides lead no
evidence the matter must be decided on the basis of the
original onus which clearly lay on the election petitioner. mr. gopal krishnan argues that as an objection was raised
before the returning officer and was repelled on the
acceptance of r-1 number found unacceptable the appellant is
relegated to the original burden. here again this is a
wrong approach to the question. the returning officer was
entitled to act on the evidence before him. the original
was number seen by him and the doubt number created was number
present in his mind. once the numberination paper was accepted
the burden must be assumed again by the party challenging
the fact that a candidate belonged
to a particular companymunity. if prima facie evidence had been
led by the election petitioner the burden might have shifted
to the candidate but as he led numberevidence whatever he must
obviously fail. this is number one of those cases in which
both sides having led evidence the question where onus lies
becomes immaterial since the companyrt can reach a companyclusion
on the totality of the evidence before it. there was no
evidence in this case one way or the other. in these
circumstances the election petitioner companyld number succeed
because of the weakness of the appellants case. the high companyrt did number approach this problem from his
angle. as it companyld number reach any companyclusion on the evidence
before it the high companyrt turned to census reports of the
bombay presidency of 1911 1921 and 1931 the bombay
karnatak gazetteer of 1893 huttons book on castes in
indian 1931 mysore tribes and castes vol. ii by
nanjundayya and lyer hindu tribes and castes vol. ii by
sherring castes and tribes of southern india by thurston
certain government orders issued in 1959 and 1960 and the
administration report of the welfare department of 1956-57.
these documents companyld be companysulted to find out the
distinguishing customs and manners of different tribes but
number to reach a companyclusion about the appellant. the
conclusion drawn from this material was that naikda is a
distinct tribe that nayakas are number mentioned and that the
bedars companyld number be called naikda. reverting to the plea of
the appellant that he was number a naikda but a nayka and that
nayakas were also knumbern as bedars the learned judge reached
the companyclusion that the appellant was a bedar. he found no
evidence in these reports of the existence of nayakas in
this district and as the appellant claimed to be a nayaka he
felt that he must be a bedar because there was numbernayaka in
this area. it has been pointed out in this companyrt in the cases to which
we have referred that one must accept the presidential
order. the presidential order shows that naikdas or nayakas
are to be found number only in the districts of mysore but also
in maharashtra and rajasthan. this tribal companymunity is
therefore quite wide-spread and it is number possible to say
that there was numbernayaka in the district to which the
appellant belonged. even if he was the solitary nayaka he
would be companyered by the presidential order- and would be
entitled to stand for the reserved seat for the tribal
communities mentioned in the presidential order. he claimed
to be a nayaka and this claim was upheld by the returning
officer. it is significant that he was number an independent
candidate but one chosen by a party. this party would number
have been easily imposed upon and would have taken care to
select the right person for the seat. there were two others
who also came-forward as nayakas. in
these circumstances the learned judge was in error in
attempting to establish that the tribal companymunity mentioned
as nayakas was number to be found in this area and that only
naikdas were found and as the appellant did number claim to be
a naikda he must be held to be disentitled to be chosen to
fill this seat for the tribal companymunities. a heavy burden
obviously lay upon the election petitioner to. displace his
claim by evidence. he did number even lead prima facie
evidence and therefore the claim cannumber be said to have been
negatived. an election is something which cannumber be readily set aside. there must be proof and companyvincing proof that a person is
number properly chosen to fill a particular seat. mere
suspicion or surmise is number sufficient after the returning
officer accepts a candidature and the candidate is chosen in
the election. once a companymunity has gone to the polls and
the voters have exercised their franchise it is necessary
for an election petitioner to show that the candidate is number
entitled to the seat. in other words the burden originally
lies on the election petitioner and he cannumber succeed unless
he discharges that burden. the high companyrt recognized that
there was numberevidence in the case but went into the matter
from a different angle and attempted to companytradict the
presidential order which it was number entitled to do. we are accordingly satisfied that the election petitioner
had failed to establish his case and that the election of
the appellant companyld number be set aside. | 1 | test | 1968_312.txt | 1 |
civil appellate jurisdiction civil appeal number 512 of 1961.
appeal by special leave from the judgment and order dated
august 18 1959 of the calcutta high companyrt in appeal from
original order number 106 of 1957.
k. kapur s. murthi p. m. kukhi and .k. k. jain for
the appellant. n. sanyal solicitor-general of india and b. p.
maheshuari for the respondent. 1963. may 9. the judgment of the companyrt was delivered by
sarkar. j.-the question in this appeal is what is the
meaning to be ascribed to the word allotment occurring in
s. 75 1 of the companypanies
act 1956? that section requires a companypany to file a return
of the allotment of its shares with the registrar within a
month of the making of the allotment. the appellant who has
been accepted as a shareholder in the respondent companypany for
the purposes of the present proceedings companyplained that the
company had number filed the return required by that section
and therefore moved the if high companyrt at calcutta under
s.614 of the act for an order requiring it to do so. the shares with which this case is companycerned bad been
forfeited by the companypany under its articles. a reference to
some of these articles is necessary before we proceed
further. article 21 of the articles of association of the
company authorised its companymittee to expel or suspend a
member in certain events. the present is number a case
involving an exercise of power under this articte. articles
22 24 and 27 are in these terms
article 22 any member who has been declared
a defaulter by reason of his failure to fulfil
any engagement between himself and any other
member or members and who fails to fulfil such
engagement within six months from the date
upon which he has been so declared defaulter
shall at the expiration of such period of six
calendar months automatically cease to be a
member. article 24 upon any member ceasing to be a
member under the provisions of article 22
hereof and upon any resolution being passed by
the companymittee expelling any member under the
provisions of article 21 here of or upon any
member being adjudicated insolvent the share
held by such member shall ipso facto be
forfeited. article 27any share so forfeited shall be
deemed to be the property of the association
and the companymittee shall sell re-allot and
otherwise dispose of the same in such manner
to the best advantage for the satisfaction of
all debts which may then be due and owing
either to the association or any of its
members arising out of transactions or
dealings in stocks and shares. the appellants companytention is that the companypany from time to
time forfeited various shares under these articles and it
appeared from its balance sheet that seventy of such
forfeited shares had been reissued at a numberinal face value
of rs. 1000/- but numberreturn of such re-issue of the
forfeited shares had been filed by the companypany. the companypany
in its affidavit in answer to the petition admitted these
facts. it was also said that these forfeited shares had
been issued for much larger sums but numberhing turns on that
in this case. number s. 75 so far as material for our
purposes is as follows
s. 75. 1 whenever a companypany having a
share capital makes any allotment of its
shares. the companypany shall within one month
thereafter -
a file with the registrar a return of the
allotments stating the number and numberinal
amount of the shares companyprised in the
allotment the names addresses and
occupation of the allottees and the amount
if any paid or due and payable on each share
x x x x x
numberhing in this section shall apply to
the issue and allotment by a companypany of shares
which under the provisions of its articles
were forfeited for number-payment of calls. the appellant companytends that a return should have been filed
of the re-issued forfeited shares under this section. the
contention of the companypany is that the re-issue of forfeited
shares does number amount to allotment of shares and
therefore it was number required to file any return in respect
of such re-issued shares under the section. this companytention
was accepted by the learned judge of the high companyrt before
whom the appellants petition was first moved and also by
the learned judges of the division bench of that companyrt on
appeal from the decision of the learned trial judge. we agree with the learned judges of the high companyrt that a
re-issue of a forfeited share is number an allotment of share
within s. 75 1 . the word alloment has number been defined
in the companypanies act either in our companyntry or in england. but we think that the meaning of that word is well
understood and numberdecision has been brought to our numberice to
indicate that any doubt has ever been entertained as to it. as chitty j. put it in in re florence land and public works
company 1 p.426 . what is termed allotment is
generally neither more number less than the acceptance by the
company of the offer to take shares. to take the companymon
case the offer is to take a certain number of shares or
such a less number of shares as may be allotted. that offer
is accepted by the allotment either of the total number men-
tioned in the offer or a less number to be taken by the
person who made the offer. this companystitutes a binding
contract to take that number according to the offer and
acceptance. to my mind there is numbermagic whatever in the
term allotment as used in these circumstances. it is said
that the allotment is an appropriation of a specific number
of shares. it
1 1885 l.r. 29. c h. d. 421.
is an. appropriation number of specific shares but of a
certain number of shares. the process described by chitty j. is very familiar in
company law. under the act a companypany having share capital
is required to state in its memorandum the amount of that
capital and the division thereof into shares of a fixed
amount see s. 13 4 . this is what is called the authorised
capital of the companypany. then the companypany proceeds to issue
the shares depending on the companydition of the market. that
only means inviting applications for these shares. when the
applications are received it accepts them and this is what
is generally called allotment. numberdoubt there may be an
allotment of shares without an application but numberinstance
exists where that word is used to describe a transaction
whereby one becomes a share-holder otherwise than by
appropriation to him of a share out of the previously
unappropriated share capital. so farwell l. j. said in mosely v. koffyfontain mines
limited 1 . as regards the companystruction of these
particular articles it is plain that the words creation
issue and allotment are used with the three different
meanings familiar to business people as well as to lawyers. there are three steps with regard to new capital first it
is created till it is created the capital does number exist at
all. when it is created it may remain unissued for years
as indeed it was here the market did number allow of a
favourable opportunity of placing it. when it is issued it
may be issued on such terms as appear for the moment expe-
dient. next companyes allotment. to take the words of stirling
j. in spitzel v. chinese companyporation 80 l.t. 347 351 he
says what is an allotment of shares ? broadly speaking
it is an appropriation by the directors or the managing body
of the companypany of shares to a particular person. lord
green m.r. observed in in re v. g. m. holdings limited
2 it seems to
1 191 1 i.l.r. ch. 73. 84. 2 1942 1 ch. d. 235.
me that the word purchase cannumber with propriety be applied
to the legal transaction under which a person by the
machinery of application and allotment becomes a share
holder in the companypany. he does number purchase anything when
he does that. mr. wynn parry endeavored heroically to
establish the proposition that a share before issue was an
existing article of property that it was an existing bundle
of rights which a shareholder companyld properly be said to be
purchasing when he acquired it by subscription in the usual
way. i am unable to accept that view. a share is a chose
in action. a chose in action implies the existence of some
person entitled to the rights in action as distinct from
rights in possession and until the share is issued no
such person exists. putting it in a nutshell the
difference between the issue of a share to a subscriber and
the purchase of a share from an existing share holder is the
difference between creation and the transfer of a chose in
action. it is beyond doubt from the authorities to which we have
earlier referred and there are many more which companyld be
cited to show the same position that in companypany law
allotment means the appropriation out of the previously
unappropriated capital of a companypany of a certain number of
shares to a person. till such allotment the shares do number
exist as such. it is on allotment in this sense that the
shares companye into existence. learned companynsel for the
appellant has number been able to cite any case where the word
allotment has been used to describe a transaction with
regard to an existing share that is a share previously
brought into existence by appropriation to a person out of
the authorished capital. in every case the words allotment
of shares have been used to indicate the creation of shares
by appropriation out of the unappropriated share capital to
a particular person. we find numberreason why the word
allotment in s. 75 should have a different sense. it is
said that sub-s. 5 of s. 75 furnishes such a reason. we
will
deal with that argument later. our attention-has number been
drawn to any other provision in our companypanies act which
would support the companytention that the act includes within
the word allotment a transaction with a share after it has
been first created by appropriation out of the authorised
share capital to a particular individual. as the learned
judges of the high companyrt pointed out s. 75 occurs in part
iii of the act which deals with prospectus and allotment
and other matters relating to issue of shares or
debentures. sections 69 to 75 are classed under the sub-
heading allotment and the only kind of allotment that is
dealt with in these sections is the appropriation of shares
to individuals out of the unappropriated share capital of
the companypany. in these circumstances it would be impossible
to give to the word allotment in s. 75 1 a different
meaning. number it is quite clear that when a share is forfeited and re-
issued it is number allotment in the sense of appropriation of
share out of the authorisbed and unappropriated capital so
as to bring the shares into existence. in the present case
both sides proceeded on the basis that the articles of the
company dealing with forfeiture of shares which we have
earlier set out are valid articles. in other words it has
number been disputed that the companypany may validly forfeit
shares in terms of those articles. we accept that basis and
proceed on the assumption that it is companyrect. in the high
court at calcutta there was a difference of opinion as to
the validity of these articles but the later view is that
the articles are valid. the reason for the view has thus
been put in the latest case in the calcutta high companyrt
namely the calcutta stock exchange association limited v.
n. nundy. and companypany 1 . harries c. j. dealing with the
very articles with which we are companycerned observed at p.
264 in the present case the articles relating to
forfeiture do number in my view offend against the
1 1950 1 i.l.r. cal. 235.
provisions of the companypanies act as they do number companytemplate
a reduction of capital or a purchase of shares or a
trafficking in shares number obviously -a if upon forfeiture
the shares had ceased to exist qua shares and become merged
in the unissued capital of the companypany then there would
have been a reduction of the capital and such a forfeiture
would have been invalid. the reason why it was held that
the forfeiture was valid was that on such forfeiture all
that happened was that the right of the particular
shareholder disappeared but the share companysidered as a unit
of issued capital companytinued to exist and was kept in
suspense until anumberher shareholder was found for it see
naresh chandra sanyal v. ramani kanta bay 1 . we have to
examine the present case on this basis. if therefore the shares which the companypany forfeited have
to be companysidered as shares already created and as companytinuing
in existence as such in spite of the forfeiture obviously
they companyld number be allotted in the sense in which that word
is understood in the companypany law as we have earlier stated. in morrison v. trustees etc. insurance companyporation the
articles of the companypany gave power to forfiet shares for
number-payment of calls -and further provided that any share
so forfeited shall be deemed to be the property of the
company and the directors may sell reallot or otherwise
dispose of the same in such manner as they think fit. it
was held that the companypany companyld re-issue the forfeited
shares giving credit for the money already received in
respect of them. the companytention that the transaction
amounted to the issue of a share at a discount was rejected. vaughan williams l. j observed i do number like the use of
the word issue with reference to the transaction with
regard to these shares. if they were being issued the
argument for the appellant might possibly be right but
they are number being issued. when we look at the articles we
see that what takes place on
1 19452 i.l.r. cal. 105
2 1899 68 l.j. ch 11.
a forfeiture of shares is that the power of transferring
them passes from the original shareholders to the companypany
and the companypany can then transfer the shares subject to the
same rights and liabilities as if they had number been
forfeited. to the same effect are the observations of
bacon v. c. in ramwells case 1 . quite clearly the view
well accepted in companypany companyrts has been that issue of the
forfeited shares was number allotment of them but only a sale. if it were number go. the forfeiture itself would be invalid as
involving an ill-gal reduction of capital. if the reissue
of a forfeited share is only its sale then it is number an
allotment and that being so numberquestion of filing any
return in respect of such reissue arises. it remains number to deal with sub-s. 5 of s. 75. that does
create a difficulty. it provides that numberreturn need be
filed in respect of allotment of shares forfeited for
numberpayment of calls. it gives rise to an argument that the
art companytemplates an allotment of shares forfeited for number-
payment of calls for otherwise it would number be necessary to
provide that returns in respect of such allotment need number
be filed. it is said that being so the word allotment in
s. 75 1 should be understood as including the issue of
shares forfeited for other reasons for there is numberreason
to make any distinction between shares forfeited for
numberpayment of calls and those forfeited for other reasons in
the present companytext. this argument is numberdoubt legitimate. but having given it our best companysideration we have companye to
the companyclusion that it should be rejected. we think that
sub-s. 5 owes its origin to a companyfusion of ideas. apart
from it all other provisions of the act clearly companytemplate
by allotment the creation of shares out of the authorised
and unappropriated capital of the companypany and number reissue of
shares already created by allotment in the manner aforesaid
but subsequently forfeited. there would be numberjustification
for altering the meaning of that word in any other part of
the act because of
1 1881 50 l j. ch. n.s. 827 . the solitary provision occurring in sub-s. 5 of s. 75 the
companies act in force before the act of 1956 was the act of
1913. section 104 1 of that act companyresponded to s. 75 1
of the present act. in 1936there were large amendments made
in the 1913 act. prior to these amendments there was
numberrovision in s. 104 of the act of 1913 companyresponding to
sub-s. 5 of s. 75 of the present act. therefore upto
1936 there was numberreason to companytend that the word
allotment in s. 104 1 companyld at all include the re-issue
of a forfeited share. the 1936 amendment added sub-s. 4
to s. 104 and that sub-section companytained provision similar
to sub-s. 5 of s. 75 of the present act. we do number think
that it companyld be legitimately companytended that by the amend-
ment of 1936 the meaning of the word allotment in s.
104 1 was altered. that being so the word allotment
in s. 75 1 must be understood without reference of sub-s.
5 in the same way as that word in s. 104 1 had to be
understood without reference to sub.s. 4 of that section. | 0 | test | 1963_63.txt | 1 |
civil appellate jurisdiction civil appeal number 1268 of
1970.
from the judgment and order dated 17th july 1969 of the
kerala high companyrt in a.s. number 217 of 1964.
s. krishnamoorthy iyer n. sudhakaran and p. k.
pillai for the appellant. s. nambiyar for respondent number 2. appeal set down ex-parte against respondents 1 and 5-
21 respondent 4 expired name of respondent 3 deleted . the judgment of the companyrt was delivered by
ray c.j. this is an appeal by certificate from the
judgment dated 17 july 1969 of the high companyrt of kerala. the question in this appeal is whether defendants number 1
and 4 are each entitled to share in the property allotted to
defendant number 3 in a partition decree. defendant number 4 is
the appellant. this appeal arises out of a suit instituted on 19
numberember 1957 for partition of properties. properties
mentioned in schedule a and b to the plaint belonged to the
mother of defendant number 3. properties mentioned in schedule
c to the plaint were joint properties of the father and the
mother of defendant number 3.
the plaintiff and defendant number 2 are the sons of one
of the brothers of the mother of defendant number 3. defendant
number 1 is the son of anumberher brother of the mother of
defendant number 3. defendant number 4 is the son of defendant number
3s fathers brother. defendant number 3 died during the pendency of the suit. thereafter defendant number 1 filed his additional written
statement and claimed half share in the property of
defendant number 3 on the ground that defendant number 1 had
married defendant number 3 on 30 august 1959.
the trial companyrt allotted to defendant number 33/6th share
in properties mentioned in schedules a and to the plaint. the plaintiff and defendant number 1 and defendant number 2 were
each given 1/6th share in properties in schedules a and b to
the plaint. with regard to schedule properties the plaintiff
and defendant number 1 and defendant number 2 were each given
9/96th share and defendant number 3 was given 51/96th share and
defendant number 4 was given 18/96th share. the trial companyrt found that defendant number 4 was alone
entitled to the share of defendant number 3 on the ground that
marriage of defendant number 3 with defendant number 1 was number
proved. the trial companyrt also found that defendant number 3 was
mentally unsound to enter into any marriage. defendant number 1 preferred an appeal. the high companyrt set
aside the judgment of the trial companyrt and held that
defendant number 1 was married to defendant number 3 and defendant
number 3 was in a lucid interval at the time of marriage. companynsel for the appellant defendant number 4 impeached the
finding of the high companyrt both with regard to the fact of
marriage and the finding that defendant number 3 was married in
a lucid interval. defendant number 4 relied on three documents in support of
the submission that defendant number 3 was number a sane person to
enter into marriage with defendant number 1. the first document
is exhibit b-34 which is an order dated 8 numberember 1958
declaring defendant number 3 to be a person of unsound mind. in
that order defendant number 4 was appointed guardian of the
property of defendant number 3 and defendant number 1 was
appointed guardian of the person of defendant number 3. the
second document is exhibit b-8 dated 7 september 1959. the
appellant submitted that on 7 september 1959 defendant number 3
wanted to get herself declared as a person of sound mind. by
an order dated 5 february 1960 being exhibit b-31 the
district judge dismissed the application of defendant number 3.
the third document on which the appellant relied is the suit
in this appeal where defendant number 3 on 19 numberember 1957
was impleaded as a person of unsound mind. the appellant companytended that though exhibit b-34
namely order dated 8 numberember 1958 declaring defendant number
3 as a person of unsound mind was number a judgment in rem but
it was a judgment interparties and it would therefore be
admissible under sections 11 and 13 of the evidence act. the
appellant also companytended relying on the decision in amanchi
seshamma v. amanchi padmanabha rao 1 that once a person is
adjudged insane it is presumed that state of unsoundness
will companytinue until proved to the companytrary. companynsel for the appellant therefore companytended that the
conclusion of the high companyrt that defendant number 3 was in a
lucid interval at the time of marriage was against the
overwhelming documentary evidence. the documents relied on by the appellant do number rule
out lucid interval at the time of marriage on 30 august
1959. the high companyrt relied on the evidence of d.w. 4 who
attended the marriage. d.w. 4 was a teacher. his evidence
was that defendant number 3 at the time of marriage talked with
musaliar. his further evidence was that musaliar called
defendant number 3 and she went near him and told him that he
was being authorised by her to give her in marriage to
defendant number 1. the high companyrt rightly found that defendant
number 3 gave her companysent to the marriage and was in her lucid
interval. the high companyrt reversed the finding of the trial companyrt
and held that the marriage took place. the high companyrt relied
on the oral evidence and found that marriage in fact was
held. | 0 | test | 1975_425.txt | 1 |
civil appellate jurisdiction civil appeal number 10111
of 1983.
from the judgment and order dated 22.8.1983 of the
gujarat high companyrt in special civil application number 3494 of
1980.
k. goswami and p.h. parekh for the appellants. c. kapur np and m.n. shroff np for the
respondents. the judgment of the companyrt was delivered by
n. ray j. this appeal is directed against the
judgment of the high companyrt of gujarat dated august 22 1983
in special civil application number3494 of 1980. the said
special civil application number3494 of 1980 arose out of a
writ petition moved in the high companyrt of gujarat by the
respondents number. 123 inter alia for declaration that the
provisions of sections 119 1 and 119 2 c of the gujarat
town planning and urban development act 1976 hereinafter
referred to as the town planning act are ultra vires and
the impugned regulations purported to have been made under
the town planning act are ultra vires articles 14 19 and 21
of the companystitution and the said regulations are also ultra
vires the town planning act itself. the writ petitioners
also made a prayer before the high companyrt for appropriate
writ order or direction directing the ahmedabad urban
development authority hereinafter referred to as the
development authority number to enforce or implement the said
regulations and number to levy or recover any amount as
development fee under the said regulations. a prayer was
also made for appropriate writ order or direction directing
the development authority to refund the amount of
development fees realised from the writ petitioners. it was companytended by the writ petitioners that
a levy of development fee is number authorised by
the statute and therefore the action of respondent
number1 in companylecting various amounts from the
petitioners in the forms of development fee was number
authorised. numberdevelopment fee companyld be charged even by the
state government because there is numberprovision in
any entry in the list ii of schedule 7 to the
constitution. the levy of development fee is ultra vires as
the same does number fall under section 119 of the
town planning act and the impugned regulations made
by the development authority are unauthorised
illegal and void. even if there is any power to levy such fee by
the state legislature in the absence of delegation
of such power the development authority companyld number
impose any development fee. the high companyrt of gujarat has held that entry 66 of
list ii of viith schedule to the companystitution deals with
fees in respect of any of the matters in the said list but
number including any fee taken in any companyrt. entry 5 of list
ii of that schedule refers to companystitution and powers of
improvement trust and other local authorities for the
purpose of local self government or village administration. the high companyrt has held that under entry 66 the state
legislature has legislative companypetence to make provisions
for fees to be imposed by the development authority
constituted under section 31 of the said act. the high
court has however held that simply because there is
legislative companypetence for the state government to charge
fees for the urban development authority it cannumber be held
that demands for the development fee and or imposition of
the same by the development authority under the impugned
regulations is legal and valid. the high companyrt has
indicated that it is to be seen whether under town planning
act a specific power has been given to the development
authority to impose such development fee. after
scrutinising the provisions of the town planning act the
high companyrt has companye to the finding that the development
authority or as a matter of fact any other authority under
the act has number been vested with the power to charge
betterment or the development fee. the high companyrt has referred to the decisions of this
court in the hingir rampur companyl companypany limited v. state of
orissa air 1961 sc 459 and sri jagannath ramanuj das v.
state of orissa. air 1954 sc 400. this companyrt has held that
between a tax and a fee there is numbergeneric difference
because in a sense both are companypulsory exactions of money by
public authority but in a tax imposed for public purpose no
service need be rendered in return of such tax. a fee is
however levied essentially for
services rendered and as such there is an element of quid
pro quo between the person paying the fee and the public
authority imposing the same. it has been further indicated
that whenever there is any companypulsoty exaction of any money
from a citizen there must be a specific provision for
imposition of such tax and or fee. there is numberroom for any
intendment for imposition of companypulsory payment. whenever
there is any companypulsory exaction of money from a citizen
numberhing is to be read and numberhing is to be implied. one
should look fairly at the language used. the high companyrt has
also referred to anumberher decision of the companyrt in the case
of delhi municipal companyporation v. mohd. yasin air 1983 sc
617 wherein the companypulsory nature of exaction by way of tax
and fee partaking the character of tax has been reiterated
and it has been held that there is numbergeneric difference
between tax and fee though broadly a tax is companypulsory
exaction as part of a companymon burden without promise of any
special advantages to classes of tax payers whereas a fee is
a payment for services rendered or benefit provided or
privilege companyferred. the high companyrt has held that since
there is numberexpress provision for imposition of fee and the
state government has number delegated any such power to the
development authority to impose fees for development the
regulations framed for such imposition of fees and the
demands made therefore are wholly unauthorised and illegal. mr. goswami learned companynsel for the appellant has
however submitted that although in some cases a fee is
essentially a tax because of its companypulsory nature of
exaction there is a defference between a tax and a fee if
examined with reference to absence or presence of element of
corresponding service rendered. he has however fairly
conceded that when pursuant to the development scheme an
area is developed under the provisions of the act such
development of the area does number depend on the volition of
the person companycerned. hence when development fees are
imposed for the development effected in the area in
question the persons companying under the scheme will have to
make such payment irrespective of the fact whether or number
such person had intended for such development even then
such fee is charged for the service rendered by the
development authority. mr. goswami has further companytended
that the development authority unlike other local
authorities like municipalities or panchayats has numberpower
or authority to companylect any tax even though it is
essentially necessary to augment its revenue for the desired
purpose of development of the area in question. precisely
for implementing various schemes of
development the development or betterment fee is required
to be imposed and companylected. such imposition of fee
therefore must be held to be incidental to the development
activities. in such state of affairs even if there is no
specific provision for imposition of betterment or
development fee such power must be held to be implied under
the act. in this companynection mr. goswami has drawn our
attention to section 90 and section 91 of the town planning
act. section 90 provides that
an appropriate authority may for the purpose of a
development plan or for the making of execution of
a town planning scheme borrow money and if the
approriate authority is a local authority the money
shall be borrowed in accordance with the provisions
of the act under which the local authority is
constituted or if such act does number companytain any
provision for such borrowing in accordance with
the local authorities loans act 1914 or as the
case may be the saurashtra local authorities loans
act 1951 and any expenses incurred by an
appropriate authority or the state governmnet under
this act in companynection with a development plan or a
town planning scheme may be defreyed out of the
funds of the appropriate authority. section 91 1 and 2 have been referred to by mr.
goswami which are to the following effect
91 1 an appropriate authority shall have and
maintain its own fund to which shall be credited-
a all moneys received by the authority by way of
grants loans advances or otherwise
b all moneys derived from its undertakings
projections and other sources
c such amounts of companytributions from local
authorities as the state government may specify
from time to time to be credited to the fund
2 the fund of an appropriate authority shall be
applied towards meeting-
a expenditure incurred in the administration of
this act
b companyt of acquisition of land for the purpose of
this act
c expenditure for any development of land in the
development area
d expenditure for such other purposes as the
state government may direct. mr. goswami has submitted that clause a of sub-
section 1 of section 91 indicates that moneys received by
the authorites may companye by way of grants loans advancesor
otherwise. he has therefore companytended that apart from
grants loans and advances the appropriate authority which
is development authority in the instant case can have funds
which are number by way of grants loans and advances but from
a source different from that. he has companytended that the
legal implication of the expression or otherwise has been
numbered by this companyrt in the case of lilawati v. state of
bombay air 1957 sc 521. this companyrt in the said decision
has indicated when and under what circumstances the
principle of ejusdem generis is to be applied and has
indicated that the legislature when it uses the word or
otherwiseapparently intends to companyer other cases which may
number companye within the meaning of provided clauses. relying on
the said decision mr. goswami has companytended that apart from
the money received by the development authority by way of
grants loans and advances the development authority can
also create funds otherwise and the development fee is
creation of such fund otherwise than by loans grants etc. mr. goswami has companytended that the funds so received by the
development authority are required to applied under sub-
section 2 of section 91 for purposes mentioned therein
including the expenditure for any development of the land in
development area. he has therefore companytended that the
legislature has really intended that for the purpose of
development fund is required to be generated and such fund
may be generated number only by way of grants loans or
advances but also otherwise. the only limitation of
generation of such funds is to apply such fund for the
specific purposes referred to in sub-section 2 of section
mr. goswami has companytended that it is numberodys case that
such development fee has number been utilised for the purpose
of sub-section 2 of section 91. he has therefore
contended that the development authority
can impose such fee and such power to impose fees is
ancillary to the development activities and is implied in
the act. he has companytended that if the state legislature is
competent to impose fees the development authority by
virtue of the delegated legislation can also impose
betterment fee or the development fee and simply because
imposition of such fee by the development authority is number
specifically mentioned it cannumber be held that the
development authority cannumber impose any betterment fee or
development fee even though such fee was essential for the
development activities and has been imposed with reference
to development effected. mr. goswami has very strongly
relied on the decision of this companyrt in the case of the
district companyncil of the jowai autonumberous district jowai and
others v. dwet singh rymbai etc. air 1986 sc 193. in
considering the validity of the numberification issued by the
district companyncil of district jowai under united khasi and
jaintia hills autonumberous district management and companytrol of
forests act. 1959 it has been held by this companyrt that in
the real sense what in sought to be required under the act
is number royalty since the forest does number belong to the
district companyncil. the amount claimed by way of royalty
under the numberification is in reality companypulsory exaction of
money by public authority for public purpose enforeceable by
law and in number a payment for service rendered. the companyrt
has held that there is numberspecific reference to the power to
levy and fee in respect of any matter mentioned in paragraph
3 in the 6th schedule to the companystitution similar to the
corresponding provision in entries of list ii of 7th
schedule. companysidering the facts of the case it has been
held that the power to levy fees in respect of any of the
matters mentioned in paragraph 3 should be necessarily
implied but such fee should number be disproportionately very
high that is a tax in disguise. the companyrt has indicated
that the said united khasi and jaintia hills autonumberous
district management and companytrol of forests act 1959 was
enacted for the purpose of making provisions regarding the
management and the companytrol of forests which are number reserved
forests in the area within the jurisdiction of district
council in the exercise of the powers companyferred by entry
3 1 d of the 6th schedule to the companystitution. it has
been held that even if there is numberexpress provision to levy
fees the district companyncil under paragraph 3 can levy fees. mr. goswami has companytended that it will number be companyrect to
conted that in numbercase imposition of fee can be made unless
there is specific provision for such imposition. such power
of imposition may be implied if the provision
of the act are companysidered in the proper perspective and if
such imposition becomes essential for the activities for
which the statutory bodies are created. in this companynection
mr. goswami has referred to anumberher decision of this companyrt
made in the case of khargram panchyat samiti and anr. v.
state of west bengal and ors. 1987 3 scc 82. it has been
held by this companyrt that in a statute companyferment of general
statutory power also carries with it incidental and
consequential power. relying on the said decision mr.
goswami has companytended that as the development has been
effected by the development authority and there was
necessity for augmenting the revenue for such development
work and as section 91 has recognised a fund to be created
otherwise than by way of grants loans or advances and as
imposition of such fee is incidental and or ancillary to c-
arrying on the purposes for which the development authority
has been companystituted under the town planning act it should
be held that such power of imposition of fee is implied. he
has therefore companytended that the high companyrt of gujarat was
number justified in holding that such imposition of fee by
framing impugned regulations was wholly unauthorised and as
such illegal and void. after giving our anxious companysideration to the
contentions raised by mr. goswami it appears to us that in
a fiscal matter it will number be proper to hold that even in
the absence of express provision a delegated authority can
impose tax or fee. in our view such power of imposition
of tax and or fee by delegated authority must be very
specific and there is numberscope of implied authority for
imposition of such tax or fee. it appears to us that the
delegated authority must act strictly within the parameters
of the authority delegated to it under act and it will number
be proper to bring the theory of implied intent or the
concept of incidental and ancillary power in the matter of
exercise of fiscal power. the facts and circumstances in
the case of district companyncil of jowai are entirely
different. the exercise of powers by the autonumberous jaintia
hills districts are companytrolled by the companystitutional
provisions and in the special facts of the case this companyrt
has indicated that the realisation of just fee for the a
specific purpose by the autonumberous district was justified
and such power was implied. the said decision cannumber be
made applicable in the facts of this case or the same should
number be held to have laid down any legal proposition that in
matters of imposition of tax or fees the question of
necessary intendment may be looked into when there is no
express provision for imposition of fee or tax. the other
decision in khargram panchayat samitis case also deal with
the
exercise of incidental and companysequential power in the field
of administrative law and the same does number deal with the
power of imposing tax and fee. the high companyrt has referred to the decisions of this
court in hingirs case and jagannath ramanujs case and
delhi municipal companyporations case supra . it has been
consistently held by this companyrt that whenever there is
compulsory exaction of any money there should be specific
provision for the same and there is numberroom for intendment. numberhing is to be read and numberhing is to be implied and one
should look fairly to the language used. | 0 | test | 1992_258.txt | 1 |
civil appellate jurisdiction civil appeal number. 446--449
of 1976.
appeals by special leave from the judgment and orders dated. 14-1338sci/76
1004
7-4-1969 and 25-1-1972 of the bombay high companyrt nagpur
bench in s.t.r. number. 17 to 20 of 1964 and
civil appeal number. 450453 of 1976.
appeals by special leave from the judgment and order
dated 28-1-1972 of the bombay high companyrt nagpur bench in
s.t. reference number. 17-20/64. v. p. raman addl. sol. general for india s.b. wad and
n shroff for appellants in cas. 450 to 453/76. l. sanghi a. s. bobde m.l. vaidya v.a. bobde a. g.
meneses j.b. dadachanji k.j. john o.c. mathur and ravind-
er narain for the respondents in cas. 446-449/76 and appel-
lants in 2. as. 450-453/76
the judgment of the companyrt was delivered by
beg j.--the eight appeals before us by special leave
arise out of four sale tax references under section 23 1
of the central provinces and berar sales tax act 1947
hereinafter referred to as the act . six companymon ques-
tions arose here relating to assessments for different
periods on identically similar facts stated below. five
of these were decided by a division bench of the bombay high
court. as it answered the main question determining liabili-
ty to pay the sales tax under the act against the state
there are four appeals against it by the state. the sixth
question which was one of law only was referred by the
division bench to a full bench and this was determined in
favour of the state. there are therefore four appeals by
the assessee against the full bench decision. m s. central provinces manganese ore company limited the
assessee has its head office in london. it carries on
business on an extensive scale. it owns 22 manganese ore
mines in madhya pradesh from where manganese ore after
being excavated is sent mostly abroad through different
ports. the companypany is a registered dealer under the act. it used to enter into companytracts at places outside madhya
pradesh for the despatch of what came to be knumbern in the
special parlance of this companypanys business as oriental
mixture but the companytracts companytain specifications only of
strengths of manganese ore to be supplied with permissible
percentages of other ingredients as admixtures. the term
oriental mixture was evidently employed by the companypany
itself to describe a particular type of companyglomerate which
the unloading at one place of various types of manganese ore
produced. the required average companysistency or strength of
manganese ore specified in the companytracts which did number
contain a reference to any oriental mixture was said to
be obtained in the companyrse of this mechanical process of
transportation when various grades of manganese ore were
heaped together. these grades of manganese ore were trans-
ported in railway wagons from one or more mines and
it appears that the order in which trucks were.loaded in
goods trains and unloaded was also soarranged that the
mixture came into existence as described above in the mere
process of unloading at the port. 1005
but this procedure did number seem to involve a process of
manufacture as that term is ordinarily understood to
which the assessee companyld be said to have subjected its
manganese ore.
the case of the assessee companypany was that the oriental
mixture as a taxable companymodity came into existence only
after the ores got mixed up in the process of unloading and
number before so that it companyld number be taxed as goods in exist-
ence in madhya pradesh at the time when companytracts relating
to these goods were made. this is the crucial and simple
question largely one of fact which resulted in companysidera-
ble argument before the high companyrt and before us also. other questions appear to be subsidiary. nevertheless we
have to companysider them before companying to the crucial
question which is is the process described above one of
manufacture so that a new kind of goods knumbern as
oriental mixture came into existence at the port where
manganese ore trucks were unloaded? as the high companyrt pointed out the periods involved in
the four references before it were number governed by the
provisions of the companystitution. they related to the follow-
ing period
reference number 17 of 1964 for the period 1st january 1947
30th september 1947.
reference number 18 of 1964 for the period 1st october
1947 to 31st december 1948.
reference number 19 of 1964 for the period 1st january
1949 to 31st december 1949.
reference number 20 of 1964 for the period 1st january
1950 to 25th january 1950.
we therefore agree with the high companyrts view that article
286 of the companystitution which is number retrospective in
operation companyld number help the assessee merely because it was
there at the time of assessment. the next question to be companysidered which was referred
to the full bench flows from explanation ii to section
2 g of the act which was amended by the c.p. berar sale
tax amendment act number xvi of 1949 came into force on 11th
april 1949. hence the law as found after the amending
act companyld apply .if valid only to the last two refer-
ences. but the question which arose on the assumption
that the amendment was ineffective was whether the
unamended law companyld be applied at all after the purported
amendment. section 2 g of the act with its two explanations
before it was amended may be reproduced here in toto. it
reads as follows
2 g sale with all its grammatical
variations and companynate expressions means any
transfer of property in goods for cash or
deferred payment or other valuable companysidera-
tion including a transfer of property
in goods made in companyrse of the execution of a
contract but does numberinclude a mortgage
hypothecation charge or pledge
explanation i a transfer of goods on hire-
purchase or other installment system of pay-
ment shall numberwithstanding
1006
that the seller retains a title to any goods
as security for payment of the price be
deemed to be a sale
explanation 11 numberwithstanding anything to
the companytrary in the indian sale of goods act
1930 the sale of any goods which are actually
in the central provinces and berar at the time
when the companytract of sale as define in that
act in respect thereof is made shall wherever
the. said companytract of sale is made be deemed
for the purpose of this act to have taken
place in the central provinces and berar. section 2 of the amending act of 1949 provid-
ed
in section 2 of the central provinces
and berar sales tax act 1947 hereinafter
referred to as the said act
a in clause g for explanation i1 the
following shall be substituted --
explanation i1 --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 purposes of this
act to have taken place in this province
wherever the companytract of sale or purchase
might have been made---
a 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 descrip-
tion then if the goods are actually produced
or found in this province at any time after
the companytract of sale or purchase in respect
thereof was made. the submission made on behalf of the assessee which was
accepted by the high companyrt was that as the amendment did
number receive the assent of the governumber general under section
107 of the govt. of india act it was void. it was howev-
er also urged on behalf of the assessee that a repeal of
the previously existing section did number require the assent
of the governumber general at all. the argument was that the
original provision was validly repealed but as numbersubsti-
tution of the new provision companyld take place because the
assent of the governumber general was number obtained only the
repeal survived. the result of accepting such a submission
would be that the substitution will have to be split up into
two distinct enactments firstly a repeal of the original
section 2 g of the act and secondly the substitution of
the new provision for the repealed one. the assessees
argument was that two processes one of repeal and anumberher
of substitution are necessarily implied in such an amend-
ment as the one before us. it was urged that both had
received the assent of the governumber but since the substi-
tuted provision alone required the assent of the governumber
general which was number obtained a repeal which was assent-
ed to by the governumber stood on its own separate footing. thus the result was said to be a repeal simpliciter without
the enactment of the fresh provision meant to replace it. 1007
it was submitted that the high companyrt after finding the
substituted provisions of section 2 g of the act to be
invalid had erred in holding that the repeal was also
ineffective. it was companytended that such a view resulted in
attributing to the legislature an intention companytrary to that
which it had unmistakably expressed by repealing the una-
mended provision. it was urged that the repeal which was
clearly intended must be held to be valid. according to
this submission neither the old unamended provision number the
replacement of it were in operation during the last two. assessment periods. of companyrse this argument assumes that
the repeal and the new enactment are separate. in shriram gulabdas v. board of revenue madhya pradesh
ant. c which was cited before us it was held on the
question argued before us at p. 366-367
we have already shown that
the second explanation in clause g of sec-
tion 2 which makes an agreement of sale
taxable even though the sale may have taken
place outside. the province is number ultra
vires the provision legislature. we must make
it clear that our answer to this question is
in the affirmative free from companysiderations
arising under article 286. we have shown that
the necessary power to make the unamended
explanation did exist in the state legisla-
ture but we have also made it clear that by
virtue of article 286 the explanation can no
longer be enforced because under the present
constitution the sales tax can only be company-
lected at the market and where the goods are
delivered for companysumption. we may also state
that the amended explanation ii is number validly
enacted because it makes drastic changes in
the rules as found in the sale of goods act
without obtaining the assent of the
governumber-general. the effect of the amended
explanation going out would be to rehabilitate
the old explanation as it existed because the
amendment being unconstitutional will fail to
work any change in the law see the opinion
given by one of us hidayatullah j. in
laxmibai v. the state i.l.r. 1951 nag. 563
608 610 f.b. . numberquestion relating to the enforcement of the sales-tax
by any companylection to be made after the companystitution came
into force was raised the cases before us. only questions
relating to taxability arise here as we have already
indicated article 286 does number stand in the way of taxabil-
ity. this was held to be the companyrect position in the case
of shriram gulabdas supra . it was also clearly held there
that the result of the invalidity of the amended explana-
tion was to leave the law unaltered as it stood before the
amendment. we approve of this pronumberncement made long ago on
this very question. it was urged on behalf of the assessee that the case of
shriram gulabdas supra companytained what was merely an obser-
vation with regard the rehabilitation of the preexisting
law as that question was numberdirectly under companysideration
there. it was also submitted that this observation must be
deemed to have been over-ruled by subsequent pronumberncements
of this companyrt. 1 1952 3 s.t.c. 343. 367. 1008
the passage cited above by us occurs in answering the
fifth question companysidered there which was framed as follows
whether explanation ii to clause g
of section 2 which makes an agreement of sale
taxable even though the sale may have taken
placed outside the province ultra vires of
the provincial legislature ? other questions framed indicate that it was number only the
validity of the provision both before and after its amend-
ment which was directly companysidered and pronumbernced upon but
the application of the companycept of sale under the unamended
law and its effects were also under companysideration. there-
fore we think that the decision was directly on a question
which necessarily arose for determination before the companyrt
on that occasion. we think that the view that the unamended
law was in operation was number a mere obiter dictum. it was
necessary to decide that question before other questions
could be determined. we give out own reasons below for
accepting the companyrectness of the view taken then. the following passage was also cited from koteswar
vittal kamath v.k. rangappa baliga company at p. 509
learned companynsel for the respondent
however urged that the prohibition order of
1119 cannumber in any case be held to have
continued after 8th march 1950 if the prin-
ciple laid down by this companyrt in firm a.t.b. mehtab majid company v. state of madras 1963
supp. 2 scr 435- air 1963 sc 928 is applied. in that case rule 16 of the madras general
sales tax turnumberer and assessment rules
1939 was impugned. a new r. 16 was substi-
tuted for the old rule 16 by publication on
september 7 1955 and this new rule was to be
effective from 1st april 1955. the companyrt
held that the new rule 16 2 was invalid
because the provisions of that. rule companytra-
vened the provisions of article 304 a of the
constitution. thereupon it was urged before
the companyrt that if the impugned rule be held
to be invalid the old rule 16 gets revived
so that the tax assessed on the basis of that
rule will be good. the companyrt rejected this
submission by holding that
once the old rule has been substituted by
the new rule it ceases to exist and it does
number automatically get revived when the new
rule is held to be invalid. on that analogy it was argued that if we
hold that the prohibition order of 1950 was
invalid the previous prohibition order of
1119 cannumber be held to be revived. this
argument ignumberes the distinction between
supersession of a rule and substitution of a
rule. in the case of 1963 supp. 2 scr 435-
air 1963 sc 928 supra the new rule 16 was
substituted for the old rule 16. the process
of substitution companysists of two steps. first
the old rule is made to cease to exist and
next the new rule is brought into existence
in its place. even if the new rule be in-
valid the first step of the
a.i.r. 1969 s.c. 504. 509 1969 3
c.r. 40. 47. 1009
old rule ceasing to exist companyes into effect
and it was for this reason that the companyrt held
that on declaration of the new rule as in-
valid the old rule companyld number be held to be
revived. in the above mentioned passage this companyrt
merely explained the argument which was ac-
cepted in the case of firm a.t.b. mehtab majid
co. v. state of madras 1 . after doing so
it distinguished the facts in koteswars case
supra relating to an alleged substitution
of one prohibition order by a subsequent order
which was found to be invalid. it recorded
its companyclusion as follows at p. 509
in the case before us there was no
substitution of the prohibition order of 1950
for the prohibition order of 1119. the prohi-
bition order of 1950 was promulgated independ-
ently of the prohibition order of 1119 and
because of the provisions of law it would have
had the effect of making the prohibition order
of 1119 inumbererative if it had been a valid
order. if the prohibition order of 1950 is
found to be void ab initio it companyld never
make the prohibition order of 1119 inumberera-
tive. the argument before us is that since the word substi-
tuted is used in the amending act of 1949 it necessarily
follows that the process embraces two steps. one of repeal
and anumberher of the new enactment. but this argument is
basically different from the argument which prevailed in
koteswars case supra where a distinction was drawn be-
tween a substitution and supersession. it is true that
as the term substitution was number used there the old rule
was number held to have been repealed. nevertheless the real
basis of that decision was that what was called supersession
was void ab initio so that the law remained what it would
have been if numbersuch legislative process had taken place at
all. it was held that the void and inumbererative legislative
process did number affect the validity of the pre-existing
rule. and this is precisely what is companytended or by the
state before us. in the case before us although the word substitution
is used in the amending act yet the whole legislative
process termed substitution was itself abortive. the whole
of that process did number take effect as the assent of the
governumber-general required by section 107 govt. of india
act was lacking. such ineffectiveness was the very reason
why in the case of sriram gulabdas supra it was held
that the previous law stood unaffected by the attempted
legislation called substitution. moreover the case of
shriram gulabdas supra is a direct authority on the very
provisions number before us. other cases cited are on very
different legislative provisions. we do number think that the word substitution necessarily
or always companynumberes two severable steps that is to say one
of repeal and anumberher of a fresh enactment even if it im-
plies two steps. indeed the natural meaning of the word
substitution is to indicate that the process cannumber be
split up into two pieces like this. if the process de-
scribed as substitution fails it is totally ineffective so
as to leave intact what was sought
1 1963 suppl. 2 s.c.r. 435. 1010
to be displaced. that seems to us to be the ordinary and
natural meaning of the words shall be substituted. this
part companyld number become effective without the assent of the
governumber-general. the state governumbers assent was insuffi-
cient. it companyld number be inferred that what was intended was
that in case the substitution failed or proved ineffective
some repeal number mentioned at all was brought about and
remained effective so as to create what may be described as
a vacuum in the statutory law on the subject matter. pri-
marily the question is one of gathering the intent from the
use of words in the enacting provision seen in the light of
the procedure gone through. here numberintention to reveal
without a substitution is deducible. in other words
there companyld be numberrepeal if substitution failed. the two
were a part and parcel of a single indivisible process and
number bits of a disjointed operation. looking at the actual procedure which was gone through
we find that even if the governumber had assented to the
substitution yet the amendments would have been effective
as a piece of valid legislation only when the assent of the
governumber-general had also been accorded to it. it companyld number
be said that what the legislature intended. or what the
governumber had assented to companysisted of a separate repeal and
a fresh enactment. the two results were to follow from one
and the same effective legislative process. the process
had therefore to be so viewed and interpreted. some help was sought to be derived by the citation of
n. tewari v. union of india ors. 1 and the case of
firm a.t.b. mehtab majid companyv. state of madras supra . tewaris case supra related to the substitution of what
was described as the carry forward rule companytained in the
departmental instruction which was sought to be substituted
by a modified instruction declared invalid by the companyrt. it
was held that when the rule companytained in the modified in-
struction of 1955 was struck down the rule companytained in a
displaced instruction did number survive. indeed one of the
arguments there was that the original carry forward rule
of 1952 was itself void for the very reason for which the
carry forward rule companytained in the modified instructions
of 1955 had been struck down. even the analogy of a merger
of an order into anumberher which was meant to be its substi-
tute companyld apply only where there is a valid substitution. such a doctrine applies in a case where a judgment of a
subordinate companyrt merges in the judgment of the appellate
court or an order reviewed merges in the order by which the
review is granted. its application to a legislative process
may be possible only in cases of valid substitution. the
legislative intent and its effect is gathered inter alia
from the nature of the action of the authority which func-
tions. it is easier to impute an intention to an executive
rule making authority to repeal altogether in any event what
is sought to be displaced by anumberher rule. the cases cited
were of executive instructions. we do number think that they
could serve as useful guides in interpreting a legislative
provision sought to be amended by a fresh enactment. the
procedure for enactment is far more elaborate and formal. a
repeal and a displacement of a legislative provision by a
fresh enactment can only take place after that elaborate
procedure has been followed in toto. in the case of any rule
contained in an executive instruction. 1 1965 2 s.c.r. 421. 1011
on the other hand the repeal as well as displacement are
capable of being achieved and inferred from a bare issue of
fresh instructions on the same subject. in mehtab majid company case supra a statutory role was
held number to have revived after it was sought to be substi-
tuted by anumberher held to be invalid. this was also a case
in which numberelaborate legislative procedure was prescribed
for a repeal as it is in the case of statutory enactment of
statutes by legislatures. in every case it is a question
of intention to be gathered from the language as well as the
acts of the rulemaking or legislating authority in.the
context in which these occur. a principle of companystruction companytained number in a statutory
provision made in england since 1850 has been
where an act passed after 1850 repeals
wholly or partially any former enactment and
substitutes provision for the enactment
repealed the repealed enactment remains in
force until the substituted provisions companye
into operation. see halsburys laws of england third
edn. vol. 36 p. 474 craies on statute
law 6th edn. p.386 . although there is numbercorresponding provision in our general
clauses acts yet it shows that the mere use of words
denumbering a substitution does number ipso facto or automatically
repeal a provision until the provision which is to take its
place becomes legally effective. we have as explained
above reached the same companyclusion by companysidering the ordi-
nary and natural meaning of the term substitution when it
occurs. without anything else in the language used or in the
context of it or in the surrounding facts and circumstances
to lead to anumberher inference. it means ordinarily that
unless the substituted provision is there to take its place
in law and in effect the pre-existing provision companytinues. there is numberquestion of a revival. this question of interpretation was referred separately
to the full bench of the bombay high companyrt which drew a
distinction between the two meanings of the word substitut-
ed firstly where it involved a direction as to what
would have to be removed or repealed simultaneously with
anumberher as to what was to be substituted so as to involve
two directions and secondly where the substitution
merely carried one direction to modify . it is difficult to
see how a single direction to -one direction to modify. it is difficult to see how a single direction to substitute
would be effective without implying in it anumberher to remove
what was to be displaced. perhaps more simply and companyrect-
ly stated the difference between two meanings of the word
substituted is one where it stands for two separable
legislative process and anumberher where it stands for one
total or companypleted legislative procedure including the
assent of the governumber-general which would be companyered by
the words shall be substituted. the full bench came to
the companyclusion that in the companytext in which the words
directing substitution occur they do number imply that in the
event of the failure of the amendment taken as a whole a
repeal would survive. to be able to survive a repeal
1012
had first to companye into existence. in the situation before us
numberrepeal came into legal existence. the real question for determination is always one of the
meaning of words used in a purported enactment in a particu-
lar companytext. we think that the full bench of the high companyrt
correctly held that there was numberrepeal of the existing
provision when substitution by means of an amendment
failed to be effective. it had also rightly distinguished
some of the cases cited before it on the ground that in
those cases the process for substitution was interpreted to
necessarily imply both a repeal and re-enactment out of
which only the repeal which took place had survived when the
re-enactment proved abortive. on the question whether the particular goods existed in
madhya pradesh at all at the time of the companytracts so that
the companytract companyld be said to be referable to them the high
court had observed
the question was whether oriental
mixture was present in the former state of
madhya pradesh when the companytracts of sale in
respect of oriental mixture were made by the
applicant companypany. on this point which was
purely a question of fact the decision of the
second appellate authority was final and that
decision was that oriental mixture in the form
in which the companytracts to sell that companymodity
were made was present in the state of madhya
pradesh at the time when those companytracts
were made. therefore that point was number open
for decision before the tribunal and it is number
necessary to dilate on the facts relating to
that question. it also said
in companymissioner of sales tax eastern
division nagpur v. hesenali adamji company
1959 10 stc 297 there was numberevidence
that at the date when the agreement for sale
was made the particular logs delivered there-
under were in central provinces in the shape
of logs at all and a standing tree which
was in existence at the date of the agreement
of sale and out of which the logs were later
on prepared cannumber be said to be the form of
the companymodity in respect of which the agree-
ment of sale was made. the tribunal relied on
the observations in the judgment of the su-
preme companyrt at page 310 which are to the
effect that the goods must at the date of the
contract be there in the taxing state in the
form in which they are agreed to be sold. in
that case the agreement of sale can be said
to be in respect of those goods. here as
found by the second appellate authority ore
in the form of oriental mixture was present in
the taxing state when companytracts of sale in re-
spect of oriental mixture were made by the
head office of the applicant companypany. after giving the findings set out above on the question
whether the. goods existed in the state of madhya pradesh
when they were sold and whether the companytracts were refera-
ble to these goods the high companyrt
1013
proceeded to companysider the question whether oriental mix-
ture itself had companye into existence in madhya pradesh or at
the port where the goods forming the oriental mixture
became mixed up in the process of unloading and transporta-
tion. apparently what the high companyrt had meant by its
earlier findings was number that the oriental mixture was in
existence in madhya pradesh but that the ingredients which
went into its companyposition existed in madhya pradesh at the
time when the companytracts were made. it had finally reached
the companyclusion that the mixture itself was formed at the
port where the ingredients were unloaded. we are unable to accept the high companyrts reasoning that
while the goods which went into the companyposition of the
oriental mixture existed in madhya pradesh when the
contracts were made yet they were number taxable in madhya
pradesh because the oriental mixture came into existence
at the port. in other words it held that a mere mixture of
goods even if it occurs in the process of unloading
converts the goods which existed in madhya pradesh and were
transported to the port into separately identifiable
commercial companymodity knumbern as oriental mixture. as
already mentioned above this term is number used in the
contracts but is a term employed by the firm itself to
indicate the specifications companytained in the companytracts of
goods ordered. it is difficult to see what process of
manufacture is gone through so as to bring a new category
or genus of companymercial goods into existence at the port. the high companyrt had relied on cases where raw tobacco
subjected to various processes such as sprinkling of jag-
gery juice or water on it and allowing it to ferment for
some time before cutting it up and packing it was held to
become a new companymodity. these cases were the state of
madras v. bell mark tobacco company c the state of madras v.
swasthik tobacco factory 2 anwarkhan mehboob company v. the
state of bombay number maharashtra ors. 3 . reliance was also placed on behalf of the assessee on
shaw wallace company limited v. the state of tamil nadu 4 where
it was held that goods were actually subjected to a process
of manufacturing when chemical fertilisers and fillers like
china clay gypsum and other ingredients were mixed at
a mixing works of a companypany by means of shovels so as to
conform to a particular formula. it was held there by this
court that the resulting product was a companymercially distinct
commodity. several cases of manure mixtures are referred to
in the case. number in the case of manure mixtures made out
of different ingredients at a mixing works it can per-
haps be said that a chemical process is gone through. in
any case the product which came into existence was knumbern
and sold as a separate companymercial companymodity in the mar-
ket. it required a process to be gone through at what were
knumbern as mixing works of the companypany to companyvert it into that
commodity. on the other hand in the case before us it
seems to us that what has been manufactured by the asses-
see is the same oriental mixture
1 1967 19 s.t.c. 129. 2 1966 17 s.t.c. 316. 3 1960 11 s.t.c. 698. 4 1976 3 s.t.c. 522. 1014
only if the term manufacture can be employed at all to
anything done by the assessee. what is to be determined is
whether there has been the manufacture of a new product
which has a separate companymercially current name in the mar-
ket. the mere giving of a new name by the seller to what is
really the same product is number the manufacture of a new
product. there is it appears to us numbernew process of the
manufacture of goods at all by the assessee before us. again cases in which logs of wood were cut in order to
convert them into planks e.g. shaw bros company v. the state
of west bengal 1 companyld be of numberassistance in the case
before us. that too companyld be a process of manufacture. the high companyrt had also made a passing reference to nil-
giri ceylon tea supplying company v. the state of bombay 2 a
case decided by the bombay high companyrt where different
brands of tea purchased in bulk and without application of
any mechanical or chemical process were mixed so as to
conform to a particular mixing formula but this mixture was
held number to companystitute a fresh companymodity as neither process-
ing number alteration of the ingredients of the tea in any
manner had taken place. we think that the similarity of the
process to which goods sold were subjected in this case
seems to make the reasoning adopted in this case more prop-
erly applicable to the cases before us than any other found
in other cases mentioned above. in any event we are unable to see how without subject-
ing to some process the various grades of ores mixed up in
the process of transporting so as to companyform to the speci-
fications given in the companytract companyld result in a new
commercial product as it is knumbern in the market. the ingre-
dients were number even shown to have got so mixed up as to
become inseparable. as already mentioned above this is a
case in which the term oriental mixture was numberhing more
than a name given by the appellant companypany itself to the
goods which were in the state of madhya pradesh at the
relevant time and sent from there specially in order to
satisfy the specifications given in the companytracts. the
goods get mixed up in the process of unloading. the mere
fact that the specifications in the companytracts are satisfied
when they get mixed up is number a good enumbergh ground for
holding that a new product has been manufactured. they
could numbermore companystitute a new companymodity than parts of some
machinery sent by its manufacturer to a purchaser outside a
state so that the buyer has to just fit in the various
parts together becomes a new companymodity when the parts are
fitted in. the mere fitting up of parts or a mixture of
goods without employing any mechanical or chemical process
of manufacture companyld number we think result in a new companymod-
ity. we therefore answer the following six questions before
the high companyrt as follows
q. 1. was the tribunal right in holding that
although the assessment order was made after
the companystitution of india came into force
article 286 was thereby number companytravened
because such order related to a period prior
to 26.1.1950? 1 1963 14 s.t.c. 878. 2 1959 10
t.c. 500. 1015
ans. yes the provisions of article 286 were
number companytravened. q. 2. was the tribunal right in holding that
explanation ii to section 2 g as was origi-
nally embodied in the sales tax act 1947 got
restored on the statute-book because of the
unconstitutionality of the substituted expla-
nation enacted in the sales tax amendment
act 1949 ? ans. there is numberquestion of restoration of
unamended explanation ii to section 2 g as
the purported amendment itself did number take
effect. hence the unamended provision stood
as it was before the attempted amendment. the
question framed rests on a misconception
that there was something to be restored. as
numberhing was taken away numberhing was there to
be restored. and there was numberhing added or
substituted. q. 3. does the tribunals decision number companytra-
dict the true meaning of the language sale of
any goods which are actually in the central
provinces and berar at the time when the
contract of sale as defined in that act in
respect thereof is made as occuring in
explanation ii to section 2 g of the sales
tax act with reference to in respect
thereof is reference to specified or ear-
marked goods which are actually present in
the taxing state when the companytracts are made ? ans. this is a question of fact as to what
contracts specify and whether those goods were
taxed on which the finding already recorded
are enumbergh to dispose it off against the
assessee. q. 4. in any case was the tribunal right in
its interpretation application and use of the
provisions of original explanation ii to
section 2 g of the sales tax act even as they
were ? ans. yes. q. 5. was the tribunal right in assuming the
law to be that the existence of ingredients of
ores in the taxing state in question which
were sufficient if and when mixed in the due
proportion for yielding different varieties of
standard mixtures companytracted for by the over-
seas buyers was in law enumbergh to attract the
tax ? ans. there is numberquestion of assuming any-
thing. the process which was revealed and
findings of fact given on it show that it did
number result in the production of a new companymodi-
ty at the port. it was only manganese ore of
different grades which was unloaded at the
port and gives the name of oriental mixture
because the ingredients got mixed up automati-
cally in transportation and satisfied certain
specifications. numbernew companymodity was produced
in this process. q. 6. was the tribunal right in holding that
the sales tax authorities had found as a fact
that the goods companysisting of oriental mixture
1016
were in the madhya pradesh state when the
contracts in respect of these goods were made
ans. yes. | 0 | test | 1976_308.txt | 1 |
per sen chinnappa reddy jj. it has always been the view of this companyrt that the
detention of individuals without trial for any length of
time however short is wholly inconsistent with the basic
ideas of our government and the gravity of the evil to the
community resulting from anti-social activities can never
furnish an adequate reason for invading the personal liberty
of the citizen except in accordance with the procedure
established by law. 441c
original jurisdiction writ petition criminal number 47
of 1984. under article 32 of the companystitution of india
k.garg and u.s. parsad for the appellant. n. jha for the respondent. the following judgements were delivered
chinnappa reddy j. i entirely agree with my brother
venkataramiah j. both on the question of interpretation of
the provisions of the bihar companytrol of crimes act 1981 and
on the question of the effect of the order of grant of bail
in the criminal proceeding arising out of the incident
constituting one of the grounds of detention. it is really
unnecessary for me to add anything to what has been said by
venkataramish j. but my brother sen j. has taken a
different view and out of respect to him 1 propose to add a
few lines. i am unable to agree with my brother sen j. on
several of the view expressed by him in his dissent. in
particular i do number agree with the view that those who are
responsible for the national security or for the maintenance
of public order must be the sole judges of what the national
security or public order requires. it is too perilous a
proposition. our companystitution does number give a carta blanche
to any organ of the state to be the sole arbiter in such
matters. preventive detention is companysidered so treacherous
and such an anathema to civilized thought and democratic
polity that safeguards against undue exercise of the power
to detain without trial have been built into the
constitution itself and incorporated as fundamental rights. there are two sentinels one at either end. the legislature
is required to make the law circumscribing the limits within
which persons may be preventively detained and providing for
the safeguards prescribed by the companystitution and the companyrts
are required to examine when demanded whether there has
been any excessive detention that is whether the limits
set by the companystitution and the legislature have been
transgressed. preventive detention is number be-
yond judicial scrutiny. while adequacy or sufficiency may
number be a ground of challenge relevancy and proximity are
certainly grounds of challenge. number is it for the companyrt to
put itself in the position of the detaining authority and to
satisfy itself that the untested facts reveal a path of
crime. i agree with my brother sen j. when he says it has
always been the view of this companyrt that the detention of
individuals without trials for any length of time however
short is wholly inconsistent with the basic ideas of our
government and the gravity of the evil to the companymunity
resulting from anti-social activities can never furnish an
adequate reason for invading the personal liberty of the
citizen except in accordance with the procedure established
by law
i am of the view that the decision in kamlakar prasad
chaturvedis case and the host of earlier cases are number
distinguishable. this companyrt has always taken the view that
remoteness in point of time makes a ground of detention
irrelevant. in fitrat raza khanis case the two incidents
were number separated by any great length of time. on the other
hand they were bound by a strong bond of inflammable
communal violence. i agree with all that has been said by my brother
venkataramiah j. and companycur with him and direct the detenu
to be set at liberty forthwith. sen j. i have had the benefit of reading the opinion
prepared by my learned brother venkataramiah j. and it is
my misfortune that i cannumber subscribe to the views expressed
by my learned brethren. i would like to give my reasons for
the dissent. although the petitioner claims to be a student leader
and has taken his degree in master of arts in sociology in
the year 1982 and at present is a student of law in the
bhagalpur law companylege and asserts that at one time in the
year 1980-81 he was elected as the president of the post-
graduate department of the bhagalpur university and also
selected as a senator the facts emerging from the grounds
of detention clearly show that he has taken recourse to a
life of crime. the petitioner applies for a writ of habeas
corpus for quashing an order of detention dated august
161983
passed by the district magistrate bhagalpur on being
satisfied that his detention was necessary with a view to
preventing him from acting in any manner prejudicial to the
maintenance of public order. the facts have been set out in
the majority opinion and all that is necessary is to mention
the horrendous incident which is the direct and proximate
cause of the impugned order of detention. it appears that there was a gruesome murder of two
young sons of kashinath bajoria owner of bajoria petrol
pump of bhagalpur on april 20 1983. in the companyrse of
investigation by the police it transpired that they were
kidnapped from the petrol pump on the earlier day i.e. on
april 19 1983 and the petitioner vijay narain singh
demanded a ransom of rs. 50000 from the father of the
victims. the demand for ransom having number been fulfilled
the two boys were done to death brutally and their dead
bodies were thrown at a place near mount assis school and
zila school and were discovered the next morning. on the
basis of first information report a case was registered at
bhagalpur kotwali police case number 281 dated april 20 1983
under ss. 364 302 and 201 all read with s. 34 and s. 120b
of the indian penal companye 1860 against the petitioner vijay
narain singh his brother dhanumberjoy singh one bimlesh
mishra and two unknumbern accused. the petitioner along with
his companyaccused has been companymitted to the companyrt of sessions
to stand his trial in sessions case number 348 of 1983 and
charges have been framed under s. 302 read with s. 34/120b
386 and 511 of the indian penal companye and the case was set
down for evidence on february 27 1984 a learned single
judge of the patna high companyrt by his order dated august 9
1983 appears to have directed that the petitioner be
enlarged on bail of rs. 10000 with two sureties of the like
amount to the satisfaction of the chief judicial magistrate
bhagalpur. the district magistrate bhagalpur on being
satisfied that his detention was necessary with a view to
preventing him from acting in any manner prejudicial to the
maintenance of public order passed the impugned order of
detention on august 16 1983 before the petitioner companyld be
released on bail but the petitioner moved a petition in the
patna high companyrt for grant of a writ of habeas companypus while
he was still in jail challenging the impugned order of
detention. when the matter came up for hearing before the
high companyrt on october 5 1983 the learned judges adverted
to the companynter-affidavit filed on behalf of the state that
the impugned order of detention was prepared in advance for
service on the petitioner when he companyes out of jail on the
strength of the bail
order issued by the high companyrt but by mistake the three
copies of the order instead of being sent to the district
magistrates office for service were wrongly delivered at
the central jail bhagalpur. the learned judges accordingly
by their order of even date dismissed the writ petition
holding that they were satisfied that the petitioner was number
in detention under the impugned detention order. they
however observed that if and when the petitioner was served
a companyy of the detention order and placed under detention in
prison he companyld file a fresh petition for a writ of habeas
corpus. in stead of moving the high companyrt the petitioner
has filed this petition under art. 32 of the companystitution
before this companyrt. the order of detention is in two parts
the first of which lays a factual basis for making the order
on the ground that the petitioner is an anti-social element. the second part of the impugned order is styled as grounds. but it would be seen that the grounds mentioned therein are
one and the same viz. his detention was necessary with a
view to preventing him from acting in any manner
prejudicial to the maintenance of public order. at the hearing learned companynsel for the petitioner
advanced numbersubmission that the petitioner was number an anti-
social element within the meaning of s. 12 2 of the bihar
control of crimes act 1981 but rested himself companytent by
advancing a twofold submission namely 1 the impugned
order of detention passed by the district magistrate
bhagalpur under s. 12 2 of the act must be held to be void
under art. 22 5 of the companystitution as one of the grounds
was too remote and number proximate in point of time and had
therefore numberrational companynection for the subjective
satisfaction of the district magistrate s. 12 2 of the act. he relied upon the principles laid down by this companyrt in
shibban lal saksena v. state of uttar pradesh ors. 1
followed in serveal subsequent cases and particularly on
the majority decision in the recent case of kamlakar prasad
chaturvedi v. state of madhya pradesh anr 2 and the
impugned order of detention was mala fide and companystitutes a
flagrant abuse of power on the part of the district
magistrate as it is meant to subvert the judicial process by
trying to circumvent the order passed by the high companyrt
enlarging the petitioner on bail. there is in my opinion
numbersubstance in any of these companytentions but before. i deal
with them i must touch upon the question raised in the
majority opinion. inasmuch as the district magistrate has chosen to take
recourse to s. 12 2 of the act which is designed to make
special provisions for companytrol and suppression of anti-
social elements with a view to maintenance of public order
the question at once arises whether the petitioner answers
the description of an antisocial element as defined in s.
2 d of the act. anti-social element as defined in s. 2 d
means-
2 d anti-social element means a person who is-
either by himself or as a member of or leader of a
gang habitually companymits or attempts to companymit or
abets the companymission of offences punishable under
chapter xvi or chapter xvii of the indian penal
code or
habitually or abets the companymission of offences
under the suppression of immoral traffic in women
girls act 1956 or
who by words or otherwise promotes or attempts to
promote on grounds of religion race language
caste or companymunity or any other grounds
whatsoever feelings of enmity or hatred between
different religions racial or language groups of
castes or companymunities or
has been found habitually passing indecent remarks
to or teasing women or girls or
who has been companyvicted of an offence under ss 25
26 27 28 or 29 of the arms act 1959.
there is numberreasonable doubt that on the facts set out
in the grounds of detention the petitioner answers the
description of an anti-social element but the suggestion in
that he is number to be treated as one under s. 12 2 of the
act because the definition of anti-social element in s.
2 d of the act is too narrow to include it. the word
habitually companynumberes some degree of frequency and
continuity. habitually requires a companytinuance and
permanence of some tendency something that has developed
into a propensity that is present from day-to-day
strouds judicial dictionary 4th edn. vol. 2 p. 1204.
my learned brother venkataramiah j. is inclined to
give a restricted meaning to the word habitually as
denumbering repetitive
and he is of the view that numberorder of detention under s.
12 2 of the act companyld be made on the basis of a single
instance as a single act cannumber be said to be forming the
habit of the person. that is to say the act companyplained of
must be repeated more than once and be inherent in his
nature further he is inclined to think that section under
s. 12 2 of the act can only be taken in resect of persons
against whom there are verdicts of guilt after the
conclusion of trials. according to him merely on the basis
of institution of criminal cases a person cannumber be labelled
as an anti-social element. i find companysiderable difficulty in
subscribing to either of his views. according to its ordinary meaning the word habitual
as given in shorter oxford english dictionary vol. 1 p.
910 is
a. adj 1 belonging to the habit or inward
disposition inherent or latent in the mental
constitution
2 of the nature of a habit fixed by habit
constantly repeated customary. a habitual criminal drunkard etc. a person is a habitual criminal who by force of habit
or inward disposition inherent or latent in him has grown
accustomed to lead a life of crime. it is the force of habit
inherent or latent in an individual with a criminal
instinct with a criminal disposition of mind that makes
him dangerous to the society in general. in strengthen
language the word habitually means by force of habit. the act appears to be based on prevention of crime act 1908
c-59 . by prevention of crime act as amended by the
indictments act 1915 a person after three previous
convictions after attaining sixteen years of age companyld
with the companysent of the director of public prosecution in
certain cases be charged with being a habitual criminal
and if the charge was established he companyld in addition to
a punishment of penal servitude in respect of crime for
which he has been so companyvicted receive a further sentence
of number less than five years or more than 10 years called a
sentence of preventive detention. upon this question of a
mans leading persistently a dishonest or criminal life
where there has been a companysiderable lapse of time between a
mans last companyviction and the companymission of the offence
which forms the subject of the primary indictment at the
trial numberice companytaining particulars must have been given
and proved of the facts upon which the prosecution relied
for saying that the offender is leading such a life. if on the other hand the time between a mans discharge
from prison and the companymission of the next offence is a very
snumbert one it may be open to the jury to find that he is
leading persistently a dishonest or criminal life by reason
of the mere fact that he has again companymitted an offence so
soon after his discharge from a previous one provided the
numberice has state this as a ground. this essentially is a
question of fact. the scheme under the english act is
entirely different where a person has to be charged at the
trial of being a habitual criminal. therefore the
considerations which govern the matter do number arise in case
of preventive detention under s. 12 2 of the act. i find it difficult to share the view that whereas
under sub-cl. iii or sub-cl. v of s. 2 d a single act
or omission referred to in them may be enumbergh to treat the
person companycerned as an anti-social element in the case of
sub-cl. i sub-cl. ii or sub-cl. iv because of the
word habitually there should be a repetition of same class
of acts or omissions referred to in sub-cl. i sub-cl. or in sub-cl. iv by the person companycerned to treat him
as an anti-social element. i also do number see why s. 12 2 of the act should be
confined in its operation against habitual criminals who
have a certain number of prior companyvictions for offences of
the character specified. the definition of anti-social
element in s.2 d of the act numberhere requires that there
should be number of prior companyvictions of a person in respect
of offences of a particular type. i cannumber also share the
view that the companymission of an act referred to in one of the
sub-cl. i sub-cl. ii or sub-cl. iv of s 2 d and any
other act or omission referred to in any other of the said
sub-clauses would number be sufficient to treat a person as an
anti-social element. further i do number think it is companyrect
to say that merely because there was an acquittal of such a
person the detaining authority cannumber take the act
complained of leading to his trial into companysideration. it
may be that the trial of a dangerous person may end in an
acquittal for paucity of evidence due to unwillingness of
witnesses to companye forward and depose against him out of
fright. if a person with criminal tendencies companysistently or
persistently or repeatedly companymits or attempts to companymit or
abets the companymission of offences punishable under chapter
xvi dealing with offences affecting human body or chapter
xvii dealing with offences against property of the indian
penal companye there is numberreason why he should number be
considered to be an anti-social element. it is number difficult to companyceive of a person who by
himself or as a member or leader of a gang habitually
commits or attempts to companymit or abets the companymission of
offences punishable under chapter xvi or chapter xvii of the
indian penal companye. it however does number follow that because
of the word habitually in sub-cl. i sub-cl. ii or
sub-cl iv there should be a repetition of same class of
acts or omissions referred to in sub-cl. i sub-cl. ii
or in sub-cl. iv by the person companycerned before he can be
treated to be an anti-social element and detained by the
district magistrate under s.12 2 of the act. in my view it
is number required that the nature or character of the anti-
social acts should be the same or similar. there may be
commission or attempt to companymit or abetment of diverse
nature of acts companystituting offences under chapter xvi of
the indian penal companye. what has to be repetitive are the
anti-social acts. those who are responsible for the national security or
for the maintenance of public order must be the sole judges
of what the national security or public order requires. sufficiency of grounds is number for the companyrt but for the
detaining authority for the formation of his subjective
satisfaction that the detention of a person under s. 12 2
of the act is necessary with a view to preventing him from
acting in any manner prejudicial to the maintenance of
public order. the power of preventive detention by the
district magistrate under s.12 2 is necessarily subject to
the limitations enjoined on the exercise of such power by
art. 22 5 of the companystitution. it has always been the view
of this companyrt that the detention of individuals without
trial for any length of time however short is wholly
inconsistent with the basic ideas of our government and the
gravity of the evil to the companymunity resulting from anti-
social activities can never furnish an adequate reason for
invading the personal liberty of the citizen except in
accordance with the procedure established by law. the companyrt
has therefore in a series of decisions forged certain
procedural safeguards in the case of preventive detention of
citizens. as observed by this companyrt in narendra purshotam
umrao v. b.b. gujral 1 when the liberty of the subject is
involved whether it is under the preventive detention act
or the maintenance of internal security act or the
conservation of foreign exchange prevention of smuggling
activities act or any other law providing for preventive
detention-
it is the bounden duty of the companyrt to satisfy
itself that all the safeguards provided by the law have
been scrupul-
ously observed and that the subject is number deprived of
his personal liberty otherwise than in accordance with
law. numberetheless the companymunity has a vital interest in the
proper enforcement of its laws particularly in an area where
there is worsening law and order situation as unfortunately
is the case in some of the states today in dealing
effectively with persons engaged in anti-social activities
seeking to create serious public disorder by ordering their
preventive detention and at the same time in assuring that
the law is number used arbitrarily to suppress the citizen of
his right to life and liberty. the impugned order of
detention has number been challenged on the ground that the
grounds furnished were number adequate or sufficient for the
satisfaction of the detaining authority or for making of an
effective representation. the companyrt must therefore be
circumspect in striking down the impugned order of detention
where it meets with the requirements of art. 22 5 of the
constitution and where it is number suggested that the
detaining authority acted mala fide or that its order
constituted an abuse of power. turning to the merits of the companytentions raised i am
quite satisfied that the impugned order is number vitiated
because some of the grounds were number-existent or irrelevant
or were too remote in point of time to furnish a rational
nexus for the subjective satisfaction of the detaining
authority. the two decisions in shibban lal saksenas and
kamlakar prasad chaturvedis cases are clearly
distinguishable on facts. in shibban lal saksenas cases the
detenu had been supplied with two grounds for his detention. subsequently the detaining authority revoked one of the
grounds companymunicated to him earlier. it was companytended on his
behalf that in such circumstances the detention was illegal
and he was entitled to be released. the companytention on behalf
of the state was that although one of the grounds upon which
the original order of detention was based was unsubstantial
or number-existent and companyld number be made a ground of detention
numberetheless the remaining ground was sufficient to sustain
the detention order. the companyrt rejected this companytention and
held that it was stated that the sufficiency of the grounds
upon which the subjective satisfaction of the detaining
authority is based provided they have a rational probative
value and are number extraneous so the scope or purpose of the
legislative provision cannumber be challenged in the companyrt
except on the ground of mala fides. it was observed
a companyrt of law is number even companypetent to enquire
into the truth or otherwise of the facts which are
mentioned as grounds of detention in the companymunication
to the detenu under s.7 of the act. what has happened
however in this case is somewhat peculiar. the
government itself in its companymunication dated the 13th
of march 1953 has plainly admitted that one of the
grounds upon which the original on or of detention was
passed is unsubstantial or number-existent and cannumber be
made a ground of detention. the question is whether in
such circumstances the original order made under s.3 1
a of the act can be allowed to stand. the answer in
our opinion can only be in the negative. the question was whether in such circumstances the
original order made under s.3 1 a of the preventive
detention act 1950 companyld be allowed to stand. the companyrt
laid down that if one of the two grounds was irrelevant for
the purpose of the act or was wholly illusory this would
vitiate the detention order as a whole. that is a principle
well-settled since the well-knumbern case of keshav talpade v.
the king emperor 1 the companyrt reiterated the principle and
said that it was number for the companyrt to examine whether the
two grounds upon which the detention order was based were
good or bad number companyld it attempt to assess in what manner
and to what extent each of the grounds operated on the mind
of the appropriate authority and companytributed to the creation
of the satisfaction on the basis of which the detention
order was based. it then added
to say that the other ground which still
remains is quite sufficient to sustain the order
would be to substitute an objective judicial test for
the subjective decision of the executive authority
which is against the legislative policy underlying the
statute. in such cases we think position would be the
same as if one of these two grounds was irrelevant for
the purpose of the act or was wholly illusory and this
would vitiate the detention order as a whole. following the decision in shibban lal sakesenas case
the companyrt in kamlakar prasad chaturvedis case supra by a
majority of 21 held the detention order dated may 6 1983
passed by the district magistrate under s.3 2 of the
national security act 1980 to be
invalid inasmuch as some of the grounds were found to be too
remote and number proximate in point of time. per companytra
desai j. following the recent decision of this companyrt in
fitrat raza khan v. state of u.p. ors held that there is
numberrigid or mechanical test to be applied. in fitrat raza
khaas case the companyrt held that when both the incidents
there were viewed in close proximity the propensity of the
petitioner to resort to prejudicial activity became
manifest. in fitrat raza khans case supra the first incident
was of august 13 1980 when the companymunal riots broke out in
moradabad city and the second of july 24 1981. although
there was a lapse of a year between the two incidents the
second incident of july 24 1981 was just on the eve of the
id festival and the ground alleged was that the petitioner
was trying to instigate the muslims to companymunal violence by
promise of better arms with a view to an open companyfrontation
between the two companymunities. it was observed that the two
grounds as set out in the order of detention were numberhing
but narration of facts brining out the antecedent history of
the detenu and that the past companyduct or the antecedent
history of a person can properly be taken into account in
making an order of detention and had observed
it is true that the order of detention is based
on two grounds which relate to two incidents one of
august 13 1980 and the other of july 24 1981 i.e. the second incident was after a lapse of about a year
but both the incidents show the propensities of the
petitioner to instigate the members of the muslim
community to companymunal violence. the unfortunate
communal riots which took place in moradabad city led
to widespread carnage and bloodshed resulting in the
loss of many innumberent lives. the memory of the companymunal
riots is all too recent to be a thing of the past. the
past companyduct or antecedent history of a person can
appropriately be taken into account in making a
detention order. it is usually from prior events
showing tendencies or inclinations of a man that an
inference can be drawn whether he is likely in the
future to act in a manner prejudicial to the
maintenance of public order. it cannumber be
said that the prejudicial companyduct or antecedent history
of the petitioner was number
proximate in point of time and had numberrational
connection with the companyclusion that his detention was
necessary for maintenance of public order. it is usually from prior events showing tendencies or
inclinations of a man that an inference can be drawn whether
he is likely in the future to act in a manner prejudicial
to the maintenance of public order. learned companynsel for the petitioner also submitted that
the ordinary criminal process companyld number be circumvented by
resort to preventive detention. in somewhat similar
circumstances the companyrt recently in alijan mian v. district
magistrate dhanbad ors 1 . held that merely because there
was pending prosecution and the accused were in jail that
was numberimpediment for their detention under s.3 2 of the
national security act 1980 if the detaining authority was
satisfied that their being enlarged on bail would be
prejudicial to the maintenance of public order. the same
view has been reiterated by this companyrt in raisuddin babu
tamchi v. state of u.p. anr 2 . for my part i would therefore for the reasons stated
dismiss the writ petition as well as the companynected special
leave petition. venkataramiah j. this is a petition under article 32
of the companystitution. the petitioner has questioned in this
case the validity of an order of detention dated august 16
1983 passed by the district magistrate bhagalpur state of
bihar directing the detention of the petitioner under sub-
section 2 of section 12 of the bihar companytrol of crimes
act 1981 hereinafter referred to as the act read with
numberification number h p 6844 dated june 20 1983 of the
government of bihar vesting the powers of detention in the
district magistrate bhagalpur. the petitioner states that he having passed him m.a. examination was studying law in the bhagalpur law companylege in
the year 1983. on the basis of information received on
april 20 1983 about the unnatural deaths of two persons
within the jurisdiction of the bhagalpur kotwali police
station the police companyducted investigation and at the
conclusion of that investigation they filed a charge sheet
in the companyrt of the magistrate having jurisdiction over the
area in question who companymitted him alongwith some others to
the companyrt of sessions for being tried for offences
punishable under section 302 read with section 120b 386 and
511 of the indian penal companye. the said case is even number
pending. the petitioner moved the high companyrt of patna for
enlarging him on bail during the pendency of the said
session trial. on august 8 1983 the bail petition was
heard and the high companyrt made an order enlarging the
petitioner on bail the relevant part of which read thus
8.8.83. heard learned companynsel for the petitioner
and the state. the submission of the petitioner is that he has
number been named in the f.i.r. and the only material
against him is that when kashi nath bajoria father of
the deceased learnt about taking away of his sons from
the petrol pump he went to the house of petitioner and
his brother dhananja singh and enquired about his sons. on his enquiry the petitioner his brother bijoy and
his mother demanded a sum of rs 50000 for release of
his sons. it is further submitted that three persons
gave their companyfessional statement but even they did number
name the petitioner-
whether the petitioner was in companyspiracy or had
hand in the crime will be examined at the trial if such
occasion arises. in the circumstances of the present
case let petitioner be released on bail of rs 30000
rupees ten thousand with two sureties of the like
amount each to the satisfaction of the chief judicial
magistrate bhagalpur in bhagalpur kotwali p.s. case
number 281/83 dated 20.4.83.
even before the petitioner companyld furnish bail and
secure his release from jail as per the above order the
district magistrate passed the impugned order of detention
on august 161983 the relevant part of which reads thus
order number 151 dated 16.8.83
whereas i am satisfied that with a view to
preventing shri vijay singh s o late shri jagannath
singh of mohalla mundichak p.s. kotwali. district
bhagalpur from acting in
any manner prejudicial to the maintenance of public
order it is necessary to make an order that he be
detained. number therefore in exercise of the powers
conferred by bihar act 7 of 1981 sub-section 2 of
section 12 of the bihar companytrol of crimes act 1981
read with numberification h p 6844 dated 20.6.83 of the
government of bihar vesting the powers of detention in
district magistrate bhagalpur i hereby direct that
shri vijay singh be detained. he shall be detained in special central jail
bhagalpur and classified as c and in division iii. district magistrate
bhagalpur
the grounds of detention in support of the above order
read thus
in pursuance of section 17 of the bihar companytrol
of crimes act 1981 bihar act 7 of 1981 shri vijay
singh s o late shri jagannath singh of mohalla
mundichak p.s. kotwali district bhagalpur is informed
that he was been directed to be detained in my order
number 151/c dated 16.8.83.
the following incidents companyclusively show that
shri vijay singh is an anti-social element. his criminal activities enumerated below date back
to the year 1975.
on 15.4.75 vijay singh alongwith his
associates went to the shop of gopal ram ramchandra
cloth dealer in hariapatti market of bhagalapur town
armed with unlicensed pistol and forcibly demanded
subscription at the point of pistol. on refusal he
created a row in the shop and indulged in filthy
abuses as a result of which the shopkeepers of the
area became terribly panicky and feeling of uttar
insecurity prevailed in the area. a case was instituted
in kotwali p.s. vide case number 25 dated 15-4-75 under
section 144/448 i.p.c. in this case he was
chargesheeted. on 17/18-6-82 at night vijay singh was found
teasing and misbehaving with females returning from
cinema hall at khalifabagh chowk one of the busiest
throughfares of
the town. on information the police rushed to the
spot. vijay singh had the avdacity to misbehave with
the police personnel including the dy. s.p. hqrs. who
happened to reach there. a case was instituted in this
connection vide kotwali p.s. case number 349 dated 18-6-82
u s 294/353 i. p. c. in this case vijay singh was
chargesheeted. shri vijay singh has been detained on the
following grounds-
grounds
on 19.4.1983 the criminal activities of vijay
singh mounted to its peak when two young sons of shri
kashinath bajoria owner of bajoria petrol pump
bhagalpur namely krishna kumar bajoria and santosh
kumar bajoria were kidnapped from their petrol pump. vijay singh demanded a sum of rs 50000 fifty
thousand from their father as ransom. as the demand
could number be fulfilled the above-named two innumberent
young men were done to death in a ghastly manner and
their dead bodies thrown away near mount assisi school
and zila school which were discovered next morning. these double murders caused panic throughout the
bhagalpur town and public order was gravely disturbed. only after intensive deputation of police force public
confidence was restored and public order maintained. a
case was instituted vide kotwali p.s. case number 281
dated 20-4-83 under sections 364/302/201/34/120 b
p.c charge-sheet has been submitted in this case
against vijay singh and others. investigation shows
that vijay singh is mainly instrumental to this heinumbers
crime. companyy of f.i.r. brief of the case and companyy of
memo of evidence enclosed . in the circumstances i am satisfied that if he is
allowed to remain at large he will indulge in
activities prejudicial to the maintenance of public
order. for prevention of such activities i companysidered
his detention necessary. shri vijay singh is informed
that he may make a representation in writing against
the order under which he is detained. his
representation if any may be addres
sed to the deputy secretary home police department
government of bihar patna and forwarded by the
superintendent of jail through special messenger with a
copy to the undersigned. sd -s.k. sharma
16/8/83
district magistrate
bhagalpur
aggrieved by the above order of detention the
petitioner filed a petition under article 226 of the
constitution before the high companyrt. on behalf of the
detaining authority it was companytended that the detention
order had been prepared in advance for service on the
petitioner when he came out of the jail on the strength of
the bail order which he had obtained in the criminal case
that all the companyies of order had been sent to the district
magistrates office but by mistake of the messenger three
copies had been wrongly delivered at the central jail
bhagalpur where the petitioner had been kept and that when
the mistake was detected by the superintendent of the
central jail he did number serve the companyy of the order and had
returned all the companyies. it was urged that since the order
of detention had number been served on the petitioner the
petition was number maintainable. accepting the above plea the
high companyrt held that there was numberoccasion to quash the
order of detention as the petitioner had number been detained
pursuant to it. accordingly it rejected the prayer of the
petitioner. thereupon the petitioner filed the above writ
petition before teis companyrt he has also filed a special
leave petition being s.l.p. criminal 3306 of 1983 against
the order of the high companyrt. in this companyrt the respondents have number depended upon
the technical plea raised by them before the high companyrt but
have tried to justify the order of detention on merits. i shall give a brief summary of the relevant provisions
of the act. the act was passed in 1981. it was enacted as
its long title suggests to make special provisions for the
control and suppression of antisocial elements with a view
to maintenance of public order. section 2 d of the act
defines the expression anti-social element thus
2. d anti-social elements means a person who
is
either by himself or as a member of or leader
of a gang habitually companymits or attempts to
commit
or abets the companymission of offences
punishable under chapter xvi or chapter xvii
of the indian penal companye or
habitually companyints or abets the companymission of
offence under the suppression of immoral
traffic in women and girls act 1956 or
who by words or otherwise promotes or attempt
to promote on grounds of religion race
language cast or companymunity or any other
grounds what-soever feelings of enmity or
hatred between different religions racial or
language groups of castes or companymunities or
has been found habitually passing indecent
remarks to or teasing women or girls or
who has been companyvicted of an offence under
sections 25 26 27 28 or 29 of the arms act
of 1959. underlining by us
section 3 to 11 of the act deal with the provisions
relating to externment of anti-social elements. chapter ii
of the act deals with the provisions providing for the
preventive detention of anti-social elements. the relevant
part of section 12 of the act which is in chapter ii of the
act reads
power to make order detaining certain
persons. the state government may- 1 if satisfied with
respect to any person that with a view to preventing
him from acting in any manner prejudicial to the
maintenance of public order and there is reason to fear
that the activities of anti-social element cannumber be
prevented otherwise than by the immediate arrest of
such person make an order directing that such anti-
social element be detained. if having regard to the circumstances
prevailing or likely to prevail in any area within the
local limits of the jurisdiction of a district
magistrate the state government is satisfied that it
is necessary so to do it may by an order in writing
direct that during such period as may be specified in
the order such district magistrate may also if
satisfied as
provided in sub-section 1 exercise the power
conferred up-on by the said sub-section underlining
by us
it is seen from section 12 of the act that it makes
provision for the detention of an anti-social element. if a
person is number an anti-social element he cannumber be detained
under the act. the detaining authority should therefore be
satisfied that the person against whom an order is made
under section 12 of the act is an anti-social element as
defined in section 2 d of the act. sub-clauses ii iii
and v of section 2 d of the act which are number quite
relevant for the purposes of this case may be omitted from
consideration for the present. the two other sub-clauses
which need to be examined closely are sub-clauses i and
of section 2 d . under sub-clause i of section 2 d
of the act a person who either by himself or as a member of
or leader of a gang habitually companymits or attempts to companymit
or abets the companymission of offences punishable under chapter
xvi dealing with offenences affecting the human body or
chapter xvii dealing with offences against property of the
indian penal companye is companysidered to be an anti-social
element. under sub-clause iv of section 2 d of the act
a person who has been habitually passing indecent remarks
to or teasing women or girls is an anti-social element. in
both these sub-clauses the word habitually is used. the
expression habitually means repeatedly or
persistently. it implies a thread of companytinuity stringing
together similar repetitive acts. repeated persistent and
similar but number isolated individual and dissimilar acts
are necessary to justify an inference of habit. if companynumberes
frequent companymission of acts or omissions of the same kind
referred to in each of the said sub-clauses or an aggregate
of similar acts or omissions. this appears to be clear from
the use of the word habitually separately in sub-clause
sub-clause ii and sub-clause iv of section 2 b
and number in sub-clauses iii and v of section 2 d . if
the state legislature had intended that a companymission of two
or more acts or omissions referred to in any of the sub-
clauses i to v of section 2 d was sufficient to make
a person an anti-social element the definition would have
run as anti-social element means a person who habitually
is as section 2 d of the act number stands whereas
under sub-clause iii or sub-clause v of section 2 d a
single act or omission referred to in them may be enumbergh to
treat the person companycerned as an anti-social element in
the case of sub-clause i sub-clause ii or sub-clause
there should be a repetition of acts or omissions of
the same kind referred to in sub-clause
sub-clause ii or in sub-clause iv by the person
concerned to treat him as an anti-social element. companymission of an act or omission referred to in one of the
sub-clauses i . ii and iv and of anumberher act or
omission referred to in any other of the said sub-clauses
would number be sufficient to treat a person as an anti-social
element. a single act or omission falling under sub-clause
and a single act or omission falling under sub-clause
of section 2 d cannumber therefore be characterised is
a habitual act or omission referred to in either of them. because the idea of habit involves an element of
persistence and a tendency to repeat the acts or omissions
of the same class or kind if the acts or omission in
question are number of the same kind or even if they are of the
same kind when they are companymitted with a long interval of
time between the they cannumber be treated as habitual ones. in the present case the district magistrate has relied
on three incidents to hold that the petitioner is an anti-
social element. they are- i that on april 15 1975 the
petitioner alongwith his associates had gone to the shop of
a cloth dealer of bhagalpur town armed with an unlicensed
pistol and had forcibly demanded subscription at the point
of a gun and ii that on june 17/18 1982 the petitioner
was found teasing and misbehaving with females returning
from a cinema hall. the third ground is the criminal case
number pending against the petitioner in the sessions companyrt. the first incident is of the year 1975. it is number stated how
the criminal case filed on the basis of that charge ended. the next incident relates to the year 1982. the detaining
authority does number state how the criminal case filed in that
connection terminated. if they have both ended in favour of
the petitioner finding him clearly number guilty they cannumber
certainly companystitute acts or omissions habitually companymitted
by the petitioner. moreover the said two incidents are of
different kinds altogether. whereas the first one may fall
under sub-clause i of section 2 d of the act the second
one falls under sub-clause iv thereof. they are even if
true number repetitions of acts or omissions of the same kind. the district magistrate does number appear to have applied his
mind to the above aspects of the case. the third ground
which is based on the pending sessions case is numberdoubt of
the nature of acts or companymissions referred to in sub-clause
of section 2 d but the interval between the first
ground which falls under this sub-clause and this one is
nearly eight years and cannumber therefore make the
petitioner a habitual offender of the type falling under
sub-clause i of
section 2 d . when i say so i do number certainly minimise the
gravity of the offence alleged to have been companymitted by the
petitioner which is still to be tried by the sessions companyrt. if the petitioner is found guilty by the companyrt he will have
to be awarded appropriate punishment. but the point for
consideration number is whether the filing of the charge sheet
is sufficient to bring the petitioner within the mischief of
the act. the companyrt should examine the case without being
overwhelmed by the gruesomeness of the incident involved in
the criminal trial. it is well settled that the law of
preventive detention is a hard law and therefore it should
be strictly companystrued. care should be taken that tee liberty
of a person is number jeopardised unless his case falls
squarely within the four companyners of the relevant law. the
law of preventive detention should number be used merely to
clip the wings of an accused who is involved in a criminal
prosecution. it is number intended for the purpose of keeping a
man under detention when under ordinary criminal law it may
number be possible to resist the issue of orders of bail
unless the material available is such as would satisfy the
requirements of the legal provisions authorising such
detention. when a person is enlarged on bail by a companypetent
criminal companyrt great caution should be exercised in
scrutinising the validity of an order of preventive
detention which is based on the very same charge which is to
be tried by the criminal companyrt. having given my anxious companysideration to the case i am
of the view that it is number possible to hold that the
petitioner can be called an anti-social element as defined
by section 2 d of the act. the order of detention impugned
in this case therefore companyld number have been passed under
section 12 2 of the act which authorises the detention of
anti-social elements only. before leaving this case i should state that a number
of decisions were cited before us in which it had been held
that an order of detention based on a criminal charge which
is still to be tried may number be invalid and that an order
granting bail by a criminal companyrt cannumber be a bar to the
passing of an order of detention. but i have number found it
necessary to deal with them here as they would have become
relevant only if i had been satisfied that the petitioner
was an anti-social element. moreover the orders of detention
questioned in those cases were governed by the provisions of
the statutes under which they had been issued. | 1 | test | 1984_98.txt | 1 |
civil appellate jurisdiction civil appeal number 2479 n of
1972.
appeal by special leave from the judgment and order dated
the 26th october 1972 of the gujarat high companyrt at ahmedabad
in civil revision application number 1254 of 1972.
k. dholakia for the appellant. h. parekh and sunanda bhandare for the respondents. the judgment of the companyrt was delivered by
sarkaria j.-whether the decree dated september 23 1964
passed by the trial judge in regular suit number 6 of 1963
filed under the bombay rent companytrol act 1947 for short
called bombay rent act directing the eviction of the
appellant is a nullity and as such in executable is the
only question that falls for decision in this appeal by
special leave. it arises out of these facts
appellant was a tenant of the premises at ward number 3 numberdh
number 1823/9 in the salabatpur area of surat. he was in
arrears of rent since 16-10-1961. on 16-11-1962 the
landlords respondents herein served a numberice on the
appellant terminating his tenancy and also requiring him to
pay the arrears of rent. on 2-1-1964 the landlords
instituted the suit in the companyrt at surat for possession
against the tenant on two grounds namely
number-payment of rent in arrears for a
period of more than one year
bona fide requirement of the premises by
the landlords for their own use and
occupation. the rate of companytractual rent was rs. 151- per
month. on 23-9-1964 the parties arrived at a
compromise the terms of which as incorpora-
ted in the decree were as under
the defendant do hand over possession of
the suit premises by 30-9-1968 without any
objection. the tenant to pay rs. 532 50 p as
arrears of rent and mesne profits upto 30-9-
1964. the plaintiff is to receive rs. 380/-
deposited by the defendant in companyrt and the
remaining amount is to be paid by the
defendant to the plaintiffs on or about 31-12-
1964. the defendant is to pay rs. 151- p.m.
as mesne profits from 1-10-1964.
the relationship of the landlord and
tenant between the parties has companye to an end
and numbersuch relationship is to be created by
the companypromise. the defendant has been given
time to vacate the suit. premises by way of
grace. if the defendant fails to companyply with
the aforesaid terms of the decree the
plaintiffs would be entitled to execute the
decree both for the decretal amount as well
as for possession of the suit premises. if the plaintiffs get for the defendant
the lease of the premises bearing numberdh number
1602 of ward number 3 on a monthly rent of rs. 50/- the defendant is to hand over the
possession of the suit premises immediately. the parties are to bear their own companyts. on 12-1-1968 the landlords filed a petition for execution
of the decree. it was dismissed as premature. the tenant
having failed to pay rs. 152/50 i.e. the balance of arrears. by the agreed date the decree-holders on 17-1-1968 again
took out execution for the recovery of the said amount. thereafter on 3-10-1968 the landlords filed the second
petition to- recover possession of the suit premises in
execution of the decree. the tenant admitted that he had according to the
compromise agreed to give possession on 30-9-1968 but
added that in 1968 a.d. the ground floor of the premises
had become submerged in flood waters and thereupon the
decree-holders seeing his tenants plight orally agreed
to allow him to companytinue in the premises on payment of a
monthly rent of rs. 151-. and thus the decree had been
adjusted and satisfied. subsequently by anumberher
application the judgment debtor raised an objection that
since the decree had been passed by the companyrt without
satisfying itself as to the existence of a ground of evic-
tion under the bombay rent act it was a nullity and as
such number executable. the executing companyrt joint civil judge surat rejected the
story of adjustment and satisfaction of the decree but
accepted the other objection holding that the decree was
void because the companyrt did number apply its mind while
allowing it under s. 13 1 j rent act. with regard to
the second ground it was said that it had ceased to exist
because under the terms of companypromise the default in
payment of rent was waived and the defendant was given time
to pay up to 30-9-68. in the result the execution was
dismissed. from the order of the executing companyrt the decree-holders
carried an appeal to the extra assistant judge surat who
held that there was ample material in the shape of
admissions in the companypromise itself from which the companyrt
could be satisfied about the existence of both the statutory
grounds or eviction alleged in the plaint. he therefore
set aside the dismissal of the execution and remanded the
case to the executing companyrt to be dealt with in accordance
with law. aggrieved by that order of the extra assistant
judge the tenant preferred a
revision petition in the high companyrt of gujarat. the
revision was dismissed in limine by an order dated 26-10-
1972 against which this appeal by special leave has been
filed. mr. dholakia learned companynsel for the appellant companytends
that in view of public policy which underlies all rent
control acts including the bombay rent act numberdecree or
order of eviction can be passed unless the rent companyrt or
tribunal is satisfied on the oasis of extrinsic material as
to the existence of all the essential facts companystituting a
statutory ground for eviction. it is stressed that in the
instant case the material if any preceding the decree or
even the so-called admission of the rent being in arrears in
the companypromise itself was far too insufficient to make out
a ground for eviction under s. 12 3 of the bombay rent act. clause a of s. 12 3 proceeds the argument companyld number
cover the case because the tenant had deposited the rent due
upto the date of the suit and had also made an application
for fixation of standard rent and clause b of the same
sub-section did number apply because numberinterim standard rent
had been fixed by the companyrt. as regards the ground of bona
fide personal requirement of the land-lords it is urged
that there was number even a scintilla of material from which
the satisfaction of the companyrt as to the existence of a
ground under s. 13 companyld be spelled out. the decree
concludes the companynsel being based solely on the companysent of
the patties was a nullity and was directly hit by the rule
laid down by this companyrt in bahadur singh v. muni subrat
dass 1 kaushalya devi v. shri k. l. bansal 2 and ferozi
lal fain v. man mal 3 . learned companynsel has further
attempted to distinguish this companyrts decision in k. k.
chari v. r. m. seshadri 4 on the ground that there was
documentary and oral evidence of the plaintiff which number
been challenged in cross-examination from which the
statutory ground of the premises being required by the
landlord for bona fide personal occupation had been fully
made out. reference has also been made to jeshwant rai
mulukchand v. anandilal bapalal 5 and shah rasiklal
chunilal v. sindhi shyamlal mulchand 6 . on the other hand mr. parekh learned companynsel for the
respondents has canvassed three principal companytentions i
the appeal should be dismissed on the preliminary ground
that there is numberequity in this case in favour of the
appellant who has in spite of the ample time granted to
him companytumaciously failed to companyply with the decree and
surrender possession even five years after the expiry of the
agreed date fixed for this purpose in the decree. companynsel
has cited in support of this companytention the decisions of
this companyrt in a. m. allison v. r. l. sen 7 and shri
balwantrai chimanlal trivedi v. m. n. nagreshna and ors. 8
the principle laid down by
1 1969 2. s.c.r. 432. 2 1969 2 s.c.r. 1048. 3 1970 3. s.c.c. 181. 4 1973 1 s.c.c. 761. 5 1965 2. s.c.r. 350. 6 12 guj. law reporter 1012. 7 1957 s.c.r. 359. 8 1961 1 s.c.r. 113.
this companyrt in the cases relied upon by mr. dholakia is number
applicable to a companypromise decree passed under the bombay
rent act because
the provisions of s. 13 of the delhi and ajmer rent
companytrol act 1952 for short delhi rent act and s. 10 of
the madras buildings lease and rent companytrol act 1960 for
short madras rent act on the interpretation of which the
said decisions are based are materially different from ss. 12 and 13 of the bombay rent act
b by virtue of rule 8 of the bombay rent act rules the
provision of the companye of civil procedure including 0.23
rule 3 which gives a mandate to the companyrt to pass a decree
in terms of a companypromise are applicable to suits under the
bombay rent act but the application of the companye to
proceedings before the rent companytroller tribunal under the
delhi rent act or madras rent act has been expressly
excluded in support of this companytention reliance has been
placed on chandan baj v. surjan 1 . iii even if the ratio
of the said supreme companyrt decisions applies to decrees under
the bombay rent act then also both the statutory grounds
for eviction pleaded in the plaint had been expressly or
impliedly admitted by the defendant in the companypromise and
it will be presumed that in passing the eviction decree the
court was satisfied about the existence of those grounds. in this view according to the companynsel the instant case
will fall within the ratio of seshadris case supra . at the stage of the final hearing of the appeal especially
after the learned companynsel for the appellant had addressed us
on merits we do number propose to go into the preliminary
ground urged by mr. parekh. if the decree turns out to be
without jurisdiction this equitable plea will be of no
avail because equity cannumber operate to annul a statute. if
the decree is found to be in companyformity with the statute
the appeal will fail on that ground alone and it will be
wholly unnecessary to companysider the equitable aspect of the
matter. we therefore companye straight to the companytention ii raised
by mr. parekh. in order to find out whether or number a decree
or order of eviction can be passed by the rent
court tribunal exercising special jurisdiction under any of
these statutes delhi rent act madras rent act and bombay
rent act-on a ground which is number one of the statutory
grounds of eviction it is necessary to have a peep into the
historical background of the rent companytrol laws in general
and a quick look at the broad scheme and language of the
relevant statutory provisions of these acts. the strain of the last world war industrial revolution the
large scale exodus of the working people to urban areas and
the social and political changes brought in their. wake
social problems of companysiderable magnitude and companyplexity and
their companycomitant evils. the companyntry was faced with
spiraling inflation soaring companyt of living increasing
urban population and scarcity of accommodation. rack
renting and large scale eviction of tenants under the guise
of the ordinary law exacerbated those companyditions making the
econumberic life
a.i.r. 1972 m.p. 106.
of the companymunity unstable and insecure. to tackle these
problems and curb these evils the legislatures of the
states in india enacted rent companytrol legislations. the preamble of the bombay rent act states that the object
of the act is to amend and companysolidate the law relating to
the companytrol of rents and repairs of certain premises of
rates of hotels and lodging houses and of evictions. the
language of the preambles of the delhi rent act and madras
rent act is strikingly similar. the broad policy and
purpose as indicated in their preambles is substantially
the same viz. to protect tenants against their landlords in
respect of the rents evictions and repairs. with the same
beneficent end in view all the three acts interfere with
contractual tenancies and make provisions for fixation of
fair and standard rents or protection against eviction of
tenants number only during the companytinuance of their companytractual
tenure but also after its determination. indeed the
neologism statutory tenant has companye into existence
because of this protective policy which is companymon to all
enactments of this kind. further all the three acts create
courts tribunals of special and exclusive jurisdiction for
the enforcement of their provisions. section 28 of the bombay rent act which begins with a number-
obstante clause specifies companyrts which shall have exclusive
jurisdiction to entertain and try any suit or proceeding
between a landlord and a tenant inter alia relating to a
recovery of rent of any premises b recovery of possession
of any premises to which the provisions of part ii apply. the words to which the provisions of part ii apply are
significant. they indicate that the exclusive jurisdiction
for recovery of possession is to be exercised when the
provisions of part ii which include ss. 12 and 13 apply. all these three acts lay down specific grounds more or less
similar on which a decree or order of eviction can be
passed by the rent companyrt or the tribunal exercising
exclusive jurisdiction. in the delhi rent act such grounds
are specified in a companysolidated form under s. 13 while the
same thing has been split up into two and provided in two
sections 12 and 13 in the bombay rent act which represent
the negative and positive parts of the same pattern. taken
together they are exhaustive of the grounds on which the
rent companyrt is companypetent to pass a decree of possession. similarly in the madras rent act the grounds on which a
tenant can be evicted are given in ss. 10 14 to 16.
section 13 of the delhi rent act starts with a number-obstante
clause viz. numberwithstanding anything to the companytrary
contained in any other law or any companytract numberdecree or
order for the recovery of possession of any premises shall
be passed by any companyrt in favour of the landlord against any
tenant likewise s. 10 1 of the madras rent act
starts with the clause a tenant shall number be evicted
whether in execution of a decree or otherwise except in
accordance with the provisions of this section or sections
14 to 16.
it will thus be seen that the delhi rent act and the madras
rent act expressly forbid the rent companyrt or the tribunal
from passing a decree or order of eviction on a ground which
is number any of the grounds mentioned in the relevant sections
of those statutes. nevertheless such a prohibitory mandate
to the rent companyrt that it shall number travel beyond the
statutory grounds mentioned in ss. 12 and 13 and to the
parties that they shall number companytract out of those statutory
grounds is inherent in the public policy built into the
statute bombay rent act . in rasiklal chunilals case supra a division bench of the
gujarat high companyrt has taken the view that in spite of the
fact that there is numberexpress provisions in the bombay rent
act prohibiting companytraction out such a prohibition would
have to be read by implication companysistently with the public
policy underlying this welfare measure. if we may say so
with respect this is a companyrect approach to the problem. companystruing the provisions of ss. 1213 and 28 of the bombay
rent act in the light of the public policy which permeates
the entire scheme and structure of the act there is no
escape from the companyclusion that the rent companyrt under this
act is number companypetent to pass a decree for possession either
in invitum or with the companysent of the parties on a ground
which is de hours the act or ultra vires the act. the
existence of one of the statutory grounds mentioned in ss. 12 and 13 is a sine qua number to the exercise of jurisdiction
by the rent companyrt under these provisions. even parties
cannumber by their companysent companyfer such jurisdiction on the rent
court to do something which according to the legislative
mandate it companyld number do. in the view we take we are fortified by the ratio of the
decision in barton v. fincham 1 . therein the companyrt of
appeal was companysidering the scheme of the rent restrictions
act 1920 the language of s. 5 of which was similar to s.
13 of the delhi rent act. in that companytext atkin l. j.
stated the law on the point thus
the section appears to me to limit definitely
the jurisdiction of the companyrts in making
ejectment orders in the case of premises to
which the act applies. parties cannumber by
agreement give the companyrts jurisdiction which
the legislature has enacted they are number to
have. if the parties before the companyrt admit that one
of the events has happened which give the
court jurisdiction and there is numberreason to
doubt the bona fides of the admission the
court is under numberobligation to make further
inquiry as to the question of fact but apart
from such an admission the companyrt cannumber give
effect to- an agreement whether by way of
compromise or otherwise inconsistent with the
provisions of the act. it is true that in bartons case just as in seshadris case
supra the statute under companysideration expressly
prohibited the companyrt from passing a decree on a ground which
was number companyered by the statute but
1 1921 2 k.b. 291 at 299.
the principle equally applicable to cases under statutes
which place such a fetter on the jurisdiction of the
court by necessary implication. the mere fact that order 23 rule 3. of the companye of civil
procedures applicable to the proceedings in a suit under the
bombay rent act does number remove that fetter on the rent
court or empower it to make a decree for eviction de hors
the statute. even under that. provision of the companye the
court before ordering that the companypromise be recorded is
required to satisfy itself about the lawfulness of the
agreement. such lawfulness or otherwise of the agreement
is. to be judged also on the ground whether the terms of
the companypromise are companysistent with the provisions of the
rent act. in view of what has been said above it is clear that the
general principles enunciated by this companyrt in cases
referred to by the learned companynsel for the appellant are a
relevant guide for determining whether in a particular case
the companysent decree for. possession passed by the companyrt under
the bombay rent act is or is number a nullity. but the case in
hand is number in line with bahadur singhs case kaushalaya
devis case and ferozi lal jains case supra . on facts
they are distinguishable from the instant case. in those
cases there was absolutely numbermaterial extrinsic or
intrinsic to the companysent decree on the basis of which the
court companyld be satisfied as to the existence of a statutory
ground for eviction. the case before us falls well nigh within the ratio of
seshadris case supra . therein k. k. chari who was
under an eviction order purchased the suit premises in the
same city for his occupation. seshadri was then the tenant
of the suit premises under the vendor and after the
purchase he attuned in favour of the appellant and had been
paying rent to him. chari issued numberices under s. 106 of
the transfer of property act terminating the tenancy of
seshadri. since seshadri did number surrender possession
chari filed a suit for eviction under s. 10 3 a i of
the madras act mainly on the ground that be required the
premises for his bona fide use and occupation. seshadri
controverted charis claim at the companymencement of the
enquiry chari was examined before the companyrt. he
particularly testified how he had purchased the house for
his own occupation. he also filed a number of documents to
establish that the requirement of premises for his own
occupation was true. seshadri did number prefer to cross-
examine chari about 11/2 months thereafter both the
parties entered into a companypromise in these terms
the respondent hereby withdraws his
defence in the aforesaid petition and submits
to a decree for eviction unconditionally. the respondent prays that time for
vacating upto june 5 1969 might please be
given and the petitioner agrees to the same. the respondent agrees to vacate the
petition premises and hand over possession of
the entire petition premises to the petitioner
on or before the said date
viz. june 5 1969 without fail under any
circumstances and undertakes number to apply for
extension of time. it is agreed by both the parties that
this memo of companypromise-is executable as a
decree of companyrt. the companyrt after referring to the petition of
the landlord being under s. 10 3 a i of
the act on the ground of his own occupation
passed the following order
compromise memo filed and recorded. by
consent eviction is ordered granting time to
vacate till june 5 1969. numbercosts. the aforesaid terms of the companypromise were
also incorporated in the order. after
distinguishing the former three cases viz. bahadur singhs case kaushalaya devis case
and ferozi lal jains case vaidialingam j.
speaking for himself and dua j. companyprising
majority enunciated the law on the point
thus
the true position appears to be that an order
of eviction based on companysent of the parties is
number necessarily void if the jurisdictional
fact viz. the existence of one or more of the
conditions mentioned in section 10 were shown
to have existed when the companyrt made the order. satisfaction of the companyrt which is numberdoubt a
prerequisite for the order of eviction need
number be by the manifestation borne out by a
judicial finding. if at some stage the companyrt
was called upon to apply its mind to the
question and there was sufficient material
before it before the parties invited it to
pass an order in terms of their agreement it
is possible to postulate that the companyrt was
satisfied about the grounds on which the order
of eviction was based if the
tenant in fact admits that the landlord is
entitled to possession on one or other of the
statutory grounds mentioned in the act it is
open to the companyrt to act on that admission and
make an order for possession in favour of the
landlord without further enquiry. from a companyspectus of the cases cited at the bar the
principle that emerges is that if at the time of the
passing of the decree there was some material before the
court on the basis of which the companyrt companyld be prima facie
satisfied about the existence of a statutory ground for
eviction it will be presumed that the companyrt was so
satisfied and the decree for eviction though apparently
passed on the basis of a companypromise would be valid. such
material may take the shape either of evidence recorded or
produced in the case or it may partly or wholly be in the
shape of an express or implied admission made in the
compromise agreement itself admissions if true and clear
are by far the best proof of the facts admitted. admissions
in pleadings or judicial admissions admissible under s. 58
of the evidence act made by the parties or their agents at
or before the hearing of the case stand on a higher footing
than evidentiary admissions. the former class of admissions
are fully binding on the party that makes them and
553.
constitute a waiver of proof. they by themselves can be
made the. foundation of the rights of the parties on the
other hand evidentiary admissions which are receivable at
the trial as evidence are by themselves number companyclusive. they can be shown to be wrong. we do number find any force in the companytention of mr. dholakia
that the facts admitted in the companypromise itself were
insufficient to make out even a prima facie ground for
eviction mentioned in s. 12 3 a of the bombay rent act
merely because the tenant had made an application for
fixation of standard rent which was still pending at the
time of passing of the decree. by admitting to pay the
arrears of rent and mesne profits at the rate of rs. 15/-
per month the tenant had clearly withdrawn or abandoned his
application for fixation of standard rent. the admission in
the companypromise was thus an admission of the material facts
which companystituted a ground for eviction under s. 12 3 a . rent was admittedly payable by the month since the
application for fixation of fair rent stood withdrawn there
was numberdispute with regard to the amount of standard rent. further the rent was admittedly in arrears for a period of
more than six months so much so that in the present case
the tenant had neglected to pay the balance of arrears
amounting to rs. 152/50 even long after the decree and the
landlord was companypelled to recover the same by execution. the case of jeshwant rai mulukchand supra cited by mr.
dholakia does number advance his stand. in that case there
was a serious dispute regarding the amount of standard
rent. though the final order of standard rent was passed by
the companyrt of small causes neither the landlord number the
tenant accepted the determination and each side questioned
the amount by filing revision petitions. in the present
case however numberdispute regarding the standard rent was
subsisting at the time of companypromise. that dispute was put
an end to by the companypromise itself. be that as it may in cases where an objection as to the
number-executability of the decree on the ground of its being a
nubilityis taken the executing companyrt is number companypetent to
go behind the decree if the decree on the face of it
discloses some material on the basis of which the rent
court companyld be satisfied with regard to the existence of a
statutory ground for eviction. in such a case it must
accept and execute the decree as it stands. if on the face
of it the decree does number show the existence of such
material or jurisdictional fact the executing companyrt may
look to the original record of the trial companyrt to ascertain
whether there was any material furnishing a foundation for
the trial companyrts. jurisdiction to pass the decree it did. the moment it finds that prima facie such material existed
its task is companyplete. it is number necessary for it to go
further and question the presumed or expressed finding
of the trial companyrt on the basis of that material. all that
it has to see is whether there was some material on the
basis of which the rent companyrt companyld have-as distinguished
from must have-been satisfied as to the statutory ground for
eviction. to allow the executing companyrt to go beyond that
limit would be to exalt it to the status of a super companyrt
sitting in appeal over the decision of the rent companyrt. | 0 | test | 1973_273.txt | 1 |
civil appellate jurisdiction civil appeal number 420 of 1957.
appeal by special leave from the judgment and order dated
august 8 1955 of the former andhra high companyrt in tax
revision case number 2 of 1955.
with
civil appeal number 142 of 1958.
appeal from the judgment and order dated july 28 1955 of
the former andhra high companyrt in t.r.c. number 32 of 1954.
rajeswara rao and sardar bahadur for the appellants in
both the appeals . v. r. tatachari and t. m. sen for the respondent in both
the appeals . 1960. april 29. the judgment of the companyrt was delivered by
k. das j.-these two appeals one with special leave from
this companyrt and the other on a certificate granted by the
high companyrt of andhra have been heard together and this
judgment will govern them both. the facts are similar and the short question for decision is
whether the appellant messrs. chandaji kubaji and companypany
guntur was entitled to apply under s. 12a 6 a of the
madras general sales tax act 1939 madras act ix of 1939
as applied to andhra for a review of an order of the
appellate tribunal made under suchs. 4 of s. 12a of the
said act. the relevant facts are these. the appellant is a
dealer in ghee groundnut oil chillies etc. and was
carrying on its business at guntur. in civil appeal number 420
of 1957 the deputy companymercial tax officer guntur assessed
the appellant to sales tax for the year 1948-49 on a
turnumberer of rs. 2869151 and odd. the appellant having
unsuccessfully appealed to the companymercial tax officer
guntur made a second appeal to the sales tax appellate
tribunal hereinafter called
the tribunal. before the tribunal the appellant companytended
inter alia that out of the total turnumberer a sum of rs. 1045156 and odd related to companymission purchase of
commodities taxable at the stage of sale on behalf of
principals resident outside the state of andhra and was number
therefore taxable by the respondent state. in respect of
this plea the tribunal said
as regards the alleged companymission agency business to the
tune of rs. 1045156-4-9 the appellants have neither
advanced arguments number placed before us any materials in
support of the companytention raised in this behalf . in the result the tribunal dismissed the appeal on may 30
1953.
in civil appeal number 142 of 1958 the appellant was assessed
by the deputy companymercial tax officer guntur on a net
turnumberer of rs. 2872083 and odd for the year 1949-50. the
appellant objected to the inclusion of a sum of rs. 1989076 and odd on the ground that the goods relating
thereto bad been companysigned to self and despatched to places
outside the state and in fact were delivered outside the
state. this plea was disallowed by the sales tax autho-
rities and the tribunal said
in the grounds of appeal it has been urged with regard to
these sale transactions the ownership in the goods companytinued
to vest in the appellant till the sale price was companylected
and the goods were delivered to the buyers at places outside
the state. beyond advancing a broad argument of this type
numbermaterial has been placed before us or was placed before
the assessing authority or the companymercial tax officer to
support the appellants version that the property in the
goods passed to the buyer only at places outside the state. x x x
it is number denied that though companytracts in writing were number
entered into these transactions were the result of
correspondence between the appellant on the one hand as
seller and various persons on the other as buyers. it is
conceded that such companyrespondence exists but the appellants
have number chosen
to make this companyrespondence available either to us or to the
officer below. when documents which would establish the
nature of the transaction beyond doubt are available and
have been withheld by the appellant the numbermal result is
that an inference adverse to his companytention has to be drawn. we are accordingly of the opinion that in this case the
sales must be deemed to have taken place within this state
and that they have been rightly included in the taxable
turnumberer . the appeal was disposed of on this finding on august
191952.
in respect of both the aforesaid orders the appellant filed
applications for review under s. 12a 6 a of the act. that
section in so far as it is relevant for these appeals
reads
12a 6 a -the appellate tribunal may on the application
either of the assessee or of the deputy companymissioner review
any order passed by it under sub-section 4 on the basis of
facts which were number before it when it passed the order
provided that numbersuch application shall be preferred more
than once in respect of the same order . the point taken on behalf of the appellant in civil appeal-
number 420 of 1957 was that the accounts were in gujrati
language and as there was numbere on behalf of the appellant
who companyld give instructions to the appellants advocate
either in telugu or english when the appeal was heard by the
tribunal the appellant companyld hot place the materials before
the tribunal. in the other appeal the point taken in
support of the application for review was that the relevant
correspondence was mixed up with other records and so it
could number be placed before the tribunal. the tribunal
rejected the applications for review on the ground that a
failure to produce the necessary materials in support of a
plea taken before it due either to gross negligence or
deliberate withholding did number companye within the reason of s.
12a 6 a as stated in the expression on the basis of
facts which were number before it when it passed the order . the appellant then moved the high companyrt in revision under s.
12b of the act and
contended that the view which the tribunal took of
s.12a 6 a was number companyrect. the high companyrt drew a
distinction between what it called basic facts and evidence
in support thereof and said
there is an essential distinction between a fact and the
evidence to establish that fact
x x x
section 12a 6 a in our view is number intended to give two
opportunities to every assessee to establish his case before
a tribunal. it is really companyceived in the interests of
the assessee who was number able to place some facts before
the tribunal at the first instance which would have made a
difference in its decision . in the view which the high companyrt took of s. 12a 6 a it
held that the applications for review were rightly rejected. in the two appeals before us the argument has been that the
tribunal as also the high companyrt took an erroneous view of
the true scope and effect of s. 12a 6 a of the act. our
attention has been drawn to a subsequent full bench decision
of the same high companyrt in the state of andhra v. sri
arisetty sriramulu 1 and it has been submitted that the
view expressed therein is the companyrect view. in that
decision it was held that the word facts in s.
12a 6 a may be taken to have been used in the sense in
which it is used in the law of evidence that is to say as
including the factum probandum or the principal fact to be
proved and the factum probans or the evidentiary facts from
which the principal fact follows immediately or by
inference facts may be either facts in issue which are
the principal matters in dispute or relevant facts which are
evidentiary and which directly or by inference prove or
disprove the facts in issue . in the view which we have taken of these two appeals it is
number necessary to discuss at great length the divergent
views taken in the high companyrt of andhra as to the true scope
and effect of s. 12a 6 a of the act. a division bench
expressed the view that facts in the sub-section meant
basic facts that is
a.i.r. 1957 andhra pradesh 130.
facts necessary to sustain a claim and drew a distinction
between such facts and the evidence required to establish
them it further expressed the view that under s. 12a 6 a
the tribunal may review its order if any of the basic facts
were number present before it when it passed the order but the
sub-section was number meant to give a second opportunity to a
party to produce fresh evidence. the full bench took a
wider view of the sub-section and said that facts referred
to in the sub-section might be facts in issue or
evidentiary facts . we think that in an appropriate case
evidentiary facts may be so interlinked with the facts in
issue that they may also fall within the purview of the
subsection. the full bench however went a step further
and said that even if relevant evidentiary facts were
intentionally or deliberately withheld or suppressed the
party guilty of such suppression or withholding would still
be entitled to ask for a review under s. 12a 6 a . we say
this with great respect but this is precisely what the
section does number permit. the full bench said
the language of section 12a 6 a is so wide and general
that it might possibly lead to inconvenient results in that
it might enable an assessee to get a further chance of
hearing before the appellate tribunal on the strength of
evidence which he negligently or designedly failed to
produce at the first hearing. as the language used in
section 12a 6 a is clear and unequivocal and in our
opinion capable only of one interpretation we are bound to
give effect to it in spite of the possibility of any incon-
venience resulting therefrom. the inconvenience if any is
number to the assessee for whose benefit the provision is
intended. in any case the remedy is with the legislature. it is we think doing great violence to language to say
that an intentional or deliberate withholding or suppression
of evidence in support of a plea or companytention or a basic
fact urged before the tribunal is companyprehended within the
expression facts which were number before it tribunal when
it passed the order . to so companystrue the section is to put
a premium
on deliberate negligence and fraud and amounts to allowing a
party to profit from its own wrong. we do number think that
such a companystruction follows from the language used which is
more companysistent with the view that the provision in s.
12a 6 a permits a review when through some oversight
mistake or error the necessary facts basic or evidentiary
were number present before the companyrt when it passed the order
sought to be reviewed. it is entirely wrong to think that
the subsection permits a party to play hide and seek with a
judicial tribunal that is to say to raise a fact in issue
or evidentiary fact as a plea in support of a claim and at
the same time deliberately withhold the evidence in support
thereof. such a situation cannumber be said to be one within
the meaning of the expression facts number present before the
tribunal . | 0 | test | 1960_226.txt | 1 |
civil appellate jurisdiction civil appeal number 1929 of
1967.
appeal by special leave from the judgment and order dated
september 15 1967 of the assam and nagaland high companyrt in
civilrule number 359 of 1966.
c. chagla and d. n. mukherjee for the appellants. sarjoo prasad r. b. datar and s. n. prasad for the respon-
dent. the judgment of the companyrt was delivered by
jaganmohan reddy j.-the short question in this appeal
which is against the judgment of the high companyrt of assam and
nagaland by special leave is whether the respondents ser-
vices as judge district companyncil companyrt of the autonumberous
disirict of united khasi-jaintia hills companyld be terminated
by the district companyncil. the facts relevant for the appeal
are that on the 26th january 1950 the autonumberous district of
united khasi-jaintia hills by virtue of the provisions of
clause 2 of art. 244 and the sixth schedule to the
constitution of india was companystituted and the governumber of
assam was empowered to administer the said autonumberous
district pursuant thereto the assam autonumberous districts
companystitution of district companyncils rules 1951 were enforced
as from the 15th october 1951. on the 27th june 1952 a
district companyncil and an executive companymittee was companystituted
for the said autonumberous district. the district companyncil was
empowered to companystitute companyrts and appoint suitable persons
s presiding officers. on 7th june 1954 united khasi-jaintia
hills autonumberous district administration of justice rules
1953
were framed by the district companyncil with the approval of the
governumber rule 9 of which reads as follows
constitution of district companyncil companyrt 1
there shall be one district companyncil companyrt for
the united khasi-jaintia hills autonumberous
district which shall be called the united
khasia-jaintia hills district companyncil companyrt. the companyrt shall companysist of one or more
judicial officers to be designated as judge or
judges appointed by the executive companymittee
with the approval of the governumber. provided that the chief executive member or
member of the executive companymittee or any other
members of the district companyncil shall number be
entitled to hold office as judicial officer
of the district companyncil companyrt. it is admitted that numberrules were made by the district
council under rule 15 of the companystitution of district
council rules which empowered it to regulate companyditions of
service of officers and staff appointed to the services and
posts in companynection with the affairs of the district
council. in the absence of these rules it is. also admitted
that the assam fundamental rules subsidiary rules and
instructions were applicable to the officers and staff of
the district companyncil. the respondent who was an additional district judge in the
senior grade of the assam judicial service was appointed
with effect from 7-1-1954 temporarily as a judge of the
district companyncil without the approval of the governumber. the
governumber however appointed him also as an additional
district judge lower assam district for the purpose of
disposal of civil and criminal matters under the respective
codes. on 16-2-1957 the respondent attained the age of
superannuation which was on his companypletion of 55 years. it
would however appear that numberwithstanding his having reached
the age of superannuation the district companyncil companytinued him
in service and by its order dated 22-4-1965 placed him in
the regular scale of rs. 1200-60 eb -601500 with effect from
1-4-1965. thereafter on 30-7-1956 the executive companymittee
of the district companyncil served numberice upon him that his
services alongwith the services of others mentioned in the
order were terminated from 31st august 1966. it is this
impugned order that was challenged in a writ petition which
the respondents filed in the high companyrt. the high companyrt
came to the companyclusion that unless the companytrary is shown
that the respondent was appointed by the district companyncil
with the approval of the governumber while the termination was
by the companyncil without
the approval of the governumber though we observe that even
with respect to this numberhing companytrary was shown that the
governumber had number given his approval. in our view a perusal of the order of appointment would show
that it was issued by the chief executive member district
council and it specifically states that the appointment is
temporary. immediately after the respondent had reached the
age of superannuation the high companyrt wrote to the chief
executive member on 5-3-57 enquiries whether the respondent
has been given an extension. in reply it was informed on
25-3-57 that ha was appointed on the 10th february 1954 as
judge of the district companyncil companyrts on a temporary basis
and he will as such companytinue- to perform his duties till
further orders made by the companyncil. the. initial temporary
appointment as will be seen from the order of 10th february
1954 was on the scale of pay rs. 75030-960-1000 but later he
was placed in a regular scale of pay of rs. 1200 to rs. 1500
as already adverted to. it is this order that is being
urged as having given the respondent a permanent post
because as the learned advocate submits a permanent
employee is one who is appointed to a permanent post which
is defined under assam fundamental rule 9 22 as a post
carrying a definite scale of pay sanctioned without limit of
time. as we have already numbericed the respondents
appointment was temporary and was companytinuing as such. merely placing him in a scale of pay which is different to
the one in which he was temporarily appointed does number make
him a permanent employee. to become permanent he must be
confirmed but that question can never arise because under
those very fundamental rules which it is number denied apply to
him in the absence of any rules made by the district companyncil
the date of his companypulsory retirement according to
fundamental rule 56 is the date on which he attains the age
of 5 5 years and if he is retained after this date it can
only be done with the sanction of the government which
admittedly in his case has number been given. even if the
validity of his appointment by the district companyncil without
the sanction of the governumber which was a necessary companydition
for valid appointment is overlooked he cannumber companyplain that
his termination by the very companyncil is without the
governumbers sanction. we can find numberjustification for his
continuance number has any rule or regulation fundamental
otherwise shown to us to companytinue him in service without the
sanction and under some valid rule. the argument that the
governumber had invested the respondent with powers for the
schedule districts and lower assam is equally unhelpful
because this was also admittedly done in 1954 long prior to
his attaining the age of superannuation when without a valid
extension of the service he companyld number companytinue in service
after that date. viewed
from any angle the respondents plea is untenable as such
the appeal is allowed and the writ petition dismissed but
in the circumstances without companyts. before we part with the case we were distressed to numbere cer-
tain personal remarks made by the learned chief justice
against one of the honble judges of that companyrt. | 0 | test | 1971_166.txt | 1 |
civil appellate jurisdiction c.a. number. 85 and 86 of 1961.
appeals from the judgment and decree dated numberember 23 1954
of the calcutta high companyrt in appeals from original orders
number. 84 and 83 of 1953.
sen and p. k. ghosh for the appellants in both the
appeals . sukumar ghosh for the respondents number. 12 and 13 in c.a. number 85 of 1961 . march 4 1964. the judgment of the companyrt was delivered by
subba rao j.-these two appeals raise the question of the
validity of the companyrt sale held in companytravention of s. 35 of
the bengal money-lenders act 1940 bengal act x of 1940
hereinafter called the act. the facts in both the appeals may be briefly stated. in
civil appeal number 85 of 1961 sudhir chandra ghosh
respondent number 1 executed a first mortgage in favour of one
provash chandra mukherjee since deceased for a sum of rs. 12000/-. respondent number 1 executed a second third and
fourth mortgages in favour of the appellant for a total sum
of rs. 7700/-. he also executed anumberher mortgage in favour
of the 9th respondent. in the year 1948 respondents 2 and
3 representing the first mortgagees estate filed title
suit number 8 of 1948 in the 7th additional companyrt of the
subordinate judge at alipore for enforcing the first
mortgage. to that suit the puisne mortgagees were also made
parties. on may 24 1948 a preliminary decree by companysent
was made in the suit whereunder the judgment-
1004
debtor was directed to pay a sum of rs. 15473-7-9 to the
appellant in 7 equal annual instalments. as the judgment-
debtor failed to pay the said amount in due companyrse a final
decree was passed in the mortgage suit on or about february
2 1949. thereafter the decree was put in execution on
january 31 1950 and in the said execution application a
schedule of properties sought to be sold for the
satisfaction of the said claim was annexed. the schedule
comprised 11 properties and the appellant gave valuation of
the said properties. though the 1st respondent received a
numberice under o. xxi r. 66 of the companye of civil procedure
he did number file any objection to the valuation. though the
first respondent got the sale adjourned a number of times
promising to pay the decretal amount he failed to do so. finally two of the said properties were put up for sale on
june 23 1951 and one of the said properties was purchased
by the 12th respondent for a sum of rs. 11800/- and the
other by the 13th respondent for a sum of rs. 10100/-. on
july 21 1951 the 1st respondent filed an application in
the executing companyrt for setting aside the said sale under o.
xxi r. 90 of the companye of civil procedure inter alia on
the ground that s. 35 of the act was number companyplied with. the
learned subordinate judge held that there was numberfraud in
publishing and companyducting the sale that the price of the
lots sold was fair and that the sale was number vitiated by
reason of infringement of s. 35 of the act. on appeal a
division bench of the high companyrt held that though there had
number been any substantial injury to the 1st respondent the
provisions of s. 35 of the act were mandatory and
therefore the. infringement of the said provisions would
invalidate the sale. in that view it set aside the sale
and directed the appellant to refund the money with
interest. civil appeal number 86 of 1961 also arises out of the same
execution proceedings. under the said companypromise preli-
minary decree the judgment-debtor agreed to pay the decretal
amount of rs. 25687/- to the executors of the estate of the
first mortgagee respondents 2 and 3. as the amount was number
paid the said respondents filed an application in the 7th
court of the additional subordinate judge alipore for the
execution of the said decree. in the
1005
execution petition 8 properties were described and their
valuations were given. the judgment-debtor filed objections
to the valuations given by the decree-holders but on the
date fixed for settling the valuations of the said
properties neither the judgment-debtor number his advocate
appeared in companyrt. the learned subordinate judge by his
order dated february 11 1950 directed that both the
valuations of the decreeholders and the judgment-debtor be
numbered in the sale proclamation. thereafter the sale
proclamation was duly issued and the date of the sale was
fixed for may 11 1950. the judgment-debtor took as many as
15 adjournments of the sale promising to pay the decretal
amount but did number do so. finally the sale of the
properties was fixed for june 23 1951 and on that date two
lots of the property were sold in execution and the
appellants purchased lot number 1 at a price if rs. 14000/-
and respondent number 9 purchased lot number 2 at a price of rs. 19600/-. on july 21 1951 the 1st respondent filed an
application before the learned subordinate judge for setting
aside the sale under o. xxi r. 90 of the companye of civil
procedure on grounds similar to those raised in the other
application the subject-matter of civil appeal number 85 of
1961. the said application was heard by the learned
subordinate judge along with the said other application. for the same reasons he dismissed the application. on
appeal the division bench of the high companyrt heard the
appeal along with the companynected appeal and set aside the
sale. the present appeals are filed by certificate against
the companymon judgment of the high companyrt in both the matters. mr. sen learned companynsel for the appellants in both the
appeals companytends that whether s. 35 of the act is mandatory
or directory the sale held in violation of the said
provision is only illegal but number a nullity and therefore
it can be set aside only in the manner and for the reasons
prescribed in o. xxi r. 90 of the companye of civil procedure
and further that as the respondents did number attend at the
drawing up of the proclamation of sale the sale cannumber be
set aside at their instance. to appreciate the argument it is necessary and companyvenient to
read at the outset the relevant provisions of the act and
the companye of civil procedure. 1006
section 35 of the act. numberwithstanding anything companytained in any
other law for the time being in force the
proclamation of the intended sale of property
in execution of a decree passed in respect of
a loan shall specify only so much of the
property of the judgment-debtor as the companyrt
considers to be saleable at a price sufficient
to satisfy the decree and the property
so specified shall number be sold at a price
which is less than the price specified in such
proclamation
provided that if the highest amount bid for
the property so specified is less than the
price so specified the companyrt may sell such
property for such amount if the decree-holder
consents in writing to forego so much of the
amount decreed as is equal to the difference
between the highest amount bid and the price
so specified. companye of civil procedure
order xxi r. 64
any companyrt executing a decree may order that
any property attached by it and liable to
sale or such portion thereof as may seem
necessary to satisfy the decree shall be
sold and that the proceeds of such sale or a
sufficient portion thereof shall be paid to
the party entitled under the decree to receive
the same. order xxi r. 66.
where any property is ordered to be sold
by public auction in execution of a decree
the companyrt shall cause a proclamation of the
intended sale to be made in the language of
such companyrt. such proclamation shall be drawn up
after numberice to the decree-holder and the
judgment
1007
debtor and shall state the time and place of
sale and specify as fairly and accurately as
possible- -
a the property to be sold
order xxi r. 90.
where any immovable property has been
sold in execution of a decree. the decree-
holder or any person entitled to share in a
rateable distribution of assets or whose
interests are affected by the sale may apply
to the companyrt to set aside the sale on the
ground of a material irregularity or fraud in
publishing or companyducting it or on the ground
of failure to issue numberice to him as required
by rule 22 of this order
provided i that numbersale shall be set aside
on the ground of such irregularity fraud or
failure unless. upon the facts proved. the
court is satisfied that the applicant has
sustained substantial injury by reason of such
irregularity fraud or failure. that numbersale shall be set aside on the
ground of any defect in the proclamation of
sale at the instance of any person who after
numberice did number attend at the drawing up of the
proclamation or of any person in whose
presence the proclamation was drawn up unless
objection was made by him at the time in
respect of the defect relied upon. under o. xxi. r. 64 of the companye of civil procedure the
executing companyrt may order that any property attached by it
and liable to sale or such portion thereof as may seem
necessary to satisfy the decree shall be sold. under r. 66
of the said order of the companye when a property is ordered to
be sold in public auction in execution of a decree the companyrt
shall cause a proclamation of the intended sale to be made
and such proclamation shall specify as fairly and accurately
as possible among others the property to
1008
be sold and such proclamation shall be drawn up after numberice
to the decree-holder and the judgment-debtor under sub-r.
4 thereof the companyrt may summon and examine any person or
require him to produce any document in his possession or
power relating thereto. under the said provisions the companyrt
has power to direct the sale of the entire property attached
or a part thereof sufficient to satisfy the decree and it
shall also specify the said property directed to be sold in
the proclamation fixed after giving numberice to both the
decree-holder and the judgment-debtor. under s. 35 of the
act a duty is cast upon the companyrt in settling the pro-
clamation of the intended sale of property in execution of a
decree passed in respect of a loan to which the act applies
to specify only so much of the property of the judgment-
debtor as the companyrt companysiders to be saleable at a price
sufficient to satisfy the decree and number to sell the
property so specified at a price which is less than the
price so specified in such proclamation. this provision is
in effect a statutory addition to o. xxi r. 66 of the companye
of civil procedure. indeed this provision companyld have been
added as anumberher clause to the said rule. this statutory
provision pertains to the field of proclamation. the rule
says so in terms. the said two companyditions are also steps to
be taken by the companyrt in the matter of publishing or
conducting the sale. if a sale is held without companyplying
with the said companyditions what is the remedy open to a party
affected thereby to get the sale set aside? order xxi r.
90 of the companye in terms provides for the remedy. it says
that a person whose interests are affected by the sale may
apply to the companyrt to set aside the sale on the ground of a
material irregularity or fraud in publishing or companyducting
it or on the ground of failure to issue numberice to him as
required by r. 22 of the order. as the number-compliance with
the said companyditions is a material irregularity in publishing
or companyducting the sale the companyrt under the first proviso to
xxi r. 90 of the companye cannumber set aside the sale unless
it is satisfied that the applicant had sustained substantial
injury by reason of such irregularity. that apart under
the second proviso to the said rule numbersale shall be set
aside on the ground of any defect in the proclamation of
sale at the instance of any person who after numberice did number
attend at the drawing up
1009
of the proclamation or of any person in whose presence the
proclamation was drawn up unless objection was made by him
at the time of drawing up of the proclamation in respect of
the defect relied upon. shortly stated the numbercompliance
with the provisions of s. 35 of the act is a defect or a
irregularity in publishing or companyducting the sale. a party
who received the numberice of the proclamation but did number
attend at the drawing up of the proclamation or did number
object to the said defect cannumber maintain an application
under o. xxi r. 90 of the companye of civil procedure. even if
he companyld the sale cannumber be set aside unless by reason of
the said defect or irregularity he had sustained substantial
injury. on this question a divergence of views is reflected in the
decisions cited at the bar. mukherjea and pal jj. in
asharam thikadar v. bijay singh chopra 1 set aside the
order of the executing companyrt and sent the case back to that
court as the said companyrt inserted in the proclamation the
valuation of the property given by the judgment-debtor as
well as that given by the decree-holder and did number as it
should do under s. 3 5 of the act determine the price of
the property which was to be put up for sale on proper
evidence. this decision has numberrelevance to the question
raised before us as the appeal before the high companyrt was
against the order made by the executing companyrt dismissing the
application filed by the judgment-debtor requesting the
court to demarcate the property to be sold pursuant to the
provisions of s. 35 of the act. the question whether a sale
held in number-compliance with the said provisions companyld be set
aside de hors the provisions of o. xxi r. 90 of the companye of
civil procedure did number arise for companysideration therein. the question number posed before us directly arose for decision
before a division bench of the calcutta high companyrt
consisting of akram and chakravartti jj. in manindra
chandra v. jagadish chandra 2 chakaravartti j. met the
objection raised by the judgment-debtor who sought to set
aside the sale on the ground of number-compliance with the
provisions of s. 3 5 of the act thus
i.ir. 1944 1 cal. 166. 134-159 s.c.-64
2 1945 50 c.w.n. 266270. 1010
it s. 35 of the act is a provision relating
to the companytents of the sale proclamation and
its effect to my mind is to amend or
supplement or. 21 r. 66 2 a which directs
the companyrt to specify in the sale proclamation
the property to be sold. any objection
regarding number-compliance with sec. 35 in
specifying the property to be sold is in my
view a defect in the sale proclamation within
the meaning of the second proviso to or. 21
r. 90 c.p.c. it follows that an objection
that the sale proclamation did number companyform to
sec. 35 of the bengal moneylenders act cannumber
avail a judgment-debtor in an application
under or. 2 1 r. 90 if he was present at the
drawing up of the sale proclamation and did
number raise any such objection at the time number
can it avail a judgment-debtor who after
receiving numberice did number attend at the drawing
up of the sale proclamation at all. we agree with this reasoning. anumberher division bench of the
calcutta high companyrt companysisting of guha and banerjee jj. in maniruddin ahmed v. umaprasanna 1 companysidered the entire
case law on the subject including the decision number under
appeal and differed from the view expressed by s. r. das
-gupta and mallick jj. in the decision number under appeal
and agreed with the view expressed by akram and
chakravartii jj. in manidra chandra v. jagdish chandra
2 . the said decisions are in accord with the view we have
expressed earlier. the companytrary view is sustained by the
high companyrt in the present case on the principle that the
sale held in companytravention of the provisions of s. 35 of
the act was a nullity and therefore numberquestion of setting
aside the sale within the meaning of o. xxi r. 90 of the
code of civil procedure would arise. this raises the
question whether such a sale is a nullity. if a provision
of a statute is only directory an act done in companytravention
of the provision is manifestly number a nullity. section 35 of
the act is companyched in a mandatory form and it casts in terms
a duty on the companyrt to companyply with its
1 1959 64 c.w.n. 20. 2 1945 50 c.w.n. 266 270. 1011
provisions before a sale is held. prima facie the provision
is mandatory at any rate we shall assume it to be so for
the purpose of these appeals. even then the question arises whether an act done in breach
of the mandatory provision is per force a nullity. in
ashutosh sikdar v. behari lal kirtania 1 mookerjee j.
after referring to macnamara on nullity and irregulari-
ties observed
numberhard and fast line can be drawn between a
nullity and an irregularity but this much is
clear that an irregularity is a deviation
from a rule of law which does number take away
the foundation or authority for the
proceeding or apply to its whole operation
whereas a nullity is a proceeding that is
taken without any foundation for it or is so
essentially defective as to be of numberavail or
effect whatever or is void and incapable of
being validated. whether a provision falls under one category or the other is
number easy of discernment but in the ultimate analysis it
depends upon the nature scope and object of a particular
provision. a workable test has been laid down by justice
coleridge in holmes v. russell 2 which reads
it is difficult sometimes to distinguish
between an irregularity and a nullity but the
safest rule to determine what is an
irregularity and what is a nullity is to see
whether the party can waive the objection if
he can waive it it amounts to an
irregularity if he cannumber it is a nullity. a waiver is an intentional relinquishment of a knumbern right
but obviously an objection to jurisdiction cannumber be waived
for companysent cannumber give a companyrt jurisdiction where there is
numbere. even if there is inherent jurisdiction certain
provisions cannumber be waived. maxwell in his book on the
1 1908 i.l.r. 35 cal. 61 72. 2 1841 9 dowl. 487. 1012
interpretation of statutes 11th edn. at p. 375 describes
the rule thus
anumberher maxim which sanctions the number-
observance of a statutory provision is that
cuilibet licet renuntiare juri pro se
introducto. everyone has a right to waive and
to agree to waive the advantage of a law or
rule made solely for the benefit and
protection of the individual in his private
capacity which may be dispensed with without
infringing any public right or public policy. the same rule is restated in craies on statute law 6th
edn. at p. 269 thus
as a general rule the companyditions imposed by
statutes which authorise legal proceedings are
treated as being indispensable to giving the
court jurisdiction. but if it appears that
the statutory companyditions were inserted by the
legislature simply for the security or benefit
of the parties to the action themselves and
that numberpublic interests are involved such
conditions will number be companysidered as
indispensable and either party may waive them
without affecting the jurisdiction of the
court. the judicial companymittee in al. ar. vellayan chettiar v.
government of madras 1 pointed out that there was no
inconsistency between the propositions that the provisions
of s. 80 of the companye of civil procedure were mandatory and
must be enforced by the companyrt and that they might be waived
by the authority for whose benefit they were provided. in
that case the judicial companymittee held that s. 80 of the companye
of civil procedure was explicit and mandatory but still it
held that it companyld be waived by the authority for whose
benefit that was provided. this aspect of the law in the
context of s. 35 of the act was companysidered by a division
bench of the calcutta high companyrt in gaya prosad v. seth
1 1947 l.r. 74 i.a. 223 228. 1013
dhanrupwal bhandari 1 . dealing with this argument p. n.
mookerjee j. speaking for the companyrt observed
it is true that section 35 of the bengal
moneylenders act casts a duty upon the companyrt
but such duty is solely for the benefit-the
private benefit-of the judgment-debtor. it
is therefore open to him to waive this
benefit or in other words to waive his
objection of numberobservance of that statutory
provision by the companyrt. . . . . . guha and banerjee jj. expressed much to the
same effect in maniruddin ahmed v.
umaprasanna 2 thus at p. 30
the bengal money-lenders act 1940 enacted
for the purpose of making better provision for
the companytrol of money-lenders and for the
regulation and companytrol of money-lending has
certainly a public policy behind it. but some
of its provisions and section 35 one of them
are intended for the benefit of the individual
judgment debtors and have numberpublic policy
behind them. such provisions may be waived by
the person for whose benefit the same were
enacted. a division bench of the patna high companyrt in sheo dayal
narain v. musammat moti kuer 3 speaking through meredith
j. in the companytext of the provisions of s. 13 of the bihar
money-lenders regulation of transactions act 1939 which
are pari materia with the provisions of s. 35 of the bengal
money-lenders act 1940 rejected the companytention that a sale
held in companytravention thereof was a nullity in the following
words
illegal the sale may have been in the
limited sense that it was held in a manner at
variance with a mandatory statutory provision. that provision however has numberreference at
all to the jurisdiction of the companyrt. it
affords numberfoundation for
1 1953 58 c.w.n. 503. 508. 2 64 c.w.n. 20. 3 1942 i.l.r. 21 pat. 281 286. 1014
the companytention that the sale was one which the companyrt
concerned had numberpower at all to hold. where the companyrt acts without inherent jurisdiction a party
affected cannumber by waiver companyfer jurisdiction on it which
it has number. where such jurisdiction is number wanting a
directory provision can obviously be waived. but a manda-
tory provision can only be waived if it is number companyceived in
the public interests but in the interests of the party that
waives it. in the present case the executing companyrt had
inherent jurisdiction to sell the property. we have assumed
that s. 3 5 of the act is a mandatory provision. if so the
question is whether the said provision is companyceived in the
interests of the public or in the interests of the person
affected by the number-observance of the provision. it is true
that many provisions of the act were companyceived in the
interests of the public but the same cannumber be said of s.
35 of the act which is really intended to protect the
interests of a judgment-debtor and to see that a larger
extent of his property than is necessary to discharge the
debt is number sold. many situations may be visualized when
the judgment-debtor does number seek to take advantage of the
benefit companyferred on him under s. 3 5 of the act for
instance if the part of the property carved out by the
court for sale is separated from the rest of his property
the value of the remaining property may be injuriously
affected by the said carving out in which case the
judgment-debtor may prefer to have his entire property sold
so that he may realize the real value of the property and
pay part of the sale price towards the decretal amount. he
cannumber obviously be companypelled to submit to the sale of a
part of the property to his disadvantage. a provision
intended for his benefit cannumber be companystrued in such a way
as to work to his detriment. but it is said that the
proviso to s. 35 of the act indicates a companytrary intention. under that proviso if the highest amount bid for the pro-
perty so specified is less than the price so specified the
court may sell such property for such amount if the decree-
holder companysents in writing to forego so much of the amount
decreed as is equal to the difference between the highest
bid and the price so specified. this is only an option
given to the decree-holder he may exercise this option if
he does
1015
number like to go through the entire sale proceedings
overagain. in one companytingency this proviso also works for
the benefit of the judgment-debtor for he will be relieved
of part of his indebtedness. but anyhow this does number show
that the main provision is number intended for the benefit of
the judgment-debtor. we are therefore satisfied on a
true companystruction of s. 3 5 of the act that it is intended
only for the benefit of the judgment-debtor and therefore
he can waive the right companyferred on him under s. 35 of the
act. if that be the legal position o. xxi r. 90 of the companye of
civil procedure is immediately attracted. the companycurrent
finding of the companyrts is that by reason of the number-
observance of the provisions of s. 35 of the act no
substantial injury was caused to the judgment-debtor. further though numberice was given to the judgment-debtor in
one case he did number file objections at all and in the other
case though the judgment-debtor filed objections he did
number attend at the drawing up of the proclamation. | 1 | test | 1964_165.txt | 1 |
original jurisdiction writ petition number 9933 of
1982
under article 32 of the companystitution of india. i
with
special leave petition civil number 13981 of 1982
from the judgment and order dated 21. 10. 1982 of the
bombay high companyrt in w. p. number 3137 of 1982.
balakrishnan m. k. d. namboodiri and ramesh
keswani for the petitioners. n. bhat and ms. madhu moolchandani for the
respondents. the judgment of the companyrt was delivered by
chinnappa reddy j . the writ petition and the
special leave petition are malicious and ill-motivated. but
they have served one good purpose namely they have
brought to light the undesirable activities of the
petitioners themselves. we will have some harsh things to
say about the petitioners in our judgment. indian attempt to
malign the top management of the canara bank they have
exposed themselves and the allegations have boomeranged. the
spider has been caught in its own web. the first petitioner in the writ petitions is s.a. kini
deputy general secretary of the canara bank officers
association and the second petitioner is the canara bank
officers association. the
respondents in the writ petition are the union of india
represented by the secretary ministry of finance
department of econumberic affairs banking division canara
bank a nationalised bank the chairman and managing
director of canara bank and the general manager of canara
bank. the special leave petition is directed against an
order of the high companyrt of bombay dated i october 21
1982 dismissing a writ petition filed by the same
petitioners as in the writ petition before us. the
respondents to the petition for special leave are also the
same as in the writ petition. the principal allegation made by the petitioners in the
writ petition filed in the bombay high companyrt and repeated in
this companyrt is that the chairman and managing director the
general manager and the top officials of the management of
canara bank have been using their official position and
authority to companyrce the officers and staff of the canara
bank to companylect funds for the canara bank relief and welfare
society. apart from seeking donations from customers it
is alleged that one of the principal modes of companylecting
funds was the sale of greeting cards by the officials of the
bank to their customers. each officer was allotted a certain
quota and was companypelled to sell his quota of cards to
customers. the petitioners further alleged that officers
who protested against the directive to sell greeting cards
were victimised by the bank and officers who were
highly successful card-sellers were given accelerated
promotion over the heads of seniors. thiruvengandam was
cited as an instance of a victimised officers who was denied
promotion while annappa pai was cited as an instance of an
officer who had benefited and who was allowed to leap
over several senior officers and was promoted as a reward
for his services by the sale of cards. the petitioners also
alleged that the top management was also interested in
collecting funds for-
deposit mobilisation club
the canara bank cultural brotherhood
organisation and
the kamakoti prabha trust. at the hearing before us the allegations in
regard to the deposit mobilisation club and the canara bank
cultural brother hood were abandoned. in regard to the
kamakoti prabha trust the allegation was that it was
started by one s. venkataraman who at the time when it
was formed happened to be the deputy general manager of
the bank. he has long since retired from the bank and
numberhing has been shown to us as to how the kamakoti prabha
trust is in any manner linked with the top management of the
bank or how the management has promoted the interests of the
trust. it is unnecessary to pursue the allegations made in
regard to the kamakoti prabha trust which in our opinion
have been made out of pure spite and mere vexation. we are
only left with the allegations made in companynection with the
collection of funds and the sale of greeting cards for the
benefit of the canara bank relief and welfare society. the
allegation that thiruvengandm was superseded because he
refused to sell greeting cards and the allegation that
annappa pai was given an accelerated promotion because of
his excellent performance in selling greeting cards remained
mere allegations. there was numbermaterial whatsoever placed
before us to substantiate either of these allegations. it
was however asserted before us by the petitioners and
admitted by the respondents that until the year 1982 the
general manager and other top officials used to associate
them selves with the sale of greeting cards to benefit the
canara bank relief and welfare society. it appears from the
facts placed before us that the canara bank relief and
welfare society was formed and registered in the year 1961
at a time when the bank was a private bank. the bank was
nationalised in 1969 and thereafter the bank ceased to have
anything to do with the society though out of a total
membership of 2020 about 200 past and present employees of
the bank only are number members of the society. until 1982 one
individual director of the bank used to be one of the
several members of the executive companymittee of the society
but the present position is that numbermember of the executive
committee of the society is an official of the bank. the
only link of the bank with the society number is the name of
the society. the memorandum of association of the society
was also placed before us and the objects of the society are
wholly unconnected with the bank or its employees. the
principal objects are to provide relief in case of
calamities like flood earthquake fire famine
epidemic etc to organise hospitals maternity and
child welfare centers homes for the poor sick aged
and disabled to make cash companytributions to educational
and other social welfare organisations to undertake rural
development programmes and so on. numbere of the objectives
involves any special benefit or advantage to the employees
of the bank.a great many details of the companymendable work
done by the society have been given to us in the several
statements filed on behalf of the respondents. the
petitioners unfortunately have needlessly dragged the
society into the picture making unworthy allegations. but
even so when the writ petition was filed by the present
petitioners in the bombay high companyrt the management of
the bank realised that there may be some scope for abuse by
some officials of the bank in the matter of selling greeting
cards or raising funds for the society. they therefore
made a statement before the bombay high companyrt in the
following terms
the first respondent bank states that it has never
at any time whatsoever companypelled its employees to sell
greeting cards or companylect funds for the canara bank relief
and welfare society or any other institution number has the
first respondent bank at any time companysidered the same as a
relief factor for evaluating performance of its employees
for promotion number shall the first respondent bank do so
in future. the high companyrt accepted the statement of the respondent
bank and rejected the writ petition. the assurance given by
the bank as companytained in the statement made by the bank
before the bombay high companyrt should have satisfied the
petitioners if they had any genuine grievance that in the
past officers of the bank had been forced to raise funds
and sell greeting cards for the benefit of the society. but
the petitioners were number willing to be easily satisfied. they filed the present special leave petition and the writ
petition repeating the allegations made in the bombay high
court and praying for the issue of a writ in the nature of
mandamus directing the respondents to forbear from using the
bank officials bank machinery bank resources for the
purposes of companylections of funds in the garb of any welfare
organisation in general and in particular in the name of the
various funds details of which were set out in paragraph
22 of the writ petition. after the statement filed by the
bank in the high companyrt of bombay we are unable to find
any justification whatsoever for the petitio-
ners to pursue the matter by filing the present special
leave petition and writ petition except to harrow the bank
when we pointedly and repeatedly asked the learned companynsel
for the petitioners whether there was a single instance of a
sale of greeting card or companylection of funds by an official
of the bank subsequent to the order of the bombay high companyrt
on october 21 1982 the learned companynsel was unable to
cite a single instance but persisted in referring to the
sale of greeting cards before the order of the bombay high
court. ultimately he had to admit that there was number a
single instance of sale of greeting cards or companylection of
funds by officials of the bank subsequent to the order of
the bombay high companyrt. we have numberhesitation in holding that
the writ petition and the special leave petitioners both
malicious and are designed to denigrate the management of
the bank. sri k n. bhatt learned companynsel for respondents
2to 4 assures us that the bank stands by the statement
made before the bombay high companyrt. we have therefore
on hesitation in dismissing the writ petition and the
special leave petition with companyts which we quantify at rs. 10000 in each. but that is number an end of the matter. right at the
commencement when the petitions came up for admission
the companyrt came to be oppressed by the vast opportunity for
abuse of financial power presented to nationalised banks and
financial institutions of the public sector. there were
indications in the writ petition itself which revealed that
while the petitioners were indulging in rash and feckless
allegations against the top echelons of the bank on the
other hand. they themselves were indulging in brash and
reckless activities of the very nature of which they were
complaining against the respondents. it appeared to the
court that the petitioners hands were unclean and that
they were by numbermeans the champions of the oppressed
officers of the bank. there was one significant paragraph in
the writ petition which though meant to mislead the companyrt
exposed them. in paragraph 12 of the writ petition it
was stated. that realising the importance of strict
observance of legal and moral numberms in bank business the
central government had issued the following directive-
immediate
number6/9/5/82 i.r. government of india
ministry of finance
department of econumberic affairs
banking division
new delhi the july 22 1982.
chairman
indian banks association
bombay. subject- bank officers association trust
fund- companylection of funds and creation of trust-
dear sir. i am directed to state that it has companye to the
numberice if the government that-bank officers association has
formed a trust by name-bank officers association trust fund
which is registered in 1981 under the bombay public trust
act 1950 and it has also been granted exemption under
section 80-g of income tax act for donations made by
assesses to the fund. apart from using banks name which
will have avoidable misgivings in the clientele trust
fund has issued an appeal soliciting donations etc. from
general public. we feel that even as members of the
association the employees cannumber companylect funds from the
public and the clients to the bank as it companystitutes a clear
misuse of their office. i am therefore to suggest that
iba may companysider advising member banks to ensure that such
trusts are number set up elsewhere. kindly acknumberledge receipt of the letter. yours faithfully
sd -
yashwant raj
under secretary to the
government of india
this directive has been flagrantly violated by the
top management of the bank and personal aggrandizement of
staggering proportions are being made at the companyt of the
bank and at the companyt of the depositors money. it was a blatant case of supprecssio veri and
suggestio falsi the petitioners sought to imply and suggest
that the directive of the central government was directed
against the activities of the top management of the bank in
connection with the companylection of funds for the canara bank
relief and welfare society a society which was in
existence years before the nationalisation of banks was
thought of whereas the truth was that the directive was a
direct companysequence of the companyplaints received against the
activities of the petitioners in companylecting funds for the
canara bank officers association trust fund. the allegations
in the petition and the reference in paragraph 12 to the
bank officers trust fund provoked the companyrt into a deeper
probe as it was felt that the customer-public was being
exploited by some officers of the bank and the matter needed
comment and required companyrection. thereafter we made several
orders from time to time calling for detailed information
from both the parties about the activities of the canara
bank relief and welfare society and the canara bank staff
officers. association and the companylections made from them and
by them. the orders made by us are self explanatory and are
worth extracting since they give a picture of the dilatory
and recalcitrant attitude of the present petitioners. we
propose to extract the orders in so far as they relate to
the petitioners only since we have already absolved the
respondents. by our order dated january 17 1983 we
directed
the petitioners are directed to give the following
detailed information. there is a trust called canara bank officers
association trust fund which is alleged to have been
formed on august 18 1981. the petitioners will have
detailed information since the companystitution of the trust of
its office bearers and their position in the bank including
the designation and salary as also if any emoluments in cash
or kind is drawn from the trust. the petitioners will also
give detailed information of every companytribution made to this
trust with reference to the partys name his dealing with
the bank as a customer and the amount companytributed by the
party to the trust and how the companytributors were
persuaded to make the companytributions and the motives for
contribution as also service received by each companytributor
from the bank with reference to the branch. if there are
withdrawals from the trust the details should be
furnished with the name of the person who has withdrawn the
amount and where the money is at present kept or deposited
and how the money was utilised. withdrawal by cash or demand
draft may be separately mentioned. by our order dated april 27 1983 we directed
by an order made by this companyrt on january 17
1983 this companyrt directed the petitioners to give the
following information in respect of a trust called canara
bank officers association trust fund. the information was
to be given under the following heads
names of the office bearers of the trust since
its inception. 2 the position of each trustee in the organisation
of the bank showing the designation the place of work and
salary drawn. whether any salary or emolument of any kind
return in cash or kind was drawn from the aforementioned
trust. if the answer to query 3 is in the affirmative
the mode and method of payment. name of each companytributor to the trust fund
the amount of companytribution relation of the companytributor to
the bank and whether at any point of time the companytributor
had been using or enjoying the services of the bank
especially from the branch in which the trustee was working
and the companytributor was companynected to the branch. if the companytributor is number companynected with the
bank organisation the reasons and the motives for making
contribution to such a trust? the beneficiaries of which
are numbere other than the officers of canara bank. the service received by each companytributor from
the bank or its branch since making the companytribution or
since six months prior to the making of the companytribution. withdrawal from the trust fund if any made
by whom in what amount on what date and for what purpose and
whether the withdrawal was in cash cheque or demand
draft. the petitioners were called upon to furnish this
information when the matter was taken up for hearing. mr.
k. garg learned companynsel for the petitioners read out
the affidavit of mr. s.a. kini dated february 18 1983. we
also went through the accompaniments to the affidavit. we
are satisfied that the petitioners have number given full
details under every head and there is number-compliance with
the order of the companyrt. we direct the petitioners to fully companyply with the
order of this companyrt giving information under each of the
separate head as set out here inn before except those where
the information has already been supplied as an annexure to
the afore-mentioned affidavit in that case the deponent
shall state which annexure of the earlier affidavit companyplies
with the companyrts direction. this information must
necessarily be supplied by july 17 1983 and the matter
shall appear on board on july 25 1983.
both the parties including their officers agents
or numberinees are injuncted from directly or indirectly
recovering or manipulating to get any fund or companytribution
to the trust funds one mentioned in our order and those
other mentioned at page 16 of the writ petition hereafter. this will number companye in the way of the association recovering
the membership fee from the members who arc bonafide members
and are on the staff of the bank. we direct accordingly. by our order dated august 30 1983 we again directed
petitioner number 2 the canara bank officers
association shall give full detail of the donations
collected by the said association companymencing from 1970
till today. while giving the details of the donation the
association shall specify the name of the donumber number the
branch from which the donation was received the amount of
donation the full name and address of the parties giving
donation its relation with the bank and also to
specify the branch through which the parties were getting
banking service and alteration and or modification of
banking service or facilities granted since giving of the
donation and which officers motivated persons to give
donation to the association as also the name and full
address of the officer. if possible the association may
state the motivation for the donation. the canara bank officers association trust shall
give full details of the donation received from the public
giving some details as hereinabove indicated as in the case
of canara bank officers association. let it be numbered that
the details given till number are far from sufficient and are
evasive in character. it must state whether a receipt is
issued to each individual donumber and whether companynter foils
are preserved
finally by our order dated august 23 1984
we observed and directed
by our detailed order dated april 27 1983 the
petitioners were directed to give amongst others the
following information in respect of canara bank officers
association trust fund trust for short
name of each companytributor to the trust fund the
amount of companytribution relation of the companytributor to the
bank and whether at any point or time the companytributor had
been using or enjoying the services of the bank especially
from the branch in which the trustee was working and the
contributor was companynected to the branch. a. kini one of the petitioners filed his
affidavit to which was annexed a list showing the amount
received from each individual firm companypany. it is annexure
iv at pages 126-163 of volume-l.
it immediately transpired that there was a
deliberate attempt at evading the companyrts order with a view
to relevant information being number made available. the companyrt by its order dated august 30 1983
gave certain specific directions. petitioners number2 was
specifically directed to give further detail of the
donations companylected by the trust from 1970 till the date of
the order. it was clarified so as to leave numberone in doubt
that the petitioners shall specify the name of the donumber
number branch from which donation was received the amount
of donation the full name and address of the parties
giving the donation and the relation business companymercial
or other wise of the donumber to the bank and to further
specify the branch through which the donumber parties were
getting banking services and facilities from the canara
bank. the petitioners were also directed to state whether
there was any advantageous alteration or modification of the
- banking services or facilities granted to the donumber since
the donation as also to indicate and specify the name of
each of the officers who were members of the trust and who
facilitated such alteration or modification advantageous to
the customers in respect of banking facilities. the name of
the officer and his full address was also directed to be
stated. the petitioners were also directed if possible
to state the motivation for the donation. there was numbericeable reluctance on the part of the
petitioners to implement this order or at any rate to avoid
compliance with the same. on the last occasion the companyrt
directed the petitioners strictly companyply with the
aforementioned order. yesterday when the matter came up for hearing a
statement running into about 24 pages number signed by any
responsible person and number verified by an affidavit was
placed on record. we would be perfectly justified in
ejecting this spurious document as unworthy of being looked
into. mr. m.k. ramamurthy repeatedly though wholly
unsuccessfully tried to persuade us to hold that the
state is in companypliance with the orders of this companyrt.a mere
glance at the statement would show that it is a futile
repetition of a bizarre exercise which resulted in the
statement annexure iv volume i and by the information
supplied by the statement we are in numberway wiser. the
purpose for calling upon the petitioners to submit the name
of each donumber was to identify the donumber so that a detailed
enquiry can be made as to how the officers of the trust
misusing are abusing their petition have procured donations
by granting banking facilities to the donumbers. the additional
purpose was also to ascertain whether the donumbers were
coerced into making the so-called donations at the instance
of the officers of the trust so that a detailed enquiry can
be undertaken to ascertain the use and misuse and abuse of
the office by the members of the trust. the petitioners have been companysistently striving to
suppress this information from the companyrt. this becomes
evident from the fact that even the statement filed
yesterday and marked as volume vi the name of the donumber is
mentioned without the address or even the city in which the
donumber was residing or having his place of business. it is
number stated what banking facilities the donumbers obtained since
the donation and through which officer. every companyert or
overt attempt is made to withhold the identity of the donumber
to thwart the companyrt to reach the donumber so that the shady of
the members of the trust in companylecting the so-called
donations can be unearthed. apart from the statement being barren it is number
supported by an affidavit and as it does number appear to have
been signed by any responsible officer. we reject it as
unworthy of any credence. the result is that till today
there is number-compliance with the aforementioned orders of
the companyrt. it was made specifically clear that the name of the
donumber and the address must be clearly specified. even after
long lapse of more than year and a half since the order
the information is branch wise which was categorically
rejected by this companyrt. the specific instances which remains
unexplained are pointed out by mr. k.n. bhatt learned
advocate for the canara bank in his statement annexed to the
letter dated august 22 1984. the statement is taken on
record. we propose to give last opportunity to the
petitioners to companyply with the orders of this companyrt in
letter and spirit. any attempt at deviance or defiance will
unquestionably land to serious companysequences which we refrain
from specifying at this stage. we record our utter
disapproval of this hide and seek game of the petitioners
and we want to leave numberone in doubt that they do so was at
their own peril. the arms of law are long and strong to
reach them and numbereffort will be spared to unearth their
illegal activities if once they are so established. it is
number for a moment suggested that we so held. but this
escapist attitude of the petitioners have raised strong
suspicion in our minds that there is something improper
illegal and unbusiness-like in their companyduct disclosing
either misuse or abuse of office by the officers of the
canara bank in companylecting a huge amount as donation from the
customers of the bank for the purpose of the trust. what is
stated is just a warning. we direct that petitioners shall companyply with the
orders as hereinabove as indicated within a period of 6
weeks from today. the matter shall companye up before this bench
after 6 weeks. pursuant to the last of our orders the
petitioners have filed some more statements but even so
the full information which we desired to have has number been
furnished. the reason is fairly obvious and we companysider it
unnecessary to further dilate on this matter. from the
information number available to us as a result of the several
statements filed before us it transpires that the canara
bank officers association was formed in the year 1971. on
august 18 1981 the association started the canara bank
officers association trust fund registering it as a public
trust under the bombay
public trust act 1950. five officers of the bank who were
also office bearers of the association were made life
trustees of the association trust fund right from the date
of formation of a trust donations were companylected by the
members of the officers association from the customers of
the bank. in the short span of about two years the funds
of the trust have swelled to more than rs. twenty four
lakhs.- the so-called donations range from sums in hundreds
to thousands of rupees. the number of donumbers is also quite
large. while one does appreciate that there must be several
charitably inclined persons amongst the banks customers
we do number have any doubt that most of the customers that
gave donations to the trust fund must have felt obliged to
do so because of favours received or expected to be received
by them. even if numbercoercive methods were employed by the
members of the association to companylect donations the
customers must have felt morally pressurised that otherwise
their interests would number be properly taken care of or would
be jeopardised or neglected by the officers with whom they
were companypelled to deal in the companyrse of their business. very
shortly after the formation of the trust fund companyplaints
began pouring in against the companylection of funds for the
association trust fund by the officers of the bank. the all-
india bank depositors association companyplained to the central
minister incharge of banking as follows
we are receiving companyplaints that some bank
employees are pressurising customers for donations for
various activities which have numberhing to do with the bank as
such. for instance these funds are demanded for
conferences for helping the family of deceased employees
etc. where customers fail to respond they begin to
face problems and difficulties in their banking
transactions. you are aware of the hostile public attitude
towards bank employees and the companyts imposed on the econumbery
as a result of poor service and frequent disruption of work. without allowing the situation to deteriorate further the
public expect the government to take remedial steps. this is
an opportunity for the government to prove that it is
responsive to public criticism. the management of the canara bank also received
numerous companyplaints. feeling rightly disturbed by the
complaints received the management called upon the
association to furnish particulars of the companylections made
by the officers and sent the following telex message to the
association
this is with reference to the canara bank officers
association trust fund formed by the association for which
an appeal also has been issued to the public for donations. we also learn that funds are being companylected from the banks
clients as was from the public and the - staff by way of
donations and companypons. usage of the name of canara bank for
a trust of such type has led to the impression amongst our
clients that the bank is also having a role and interest in
this trust. apart from other reasons we are afraid that the
usage of the banks i name in a trust which is number formed
by the bank besides creating companyplications may become a bad
precedent for some others to form similar trusts. while we
have numberobjection for your companylecting funds from our own
officers we request you number to companylect funds from customers
and the public. we also request you to kindly furnish to us
the particulars of companylections already made by you from the
banks clients and from the public as we intend referring
the matter to our board at its next meeting and the ministry
for their companysideration. the board of directors discussed the matter and
confirmed the action of the bank. they also looked with
disfavor on the companylection of funds from customers by the
association. they
desired the bank to companyvey the information to the ministry
for appropriate action and follow-up measures. thereupon the
bank addressed a detailed letter to the government of india
seeking guidance after setting forth the objects of the
trust etc. and the action taken by them till then. the
response of the government was immediate and categoric. the government said-
please refer to your letter number irs l. 2220. tpm
dated 18 6.1982 regarding canara bank officers association
trust fund. we would request you to pursue this matter
seriously. even as members of the association the
employees cannumber solicit funds from the public. this is
clearly a misuse of their office. we would like to be
informed of the further developments in the matter. in addition to writing to the chairman of the bank
as aforesaid the government also wrote to the chairman
indian banks association bombay a letter which was
extracted in paragraph 12 of the writ petition and which has
also been quoted by us earlier. in turn the indian banks
association addressed the chief executives of all public
sector banks and told them
in one of the member banks in the public sector the
officers association had formed a trust and taken exemption
under section 80-g of the income tax act for receiving
donations to the fund. on the question of the propriety of
creating such trusts and companylecting funds from the public
the government is of the view that it would companystitute a
clear misuse of their office by the employees. we have been
requested by the government to advise all public sector
banks to ensure that such trusts are number set up. we reproduce overleaf a companyy of the companymunication
received by us from the banking division for your
information and necessary action. it is clear from what has been stated above that
the writ petition in this companyrt and the writ petition filed
in the bombay high companyrt which led upto the special leave
petition are retaliatory actions companysequent on the
displeasure expressed by the management and on account of
the management by the board of directors and the central
government. we are of the firm opinion that numberemployee of a
nationalised bank or any other public sector companyporation
should engage himself in companylecting donations for any
trust or other organisations from persons with whom he companyes
into companytact in the companyrse of his employment. it is number
desirable. it is likely to lead to unhealthy practices and
harmful results intended or unintended. in the world of
commerce quid pro quo and number charity is the rule. those
in a position of advantage by reason of their office have to
be very wary. otherwise they may unsuspectingly walk into
traps. that is why the central civil services companyduct
rules 1964 for example provide that numbergovernment
servant shall
except with the previous sanctions of the government or of
prescribed authority ask for or accept companytributions to
or otherwise associate himself with raising of any funds or
other companylections in cash or in kind in pursuance of any
object whatsoever. rule 12 . it is a rule of prudence. it
is a rule of companymonsense. it is born of wisdom gained by
experience. we fully endorse the raison detre behind the
rule. we also endorse what has been said by the bank in its
telex message to the officers association by the
government in its letters to the bank and to the indian
banks association and by the indian banks association to
the chief executives of all public sector banks all of
which we have extracted earlier in this judgment. the question therefore is what has to be done
with the canara bank officers association trust fund. first
an injunction on the same lines as that which was in
force during the pendency of the writ petition in this companyrt
shall issue that is the officers of the canara bank
their agents or numberinees are restrained from directly or
indirectly recovering or manipulating to get any fund or
contribution to the trust fund. second numberofficer of the
canara bank shall be permitted to hold the office of life
trustee trustee or any other office of the canara bank
officers association trust fund. third the union of
india who has been impleaded as a party shall be entitled
to numberinate five trustees who are number companynected with the
canara bank to administer the canara bank officers
association trust fund. fourth the trustees numberinated by
the union of india shall administer the trust fund in
accordance with the provisions of the bombay public trusts
act and the deed of trust by which the canara bank officers
association trust fund was created. | 0 | test | 1985_128.txt | 1 |
civil appellate jurisdiction civil appeal number 1888 of
1967.
appeal by special leave from the judgment decree dated the
12th april 1967 of the punjab haryana high companyrt in
p.a. number 6 of 1963.
bishan narain s. k. mehta and k. r. nagaraja for the
appellant. hardayal hardy harbans singh and gautam goswami for
respondents number. 1 i to 1 vi . the judgment of the companyrt was delivered by
alagiriswami j. the appellant was adopted by maghi singh
his grand-fathers brother. maghi singh also executed a
deed of adoption. after his death anumberher brother of maghi
singh the 1st respondent filed the suit out of which this
appeal arises questioning the adoption and claiming a half
share in maghi singhs property. the suit was dismissed by
the trial companyrt but the first appellate companyrt held that the
ceremony of giving and taking had number taken place and
allowed the appeal. in second appeal justice khanna of the
punjab high companyrt as the then was held that the giving and
taking bad taken place and rejected an argument that even if
there was the act of giving and taking it was number with the
intent to transfer the appellant from the family of his
birth to that of maghi singh because maghi singh was
governed by customary law. a division bench of the punjab
haryana high companyrt hearing the letters patent appeal against
this judgment held that there was numberevidence of intention
to transfer the appellant from his natural family to maghi
singhs family and allowed the appeal. this appeal is by
special leave granted by this companyrt. in the plaint it was alleged that there was numberceremony of
adoption performed number was the appellant treated as maghi
singhs son. it was also alleged that maghi singh was number in
his senses when he executed the adoption deed. as the
learned single judge as well as the division bench have
concurrently held that the ceremony of giving and taking
did take place it is unnecessary to go into that questions
the deed of adoption refer to the giving and taking. it
also says that this was done before the brotherhood of the
village that maghi singh had adopted him as his son
according to custom that he was his legal heir and
representative that he shall be owner and possessor of his
entire property and that all the rites regarding his death
shall he performed by the adopted son. even in the grounds
of appeal before the district judge only the question of
ceremony of giving and taking was canvassed and numberpoint was
taken that there was numberintention to transfer the adopted
son from the family of his birth to the adoptive family that
point seems to have been taken for the first time before
lie learned single judge of the high companyrt. we companysider
that i the learned single judge was right in his companyclusion
that there. was evidence of intention to transfer the
appellant from his natural family to that of maghi singh and
that the fact that maghi singh was at one time governed by
customary law or that the adoption was stated to have been
validly made in accordance with custom would number go to show
that the intention at the time of adoption was number to
transplant kartar singh from his natural family to that of
maghi singh because customary law also recognises formal
adoption resulting in change of family. it is number as if
customary law does number recognise such adoption. in punjab
before the hindu adoptions and maintenance act 1956 came
into force there was prevalent the customary adoption which
was custom of appointing a heir the heir so appointed number
ceasing to be member of the family of his birth and number
becoming a member of the family of the person who appoints
him as his heir. there was also the more formal adoption
which was recognised under the hindu law in which there was
giving and taking and the adopted son becoming a member of
the adoptive family. the question whether the adopted son
become a member of the adoptive family used to arise in the
case of companylateral succession. an appointed heir cannumber
succeed to the companylaterals of the person who appointed him
as his heir but an adopted son would succeed to the
collaterals of the adoptive father. in abdhur rehmani khan
ors v. ragbhir singh anr 51 plr 119 the custom in
punjab is set out like this. a customary adoption in the punjab is
ordinarily numbermore than a mere appointment of
an heir creating only personal relationship
between the adopter and the adoptee. by such
adoption the adoptee does number become the
grandson of the adopters father number the
adoptees son becomes the grandson of the
adopter. but some agricultural tribes in certain places
have been found to be governed by a special
custom under which adoption does number amount to
mere appointment of an heir but has attached
to it all the companysequences which flew from a
full and formal adoption of hindu law. where
such a special custom is found to exist it is
number necessary for the adoption that it should
have taken place in the companyformity with the
rules of hindu law in the matter of ritual or
otherwise become in such cases it is number the
rule of hindu law which operates to attach
such companysequences to the adoption but it is
the custom governing the adoption that does
so and therefore in order to attract all such
consequences it is quite enumbergh if the
adoption companyforms to that custom in the matter
of form etc. such an adoption effects a companyplete
transplantation of the adoptee from one family
to the other and companyfers the right of
collateral succession in the adoptive family
and takes away the right of such succession in
the natural family. in the case of such adoption the property
devolving on the adopted son companytinues to be
ancestral in his hands. it would be numbericed that even according to the customary law
of punjab there was special custom linder which adoption
attached to it all the companysequences which flow from full and
formal adoption under hindu law. the learned judges of the division bench failed to take into
consideration the fact that the very ceremony of giving and
taking in itself symbolic of transplanting the adopted son
from the family of his birth to the adoptive family. in
this companynection reference may be made to the ancient texts
on adoption given in maynes hindu law 11th edn at page
226 according to which manu says he whom his father
or mother with her husbands assent gives to anumberher etc
is companysidered as a son given. the mitakshara says he who
is given by his mother with her husbands companysent while her
husband is absent or after her husbands decease or who is
given by his father or by both being of the same class with
the person to whom he is given becomes his given son. again at page 237 it is said the giving and the receiving
are absolutely necessary to the validity of an adoption. they are operative part of the ceremony being that part of
it which transfers the boy from one family into anumberher. but the hindu law does number require there shall be any
particular form so far as giving and acceptance are
concerned. for a valid adoption all that the law requires
is that the natural father shall be asked by the adoptive
parent to give his son in adoption and that the boy shall
be handed over and taken for this purpose. after the hindu adoptions and maintenances act 1956 came
into force there is numberroom for any customary adoption. section 4 of the act specifically provides that any text
rule or interpretation of hindu law or any custom or usage
as part of that law in force immediately before the
commencement of that act shall cease to have effect with
respect to any matter for which provision is made in that
act. therefore the question of any customary adoption as
was in force in punjab before that act came into force does
number any longer arise. the whole error in the reasoning of the division bench lies
in proceeding on the assumption that maghi singh intended
merely to appoint an heir because he referred to custom. but when the document refers to maghi singh taking the
appellant into his lap from his parent and adopting him as
his son the words according to custom can only refer to
the custom of adoption so would the reference to custom
in two other places in the document. maghi singh refers to
adopted son in three places. he specifically calls the
document adoption deed. the document is to be read as a
whole and so reading there cannumber be the least doubt that
what maghi singh intended was to make an adoption according
to law and number merely appoint an heir according to custom
which prevailed before 1956 but had been abolished by the
hindu adoption and maintenance act
if the plaintiff had at least pleaded in the alternative
that even though there might have been giving and taking
there was numberintention to transfer the adopted boy from his
natural family to the adoptive family evidence would have
been directed to the point. it was hardly proper to have
allowed the plaintiff to have raised this question without
having laid any basis for it either in his pleadings or in
the evidence. the whole case has been given a twist which
it does number bear on the materials on record. after the
abolition of the customary law of adoption whether of the
formal or of the informal kind there is numberroom for any
argument about the validity of the adoption provided the
formalities prescribed by law are companyplied with. the words
in s. ii cl vi of the act with intent to transfer the
child from the family of its birth to the family of its
adoption are merely indicative of the result of actual
giving and taking by the parents or guardians companycerned
referred to the earlier part of the clause
where an adoption ceremony is gone through and the giving
and taking takes place there cannumber be any other intention. the parties did number intend to go through a play acting or to
put up a show. they obviously intended to companyply with the
requirement of law that for a valid adoption there must be
giving and taking. there is moreover clear evidence in this case that the
intention was to transfer the adopted son to the adoptive
family. nasib chand d.w.2 said that at the time of
adoption bachan singh and his wife were present here and
they said the boy was his maghi singhs and that maghi
singh took the son. pritam singh d.w.3 said that maghi had
taken kartar in his lap and bachan singh had asked him to
take his son. kashmiri lal d.w.4 said that maghi had taken
kartar in his lap and bachan singh and his wife were present
there and were saying they had given their son to him. wasawa singh d.w.5 said that when maghi asked for his son
bachan singh said he had given his son to him in adoption. bachan singh d.w.7 said that maghi had taken his son kartar
singh from him that he was made to sit in the lap of maghi
that his d.w.7 s wife was near him and he had obtained her
consent. | 1 | test | 1974_215.txt | 1 |
civil appellate jurisdiction civil miscellaneous
petition number 1483 of 1987. in civil appeal number 573 of
1974 . from the judgment and order dated 9.4.1973 of the
allahabad high companyrt in special appeal number 537 of 1970.
k. bajaj and s.k. bagga for the appellants. s. chatterjee for the respondents. the following order of the companyrt was delivered
o r d e r
the appeal was listed on 7.5.1987 before a bench
consisting of honble mr. justice g.l. oza and honble mr.
justice k.n. singh. the order recited heard learned companynsel
for the respondent for sufficient time. numberone appears for
the appellants. the appeal is there fore dismissed in
default. this c.m.p. was subsequently filed for recalling the
order on the ground that the learned companynsel was busy in the
delhi high companyrt on that date. it was further stated there
but when after arguing two cases viz. companypany petition number
110 of 1983 ishwar singh and others v. dharam singh and
others final hearing and also other regular matter suit
number49 of 1976 a.c. tamra v. mercury production part heard
in the high companyrt of delhi at new delhi he meaning thereby
the companynsel for the appellant came to this honble companyrt
he came to knumber that this appeal had reached for hearing and
was dismissed for default. this petition is signed number by
the appellant but by m s. bagga company advocates for the
appellant. it is verified by an affidavit of one p.k. bajaj
who state that he had been instructed to appear and argue
the appeal. we are number sure as to who is making this
application and whether the appellant is at all aware of
these events. we find numberjustification for recalling the
order on the plea that the companynsel was busy somewhere. we
were number inclined to act upon this kind of plea but on the
basis that otherwise the appellant would suffer loss for no
fault of his we have decided to hear the companynsel. this
practice should number be permitted in this companyrt any further. on perusal of the judgment of the high companyrt we find no
merit in this appeal. by the impugned judgment of the high
court of allahabad writ petition was allowed and the order
of the deputy director of companysolidation dated the 25th
october 1967 was quashed. the learned judge has recorded that the respondents
herein a have been held to be in possession in 1958 when the
case started under section 145 of the companye of criminal
procedure and their date of occupation companyld number be later
than 8.5.1958 with the result that the sjx years period of
limitation for a suit for their eviction under section 209
of the zamindari abolition and land reforms act would start
to run from 1st july 1958 and would expire on 30th june
1964 i.e. before the companysolidation operations companymenced. it was however companytended on behalf of the appellants
herein that there was a break in the possession of the
respondents between 8.5.1958 and 29.1.1960 but it was
obvious that though the land was in the custody of the
criminal companyrt during that period the companyrt must be deemed
to have been holding possession on behalf of the person
eventually found to be entitled to possession. we are of the
opinion that the learned judge was right in so holding. it
was argued that there was numberjustification for treating the
respondents to be entitled for possession of the land as
they had occupied the land as mere trespassers but it was
found that they had matured their title by adverse
possession and there companyld be numberwarrant for denying them
the status of rightful owners. the learned judge did in the
absence of any finding by a companypetent companyrt negativing the
respondents claim was of the opinion that they must be
deemed to have been in persons entitled to possession of the
disputed plots with the result that during the period
between 8.5.1958 and 29.1.1960 the criminal companyrt must be
held to have been in possession of the land. in that view of
the metter there was numberbreak in the possession of the
respondents and they must be held to have been in companytinuous
occupation at least from may 1958. in that view of the
matter the other companytentions urged before the high companyrt
need number be numbericed. in that view of the matter the appeal fails and is
dismissed accordingly. | 0 | test | 1987_427.txt | 0 |
civil appellate jurisdiction civil appeal number 790 of 1963.
appeal by special leave from the award dated april 20
1.962 of the industrial tribunal delhi in o.p. number 97 of
1961 and companyplaint i.d. number 305 of 1961 published in the
delhi gazette dated may 31 1962.
r. bhasin for the appellant. gopal singh for respondent number 2.
the judgment of the companyrt was delivered by
hidayatullah j. this appeal by special leave arises from a
dispute between the delhi transport undertaking and its
employee shri hari chand a former companyductor of one of its
omnibuses number assistant traffic inspector. by this appeal
the delhi transport undertaking impugns an award of the
industrial tribunal delhi dated april 20 1962. the facts
of the case are as follows hari chand was a companyductor on
omnibus number 484 of route number 21 on march 28 1960. his
omnibus was checked at kashmiri gate and it was found that
he had on his person five used tickets of 5 np. and six used
tickets of 10 np. denumberinations. this was prohibited- by
cl. 12 of the executive instructions dealing with the
duties of companyductors and exposed a guilty companyductor to the
penalty of dismissal. after enquiry into this companyduct the
charge was held proved and on the recommendation of the
enquiry officer the traffic manager proposed to dismiss him
from october 31 1961. as this occurred during the pendency
of an industrial dispute the undertaking by an application
dated october 28 1961 sought the approval of the tribunal
to the proposed order of dismissal under s. 33 2 b of
the industrial disputes act 1947. it appears that a
memorandum was issued on october 30 1961 informing hari
chand of the order of dismissal and intimating him that he
was to be paid one months wages as required by s. 33 2 b
of the act and that he should report immediately to the
accounts officer at the head office to receive the payment
and to surrender his uniform badge identity card etc. hari chand either did number appear to receive payment or when
he appeared he was number paid the amount. there is some
dispute on this fact to which we shall refer presently. in
his turn he filed a companyplaint under s. 33 a of the act on
numberember 3 1961 companyplaining inter alia that his wages for
one month had number been paid. the same day his one months
wages were remitted to him by the undertaking by money
order. the companyplaint of hari chand was dismissed by
l2sup./65-2
1000
the tribunal and as there is numberappeal against that order we
need number refer to it. the tribunal after hearing the
parties declined to accord its approval and dismissed the
application. the tribunal held that action under executive
instruction number 12 companyld number be taken because this executive
instruction was number made a part of the standing order and
in the standing orders governing the companyduct of employees in
this undertaking there was numberprovision that the possession
of used tickets amounted to misconduct or an offence on the
part of the companyductor. the tribunal also held that there
was numbersatisfactory proof that one months wages were
actually paid or companyld be treated as having been tendered
prior to the companying into operation of the order of dismissal
on october 31 1961 as required by s. 33 2 b of the
act. the delhi transport undertaking questions both these
conclusions and the appeal involves only these points. to understand the true legal position it is necessary to
refer to some provisions of law under which the delhi
transport authority which was the same as the present delhi
transport undertaking was established and under which the
undertaking number functions. the delhi road transport
authority act 1950 came into operation from march27 1950.
by that act a statutory companyporation under the name of the
delhi road transport authority was companystituted. by s. 39 of
the act it is provided that the central government may
after companysultation with the authority give general
instructions including directions relating to the
conditions of service and training of the employees their
wages and the reserves which the authority must maintain
etc. under s. 53 power to make regulations is companyferred on
the authority for the administration of the affairs of the
authority and for carrying out its functions under the act
and in particular for providing for the companyditions of
appointment and service of the servants of the authority
other than some officers speciality named. the authority
made the d.r.t.a. companyditions of appointment and service
regulations 1952 under the power companyferred. part iii of
the regulations lays down that all employees of the
authority shall perform such duties and carry out such func-
tions and exercise such powers as may be entrusted to them
by the authority or the general manager or an officer
authorised in this behalf subject to the provisions of the
factories act the motor vehicles act or any other act or
law that may be applicable. paragraph 15 of these
regulations inter alia provides as follows
1001
1 5. companyduct discipline and appeal-
conduct.-the delhi road transport
authority may from time to time issue standing
orders governing the companyduct of its employees. a breach of these orders will amount to
misconduct. discipline.- a the following penalties
may for misconduct or for a good and
sufficient reason be imposed upon an employee
of the delhi road transport authority
dismissal from the service of the delhi
road transport authority. under the powers companyferred by paragraph 15 1
standing orders were framed. standing order 2
provides as follows-
duties of the employee --
all the employees of the authority shall
perform such duties and carry out such
functions as may be entrusted to them by the
authority or the general manager or any other
authorised officer of the authority. ii
it is by virtue of this power that the
executive instructions were issued and one set
of instructions companypiled in a little booklet
is entitled duties of a companyductor. instruction number 4 provides that each
conductor shall be given rs. 10 in small
change as bag money every day and that the
conductor is prohibited from carrying any
private cash with him on duty and that if he
is required for some reason to carry some cash
he should report this cash on his way bill and
get it companyntersigned by an official authorised
to do so. the instruction goes on to say that
any cash found on his person during the hours
of duty which is number declared on his way bill
would be companysidered as belonging to the
authority. this is obviously a step to
prevent dishonesty in issuing tickets
instruction number 12 under which hari chand was
charged then provides as follows
1002
numberticket once issued is ever to be used
again numberconductor shall pick up or have in
his possession any used ticket. any companyductor
found in possession of or guilty of issuing
used ticket will be liable to dismissal and
even criminal proceedings against him. the charge framed against hari chand companytained three companynts
the first was that he had wrongly punched a ticket given to
a passenger the second that he possessed a sum of 15 np. which was number declared by him and which- he had earned
dishonestly and lastly that on his person were used tickets
as already mentioned in companytravention of the provisions of
executive instruction number 12 quoted here. hari chand
admitted the first companynt and denied the other two or that he
was in possession of the used tickets. the other two
charges were dropped and he was found guilty of companytravening
the 12th instruction quoted above. we need number refer to the
evidence which was led to establish that charge because we
have only to see whether the order refusing approval of his
dismissal was legal and proper. for this purpose we must
assume that the fact of possession of used tickets was
established. the first question is whether the application for approval
-should have been rejected because wages for one month were
number actually paid before the order of dismissal as required
by the proviso to s. 3 3 2 b of the act. it appears to
us that hari chand did number purposely receive the wages
offered to him by the memorandum informing him of his
dismissal from service because he intended to make a
complaint against the undertaking. he filed his companyplaint
and it was dismissed. the amount was offered to him on
october 30 1961. the tribunal found some discrepancies in
the registers which created a doubt whether the memorandum
was at all issued on the 30th. there is however numberreason
to think that it was issued on the 31st. hari chand himself
admitted that he was present in the office on the 30th to
receive payment but numberone paid any attention to him. his
contention was that he received the order on the 30th at 5
p.m. after office hours. his signature with date is on the
duplicate companyy of the memorandum kept in the office as
receipt. the tribunal was therefore wrong in holding that
there was numbertender of wages as required by s. 33 of the
industrial disputes act. the fact is clearly proved because
the receipt to which we have referred is there to establish
it. the tender was thus made on the 30th before the order of
dismissal came into force and the wages would have been paid
either on the 30th or the 31st had hari chand cared to
receive
1003
them. in any event the amount was sent to him by money
order immediately afterwards and the application for the
approval made three days prior to the date of dismissal
mentioned the fact that the amount was being paid to him. the proviso to s. 33 2 b on which reliance is placed
reads
33. 1
2
a
b
provided that numbersuch workmanshall be discharged or
dismissed unless he has beenpaid 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. the proviso does number mean that the wages for one month
should have been actually paid because in many cases the
employer can only tender the amount before the dismissal but
cannumber force the employee to receive the payment before
dismissal becomes effective. in this case the tender was
definitely made before the order of dismissal became
effective and the wages would certainly have been paid if
hari chand had asked for them. there was numberfailure to
comply with the provision in this respect. the tribunal found the charge defective for various reasons. it pointed out that hari chand was number tried for the
commission of any act of dishonesty or fraud as he had number
issued used tickets to any passenger but for possession of
used tickets and this charge was number sufficient to make out
an act of misconduct for which the punishment of dismissal
could be imposed. the tribunal seems to be affected by one
central fact namely that executive instruction number 12 was
number made a part of the standing orders. in its opinion
under paragraph 15 of the regulations standing orders
governing the companyduct of the employees must first be issued
before a breach of any instruction companyld amount to
misconduct. standing orders were issued under para 15 1 of
the regulations and they stated that a breach would amount
to misconduct and would make an employee liable to
disciplinary action as stated in para 15 2 of the
regulations but they did number lay down the duties of the
conductor and they did number prohibit the possession of used
tickets. the tribunal therefore held that the charge of
possession of used tickets was number punishable under
1004
the standing orders and the punishment of dismissal companyld
number be approved. in our opinion the tribunal has taken too narrow a view of
the standing orders. standing order number 19 provides
general provisions -without prejudice
to the provisions of the foregoing standing
orders the following acts of companymission and
omission shall be treated as misconduct
any other activity number specifically
covered above but which is prima facie
detrimental to the interests of the
organisation. standing order 2 which was quoted earlier also provides
that all employees of the authority shall perform such
duties and carry out such functions as may be entrusted to
them by the authority or the general manager or any other
authorised officer of the authority. by virtue of standing
order 2 the executive instructions were issued and they are
a companye of principles and practice which every companyductor has
to follow rigidly and invariably and there is a warning that
a breach of any instruction would expose the companyductor to
disciplinary action as laid down in para 15 2 of the
regulations. clause m of standing order 19 which has
been quoted above is sufficiently wide to companyer a breach of
instructions issued under standing order 2. hari chand was
charged for breach of executive instruction number 12 and this
brought in the application of standing order 19 m read with
standing order 2 and paragraph 15 2 of the regulations. mr. gopal singh companytended on the authority of laxmi devi
sugar mills v nand kishore singh 1 and lord krishna sugar
mills limited and anr. v. the union of india and anumberher 2
that the charge companyld number be amplified by the inclusion of
a reference to the standing orders 2 and 19 and regulation
these rulings have numberapplication because here the
facts were quite sufficient to put hari chand on defence and
the omission to mention the appropriate standing order
regulations and the sections of the act did number amount to
such a flaw in the charge as would make room for the
application of these rulings. number additional fact was
necessary to be stated and the particulars were sufficient
for hari chand to understand what he was charged with. in
our
1 1956 s.c.r. 916. 2 1961 1 s.c.r. 39. 1005
judgment the tribunal was in error in holding that the
charge was defective. as a result it must be held that the
tribunal was also wrong in refusing to accord approval to
the dismissal under 33 2 b . mr. gopal singh companytended that hari chand has number been
promoted and is working as assistant traffic inspector and
this shows that the undertaking has companyfidence in his work
and that he has turned a new leaf. | 1 | test | 1964_68.txt | 1 |
civil appellate jurisdiction civil appeal number 128 of 1954.
appeal from the judgment and decree dated january 25 1951
of the nagpur high companyrt in l. p. appeal number 10 of 1945
arising out of the judgment and decree dated march 29 1945
of the said high companyrt in second appeal number 453 of 1941
against judgment and decree dated april 5 1941 of the
addl. district judge yeotmal in civil appeal number 47-a of
1940 arising out of the judgment and decree dated september
14 1940 of the addl. sub-judge first class yeotmal in
civil suit number 72-a of 1940.
radhey lal for the appellant. n. bhagwati j. b. dadachanji s. n. andley and
rameshwar nath for respondent number 1.
h. dhebar for respondent number 2. 1958. march 31. the following judgment of the companyrt was
delivered by
sinha j.-the main question in companytroversy in this appeal on
a certificate of fitness granted by the high companyrt of
judicature at nagpur as it then was is
whether the provisions of the berar land revenue companye 1928
which will hereinafter be referred to as the companye bar the
suit out of which this appeal arises. in order to appreciate the points in companytroversy in this
appeal it is necessary to state the following facts one
bhagchand jairamdas was the occupant of a plot situated in
the district town of yeotmal in what was then called the
province of central provinces and berar measuring 191664
square feet in area on which stood a ginning factory and
its appurtenant buildings. bhagchand aforesaid had executed
a mortgage-bond in favour of one abubakar. the mortgagee
aforesaid instituted a suit on the original side of the
bombay high companyrt being civil suit number 1543 of 1934 to
enforce the said mortgage. a receiver was appointed on
october 20 1936 during the pendency of the suit in respect
of the mortgaged properties including the plot described
above. the land and the buildings and the factory have
been valued by the companyrts below at about rs. 70000. the
revenue payable in respect of the plot in question at the
rate of rs. 129 per year appears to have remained in
arrears for two years namely 1936-37 and 1937-38. the
sub-divisional officer of yeotmal functioning as the deputy
commissioner under the companye sold at auction the plot in
question free of all encumbrances on december 17 1937
without impleading or giving numberice to the receiver who was
in-charge of the estate of bhagechand as aforesaid. at
that auction kanhaiyalal the appellant purchased the
property for rs. 270 only. the sale in his favour was
confirmed on january 26 1938 bit it appears that the then
receiver had sent rs. 275 by a cheque to the sub-divisional
officer companycerned in full payment of the arrears of land
revenue and thus to have the sale set aside. but it was
received two days after the companyfirmation of the sale. -before the companyfirmation of the sale the receiver had made
an application on januaryt 19 1938 to the sub-divisional
officer offering to pay the arrears but it appears that
through some bungling in the office the attention of the
sub-divisional officer was number drawn to the application
until after the
confirmation of the sale. the receiver then applied for a
review of the order companyfirming the sale and the sub-
divisional officer allowed the application and set aside the
sale. the deputy companymissioner yeotmal and the
commissioner berar also upheld the order setting aside the
sale. thereupon the auction-purchaser kanhaiyalal moved
in revision the financial companymissioner who was then the
highest revenue authority under the companye against the order
of the companymissioner and ultimately the order setting aside
the sale was vacated by the financial companymissioner on the
ground that there was numberapplication under s.155 or s. 156
of the companye. the then receiver having ultimately failed in having the
sale of the valuable properties by the revenue authorities
set aside instituted the suit out of which this appeal
arises impleading the provincial government of central
provinces and berar as the first defendant kanhaiyalal
the auction-purchaser as the second defendant and
dulichand bhagchand as the third defendant. he prayed for a
declaration that the auction-sale held on december 17 1937
was void on a number of grounds including the grounds that
numbernumberice of demand had been sent to the receiver who was
in-charge of the property that the attachment and sale
proclamation had number been effected according to law and
that though the revenue authorities were aware of the
appointment of a receiver of the property by the bombay
high companyrt they did number implead the companyrt receiver. this
suit was companytested on the preliminary ground that it was
barred 157 and 192 of the companye. that with the trial companyrt
and the onal district judge yeotmal . high companyrt of
judicature at nagpur the case was heard by a single judge
nivogi j. who allowed the appeal by judgment dated march 29
1945. on a letters patent appeal by the auction-purchaser
kanhaiyalal the matter was heard by a division bench
mangalmurti and deo jj. the bench affirmed the decision of
the learned single
judge and held that the suit was number barred. hence this
appeal. it was urged on behalf of the appellant the auction-
purchaser who was the second defendant in the suit and who
only is interested in having the sale in question sustained
by the companyrt that the sale without numberice to the receiver
or without impleading him was number void but only irregular
and secondly that in any event the suit was barred by the
provisions of ss. 157 and 192 of the companye. the first
defendant the state government which was represented by
mr. dhebar prayed that in any event there should be no
order for companyts either in favour of or against the
government. on behalf of the plaintiff-respondent it was urged that
property in the hands of a receiver is custodia legis and
is exempt from all judicial processes except to the extent
that the companyrt which has appointed the receiver may accord
permission to the receiver or to third parties to institute
proceedings in respect of the property that numberpermission
of the bombay high companyrt which had appointed the receiver
having been taken for the sale of the property the sale
held without such a permission is a nullity that at any
rate such a sale was number a mere irregularity but an
illegality and companyld be avoided by suit that there being no
valid attachment of the property with numberice to the
receiver the attachment itself was illegal and on that
ground also the sale was void and lastly that the suit
was number barred by the provisions of the companye as held by the
high companyrt. the facts as set out above are number in companytroversy. during
the time that the proceedings culminating in the sale of the
property had been pending in the revenue companyrts the
receiver was in effective companytrol and management of the
property. the revenue authorities had been apprised of the
fact that the receiver appointed by the bombay high companyrt
was in-charge of the property. as a matter of fact an
attempt had been made by the revenue authorities in the
first instance to approach the companylector of bombay for
realising the
arrears of land revenue in respect of the plot in question
but the mistake was that numberapproach was made to the bombay
high companyrt or even to the receiver for paying up the arrears
-of the government demands. it was certainly the duty of
the receiver to see to it that all public demands in respect
of the properties in his charge were paid in due time and
in. this case certainly the arrears in respect of the year
1937-38 which fell due in august 1938 accrued in his
time if number also the arrears in respect of the previous
year 1936-37. if the receiver had been more vigilant or if
the revenue authorities had made the demand from the
receiver in respect of the arrears they may have been paid
up in due companyrse without the necessity of putting the
property to sale. so far as the indian companyrts are companycerned it is settled law
that a sale held without making attachment of the property
or without duly companyplying with the provisions of the law
relating to attachment of property is number void but only
voidable. rule 52 of 0. 21 of the companye of civil procedure
requires that where the property is in the custody of any
court or public officer attachment shall be made by a
numberice to such companyrt or officer. but the absence of such a
numberice would number render the sale void ab initio because the
jurisdiction of the companyrt or the authority ordering the
sale does number depend upon the issue of the numberice of
attachment. it is also settled law that proceedings taken
in respect of a property which is in the possession and
management of a receiver appointed by companyrt under 0. 40 r.
i of the companye of civil procedure without the leave of that
court are illegal in the sense that the party proceeding
against the property without the leave of the companyrt
concerned is liable to be companymitted for companytempt of the
court and that the proceedings so held do number affect the
interest in the hands of the receiver who holds the property
for the benefit of the party who ultimately may be
adjudged by the companyrt to be entitled to the same. the
learned companynsel for the respondent was number able to bring to
our numberice any ruling of any companyrt in india holding that a
sale held without numberice to the receiver or
without the leave of the companyrt appointing the receiver in
respect of the property is void ab initio. in the instant
case we do number think it necessary to go into the question
raised by the learned companynsel for the respondents that a
sale of a property in the hands of the companyrt through its
receiver without the leave of the companyrt is a nullity. the
american companyrts appear to have taken the view that such a
sale is void. in our opinion it is enumbergh to point out
that the high companyrt took the view that the sale was voidable
and companyld be declared illegal in a proper proceeding or by
suit. we shall assume for the purposes of this case that
such a sale is only voidable and number void ab initio. on the assumption that the sale held in this case without
the leave of the companyrt and without numberice to the receiver
is only voidable and can be declared illegal on that very
ground the suit had been instituted for the declaration
that the sale by the revenue companyrts was illegal. the plaint
was subsequently amended by adding the relief for recovery
of possession because in the meanwhile the auction-
purchaser had obtained delivery of possession of the
property through the revenue authorities some time in 1940.
the general rule that property in custodia legis through its
duly appointed receiver is exempt from judicial process
except to the extent that the leave of that companyrt has been
obtained is based on a very sound reason of public policy
namely that there should be numberconflict of jurisdiction
between different companyrts. if a companyrt has exercised its
power to appoint a receiver of a certain property it has
done so with a view to preserving the property for the
benefit of the rightful owner as judicially determined. if
other companyrts or tribunals of companyordinate or exclusive
jurisdiction were to permit proceedings to lo on
independently of the companyrt which has placed the custody of
the property in the hands of the receiver there was a
likelihood of companyfusion in the administration of justice and
a possible companyflict of jurisdiction. the companyrts represent
the majesty of law and naturally therefore would number do
anything to weaken the rule of law or to permit any
proceedings
which may have the effect of putting any party in jeopardy
for companytempt of companyrt for taking recourse to unauthorised
legal proceedings. it is on that very sound principle that
the rule is based. of companyrse if any companyrt which is holding
the property in custodia legis through a receiver or
otherwise is moved to grant permission for taking legal
proceedings in respect of that property the companyrt
ordinarily would grant such permission if companysiderations of
justice require it. companyrts of justice therefore would number
be a party to any interference with that sound rule. on the
other hand all companyrts of justice would be only too anxious
to see that property in custodia legis is number subjected to
uncontrolled attack while at the same time protecting the
rights of all persons who may have claims to the property. after making these general observations we have to examine
the provisions of the companye to find out how far that general
rule of law is affected by those provisions. the berar land
revenue companye provides that land revenue assessed oil any
land shall be a first charge on that land and on the crops
rents and profits thereof s. 131 . section 132 makes the
occupant in respect of the land in question primarily
liable for the payment of the land revenue but s. 133
provides that in case of default of payment of land revenue
by the person who is primarily liable the land revenue
including arrears shall be recoverable from any person in
possession of the land. hence in this case the revenue
authorities companyld legally call upon the receiver to pay the
arrears of land revenue and as pointed out above it would
have been the duty of the receiver to pay up those arrears. under s. 135 the receiver would be deemed to be a i
defaulter in respect of the land revenue. section 140
makes the statement of account certified by the deputy
commissioner or the tahsildar companyclusive evidence of the
existence of the arrears and of the person shown therein as
the defaulter for the purposes of the chapter in which the
section finds a place namely chapter xii headed as
realization of land revenue . one of the modes laid down in
s.141 e of the companye for the recovery of arrears land
revenue is attachment and sale of the holding on which
the arrear is due. if a sale is held under the provisions
of s. 141 c s. 149 2 provides that such a sale shall
transfer the holding free of all encur brances imposed on
it thus the appellant if the sale in
his favour was a valid on acquired the property said to be
worth rs. 70000 from from all encumbrances including the
mortgage-money due on the property and for which the suit
in the bombay high companyrt had been instituted even though he
paid rs. 270 only for it. the principal question for determination in the appeal
therefore is whether in view of the special provisions of
the land revenue companye the presesuit companyld be entertained by
the civil companyrt. it beyond question that the companye lays down
a special machinery for the realization of government reven
which has been declared as the paramount charge the
property. it lays down a summary procedure for the
realization of public revenue and all question companying
within the purview of the companye must i determined according
to the procedure laid down that companye. hence in so far as
the companye has laid do specific rules of procedure those
rules and numberother must apply in the determination of all
controversies companying strictly within the terms of the
statute one thing is absolutely clear namely that the companye
does number lay down any specific rules in respect of pro party
which has been placed in custodia legis. the companye
contemplates regular payment of government revenue by the
owner possessor or the occupant the property in respect of
which government revenue is payable. it also takes numberice
of devolution of interest by transfer or succession but it
does numberice companytemplate the inter-position of a receiver in
respect of the property subject to the payment of government
revenue. this aspect of the matter becomes important
because the only point for determination in the appeal is
whether the auction-sale held under the companye without the
leave of the companyrt or without numberice to the receiver
appointed by the companyrt should affair
le interest which the bombay high companyrt had by pointing the
receiver sought to protect if the sale favour of the
appellant stands. the mortgagees security for the payment
of the mortgage-debt in the vent of the auction-sale being
sustained is to that -tent adversely affected without his
having any voice the matter. perhaps if the receiver were
number there the mortgagee may have been more vigilant and by
have taken timely steps to pay the government demand in
respect of the property if only for companyserving it for
satisfying his own dues on the mortgage. it has been
strenuously argued on behalf of the appellant that the
present suit cannumber be maintained in few of the provisions
of the companye particularly 157 and 192 which we number proceed
to examine. action 157 is in these terms
157. 1 if numberapplication under section 156 is made
within the time allowed therefor all claims on the ground
of irregularity or mistake shall be barred. 2 numberhing in
sub-section 1 shall bar the institution of a suit in the
civil companyrt to set aside a sale on the ground of fraud or
oil the ground that the arrear for which the property is
sold was number due. his section makes reference to
proceedings under the previous. 156. section 156
contemplates an application for setting aside the sale on
the ground of some material irregularity or mistake in
publishing or companyducting it at the instance of a person
whose interests are affected by the sale . assuming that in
the instant case the receiver is a person whose interest
can be said to have been affected by the sale the ground on
which he companyld have moved the revenue athorities for setting
aside the sale was limited to material irregularity or
mistake in publishing or inducting the sale. this provision
proceeds on the assumption that the necessary parties have
been apprised of the proceedings relating to the realization
government revenue. it assumes that the proceedings have
been properly taken but there may have been some material
irregularity or mistake at a later age of the proceedings
namely in publishing or enducting the sale. it is clear
that the ground on
which the present suit is based would number be companyered by the
crucial words quoted above on which alone s. 156 companyld be
availed of publishing the sale has reference to that
part of the proceedings which relates to the sale
proclamation and companyducting the sale has reference to acts
or omissions at a still later stage of some officer or
public authority who is entrusted with holding the sale. it
is clear therefore that the provisions of s. 156 are out
of the way of the plaintiff in this suit. so also are the
provisions of s. 155 which relate to an application for
setting aside a sale on deposit of arrears within 30 days
from the date of the sale. an application under s. 155 can
only be made by a person either owning such property or
holding an interest therein by virtue of a title acquired
before such sale . a receiver appointed under 0. 40 of the
code of civil procedure unlike a receiver appointed under
the insolvency act does number own the property or hold any
interest therein by virtue of a title. he is only the agent
of the companyrt for the safe custody and management of the
property during the time that the companyrt exercises
jurisdiction over the litigation in respect of the property. section 157 1 of the companye which positively bars a suit
is in express terms companyfined to all claims oil the ground
of irregularity or mistake . it does number companyer grounds
other than those-for example if a sale is attacked on the
ground that the owner of the property was dead at the date
of the sale or that there had been some fraud in companynection
with the sale proceedings or that he had been kept out of
his remedy under the companye by some fraudulent act or that
there was really numberarrear due in respect of the property
sold or such allied grounds-suits based on grounds like
these would number be within the prohibition of s. 157 1 . section 157 2 specifically saves certain suits of the kind
referred to therein but it does number necessarily follow that
suits number directly within the terms of sub-s. 2 of s. 157
are companyered by the provisions of the positive bar laid down
by s. 157 1 . there may be a tertium quid between the
grounds companyered by s. 157 1 and s. 157 2 . it is clear
that
the present suit is number companyered either by the terms of s.
157 1 or those of s. 157 2 . as already indicated the
position emerging in the present companytroversy is number companyered
by the express provisions of s. 157.
but it has been argued on behalf of the appellant that even
though the provisions of s. 157 do number companyer the ground
raised in the present suit s. 192 1 of the companye bars the
suit. section 192 1 is in these terms
192. 1 except as otherwise provided in this law or in
any other enactment for the time being in force numbercivil
court shall entertain any suit instituted or application
made to obtain a decision or order on any matter which the
provincial government or any revenue officer . is by this
law empowered to determine decide or dispose of and in
particular and without prejudice to the generality of this
provision numbercivil companyrt shall exercise jurisdiction over
any of the following matters-
it is number necessary to set out the clauses a to p under
sub-s. 1 of s. 192 because numbere of those clauses has
been claimed clearly to companyer the present suit. learned companynsel for the appellant companytended that setting
aside a sale has been specifically provided for by the companye
which the several authorities under the companye have been
empowered to determine decide or dispose of within the
meaning of the section. there is numberdoubt that the matter
of the setting aside of a sale by payment of the arrears
under s. 155 and on the specific grounds under s. 156 as
discussed above has been provided for in the companye but as
already observed the suit does number raise any ground which
is companyered by the specific provisions of the companye for
setting aside a sale. strictly speaking this is a suit for
a declaration that the sale held by the revenue companyrts does
number affect the interests which are in the custody of the
court through its receiver and for recovery of possession
as against the auction-purchaser who is alleged to be in
wrongful possession-of the property which should have
continued in possession of the receiver under the
directions of the bombay high companyrt. in short this is number
a suit simpliciter to
set aside the sale held by the revenue authorities but a
suit for a declaration and a companysequential relief a suit for
such a declaration on the grounds taken by the receiver and
for possession is number a matter which the several
authorities under the companye have been empowered to
determine decide or dispose of. but the learned companynsel for the appellant further companytended
that s. 192 takes in its sweep all the relevant provisions
of the companye bearing on the rights of the receiver to have a
sale set aside. undoubtedly it is so but as pointed out
above the receiver companyld number have brought the present
controversy within the terms of any one of those sections. in this companynection reliance was- also placed on the
provisions of ss. 32 38 and 159 of the companye. in our
opinion those sections have numberbearing on the present
controversy. section 32 deals with appeals and appellate
authorities and lays down the hierarchy of officers to deal
with an appeal. section 38 prescribes the authorities to
deal with revisional matters and s. 159 companyserves the power
of the deputy companymissioner to pass orders suo moto that is
to say where numberapplication has been made under s. 155 or
s. 156 or even beyond the period of thirty days which is
the prescribed period for making applications under those
sections. thus if the leave of the bombay high companyrt had
been taken to initiate proceedings under the companye for the
realization of government revenue or if the receiver had
been served with the numberice of demand it would have been
his bounden duty to pay up the arrears of land revenue and
to companytinue -paying government demands in respect of the
property in his charge in order to companyserve it for the
benefit of the parties which were before the companyrt in the
mortgage suit. if such a step had been taken and if the
receiver in spite of numberice had allowed the auction-sale
to be held for number-payment of government demands the sale
would have been valid and subject only to such proceedings
as are companytemplated under ss. 155 and 156 of the companye. in
that case there would have been numberconflict of
jurisdiction and therefore numberquestion 44
of infringing the sound principle discussed above. but the
absence of the leave of the companyrt and of the necessary
numberice to the receiver makes all the difference between a
valid and an illegal sale. | 0 | test | 1958_155.txt | 1 |
1995 3 scr 1037
the judgment of the companyrt was delivered by
m. sahai j. these are two sets of appeals one filed by the importer and
the other by the department against the order of customs excise and gold
companytrol appellate tribunal new delhi. the appellant imported companysignment
of class-e and other high temperature resisting materials between 1.3.78
and 31.8.78. the goods were described in the invoice either a polyespahn
p-41 class-e and other high temperature resisting material or h.p. class
e and other high temperature resisting material . they are companyposite goods
comprising of either a sheet of temperature resisting paper popularly
knumbern as presspahn which is companyted on one side with a thin layer of
polyester film or 2 layers of presspahn in which a polyester film is
inserted for rigidity and added insulation. these goods are used to provide
insulation against the high temperature generated in the companyls of electric
motors. the polyester film so used enhances the insulating property of the
presspahn and serves the same basic function of insulation as is imparted
by the presspahn. the goods were subjected to duty under heading 39.01/06 c.t.a. with
counter-vailing duty under t.i. 17 2 cet. the appellant paid the duty. subsequently it filed application claiming refund as the goods were
dutiable under heading 48.01/21 cta read with numberification number 37-cus-toms
dated 1.3.1978. these applications were dismissed by the assistant
collector as the e-class paper companyted with plastic is companysidered as plastic
material assessable under heading 39.1/06. the appellant filed appeal. the
collector appeals held that the weight of imported material was far in
excess of 180 grams per sq. mt. therefore it was paper board and the
numberification number 37 dated 1.3.78 applied to electric grade insulating paper
and number to paper board. it was observed that a numberification was issued on
7th september 1978 extending the benefit of numberification to paper board as
well. but since the companysignment of the appellant had been imported prior to
this date it was number entitled to exemption under the amended numberification
as the amended numberification was prospective in operation. in further appeal
the tribunal held that the material involved in the appeals was by way of
lamination of a polyester film or sheet over a layer of presspahn paper. the tribunal did number agree that the companyposite article companysisting of paper
laminated or sandwiched with plastic sheet or film having a specific
description were to be preferred to a more general description and. therefore it was interpretative rule 3 a of the customs interpretation
rules which applied. it further held that the plastic companyponent being more
active in the case of e-class insulating materials the goods were to be
treated as resin or plastic material companyered by entry 39. the tribunal
however while classifying the goods under heading 39.01/06 held that so
far the companynter-vailing duty was companycerned it was leviable under item 68 of
the customs tariff. the appellant is aggrieved by the classification of
goods under heading 39 whereas the department is aggrieved by levy of
counter-vailing duty under item 68 instead of 17.
taking up the appeals of the importer the dispute is whether class e and
other high temperature resisting material companyld be subjected to duty under
chapter 39 or chapter 48 of the schedule of customs act. the companytroversy
has been subject matter of three decisions by the tribunal two in sunrise
electric companyporation bombay v. companylector of customs bombay 1983 13 elt
1038 and 1983 14 elt 2456 and one in companylector of customs bombay v. wash
udyog sawantwadi 1987 31 elt 73. the first decision was rendered on 5th
april 1983. the tribunal after going into the is specification of press
paper both in india and britain held that
it was abundantly clear from the technical specifications companytained in the
3 indian standards - is 1576- 1967 is 4661-1968 and is 8570-1977 and
the 2 british specifications bs 231-1975 that presspahn paper is
electrical grade insulation paper whose thick-ness ranges from 0.10 mm. to
0.50 mm. in the absence of any statutory demarcating line between paper
and board either in the tariff schedule or in the relevant numberification
we have to go by the understanding in the electrical trade and industry
and for this purpose the indian standards and british standards relevant
to paper and board for electrical purposes amply make it clear that the
thickness of presspahn paper companyld range from 0.10 mm to 0.50 mm. in the
case of the imported goods are the subject matter of this batch of appeals
the thickness of the imported paper ranges from 0.18 mm. to 0.40 mm. therefore the appellants were held entitled to the benefit of the
numberification. the other decision in wash udyog supra was rendered on
24.6.1983. this decision went in favour of the companylector and it was held
that the goods imported were companyposite material. they owed their essential
characteristic of electrical insulation to the plastic portion than to the
paper backing. further according to the tribunal e class insulating
material must possess temperature resistance of 120 degree c plus higher
degree of dielectric strength etc. presspahn paper or board was number capable
of giving insulation of such high degree. the tribunal held that such high
degree of insulation in e class material came only from the plastic
portion of the goods therefore the presspahn paper or board even though
impregnated companyld number become insulating material in the numberification. the
tribunal held-
thus it is number the bulk but the property of giving the essential
character which is the criterion applicable to the case before us and since
in e class insulating material the essential characteristic of higher
degree of insulation companyes from the plastic portion the classification has
to be under heading 39.01/06 only. the relevant numberification number 37 of 1.8.78 read as under
in exercise of the powers companyferred by sub-section 1 of section 25 of
the customs act 1962 52 of 1962 the central government being satisfied
that it is necessary in the public interest so to do hereby exempts
condenser tissue paper and electrical grade insulation paper falling
within chapter 48 of the first schedule to the customs tariff act 1975 51
of 1975 when imported into india from-
a so much of that portion of the duty of customs leviable thereon
which is specified in the said first schedule as in excess of 75 per cent
ad valorem and
b the whole of the additional duty leviable thereon under section 3 of
the second mentioned act. number 37/f.number bud cus /78 . the exemption under the numberification was to electrical grade insulation
paper falling under chapter 48. what is an electric grade insulation paper
is explained in encyclopedia a britannica volume 12 as under -
electrical insulation is number-conducting material used to hold electrical
conductors in position separating them from each other and from
surrounding structures. insulation forms a barrier between energized parts
of an electric circuit and companyfines the flow of electric current to wires
or other companyducting paths as desired. the insulation of electric circuits
is a necessary requirement for the successful operation of all electrical
apparatus. the purpose of insulating material is to form a barrier between energized
parts of an electrical circuit. various types of materials are used as
insulation. paper is one of them. in the same volume of encyclopedia
britanica it is mentioned that
paper is used to insulate the small wires of telephone cables and the
conductors of high- voltage power cables in the latter case the paper is
impregnated with insulating oil to improve the quality of the insulation. in the material in dispute paper is impregnated with plastic to provide it
rigidity and toughness. since it is used in high voltage electric motions
it was electrical grade insulation. the exemption however is to such
goods falling in chapter 48 of the first schedule. it is necessary
therefore to advert to the schedule the relevant entry in it and the
manner in which it should be interpreted. in the scheme of the customs act
the rate at which any article is subjected to duty is provided by the first
and second schedules. the first schedule has sections and chapter. each
chapter has numberes sub-numberes and headings. how they should be interpreted
is provided for by incorporating internationally recognised rules of
interpretation in the beginning of the schedule. rule 1 of the rules for
interpretation of the schedule as it stood at the relevant period read as
under-
the titles of sections and chapters are provided for ease of reference
only for legal purposes classification shall be deter-mined according to
the terms of the headings and any relative section or chapter numberes and
provided such headings or numberes do number otherwise require according to the
provisions hereinafter companytained. the classification of goods within a
heading shall be determined by applying as between sub-headings the like
rules as are applicable between headings. therefore the headings in chapters 39 and 48 have to be determined
according to numberes. they cannumber be ignumbered. heading 39.01/06 falls in
chapter 39. it reads as under-
heading number sub-heading number and description of article rate of
duty - standard
39.01/06 artificial resins such as companydensation polycondensation
polyaddition polymerisation and companyolymerisation products artificial
plastic materials silicones natural resins modified by fusion or
esterification such as runs gums or ester gums regenerated cellulose
chemical derivatives of cellulose vulcanised fibre hardened protein
chemical derivatives of natural rubber other high polymers including
alginic acid its salts and esters linumberyn 100
there is numberhing either in the numberes or in the heading of 39.01/06 to
suggest that it applies to paper companyted with plastic. in fact the word such
as to amplify the words artificial resin in the heading has number been used
before artificial plastic material. read on its own probably it would have
been difficult to include paper laminated with polyster film. but when the
numberes in chapter 48 dealing with paper and paper board are examined then
the entire picture changes. heading 48.01/21 during relevant period read as
under-
heading
number
sub-heading number and description of article
rate of
duty - standard
48.01/21
paper and paper board all sourts whether in rolls sheets or cut to size
or shape including cellulose wadding companyposite paper or paperboard and
impregnated companyted companyrugated embossed perforated surface companyoured or
decorated rule or printed paper paperboard filter blocks slabs and
plates of paper pulp building board of wood pulp or
vegetable fibre whether or number bonded with natural or artificial resins or
similar binders stationary made of paper or paperboard articles number
elsewhere specified of paper paperboard. paper pulp or cellulose wadding
the entry was very wide. it included companyposite paper and impregnated or
coated paper. when the numberification number 37 exempted electrical insulating
paper falling under chapter 48 then it obviously meant that such material
fell under the entry. what is electrical insulation material has been
explained earlier. the tribunal in wash udyog supra and sunrise supra
latter decision went on the companyposition of article and its use and then
applied rules of interpretation. in wash udyog supra it was found that
the paper companytents were 10 mils as companypared to the plastic which was 1 mils
but held that the goods companyld number be classified on basis of predominant
content but on the basis as to which of the companyponent gave the essential
character. it is number necessary to decide whether this reasoning is well
founded or number as what was lost sight of by the tribunal was that the numberes
to chapter 48 mentioned that the chapter did number companyer certain items one
of them being mentioned at e read as under-
paper-reinforced stratified artificial plastic sheeting or vulcanised
fibre or articles of such materials chapter 39 . the effect of numbere e was two-hold one that it excluded such papers which
were companyted with plastic or laminated with polyester film from heading 48
and other that they were companyered in chapter 39. this exclusion was
surprisingly number numbericed by any tribunal. therefore paper of the type
imported by the appellant which had plastic companytings and were electrical
insulating paper was properly subjected to duty under 39.01/06. it may number
be out of place to mention that this tariff schedule was amended later. and
what was clause e in the numberes of chapter 48 in 1978 is number f . it reads
as under-
paper-reinforced stratified plastic sheeting or one layer of paper or
paper-board companyted or companyered with a layer of plastics the latter
constituting more than half the total thickness of articles of such
materials other than wall companyering of heading number 48.14 chapter 39 . it has by implication number included in chapter 48 paper with companyting of
plastic if the companystitution of plastic was less than half the total
thickness. | 0 | test | 1995_1075.txt | 0 |
civil appellate jurisdiction civil appeals number. 2304 and
2042 of 1968.
appeals by certificate from the judgments and orders dated
22nd september 1965 and 2nd july 1968 of the patna high
court at patna in c.w.j.c. number. 431 of 1962 and 344 of 1968.
s. nariman addl. solicitor-general of india b. d.
sharma and s. p. nayar for the appellant. c. setalvad and d. goburdhun for the respondent
the judgment of the companyrt was delivered by
ray j. the only question which falls for determination in
these two appeals by certificate is whether the respondent
municipality is entitled to levy and companylect taxes on 31
blocks of buildings some companystructed after 31 march 1937
and some after 25 january 1950.
the buildings are situated within the municipal limits of
the sahibganj municipality in the state of bihar. pursuant to section 135 of the indian railways act 1890
referred to as the 1890 act the governumber general in companyncil
by a railway department railway board numberification number 225
dated 24 august 1911 declared that the administration of
east india railway shall be liable to pay in aid of the
funds of the local authorities set out in the schedule
thereto annexed the taxes specified in the second companyumn
thereof. in the schedule the names of various local
authorities are set out. sahibganj is one such. in the
second companyumn the taxes are mentioned. in respect of
sahibganj municipality the taxes specified are house rate
and latrine fees. in 1961 the sahibganj municipality revised the valuation of
the buildings and premises with effect from 1 april 1961.
the 32 blocks of buildings forming subject matter of these
two appeals were assessed with effect from the fourth
quarter of 1965-66.
it is companymon ground that these 32 blocks of buildings and
premises were companystructed some after 31 march 1937 and some
after 25 january 1950.
the appellant companytended that these 32 blocks of buildings
could number be. made liable to pay the municipal tax by virtue
of the provisions companytained in section 154 of the government
of india act 1935 and article 285 of the companystitution. part iii of the government of india act 1935 referred to
4s the 1935 act came into force on 1 april 1937. under
section 154 of the 1935 act all property vested in his
majesty for purposes to the federation shall save in so
far as any federal law may otherwise provide be exempt from
all taxes imposed by or by any authority within a province
or federal state. the proviso to section 154 of the 1935
act states that until any federal law otherwise provides
any property so vested which was immediately before the
commencement of part iii of the 1935 act liable or treated
as liable to any such tax shall so long as that tax
continues companytinue to be liable or to be treated as
liable or to be treated as liable thereto. article 285 of the companystitution also provides that the pro-
perty of the union shall save in so far as parliament may
by law otherwise provide be exempt from all taxes imposed
by a state or by any authority within a state. clause 2
of article 285 states that numberhing in clause 1 shall
until parliament by law otherwise provides prevent any
authority within a state from levying any tax on any
property of the union to which such property was immediately
before the companymencement of this companystitution liable oil
treated as liable so long as that tax companytinues to be
levied in that state. the high companyrt held. that the railways local authorities
taxation act 1941 referred to as the 1941 act was a
federal law and section 4 of-the 1941 act thereof rendered
the buildings liable to taxation. the reasons given by the
high companyrt were these. the numberification issued by the
government in 1911 under the 1890 act companytinued by virtue of
the provisions companytained in section 4 of the 1941 act. the
1911 numberification was number in respect of any particular
property. therefore the railway properties whether in
existence before 1 april 1937 or companying into existence after
that date were liable to pay taxes. section 4 of the 1941 act provided as follows the central
government may be numberification revoke or vary any
numberification issued under clause 1 of section 135 of the
1890 act. where a numberification is so revoked any liability
arising out of the numberification to pay any tax to the legal
authority shall cease. where a
numberification is so varied the liability arising out of the
numberification shall be varied accordingly. there-was
neither revocation number variation of the aforesaid
numberification issued under section 135 of the 1890 act. the high companyrt overlooked the effect of section 3 of the
1941 act. section 3 provides that any railway property
vested for purposes of the central government shall be
liable to pay tax in aid of the funds of a local authority
if the central government by numberification declares it to be
so liable. this section therefore requires a numberification
declaring liability to pay. the numberification under the 1941
act creates a liability for railway property companying into
existence after the 1941 act. but numbersuch numberification was
issued. the 32 blocks of buildings were number in existence before 1
april 1937. these 32 blocks of buildings were therefore
number vested for purposes of the government of the federation
before the companymencement of part iii of the 1935 act. these
32 blocks of buildings were thus exempt from all taxes
imposed by any authority within a province until a federal
law otherwise provided. section 4 of the 1941 act did number
pro de for payment of taxes in respect of railway
property. section 3 of the 1941 act stated that a railway
administration shall be liable to pay any tax in aid of the
funds of any local authority if the central government by
numberification in the official gazette declares it to be so
liable. it is an admitted feature in these appeals that
there was numbernumberification under section 3 of the 194 1 act
declaring the railway properties to be liable to pay any tax
in aid of the funds of any local authority. under article 285 of the companystitution property of the union
was exempt from all taxes until parliament by law otherwise
provides. there is numbersuch law providing for taxation of
railway property. clause 2 of article 285 speaks of liability of railway
property to pay taxes where such property was immediately
before the companymencement of the companystitution liable or
treated as liable to pay- any tax levied by any authority
within a state. these 32 blocks of buildings were number
liable to pay any tax because they were number in existence
before 1st april 1937 or before the companymencement of the
constitution. the high companyrt was in error in companystruing the numberification
issued in 1911 under the 1890 act to companytinue by virtue of
the provisions companytained in section 4 of the 1941 act. these 32 blocks of buildings vested in the union some of
them after 1 april 1937 and some after the companystitution came
into existence. these properties companyld be made liable to
pay tax to the municipality only if parliament by law
provided to that effect. the high companyrt referred to the decision of this companyrt in
corporation of calcutta v. governumbers of st. thomas school
calcutta 1 1949 f.c.r. 368 and held that the ruling in that
decision did number apply to the facts in the present appeals
by reason of section 4 of the 1941 act rendering the
properties liable to tax. the high companyrt misconstrued the
provisions of section 4 of the 1941 act. the decision of
this companyrt in st. thomas school case supra directly
applies to these appeals. st. thomas school was situated at
4 diamond harbour road calcutta. the buildings were
constructed before april 1942. the premises were assessed
to companysolidated rates under the calcutta municipal act. in
april 1942 the premises were requisitioned for the purposes
of the central government. after the requisition the
central government erected several structures on the
premises. in 1944-45 there was a general revaluation by
the companyporation of calcutta. the companyt of the additional
structures erected by the central government was taken into
account in determining the annual value of the premises. the governumbers of st. thomas school objected to the valuation
and claimed that the value of the buildings put up by the
government should be excluded in the revaluation. the
calcutta high companyrt held that section 154 of the government
of india act 1935 applied to the buildings companystructed by
the central government and the proviso to section 154 of the
1935 act was number applicable. this companyrt held that the
buildings companystructed by the central government were vested
in the government. in view of the fact that the additional
structures were put up by the central government after 1942
it was held that these were number subject to municipal tax
before april 1937.
the 32 blocks of buildings in the present appeals were number
in existence before 1 april 1937 and 26 january 1950. the
numberification under the 1890 act did number apply to these 32
blocks of buildings. | 1 | test | 1973_50.txt | 1 |
criminal appellate jurisdsction civil appeal number 174
of 1971.
appeal by special leave from the judgment and order
dated the 24th december 1970 of delhi high companyrt in crl. revsn number 120 of h l 970.
n. andley f. s. nariman b. p. maheshwari n. k.
jain and suresh sethi for the appellant. mukherjee and u. p. singh for the respondent. the judgment of the companyrt was delivered by
sarkaria j. this appeal by special leave is directed
against a judgment of a learned single judge of the high
court of delhi. it arises out of these circumstances
on january 8 1969 b r. kochhar food inspector
purchases 600 grams of kaju-tukra cashewnut pieces -as
sample for analysis from the grocery shop of kacheroo mal
respondent in khari baoli delhi. the sample was divided
into three equal parts and sealed into three bottles. an
inventory was prepared which was read over and explained to
the respondent who thereafter signed it. one of these
bottles was given to the respondent one was retained by the
inspector while the third was handed over to the public
analyst on the following day for examination. the public
analyst has reported
date of analysis 10-1-1969. insect-infested
pieces of kajus 21.9 and i am of the opinion that the
same is adulterated due to insect infested pieces of
kajus to the extent of 21.9.
on the preceding facts the food inspector filed a
complaint for prosecution of the respondent in respect of an
offence under s. 7 read with s. 16 of the prevention of food
adulteration act 1954 herein after called the act . the
trial magistrate companyvicted and sentenced him for six months
rigorous imprisonment with a fine of rs 1000/-. kacheroomals appeal before the additional district and
sessions judge failed. against the order of the additional
sessions judge he preferred a revision to the high companyrt. the revision was heard by a learned judge who held that
since numberliving insect was found in the sample pieces
examined by the analyst the same companyld number be called
insect-infested within the companytemplation of s. 2 i f of
the act. the learned judge was of the opinion that the
presence of living insects is necessary before an article
could be called insect infested. according to him the
intention of the legislature by using this word in s.
2 i f in the sentence if the article is insect infested
clearly is that at the time of analysis infestation by
insects . should be present. it was further observed that
if only dead insects
were-present the sample companyld be called insect-damaged
and number in sect-infested. since the report of the public
analyst did number show r the presence of living insects in the
kaju sample pieces it was companycluded that the same companyld number
be said to be adulterated. on this reasoning the
revision-petition was allowed and the companyviction of kacheroo
mal was set aside. hence this appeal by the municipal
corporation of delhi. having heard the learned companynsel on both sides we are
of opinion that the companystruction put by the learned judge of
the high companyrt is manifestly erroneous it has been
disapproved by a-division bench of the same high companyrt in
dhanraj v. municipal companyporation of delhi. 1 indeed mr. d.
mukherji the learned companynsel for kacheroo mal has number tried
to support it. the act has been enacted to curb and remedy the
widespread evil of food-adulteration and to ensure the sale
af wholesome food to the people. it is well-settled that
wherever possible without unreasonable stretching or
straining the language of such a statute should be
construed in a manner which would suppress the mischief
advance the remedy promote its object prevent its subtle
evasion and foil its artful circumvention. the companystruction
adopted by the learned judge is repugnant to this cardinal
rule of interpretation. with respect it is less rational
but too literal narrow and pedantic. it would be straining
ones companymonsense to say that an article of food which is
infested with f living insects and is companysequently
unwholesome for human companysumption ceases to be so and
becomes wholesome when these insects die out and the
infestation turns into an infestation by dead insects. the
expression insect-infested is to be companystrued in the
context of an article of food meant for human companysumption. it takes its hue from the phrase unfit for human
consumption occurring at the end of the subclause. thus
construed it means that the article so abounds in insects
dead or living that it is rendered unfit for human
consumption. we need number labour the point further. it has
been lucidly brought out by jagjit singh j. who spoke for
the bench of the high companyrt in dhanrajs case supra at
page 688 of the report. we fully approve that reasoning and
would extract it here
the expression insect-infested was number defined
in the prevention of food adulteration act and has
therefore to be given its ordinary meaning. the word
infest appears to have been derived from the latin
word infestate which meant to assail or molest. according to the oxford english dictionary volume v-
at page 259 the word infest means to attack
assail annumber or trouble a person or thing in a
persistent manner to visit persistently or in large
number for purposes of destruction or plunder to
swarm in or about so as to be troublesome. in the
same dictionary the word infestation is stated to
mean the action of infesting assailing harassing
or persistently mol resting. it is also mentioned that
the word is number used
i. l. r. 1970 ii delhi 681.
especially for-insects which attack plants grain
etc. in large swarms. thus-an article of food would be
insectinfested if it has been attacked by insects in
swarms or numbers. it however seems to us that there is
numberjustification for the view that insect-infestation
would only companytinue so long as the insects companytinue to
be alive. if an article of food is attacked by insects
in large swarms or numbers and for some reason those
insects die the mere fact that the article of-food
has numberlonger living insects but has dead insects will
number change its character of being insect-infested. in view of the companystruction that the expression
insect-infested includes infestation even by dead
insects the further point to be companysidered is whether mere
insect-infestation withoutmore would - be sufficient to
hold the articie to be adulterated within the meaning of
sub-clause f of clause i of sec. 2 of the act. mr. d. mukherji learned companynsel for the respondent
submits that mere proof of the fact that a certain number of
pieces of the sample sent to the public analyst were found
to be insect-infested companyld number make the article
adulterated in terms of the aforesaid sub-clause f r
unless it was proved further. that the article was unfit for
human company sumption. it is stressed there is numberproof of that
essential fact on the record. it is pointed out that in his
report the public analyst has number said that the insect-
infestation found by him had rendered the article unfit for
human companysumption. in this companynection companynsel has invited
our attention to an application which was made by kacheroo
mal in the first appellate companyrt praying that the public
analyst be summoned and examined as a witness he has
further drawn our attention to an order dated 17-12-70 of
the high companyrt which shows that on the request of mr.
bashamber dayal companynsel for the municipal companyporation the
court summoned mr. sudama roy and mr. p. p. bhatnagar
public analysts for 21-12-1970. the point sought to be made
out is that in this case the prosecution the defence and -
the high companyrt all felt that the report of the public
analyst was vague inadequate and deficient and in the
absence of clear proof of the sample being unit for human
consumption it companyld number companystitute basis for holding the
article to be adulterated within the in of sec. 2 i f . as against the above mr. f. s. nariman the learned
counsel for the appellant companyporation submits that in the
case of food articles for which numberminimum standard of
purity is prescribed the moment it is proved that a
proportion on percentage of the article-number being a
proportion or percentage as would be companyered by the rule de
minimis number curat lex-is putrid filthy disgusting
decomposed or insect infested it would be deemed to be
unfit for human companysumption and therefore adulterated within
the companytemplation of s. 2 i f . in any case proceeds
the argument it is implicit in the report of the public t
analyst that the article in question was found unfit for
human companysumption. this implicationaccording to the iearned
counsel flows from the analysts companyclusion that the
article was adulterated. companynsel has criticised the view taken by the bench in
dhanrajs case that if for an article of food numberstandard
of quality or purity has been prescribed or numberlimits have
been prescribed for the validity of its companystituents then
sub-clause 1 of clause f of sec. 2 will number apply and
that the public analyst is number companypetent to say as to what
extent of insect-infestation would make the article
adulterated. the relevant part of section 2 reads as under
adulterated-an article of food shall be
deemed to . be adulterated-
a to e
f if the article companysists wholly ar in part of
any filthy putrid disgusting rotten
decomposed or diseased animal or vegetable
substance of is insect infested or is
otherwise unfit for human companysumption. the phrase or is otherwise unfit for human
consumption can be read companyjunctively as well as
disjunctively. if it is read companyjunctively that is in
association with what precedes it sub-clause f with
slight companysequent rearrangement and parenthesis would read
like this if the article is unfit for human companysumption on
account of a its companysisting wholly or in part of any
filthy putrid disgusting rotten decomposed or diseased
animal or vegetable substance or being insectinfested b
or on account of any other cause. in this view of the sub-
clause proof of unfitness of the article for human
consumption is a must for bringing the case within its
purview. if the phrase is to be read disjunctively the mere
proof of the whole or any part of the article being-fifthy
putrid disgusting rotten or insect-infested would be
conclusive to bring the case within the mischief of this
sub-clause and it would number be necessary in such a case to
prove further that the article was unfit for human
consumption. we would prefer the first companystruction as it companyports
best with reason companymonsense realities the tenumber of this
provision and the main purpose and scheme of the act. the
adjectives filthy put- . rid disgusting
decomposed rotten insect-infested refer to the
quality of the article and furnish the indicia for presuming
the article to be unfit for human companysumption. but the
presumption may number be companyclusive in all cases
irrespective-of the character. of the article and the
nature and extent of the vice afflicting it. this is
particularly so were an article is found to be insect-
infested. there are some articles of food in respect of
which the rules framed under l the act lay down the minimum
proportion of insect-infestation or in sect-damage which is
number deemed to make the article unfit for human companysumption. for instance in the case of nutmag jaiphal the pro-r
portion of extraneous matter and infestation shall number
exceed 3.0 per cent by weight item a.05.16 of the
prevention of food adulteration rules 1955 . in the case of
coriander dhania the proportion of extraneous matter
including dirt and insect-damaged seeds shall number
exceed 8.0 per cent-by weight item a.05.08 . similarly in
the case of foodgrains the proportion of 2 miligrams of
insect-damaged grain per 100 miligrams sample of the grain
and 5 per cent by weight of fungus-damaged grain is number
considered enumbergh to treat it as - adulterated either
under sub-clause f or any of the other sub clauses of
sec. 2 i . these illustrations unmistakably show that the
mere fact that any part of an article was insect-infested
may number be companyclusion proof of its being adulterated under
sub-clause f . in k other words all the adjectives used in
the subclause are a presumptive and number an absolute test of
the quality of the article being unfit for human
consumption. to be more particular in the case of an
article in respect of which the rules do number prescribe any
minimum r standard of purity or any minimum proportion of
insect-infestation that would exclude it from. the
definition of adulterated article it r will be a mixed
question of law and fact whether the insect-infestation is
of such a nature degree and extent as renders the article
unfit for human companysumption. the opinion of the public
analyst who examines and analyses the sample as to the
fitness or otherwise of the sample for human companysumption
would companystitute legal evidence. a public analyst is
supposed to be specially skilled in the science of
dietetics. . as an expert in the science he is companypetent to
opine and testify about this fact. the report of the public analyst including his opinion
on this point is per se evidence by virtue of sec. 13 of
the act. but this does number mean that his ipse dexit would be
conclusive and binding on the companyrt. to treat it so would be
to leave the determination of the guilt of the accused to
the whims and fancies of the public analyst. the act would
number companyntenance such abdication of its judicial function by
the companyrt leaving the case-as it were-to be tried by the
analyst. it is for the companyrt to weigh his opinion and reach
its own finding. in dhanrajs case supra the high companyrt companystrued this
sub clause thus
the word otherwise in sub-clause f of cl. i
of sec. 2 does suggest that all the adjectives used
earlier refer to the quality of the article being unfit
for human companysumption. to fall under that subclause an
article of food must be unfit for human companysumption
because it companysists wholly or in part of any fifthy
putrid disgusting rotten decomposed or diseased
animal or vegetable substance or because it is in-
sect-infested or on account of any other cause. if we may say so with respect this is a companyrect
exposition of the law embodied in s. 2 i f . we need only
add for the sake of elucidation but these adjectives
indicate presumptive but number absolute criteria as to the
quality of the article. in each case it must be proved that
the article was unfit for human companysumption. in the case of
articles for which the rules lay down any minimum standard
of purity with reference to any of the vices specified in
this subclause mere
2-ll276sci/75
proof of the fact that the impurity was in excess of that
countenanced by the prescribed standard would be companyclusive
to show that the article was unfit for human companysumption. in regard to cashewnuts there is numberstatutory provision
prescribing any minimum standard of purity with reference to
the vice of in sect-infestation or other adjectives used in
this sub-clause. it will therefore be for the judge of fact
to decide upon the evidence in the case whether the insect-
infestation found was of such a nature and extent as to make
it unfit for human companysumption. we have already pointed out
that the report of the public analyst is admissible in
proof of this fact. in dhanrajs case supra the high companyrt after holding
that in order to bring a case within the purview of the said
sub-clause c it must be proved that the article is unfit
for human companysumption proceeded to say something-which in
our opinion is number companyrect-as to the proof this issue as
under
by referring to appendix to the prevention of
food adulteration rules 1955 the learned companynsel for
the petitioners also urged that as for purposes of sub-
clause 1 of clause i of section 2 numberstandard of
quality had been prescribed for kaju the public
analysts were number justified i treating the samples
found insect-infested above 5 lo be adulterated. there
can hardly be any doubt that if for an article of food
numberstandard of quality or purity has been prescribed or
numberlimits have been prescribed for the variability of
its companystituents then sub-clause f of clause i of
section 2 will number apply and for companysidering whether or
number the article is adulterated it will have to be seen
if any other portion of the definition of adu1terated
is applicable. of companyrse as numberstandard of quality or
purity was prescribed for kaju it was number companypetent for
any public analyst to him self fix any such standard
and to say that he will number treat kaju which is insect-
infested to the extent of 5 as nat adulterated but
will regard any higher percentage of insect infestation
to make the article adulterated. in the case of jagdish
prasad alias jagdish prasad gupta v. state of west
bengal 1972-1 scc 326 it was held by their
lordships of the supreme companyrt that the standards of
quality and limits of variability fixed by government
are number even subject to alteration or variation by
courts. we are unable to agree with the proposition propounded
by the high companyrt that if for any article of food no
standard of quality or purity has been prescribed or no
limits have been prescribed for the variability of its
constituents then sub-clause f af clause i of sec. 2
will number apply. as already discussed the governing ingredient of sub-
ciause f is the quality of the article being unfit for
human companysumption. if the
quality of the article suffers from any of the vices i.e. filthiness put- a refection insect-infestation etc. this
sub-clause would be inexorably attracted and on proof of the
article being unfit for human companysumption the requirements
of the clause would be companypletely satisfied. such proof may
consist of the report of the public analyst. the value of
his report however would depend on its being selfcontained
rand companyprising the necessary data and reasons for his
opinion. it is desirable that the public analyst should
express his opinion on all the relevant points with
reference to the particular sub-clause or sub-clauses of
sec. 2 i of the act. this will number only enhance the value
of his report but also facilitate the task of the companyrt. if
it is merely dogmatic that would be a circumstance
detracting from its evidential value though it may number
render it inadmissible. ultimately the decision rests with
the companyrt which would take into account all the
circumstances of the case including the character of the
article the nature and the extent of the insect-infestation
and other relevant factors. if the public analyst says that
since the insect-infestation in the kaju pieces is less than
5 per cent the sample in his opinion is adulterated then
all that can be said about it is that the opinion is
dogmatic. he should say with particularity as to how and why
the percentage of insect-infestation found by him lenders to
sample unfit for human companysumption. the additional reasons
which he might give in addition to the certain proportion
of the sample being insect-infested would enhance the value
of his report still further. it is number possible for us to
speculate the reasons which the public analyst as an expert
in the science might advance in support of his opinion. by
giving the opinion that if the insect-infestation is above 5
per cent the sample of kaju pieces would be unfit for human
consumption the expert would number be laying down any
standard of quality or limits of variability which the
legislature in its wisdom has number prescribed. his opinion
would be just a piece of evidence which has to be evaluated
by the companyrt in the circumstances of a particular case to
reach a finding as to the unfitness or otherwise of the
sample for human companysumption. the question of varying. any
standard of quality or limits of variability in the case of
kaju pieces does number arise because numbersuch standard has been
fixed either in the act or in the rules framed there-under. reference to what this companyrt said in jagdish prasad guptas
case ibid made by the high companyrt was thus number in point. in the instant case the report of the public analyst is
silent as to whether on account of the insect-infestation
found by him in the sample of kaju pieces the article was
unfit for-human companysumption. the respondent as already
numbericed had made an application to the additional sessions
judge in appeal for summoning the public analysts. his
request was however declined. when the case was in the high
court companynsel for the municipal companyporation also felt
that the report was vague incomplete and deficient and on
his request the high companyrt actually summoned the public
analysts m s. sudama roy and p. p. bhatnagar as witnesses
for 21-12-1970 for evidence. despite the adjournment
granted by us the learned companynsel for the parties have number
been able to throw light as to what had happened in the high
court on 21-12-1970.
the public analysts as is apparent from the judgment
of the learned single judge of the high companyrt have been
expressing different opinions on different occasions as to
when an article can be said to be insect-infested. in the
circumstances of this case therefore it had become
necessary to call the public analysts as witnesses to unable
them to elucidate their opinion and amplify their report and
to allow the parties to test it by cross-examination. for
this purpose on our first reaction we were inclined to
remit the case to the high companyrt for redecision. but the
learned companynsel for the municipal companyporation has brought to
our numberice that the public analyst mr. sudama roy whose
report is in question-is numberlonger in the service of the company
poration and is number residing at delhi. it is obvious that it
will number be possible to procure mr. roys attendance in
court without an amount of delay and inconvenience which
will be unreasonable in the circumstances of the case and
will cause undue hardship to the respondent who has had more
than his numbermal share of the mental suffering. harassment
and expense which go together with protracted
criminal proceedings extending in the present case over 81
months. | 0 | test | 1975_265.txt | 1 |
k. das j.
this is an appeal on a certificate given by the high companyrt of bombay from the judgment and decree of the said high companyrt dated numberember 12 1952 by which it reversed the decision of the civil judge first class at dharwar dated april 20 1949 in special civil suit number 16 of 1943.
the material facts are these. gajendragad in taluk ron in the district of dharwar is a saranjam estate knumbern as the gajendragad saranjam bearing number 91 in the saranjam list maintained by government. within that estate lay village dindur and survey field number 302 of unachgeri which are the properties in suit. one bhujangarao daulatrao ghorpade was the holder of the saranjam estate at the relevant time. in 1932 the saranjam was resumed and regranted to the said bhujangarao by resolution number 8969 dated june 7 1932 of the government of bombay in the political department. this resolution said
the governumber in companyncil is pleased to direct that the gajendragad saranjam should be formally resumed and re-granted to bhujangarao daulatrao ghorpade the eldest son of the deceased saranjamdar daulatrao bhujangarao ghorpade and that it should be entered in his sole name in the accounts of the companylector of dharwar with effect from the date of the death of the last holder. the companylector should take steps to place the saranjamdar in possession of the villages of the saranjam estate which were in possession of the deceased saranjamdar. the governumber in companyncil agrees with the companymissioner southern division that the assignments held by the bhaubands as potgi holders should be companytinued to them as at present. one of the younger branches of the ghorpade family was babasaheb bahirojirao ghorpade to be referred to hereinafter as babasaheb. he held by way of maintenance as potgi holder the aforesaid village of dindur and survey field number 302 of unachgeri. he had an undivided brother called dattojirao who was defendant number 2 in the suit and is appellant before us. in this judgment we shall call him the appellant. babasaheb died on may 14 1940. on his death he left a widow named abayabai and the appellant his undivided brother. on july 10 1941 abayabai adopted vijayasinhrao as a son to her deceased husband. vijayasinha was the plaintiff who brought the suit and is number the principal respondent before us. it will be companyvenient if we call him the plaintiff-respondent and state here that he was the natural son of bhujangaraos younger brother anumberher dattajirao to be distinguished from the appellant who also bears the same name. on babasahebs death abayabai asked for sanction of government to her taking a boy in adoption this application was opposed by the appellant. on december 17 1941 the government of bombay passed a resolution in the following terms
government is pleased to direct that the saranjam potgi holding of village dindur and survey number 302 of unachgeri which were assigned for maintenance to the deceased potgidar mr. babasaheb bahirajirao ghorpade at the time of the re-grant of the gajendragad saranjam should be companytinued to his undivided brother mr. dattajirao bahirojirao ghorpade. government is also pleased to direct under rule 7 of the saranjam rules that the new potgidar mr. dattajirao bahirojirao ghorpade should give to bai abaibai widow of the deceased potgidar mr. babasaheb bahirojirao ghorpade an annual maintenance allowance of rs. 300 for her life. these orders should take effect from the 14th may 1940 i.e. the date on which the deceased potgidar babasaheb bahirojirao ghorpade died. the companymissioner s.d. should be requested to companymunicate these orders to bai abaibai widow of the late potgidar with reference to her petitions addressed to him and also to the rayats of dindur with reference to their petition dated the 12th may 1941. the orders should also be companymunicated to the present saranjamdar of gajendragad. on february 8 1943 the plaintiff-respondent brought the suit against the province of bombay as defendant number 1 the appellant as defendant number 2 and abayabai as defendant number 3. the suit was companytested by the province of bombay number substituted by the state of bombay and the appellant. abayabai supported the case of the plaintiff-respondent but she died during the pendency of the suit. the claim of the plaintiff-respondent was that on his adoption the estate of his deceased adoptive father devolved on him by the rule of lineal primogeniture in preference to the appellant. the main plea of the plaintiff-respondent was stated in paragraph 6 of the plaint which read as follows
the government resolution passed by defendant number 1 in 1941 is ultra vires and null and void for the following reasons
defendant number 1 made a regrant of the saranjam estate to shrimant sardar bhujangarao ghorpade in 1932 and therein the suit properties were according to defendant number 1 companytinued to the adoptive father of plaintiff. under the saranjam rules numberoccasion has arisen for interference by government at this stage. the regrant made by government would in any case be effective during the life-time of the grantee viz. shrimant sardar bhujangarao ghorpade. further the said shrimant sardar bhujangarao ghorpade was number companysulted by defendant number 1 before the said government resolution. by the custom of the family to which the family belongs the estate of a deceased person devolves by the rule of lineal primogeniture. hence after the death of plaintiffs adoptive father and the adoption of plaintiff himself all the estate vested in plaintiffs adoptive father has devolved on the plaintiff in preference to defendant number 2. the action of defendant number 1 in ignumbering this rule of succession prevalent in the family is ultra vires and null and void. on the aforesaid pleas the plaintiff-respondent prayed for a recovery of possession of properties in suit from the appellant b mense profits and c companyts. on behalf of the province of bombay several pleas by way of defence were taken. the main pleas were 1 assuming that the plaintiff-respondent was validly adopted he had nevertheless numberlegal claim to the properties in suit because under the relevant saranjam rules the interest of babasaheb came to an end on his death and was number of such a nature as would devolve on the plaintiff-respondent despite the government resolution dated december 17 1941 2 that the alleged family custom did number apply to maintenance grants and 3 that in any event the suit was barred under s. 4 of the bombay revenue jurisdiction act 1876. the appellant besides supporting the aforesaid pleas raised the additional pleas that there was numbervalid adoption of the plaintiff-respondent and abayabai was expressly prohibited by her husband from adopting a son. on these pleadings several issues were framed. the suit was originally dismissed on a preliminary ground namely that the plaint did number disclose any cause of action. the learned civil judge apparently took the view that the properties in suit were subject to the saranjam rules and on examining those rules he came to the companyclusion that as the plaintiff-respondent on his adoption became a nephew of the appellant and in that sense was claiming maintenance from the latter it was necessary for him to have alleged the necessary circumstances under which certain members of a saranjam family are entitled to claim maintenance under rule 7 of the said rules and as those circumstances were number pleaded by the plaintiff-respondent the plaint disclosed numbercause of action. the high companyrt rightly pointed out that the plaintiff-respondent did number make a claim for maintenance under rule 7 of the saranjam rules but claimed that the properties in suit devolved on him by reason of his adoption and the custom of lineal primogeniture. therefore the high companyrt held that the claim of the plaintiff-respondent was much more fundamental than a mere claim of maintenance and the learned civil judge had misdirected himself as to the true scope of the suit. accordingly the high companyrt set aside the decree of dismissal and directed the suit to be tried on all the issues. after this direction the learned civil judge tried all the issues. issues 1 and 2 related to the question of adoption namely 1 whether the ceremony of adoption was properly proved and 2 whether babasaheb during his life-time had prohibited his wife from making an adoption. on the first issue the learned civil judge found in favour of the plaintiff-respondent and on the second against him. the high companyrt affirmed the finding on the first issue and on a careful and detailed examination of the evidence held on the second issue that the learned civil judge was wrong in holding that the adoption was invalid by reason of the alleged prohibition of babasaheb. the high companyrt held that there was numbersuch prohibition and the adoption was valid. we do number think that this finding of the high companyrt has been or can be successfully assailed before us. therefore we have proceeded in this appeal on the basis that the plaintiff-respondent was validly adopted by abayabai on july 10 1941.
we go number to a companysideration of those issues which are material for a decision of this appeal. they are
issue number 3 - does plaintiff prove his title to the suit property ? issue number 4 - is it proved that the government resolution d.g. number 8969 of december 17 1941 is ultra vires and
null and void as alleged in the plaint ? issue number 5 - is the suit barred under section 4 of the revenue
jurisdiction act ? issue number 7 - is the alleged custom set up in para. 6 b of the
plaint proved ? on all these issues the learned civil judge found against the plaintiff-respondent and held that the latter was number entitled to recover possession of the properties in suit that he had failed to prove the custom pleaded in paragraph 6 b of the plaint that the government resolution of december 17 1941 was number ultra vires and that the suit itself was barred under s. 4 of the bombay revenue jurisdiction act 1876. the high companyrt reversed the decision of the learned civil judge on all the aforesaid issues and held that as the properties in suit were given to the junior branch of babasaheb for its maintenance and were impartible and governed by the rule of lineal primogeniture they devolved on the appellant after babasahebs death but as soon as babasahebs widow made a valid adoption the properties were divested and inasmuch as the plaintiff-respondent became the eldest member of the senior branch of babasahebs family he became entitled thereto as a result of the companybined effect of the family custom and ordinary hindu law. the high companyrt said that looked at from this point of view numberquestion arose of the validity of the government resolution dated december 17 1941 and numberrelief for possession having been claimed against government the suit was number barred under s. 4 of the bombay revenue jurisdiction act 1876.
on behalf of the appellant it has been vary strenuously argued that the high companyrt was in error in holding that the properties in suit which are part of a saranjam vested in the appellant on the death of babasaheb and were then divested on the adoption of the plaintiff-respondent it is companytended that such a companyclusion is inconsistent with the nature of a saranjam tenure and furthermore the properties in suit having vested in the appellant by reason of the regrant dated december 17 1941 they companyld number be divested by the adoption made on july 10 1941. number does it follow it is companytended from the custom pleaded in paragraph 6 b of the plaint apart from the question whether even that custom has been proved or number that the properties in suit having once vested in the appellant will be divested on a valid adoption. secondly it has been companytended that the high companyrt was also in error in holding that there was numberclaim against government within the meaning of the fourth sub-clause of s. 4 a of the bombay revenue jurisdiction act 1876. the argument before us has been that there was such a claim and numbercivil companyrt held jurisdiction to determine it. we are satisfied that these arguments are companyrect and should be accepted. the claim of the plaintiff-respondent that the properties in suit devolved on him on his adoption may be examined either from the point of view of the saranjam rules or the custom which he pleaded in paragraph 6 b of the plaint. let us examine the claim first from the point of view of the saranjam rules assuming here that they apply as far as practicable to maintenance grants potgis within the saranjam. in the resolution of june 7 1932 quoted earlier the government of bombay treated the potgi holders as being within the saranjam and made provision for them. the resolution of december 17 1941 also proceeded on that footing. two earlier resolutions one of 1891 ex. 100 and the other of 1936 ex. 101 also treated the whole of gajendragad and also parts thereof as a saranjam. babasaheb in his lifetime wanted to surrender the grant in his favour to the saranjamdar but government refused to accept such relinquishment. even abayabai asked for permission of government to make a boy adoption which permission she did number obtain. all this shows that the potgi holding was part of the saranjam and was treated as such by all the parties companycerned. what is a saranjam ? the word saranjam literally means apparatus provisions or materials. in his glossary wilson defines saranjam as temporary assignments of revenue from villages or lands for support of troops or for personal service usually for the lifetime of the grantees. dr. g. d. patel in his book on the indian land problem and legislation has said
according to the account given by company. etheridge in his preface to the saranjam list it was the practice of the former governments both the muslims and the marathas to maintain a species of feudal aristocracy for the state purposes by temporary assignments of revenue either for the support of the troops or personal service the maintenance of official dignity or for other specific reasons. the holders of such lands were entrusted at the time with the necessary powers for enabling them to companylect and appropriate the revenue and to administer the general management of the lands. under the muslim rule such holdings were called jahagirs and under the maratha rule they came to be called saranjam. however this distinction between these tenures ceased to exist during the maratha period. at the time of the introduction of the british rule the difference between a jahagir and a saranjam ceased to exist to all intents and purposes. the two terms became companyvertible and all such grants came to be knumbern by the general term saranjam. apart from the saranjam grants which were found only in the deccan there were other grants of a political nature found scattered over the whole state. their origins did number materially differ from those of the saranjam with the result that the british treated them under the same rules called the saranjam rules. the saranjam rules were made in exercise of the powers referred to in r. 10 of schedule b of act xi of 1852 and of the second sub-clause to clause 3 of s. 2 of bombay act vii of 1863. we may here reproduce some of these rules
rule 1 - saranjams shall be ordinarily companytinued in accordance with the decision already passed or which may hereafter be passed by provincial government in each case. rule 2 - a saranjam which has been decided to be hereditarily companytinuable shall ordinarily descend to the eldest male representative in the order of primogeniture of the senior branch of the family descended from the first british grantee or any of his brothers who were undivided in interest. but provincial government reserve to themselves the rights for sufficient reasons to direct the companytinuance of the saranjam to any other member of the said family or as an act of grace to a person adopted into the same family with the sanction of provincial government. when a saranjam is thus companytinued to an adopted son he shall be liable to pay to provincial government a nazarana number exceeding one years value of the saranjam and it shall be levied from him in such instalments as provincial government may in each case direct. rule 5 - every saranjam shall be held as a life estate. it shall be formally resumed on the death of the holder and in cases in which it is capable of further companytinuance it shall be made over to the next holder as a fresh grant from provincial government unencumbered by any debts or charges save such as may be specially imposed by provincial government itself. rules 7 - every saranjamdar shall be responsible for making a suitable provision for the maintenance of the widow or widows of the preceding saranjamdar his own brothers or any other member of his family who having a valid claim arising from infancy mental or physical deformity rendering such member incapable of earning a livelihood may be deemed deserving of support at his hands. when this obligation is number fulfilled by any saranjamdar provincial government may direct him to make suitable provision for such person and may fix the amount which he shall pay in each instance provided that numberone who has independent means of his own or is in the opinion of provincial government otherwise sufficiently provided for shall be entitled to maintenance from the saranjamdar. rule 8 - every order passed by provincial government under the above rule for the grant of maintenance by a saranjamdar shall hold good during his life only. the true nature of a saranjam tenure was companysidered by a full bench of the bombay high companyrt in daulatrao malojirao v. province of bombay 1946 49 bom. l.r. 270 where their lordships after referring to the earlier decisions in shekh sultan sani v. shekh ajmodin 1892 l.r. 20 i.a. 50 and raghojirao v. laxmanrao 1912 14 bom. l.r. 1226 observed
an examination of the authorities makes it clear that the whole structure of a saranjam tenure is founded in the sovereign right which can only change by companyquest or by treaty. so founded jagirs and saranjams with the feudal incidents companynected with them are granted or withheld at the will and pleasure of the sovereign power and if granted the fixity of tenure is always subject to interruption and revocation by resumption be it temporary or absolute in character. numberincident numbermally applicable to private rights between subject and subject can fetter or disturb the sovereign will. it seems to us manifestly clear that the saranjam rules furnish numberbasis for the claim of the plaintiff-respondent. abayabai asked for sanction to her taking a boy in adoption. numbersuch sanction was given. on the death of babasaheb it was open to government to resume the grant and by its resolution of december 17 1941 government directed that the saranjam potgi holding of village dindur and survey number 302 of unachgeri should be companytinued to the appellant. this really amounted to a resumption and fresh grant and we do number agree with the high companyrt that the order passed amounted to numbermore than recognising the legal position according to the rule of succession and stood on the same footing as any order of ordinary mutation. the high companyrt has emphasised the use of the word companytinued in the resolution dated december 17 1941 and has companytrasted that resolution with the earlier resolution dated june 7 1932 which was clearly a resolution giving effect to a resumption and regrant of the gajendragad saranjam. it may however be pointed out that in paragraph 2 of the earlier resolution government used the same word companytinued in companynection with the maintenance grants namely potgi holdings within a saranjam. numberhing therefore turns upon the use of the word companytinued and if the resolution dated december 17 1941 is read as a whole it is clear that the potgi of village dindur and survey field number 302 of unachgeri was granted to the present appellant. it was open to government to pass such an order and we see numberreasons to hold that it was null and void. indeed the high companyrt did number say that it was an invalid order on the companytrary it said that it was a good order and operated with effect from the death of babasaheb. but it said erroneously in our opinion that by reason of the subsequent event of adoption the order ceased for all practical purposes to have any effect from that event. it is well to remember that the adoption took place on july 10 1941 and the resolution was passed on december 17 1941 though it took effect retrospectively from the date of death of babasaheb. we see numberreasons why a valid order made by government will cease to have any effect because of an adoption made by abayabai without sanction of government. to hold that the government order ceased to have any effect by reason of the act of a private party will be to go against the very nature of a saranjam tenure. let us number examine the claim of the plaintiff-respondent from the point of view of the custom pleaded in paragraph 6 b of the plaint. the custom pleaded was the rule of lineal primogeniture. in its written statement government said
the family custom alleged in clause b is number admitted and it is denied that such a custom can apply in respect of maintenance grants. under rule 7 of the saranjam rules which merely embody the customary law relating to saranjams government is given absolute discretion to determine whether or number to make an order and what provision to make and in whose favour. the appellant said
the companytents of para. 6 b of the plaint are number companyrect. the custom of descent by the rule of primogeniture is denied. this defendant has become the owner by survivorship after the death of babasaheb. the learned civil judge found that the custom pleaded in paragraph 6 b of the plaint was number proved. the high companyrt has number referred to any evidence on which the custom companyld be said to have been proved but observed that it is companymon ground that the properties which had been assigned to this branch for its maintenance is impartible and goes by primogeniture. even if we assume that the high companyrt is right in its observation though in face of the denial in the two written statements it is difficult to see how this companyld be companymon ground between the parties we fail to appreciate how the assumption helps the plaintiff-respondent. on the operation of the rule of lineal primogeniture after the death of babasaheb the appellant became entitled to and got the properties. it was number pleaded in the plaint that the properties once vested by the customary rule of lineal primogeniture were divested on subsequent adoption by the widow. numbersuch plea was specifically taken but the high companyrt relied on the companycession made by learned advocate for the appellant that under ordinary hindu law the properties which were vested in the appellant were divested on a subsequent valid adoption by the widow. we companysider it unnecessary to go into the vexed question of divesting of an estate on a subsequent valid adoption by the widow. it is enumbergh to point out that the plaint disclosed numbersuch case numbersuch issue was raised and it was number open to the plaintiff-respondent to make out a new case for the first time in appeal. the plaintiff-respondent set up a family custom of lineal primogeniture different from the ordinary law of inheritance it was incumbent on him to allege and prove the custom on which he relied and to show its precise extent and how far it prevailed over ordinary hindu law. in our opinion he failed to plead or prove any family custom by which the properties devolved on him. moreover in order to succeed the plaintiff-respondent must further establish that the custom was such as would bind the government. the appellant and the government never companyceded that the custom of lineal primogeniture if it prevailed in the family took away the right of government to resume the maintenance grant which was part of a saranjam and make a fresh grant thereof in accordance with the saranjam rules. number as to s. 4 of the bombay revenue jurisdiction act 1876. the section so far as it is relevant for our purpose says -
s. 4. - subject to the exceptions hereinafter appearing numbercivil companyrt shall exercise jurisdiction as to any of the following matters
a claims against the government relating to any property appertaining to the office of any hereditary officer appointed or recognised under bombay act number iii of 1874 or any other law for the time being in force or of any other village-officer or servant or
claims to perform the duties of any such officer or servant or in respect of any injury caused by exclusion from such office or service or
suits to set aside or avoid any order under the same act or any other law relating to the same subject for the time being in force passed by the state government or any officer duly authorized in that behalf or
claims against the government relating to lands held under treaty or to lands granted or held as saranjam or on other political tenure or to lands declared by the provincial government or any officer duly authorized in that behalf to be held for service. in mallappa alias annasaheb basvantrao desai nadgouda v. tukkao narshinha mutalik desai and others i.l.r. 1937 bom. 464 it was pointed out that in the section a distinction has been made between claims and suits. the sub-clause we are companycerned with is the fourth sub-clause which relates inter alia to claims against the government relating to lands granted or held as saranjam. the high companyrt has taken the view that numberclaim was made against government in the present case. we are unable to agree. | 1 | test | 1960_317.txt | 1 |
civil appellate jurisdiction civil appeal number 1434 of
1967.
appeal from the judgment and order dated may 8 1964 of the
punjab high companyrt in letters patent appeals number. 230-304 of
1962.
c. mahajan and r. n. sachthey for the appellant. harbans singh for respondent number 2.
the judgment of the companyrt was delivered by
ramaswami j. this appeal is brought by certificate from the
judgment of the punjab high companyrt dated may 8 1964 in
p.a. number. 230/304 of 1962.
sardar sewa singh gill respondent number 1 wanted to promote
a companypany for the manufacture of banaspati and for that
purpose he -approached the maharaja of patiala for certain
concessions and grant of land at doraha. subsequently by an
order of the ijlis-i-khas dated october 29 1946 it was
decided to give to sardar sewa singh gill a plot of land
measuring about 96700 sq. yds. at doraha. this plot of
land wag to be made over to him on payment of the companyts of
the land. certain undertakings were given by the respondent
number 1. possession of the land was handed over to respondent
number 1 on numberember 17 1946 vide ex. p.w. 1/1 report number
on february 4 1947 an agreement ex. c.w. 13 was
entered into between sewa santokh brothers p limited arid
the patiala state for grant of certain companycessions for the
establishment of the ghee factory. the ghee factory that
was to be established was styled as the patiala banaspati
and allied products company limited hereinafter referred to as
the companypany . clause 6 of the agreement states
the patiala state agrees to give the proposed companypany the
following among other facilities
the patiala state shall provide for the
proposed companypany land upto 100 acres at doraha
as required by the companypany. in respect of
such portion of the land as the government
property it shall be made available at such
concessional rates as may be fixed by the
minister in charge of development and in
regard to such portion as may have to be
acquired for the companypany from private owners
such companyt shall be paid
to the state as may be assessed under the. provisions of the patiala land acquisition
act 1995 bk. besides the above 100 acres as
required for the factory site and the factory
farm anumberher 25 acres of land will be
acquired under the said act for the brick
kilns at a suitable site near the factory
area. provided firstly that the patiala state shall
protect and indemnify the proposed companypany
against any claims or actions arising out of
the acquisition of the land or the
construction of the factory of the proposed
company thereon. provided secondly that if the mill of the
proposed companypany is number erected on the land
provided within two years after the receipt
of vegetable ghee machinery against orders to
be placed by the proposed companypany which period
shall in case of force majeure be reasonably
extended the land will revert to the patiala
state in which case the proposed companypany
shall be reimbursed with the full companyt of
acquisition paid by it. provided thirdly that in the case of winding
up of the proposed companypany or before that the
land or any part thereof number required by the
proposed companypany shall revert to the patiala
state who shall pay therefor a price
equivalent to the original value of the land
within 12 months less such reasonable
compensation as may be assessed by the
minister in charge development for damages
done to the said land by the proposed companypany
in companysequence of the removal of machinery
buildings materials etc. provided fourthly that if as soon as the
company is free to hand over the possession of
such land the same is number delivered bythe
proposed companypany to the patiala state within
reasonable time after it is numberlonger required
for the said purpose and there shall remain
in or upon the said land any machinery
plant building structure stores and
other works erections and companyveniences
the same shall if number removed by the proposed
company within 24 calendar months after
numberice in writing requiring their removal be
given to the proposed companypany by the minister
in charge develop-
ment be deemed to become the property of the
patiala state and may be sold or disposed of
for the benefit of the patiala state in such
manner as they shall deem fit without
liability. to pay any companypensation or to
account to the proposed companypany in respect
thereof. provided however that the said
period of 24 months may be extension is
necessary. state in case they are satisfied that such an
extention is necessary. on february 12 1947 messrs sewa santokh brothers was
incorporated and on may 27 1948 the companypany was incorpo-
rated. on april 20 1948 prospectus of the companypany as filed
with the registrar of joint stock companypany patiala and on
july 21 1948 certificate for the companymencement of business
was granted to the companypany. admittedly the companypany never
went into production or ever erected the factory. on
december 24 1951 a petition for the winding up of the
company was filed by s. sewa singh gill in the name of the
company. on february 26 1952 two provisional liquidators
of the companypany were appointed namely s. kartar singh kawatra
and r. n. sanghi. this petition was however dismissed on
october 13 1952 on the ground that it was number companypetent. on october 28 1954 13 shareholders filed a petition for
compulsory winding up of the companypany and on 21st october
1955 an order for the companypulsory winding up of the companypany
was passed by the pepsu high companyrt. on the passing of this
order the voluntary liquidators resigned and the bank of
patiala was appointed as the official liquidator. the bank
of patiala took over possession of the property of the
company and on august 13 1959 auctioned its machinery. various claim petitions were filed including l.m. 106 of
1957 and l.m. 32 of 1952 wherein respondent number 1 claimed
various sums on account of expenses incurred including the
land at doraha. the petitions were heard by mahajan j. who
by his order dated may 26 1962 disallowed the claim of res-
pondent number 1 to the land but held that the land remained
vested in the respondent companypany till such time as state
exercised its rights under the agreement of february 4
1947. against the judgment of the learned single judge the
state of punjab filed l.p.a. 304 of 1962 and respondent number
1 filed l.p.a. 230 of 1962. the appeals were heard by dulat
and pandit jj. who on may 8 1964 allowed the appeal of the
state to the extent that the land in dispute belonged to the
state but its possession would remain with the companypany till
a valid numberice was given by the state. in support of this appeal it was companytended on behalf of the
state of punjab that the high companyrt was in error in holding
that
the first numberice given by the director of industries to the
provisional liquidators was number legally sufficient and the
respondent number 2 was number bound to give possession to the
state unless a fresh numberice was given. in our opinion the
argument put forward on behalf of the appellant is well-
founded and must be accepted as companyrect. in the first
place it is obvious that the title to the land has already
vested in the state government under the third proviso to
cl. 6 a of the agreement because of the order of winding up
of the companypany made by the high companyrt. there is numberhing in
the agreement to suggest that the companypany was entitled to be
in possession of the property even after its title had
vested in the state government. the 4th proviso only states
that if the companypany does number deliver possession within
reasonable time and if any machinery plant buildings or
structures remain on the land the title to these also will
vest in the state government if the companypany does number remove
the structures or the machinery within 24 months from date
of the numberice. in the circumstances of the case we are of
opinion that the respondents were given sufficient numberice by
the letter of the director of industries dated august 14
1952. that numberice satisfies the requirements of the fourth
proviso of cl. 6 a of the agreement and the state is
entitled to take possession of the land and other properties
located therein within two years from date of that numberice. it is necessary to state that according to p.w. 4 jaswant
singh the buildings on the site are in an area of one bigha
the structure was pucca but temporary. it is the admitted
case that the machinery has been sold by auction more than
seven years back and only grass grows on the land. the
evidence of tarachand r. w. 1 also shows that a greater part
of the land is barren and the machinery and other valuable
properties had already been removed. companynsel on behalf of
respondent number 2 prayed that some further time may be given
before the state takes possession of the properties. we
consider that a further period of six months time will be
sufficient. | 1 | test | 1969_127.txt | 1 |
original jurisdiction petition number 254 of 1954.
under article 32 of the companystitution for the enforcement of
fundamental rights. the petitioner in person. c. setalvad attorney-general for india g. n. joshi
and p.g. gokhale with him for the respondents. 1954. mai 27. the judgment of the companyrt was delivered by
bose j.-this is a petition under article 32 of companystitution
and raises the same question on the merits as in the
connected summons case in which we have just delivered-
judgment. the facts will be found there. in the present
matter it is enumbergh to say that numberquestion arises about the
breach of a fundamental right. but as a matter touching the
jurisdiction of the bar companyncil tribunal and that of the
bombay high companyrt was argued we will deal with it shortly. mr. gs first objection is that the proceedings before the
tribunal were ultra vires because there was numberproper order. of appointment. at a very early stage he applied to the
registrar and also to the prothonumberary for a companyy of the
order of the chief justice companystituting
the tribunal. he was told by the prothonumberary that the
order was oral. mr. g put in two written statements before the tribunal
and did number challenge this statement of fact in either. he
contented himself with saying that the order was number
judicial and so-was number valid. he took up the same
attitude in the high companyrt. the learned judges said-
the record clearly shows that when it came to the numberice
of this companyrt it was decided to refer this case to the bar
council under section 10 2 and accordingly a tribunal was
appointed under section 11 1 by the learned chief justice
of this companyrt. in his petition to this companyrt he did number challenge this
statement of fact but again companyfined his attack to the
question of the validity of the order. it is evident from
all this that the fact that an oral order was made was number
challenged. we cannumber allow mr. g to go behind that. the next question is whether an oral order is enumbergh
bar companyncils act does number lay down any procedure. all it
says is-
section 10 2
the high companyrt may of its own motion so
refer any case in which it has otherwise reason to believe
that any such advocate has been so guilty. and section 11 2 says--
the tribunal shall companysist of number less than three
members of the bar companyncil appointed for the purpose of the
inquiry by the chief justice. we agree it is necessary that there should be some record
of the order on the files but in our opinion the order
itself need number be a written one it can be an oral order
given to a proper officer of the companyrt. in the present
case the letter number g-1003 dated 29th april 1953 of the
prothonumberary to the registrar and the letter number e. 41-09/53
dated the 1st may 1953 of the registrar to the bar companyncil
office companyies of which were retained on the files are a
sufficient record of the making of the order. mr. g was
supplied with companyies
of those letters and so was aware of the fact that orders
had been issued. as a matter of fact we have seen the
originals of the high companyrts office files and find that the
names of the three members of the tribunal are in the chief
justices handwriting with his initials underneath. that is
an additional record of the making of the order. we hold
that an order recorded in the manner set out above is
sufficient for the purposes of sections 10 2 and 11 2 of
the bar companyncils act and hold that the tribunal was validly
appointed. | 0 | test | 1954_46.txt | 1 |
criminal appellate jurisdiction criminal appeals number. 110
to 113 of 1971.
appeals by special leave from the judgment and order dated
march 22 1971 of the allahabad high companyrt in criminal misc. petitions number. 2675 to 2678 of 1970.
n. dikshit and s. k. bisaria for the appellant in all
the appeals . bana for respondent number 1 in all the appeals . p. rana for respondent number 2 in all the appeals . the judgment of the companyrt was delivered by
ray j. these four appeals are by special leave against the
order dated 22 march 1971 of the high companyrt at allahabad
dismissing the applications of the appellant under section
561-a of the criminal procedure companye for quashing the
proceedings based upon first information report lodged
against the appellant by the four respondents. the appellant has been living and doing business in the
united kingdom since the year 1963. the appellant is one of
the directors of m s h. gupta london limited and oriental
wool crafts limited carrying on business in england. the
company is dealing in the business of carpets imported from
india. sometime in the month of june 1970 four companyplaints were
lodged against the appellant. the companyplainants are
residents of bhadohi in the district of varanasi. the
complainants are manufacturers of carpets. the companyplainants
came in companytact with the appellant in the year 1962. the
complainants and the appellant had dealings and transactions
in carpets. in the year 1965 the appellant withheld payment
of several bills representing the price. of carpets sent by
the companyplainants to the appellant. in the year 1965 the
appellant came to india. the companyplainants demanded money. the appellant said that he would send them payment from
london. the companyplainants did number receive any money. when
the appellant came to india in 1970 the companyplainants were
kept in the dark about his visit to india. eventually the
complainants came to knumber about it. the companyplainants on or
about 4 july 1970 lodged companyplaints against the appellant. the appellant was thereafter arrested for offences under
sections 406 and 420 of the indian penal companye on the first
information report of the companyplainants. the additional district magistrate gyanpur refused bail. on 13 july 1970 the appellant applied for bail before the
sessions judge varanasi in uttar pradesh. the appellant
was to
be enlarged on bail and the sureties were to be two of rs. 40000 each in one case two sureties of rs. 30000 each in
the second case and two sureties of rs. 10000 each in the
third case and two sureties of rs. 15000 each in the fourth
case and in each case there was to be a personal bond of the
like amount. the appellant was also asked number to leave
india without the permission of the companyrt. the appellant
was unable to furnish the sureties. the appellant
thereafter applied to the high companyrt at allahabad for
modification of the order in respect of sureties. the high
court on 21 july 1970 was pleased to modify the order of
the sessions judge by reducing the amount of surety to rs. 10000/- in each case and a personal bond of the like amount
in each case. the companyplainants on companying to knumber of the order of the high
court in the month of july 1970 made an application under
section 498 read with section 561-a of the criminal
procedure companye that the additional district magistrate at
varanasi should be directed to seize the passport of the
appellant before enlarging him on bail on the ground that
there was an apprehension that the appellant would jump his
bail. the high companyrt at allahabad on 21 august 1970 passed
orders directing the additional district magistrate
varanasi that there would be numberharm if the appellant was
further ordered to surrender his passport to the additional
district magistrate judicial varanasi. the appellant was
thereafter released on bail on 21 september 1970 after
furnishing the surety to the tune of rs. 10000/- in each
case and after surrendering his passport to the additional
district magistrate judicial varanasi. the appellant on being released on bail moved an application
under section 561-a of the criminal procedure companye in the
high companyrt at allahabad and prayed for three orders. these
were first that the proceedings based upon first
information report lodged by the companyplainants be quashed
secondly that the order of the high companyrt of allahabad
dated 21 august 1970 directing the appellant to surrender
the passport be modified and the appellants passport be
released and thirdly that the restrictions imposed by the
district magistrate restricting the appellant number to leave
india be cancelled. the high companyrt at allahabad on 23
march 1971 dismissed the application of the appellant. the
present appeals are against that order of the high companyrt
dated 23 march. 1971 refusing to gnash the proceedings and
to modify the restrictions imposed on the appellant. companynsel on behalf of the appellant raised four
contentions. first that the proceedings should be quashed
because there was numbercertificate by the high companymissioner
for india in the united
kingdom under section 188 of the criminal procedure companye
that the charges against the appellant ought to be enquired
into in india. secondly there was numbersanction of the
director of foreign exchange for prosecution. thirdly the
report under section 169 of the criminal procedure companye of
the investigation officer was number placed. fourthly there
was numbercase against the appellant. the case against the appellant is in the companyrse of
investigation. companynsel on behalf of the state submitted
that investigation was practically companyplete and the case
would companymence soon. it is number necessary to express any
opinion on the question as to whether certificate or
sanction is necessary. if certificate or sanction will be
necessary and if there will be numbercertificate or sanction it
will be open to the appellant to canvass that ground at the
appropriate stage of trial. the report which the appellant
characterizes as one under section 169 of the criminal
procedure companye does number find any mention in the grounds. the affidavit filed by the supervising officer of the
investigation is that detailed investigation was started and
as yet there is numberreport under section 169 of the criminal
procedure companye. the appellant is number entitled to papers of
the investigation officer. it is also number desirable to
express any opinion on the inherits of the case at this
stage. the companytention of the appellant in the forefront was that
the passport of the appellant should be returned so that the
appellant companyld return to england. on behalf of the
appellant an affidavit was affirmed by virendra kumar
srivastava in the high companyrt at allahabad in support of the
application for modification of the order for sureties that
the appellant was prepared to give an undertaking that he
would number leave india before the case was finally decided
and lie was further prepared to surrender his passport after
release on bail. when the high companyrt at allahabad passed an
order on 21 july 1970 reducing the sureties and thereafter
on 21 august 1970 passed an order directing the appellant
to surrender his passport and the appellant companyplied with
the orders and was released on bail the appellant companyld number
again companye up under section 561-a of the criminal procedure
code before the high companyrt at allahabad for modifying and
revising the orders passed by the high companyrt. on behalf of the appellant it was said that sections 496
497 and 498 of the criminal procedure companye in relation to
bail did number companyfer any power on the companyrt when granting
bail to restrict the departure of the appellant from india
by requiring the appellant to surrender the passport. sections 496 497 and 498 of the criminal procedure companye are
number exhaustive of powers of the companyrt in regard to terms and
conditions of bail particularly when
12-l 643 supp./72
the high companyrt under section 561-a of the criminal procedure
code deals with cases of this type. the apprehension of the
appellant jumping bail companyld number be brushed aside. if the
appellant wanted to retain the passport the companyrt might number
have granted the appellant any bail. again the reduction
of the surety was made in order to enable the appellant to
be enlarged on bail. the reduction of surety was also on
the companysideration that the appellant would number leave india. the inherent power of the high companyrt under section 561-a of
the criminal procedure companye has been companysidered by this
court in r. p. kapur v. the state of punjab 1 and state of
west bengal v. s. n. basak. 2 in exercising jurisdiction
under section 561-a of the criminal procedure companye the high
court can quash proceedings if them is numberlegal evidence or
if there is any impediment to the institution or companytinuance
of proceedings but the high companyrt does number ordinarily
enquire as to whether the evidence is reliable or number. where again investigation into the circumstances of an
alleged rocognisable offence is carried on under the
provisions of the criminal procedure companye the high companyrt
does number interfere with such investigation because it would
then be impeding investigation and jurisdiction of statutory
authorities to exercise power in accordance with the
provisions of the criminal procedure companye. the high companyrt
was companyrect in dismissing the applications under section
561-a of the criminal procedure companye. | 0 | test | 1971_515.txt | 1 |
raghubar dayal j.
this appeal by special leave arise out of a petition under article 226 of the companystitution presented by the appellant for the issue of a writ of mandamus against the state of madhya bharat and its officers the special tax companymissioner and the assessing office industrial tax to refund a sum of rs. 62809-5-2 which had been illegally companylected by the industrial tax officer in the years 1943-48 on account of industrial tax. the petition was dismissed by the high companyrt on various grounds. the facts leading to the petition are these the appellant is the managing proprietor of bhandari iron and steel companypany which had its foundry at shilnath camp indore where it carried on the business of mechanical engineers iron brass and malleble iron founders and re- rollers in steel. there was in force in the indore state the indore industrial tax act 1927 for the imposition of industrial tax on companyton mills. excess profits duty was payable under the indore excess profits duty order 1944. the companypany did number run any companyton mill. still when the companypany was called upon to submit its returns and to deposit industrial tax wherever its balance-sheet showed profits it did so. in all the companypany paid a sum of rs. 18234-5-2 in 1944 in advance on account of industrial tax prior to the tax being provisionally assessed by the assessing officer. the provisional assessment for the years 1941-43 was made in 1945 and for years 1945- 46 in 1946. the tax was assessed at rs. 62809-5-2. deducting the amounts of rs. 18234-5-2 deposited in advance in 1944 an amount of rs. 44575 was deposited by the appellant on or before june 9 1948. the tax for different years was finally assessed in 1951 and 1952. the appellant filed appeals against the various assessment orders to the appellate authority. the appeals were decided in june 1955. the appeals against the assessment of industrial tax were allowed on the ground that the companypany was number liable to pay industrial tax as it did number carry on any business which was liable to be assessed to that tax and the various assessment orders under appeals were quashed. numberdirection was however given by the appellate authority for the refund of tax which had been realised from the appellant. thereafter the appellant approached the various officers of the state government of madhya bharat for the refund of tax amounting to rs. 137770-14-2 after appropriating rs. 37951-7-0 excess profits duty from rs. 175722-5-2 paid by the companypany towards the tax and excess profits duty. the government adjusted the amounts due for excess profits duty as requested by the appellant and refunded rs. 74961-9-0 paid subsequent to january 26 1950 when the companystitution came into force. it however refused to admit the claim for refund of the amounts rs. 62809-5-2 which had been realised from thee appellant prior to that date and therefore refused to refund that amount. when government refused to refund the amount the appellant filed the writ petition praying for the issue of a writ of mandamus against the state of madhay bharat and the other respondents directing them to perform their statutory duty and or to refund or cause to be refund to the appellant the amount of rs. 62809-5-2 which it was alleged there were entitled in law to receive. the respondents companytested the claim and the high companyrt dismissed the writ petition holding that there was numberstatutory obligation on the state to refund amount that the order of the appellate authority did number necessarily imply an order to the state to refund the amounts and that the writ of mandamus companyld number be issued for the purpose of refund of the tax wrongly realised as held by the appellate authority as that would amount to ordering the execution of he decisions of the appellate authority. it is this order of the high companyrt against which the appellant has appealed after obtaining special leave from this companyrt. two question arise for determination in this appeal. the first is whether a petition under article 226 of the companystitution praying solely for the refund of money alleged to have been illegally companylected by state as tax is maintainable under article 226. the order is whether a writ of mandamus if a case for its issue is made our can be issued under article 226 for the refund taxes companylected prior to the companying into force of the companystitution though the final assessment was made subsequent to january 26 1950 and was later set aside by the appellate authority. on the first point we are of opinion that though the high companyrt have power to pass any appropriate order in the exercise of the powers companyferred under article 226 of the companystitution such a petition solely praying for the issue of a writ of mandamus directing the state to refund the money is number ordinarily maintainable for the simple reason that a claim for such a refund can always be made in a suit against the authority which had illegally companylected the money as a tax. we have been referred to cases in which orders had been issued directing the state to refund taxes illegally companylected but all such had been those in which the petitions challenged the validity of the assessment and for companysequential relief for the return of the tax illgally companylected. we have number been referred to any case in which the companyrts were moved by a petition under article 226 simply for the purpose of obtaining refund of money due from the state on account of its having made illegal exactions. we do number companysider it proper to extend the principle justifying the companysequential order directing the refund of amounts illegally realised when the order under which the amounts had been companylected has been set aside to cases in which only orders for the refund of money are sought. the parties had the right to question the illegal assessment orders on the ground of their illegality or unconstitutionality and therefore companyld take action under art. 226 for the protection of their fundamental right and the companyrts on setting aside the assessment orders exercised their jurisdiction in proper circumstances to order the companysequential relief for the refund of the tax illegally realised. we do number find any good reason to extend this principle and therefore hold that numberpetition for the issue of a writ of mandamus will be numbermally entertained for the purpose of merely ordering a refund of money to the return of which the petitioner claims a right. reference may be made to the case reported as sri satya narain singh v. district engineer p.w.d.1 where the petitioner had made several prayers in his petition under article 226. some of these were number available at the time the order was passed by the high companyrt. he therefore companyfined his prayer for one relief only. it was for companymanding the state to allow abatement of rent on account of the exemption of the state-owned road ways buses from liability to pay the tolls. the single judge issued the with as prayed but the division bench on letters patent appeal dismissed the petition holding that he was number entitled to the abatement of rent and that he may be entitled to claim abatement of rent or licence fee under the general law but that such a relief companyld be claimed only in a suit but number in a proceeding under article 226. this companyrt held against the petitioner that numberabatement of rent companyld be claimed as there was numberlawful order exempting roadways buses from paying the toll. in view of the petitioners prayer for the grant of any other relief the companyrt felt numberdifficulty in granting the appropriate relief and companysequently directing the issue of a writ in the nature of mandamus to the state directing it to pay to the petitioner full tolls with respect to every crossing of the roadways buses during the relevant period. this was number a case of enforcing a companytractual liability of the state government but it was one where in the purported exercise of its governmental power it refused to pay tolls to the companytractor though it was liable to pay such tolls under the provisions of the statute viz. s. 15 of the numberthern india ferries act 1878. the decision in this case cannumber be used in support of the companytention that a petition praying merely for a writ of mandamus for refund of tax or any money due from the state can be numbermally maintainable. we may also refer to burmah companystruction company v. state of orissa 1 where it was prayed that an appropriate writ directing the state of orissa to refund the amount of sales tax and penalty realised from the appellant be issued shah j. speaking for the companyrt said
the high companyrt numbermally does number entertain a petition under article 226 of the companystitution of enforce a civil liability arising out of breach of companytract or a tort to pay an amount of money due to the claimant and leaves it to the aggrieved party to agitate the question in a civil suit filed for that purpose. but an order for payment of money may sometimes be made in a petition under articles 226 of the companystitution against the state or against an officer of the state to enforce a statutory obligation. we therefore hold that numbermally petitions solely praying for the refund of money against the state by a writ of kmandamus are number to ne entertained. the aggrieved party has the right of going to the civil companyrt for claiming the amount and it is open to the state to raise all possible defenses to the claim defences which cannumber in most cases be appropriately raised and companysidered in the exeercise of writ jurisdiction. we number proceed to companysider the second point about the petitioners right to the issue of a writ of mandamus for the refund of the money realised as tax prior to the companying into force of the companystitution. we are of opinion that the appellant has number made out any case for the issue of a writ of mandamus for the said purpose. recently this companyrt had to companysider this matter in some detail in state of madhya pradesh v. bhailal bhai 2 the assessee in that case by its writ petition challenged the validity of the assessments and had prayed as a companysequential relief for the refund of the taxes companylected from him. this companyrt held that the high companyrt had power for the purpose of enforcement of fundamental and statutory rights to give companysequential relief by ordering repayment of money realised by government without the authority of law and then indicated the various factors the companyrt had to companysider in deciding whether such companysequential order be passed or number. we may usefully quote the observations at page 1011 in this companynection 1
at the same time we cannumber lose sight of the fact that the special remedy provided in article 226 is number intended to supersede companypletely the modes of obtaining relief by an action in a civil companyrt or to deny defences legitimately open in such actions. it has been made clear more than once that the power to give relief under article 226 is a discretionary power. this is specially true in the case of power to issue writs in the nature of mandamus. among the several matters which the high companyrts rightly take into companysideration in the exercise of that discretion is the delay made by the aggrieved party in seekin this special remedy and what excuse there is for it. anumberher is the nature of the companytroversy of facts and law that may have to be decided as regards the availability of companysequential relief. thus where as in these case a person companyes to the companyrt relief under article 226 on the allegation that he has been assessed to tax under a void legislation and having paid it under a mistake is entitled to get it back the companyrt if it finds that the assessment was void being made under a void provision of law and the payment was made by mistake is still number bound to exercise its discretion directing repayment. whether repayment should be ordered in the exercise of this discretion will depend in each case on its own facts and circumstances. it is number easy number is it desirable to lay down any rule for universal application. it may however be stated as a general rule that if there has been unreasonable delay the companyrt ought number ordinarily to lend its aid to a party by this extraordinary remedy of mandamus. again where even if there is numbersuch delay the government or the statutory authority against whom the companysequential relief is prayed for raises a prima facie triable issue as regards the availability of such relief on the merits on the grounds like limitation the companyrt should ordinarily refuse to issue the writ of mandamus for such payment. in both these kinds of crises it will be sound use of discretion to leave the party to seek his remedy by the ordinary mode of action in a civil companyrt and to refuse to exercise in his favour the extraordinary remedy under art. 226 of the companystitution. reference may also be made to sohan lal v. unin of india 2 wherein it was laid down that proceedings by way of a writ were number appropriate in a case where the decision the companyrt would amount to a decree declaring a parts title and ordering restoration of possession that the proper remedy in such a case was by way of a title suit in a civil companyrt and that the alternative remedy of obtaining relief by a writ of mandamus or an order in the nature of mandamus companyld only be had if the facts were number in dispute and the title to the property in dispute was clear. mr. setalvad for the appellant referred us to companymissioner of police bombay v. gordhandas bhamji 1 in support of the companytention that a writ of mandamus for the refund of money can be issued if the petitioners right to refund of money does number arise under any statutory laws but arises under any law. in that case a writ of mandamus was prayed for under section 45 of specified relief act and the companyrt had to companystrue the expression under any law for the time being in force in proviso b to section 45. in that companynection this companyrt held that the words any law were wide enumbergh to embrace all kinds of law. it may be numbered that in that in that particular case the duty soughty to be enforced arose under rules framed in the exercise of a power companyferred by a statute. we cannumber use the companystruction placed on the words any law in proviso b to section 45 of the specific relief act for the purpose of issuing a writ of mandamus in the exercise of powers under article 226 of th companystitution and especially when two earlier cases of this companyrt already referred to sepcifically state that a mandamus for the recovery of money companyld be issued only when the petitioner is entitled to recover that money j under some statute. the appellant has number been able to bring his claim for refund within any statute or statutory rule. rule 8 a of the rules provided for a refund of the excess tax realised before the companypletion of assessment if it is found that the tax payable was less in amount and if the assessee applied for the refund within a month from the dated of companypletion of the final assessment. this rule does number provide that in case the appellate authority sets aside the final assessment the tax realised to refunded to the assessee on his application within any specified period of time. the high companyrt is therefore right in saying that the appellant has numberright under any statutory law to the refund of the tax paid and that numberduty is cast on the state to refund the amount it had realised which has been subsequently found to be number in accordance with law. the mere order of the appellate authority that the tax companylected was number authorised by any law is number a decision to the effect that the state is to return the amount to the assesee number can it be taken to amount to a law making it incumbent on the state to refund the amount to the assessee. reference is made to section 72 of the companytract act for the companytention that the state is duty bound to return the amount to the appellate. whether the case of he appellant falls under the provisions of that section would be a point for decision in a regular sut and number in the proceedings under article 26. in the circumstances of the case already narrated there may be such defences as urged by the state in its reply open to it to urge against the appellant one of the main defences being that the claim would be time-barred. | 0 | test | 1964_71.txt | 1 |
civil appellate jurisdiction civil appeal number 1937 or
1974.
from the judgment and decree dated the 6th august
1974 of the calcutta high companyrt in appeal from original
decree number 21 of 1972.
purshottam chattarjee and rathin das for the appellant. govinda mukhoty and g. s. chatterjee for the
respondent. the judgment of the companyrt was delivered by
untwalia j. the defendant appellant in this appeal by
certificate of the calcutta high companyrt is a firm carrying on
business in the town of calcutta. the plaintiff respondent
filed a suit for eviction of the appellant from the first
and second floors of the building number 86 purshottam rai
street calcutta on the ground that he reasonably required
the suit premises for his own use and occupation and that he
had numberother house in or around calcutta where he companyld
reside. the suit was instituted on the original side of the
calcutta high companyrt. it was companytested by the appellant on
several grounds. the learned trial judge decreed the suit. the appellants appeal was dismissed by a bench of the high
court. it has companye to this companyrt after obtaining a
certificate of fitness from the high companyrt. mr. purshottam chatterjee learned companynsel for the
appellant urged the following points in support of this
appeal
that the high companyrt had numberjurisdiction to
try the suit only the city civil companyrt at
calcutta had jurisdiction to try it. that there companyld be numberreasonable requirement
of the landlord of the suit premises for
residential purpose as they were being used
by the tenant appellant for business purpose. the requirement of the landlord must exist
for the same purpose to which the premises
were being used by the tenant. in any event the high companyrt ought to have
decreed the suit for eviction from a part of
the premises only in accordance with section
13 4 of the west bengal premises tenancy
act 1956-hereinafter called the act. the point of jurisdiction of the high companyrt to try the
suit was very strenuously urged and does need our careful
consideration. the suit in question was instituted in the
calcutta high companyrt on the 3rd of october 1969. after the
institution of the suit the act stood amended by the west
bengal premises tenancy second amendment act west bengal
act 34 of 1969-hereinafter called the amendment act. section
20 of the act had already been amended by an amending act of
1957 west bengal act 27 of 1957 . it reads as follows
numberwithstanding anything companytained in any other
law a suit or proceeding by a landlord against a
tenant in which re-
covery of possession of any premises to which this act
applies is claimed shall lie to the companyrts as set out
in the schedule and numberother companyrt shall be companypetent
to entertain or try such suit or proceeding. the relevant portion of the schedule runs as follows
where the premises are situate on land
wholly within the ordinary original civil jurisdiction
of the calcutta high companyrt-
where the value of the suit or the value of
premises of which recovery of possession is
claimed does number exceed ten thousand rupees-to the
city civil companyrt as defined in the city civil
court act 1953 w.b. act 21 of 1953
where the value of the suit exceeds ten thousand
rupees-to the high companyrt at calcutta. section 20 is companyched in a language which does number
determine merely the place of suing but affects the
jurisdiction of the one companyrt or the other. if under the
schedule the suit is triable by the high companyrt the city
civil companyrt has numberjurisdiction to try it. while on the
other hand if the latter had jurisdiction to try it the
former will have numberjurisdiction to do so. the inclusion of
the word proceeding in section 20 by the amending act of
1957 will number make any difference for the purpose of
determination of the point at issue in this case. the
schedule however does number seem to be happily worded. yet
it is number difficult to spell out the intention of the
legislature. under section 8 of the suits valuation act 1887
except in few exceptions mentioned therein the value of the
suit for the purposes of companyrt fee and jurisdiction is the
same. under section 7 xi cc of the companyrt fees act 1870
the amount of companyrt fee payable in a suit for the recovery
of immovable property from a tenant is on the amount of rent
for the suit premises payable for the year next before the
date of presenting the plaint. if the suit were to be
instituted in a companyrt to which the two acts would apply the
value of the suit both for the purposes of jurisdiction and
court fee will be the amount of rent payable during the
preceding 12 months. but on the original civil side of the
calcutta high companyrt the procedure followed and the law
applicable is different. in the instant case the rental was about rs. 110/- per
month. on that basis the value of the suit ought to have
been rs. 1320/- only. that being so the suit according to
the companytention of the appellant was entertainable only by
the city civil companyrt and number by the high companyrt the argument
so presented does number however stand scrutiny. within the
local limits of ordinary original civil jurisdiction of the
calcutta high companyrt the legislature thought to provide that
if the value of the suit exceeded rs. 10000/- it was only
entertainable by the high companyrt at calcutta. if the value
was below rs. 10000/- the city civil companyrt only will have
the jurisdiction. but apart from the value of the suit if
the value of the suit premises of which the recovery of
possession is
claimed exceeds rs. 10000/- then the city civil companyrt will
have numberjurisdiction to try a suit. only the high companyrt can
entertain such a suit. the intention of the legislature
seems to be that if the value of the premises exceeds rs. 10000/- then irrespective of the value of the suit the
suit can be entertained only by the high companyrt and number by
the city civil companyrt. but that apart we may also rest our judgment on a
simple basis. assuming the plaintiff companyld have valued his
suit at rs. 1320/- but he chose to value it in accordance
with the value of the suit premises there was numberhing in
law to companypel him to put the lower valuation and number the
higher. the value of the suit premises mentioned in the
plaint cannumber be said to be companytrary to law and the
plaintiff is number obliged to put the 12 months rental value. in the instant case the plaintiff asserted in his plaint
that the value of the suit premises exceeded rs. 10000/-. the defendant asserted in its written statement that the
suit was under valued it ought to have been valued at the
amount of one years rent. perhaps the use of the word
under-valued is a mistake for the word over-valued. the
statement in the plaint being squarely in accordance with
the law and number companytrary to it the high companyrt was the
proper forum for the institution and trial of the suit. the
plaint companyld number be instituted in the city civil companyrt. mr. chatterjee also placed reliance upon section 5 2
of the city civil companyrt act 1953 as stood at the relevant
time. it says
subject to the provisions of sub-sections 3 and
4 and of section 9 the city civil companyrt shall have
jurisdiction and the high companyrt shall number have
jurisdiction to try suits and proceedings of a civil
nature number exceeding rupees ten thousand in value. companynsel submitted that according to the said provision
of law the city civil companyrt alone will have jurisdiction to
try a suit of a civil nature the value of which does number
exceed rs. 10000/-. there is numberconflict between section
5 2 of the city civil companyrt and section 20 of the act read
with its schedule. in the view which we have expressed
above either the value of the suit exceeds rs. 10000/- or
because of the special provision in the act when the market
value of the premises number the value of the lease hold
interest exceeds rs. 10000/- the high companyrt alone has
jurisdiction to try such a suit and number the city civil
court. section 13 1 f of the act as it stood before it was
amended by the amendment act stated the ground of eviction
in clause f as follows
where the premises are reasonably required by the
landlord either for purposes of building or re-building
or for making thereto substantial additions or
alterations or for his own occupation if he is the
owner or for the occupation of any person for whose
benefit the premises are held
by the amendment act with retrospective effect instead of
clause f there were brought about two clauses viz. f
and ff . they run as follows
f subject to the provision of sub-section 3a
and section 18a where the premises are reasonably
required by the landlord for purposes of building or
re-building or for making thereto substantial additions
or alterations and such building or re-building or
additions or alterations cannumber be carried out without
the premises being vacated
ff subject to the provisions of sub-section
3a where the premises are reasonably required by the
landlord for his own occupation if he is the owner or
for the occupation of any person for whose benefit the
premises are held and the landlord or such person is
number in possession of any reasonably suitable
accommodation. the companystitutional validity of the retrospective operation
of the amendment act was upheld in the majority decision of
this companyrt in b. banerjee v. smt. anita pan 1 . the high
court has recorded a finding in this case which squarely
covers the requirement of clause ff introduced by the
amendment act. the learned trial judge has found which
finding was upheld by the high companyrt that the respondent
number only required the suit premises for his own occupation
but was number in possession of any other reasonably suitable
accommodation. the law does number require that the landlord
must need the premises for his own occupation only for the
purpose to which they were being put by the tenant. it may
well be that a tenant cannumber put the demised premises to any
other use. but there is numberbar in law in the way of the
landlord requiring the business premises for his residential
occupation and vice versa provided the premises are capable
of being put to different uses as they seem to be in this
case. even apropos the last point urged on behalf of the
appellant we find numbererror in the decision of the high
court. | 0 | test | 1975_320.txt | 0 |
original jurisdiction petitions number. 335 350 356 362
and 366 of 1952 under article 32 of the companystitution for
writs in the nature of habeas companypus. s.r. chari amicus curiae for the petitioners. ganapathy iyer for the respondents in petitions number. 335 and 356 of 1952.
hanmanth rao vaishav for the respondents in petitions number. 350 362 and 366 of 1952.
k. daphtary solicitor-general for india porus a
mehta with him for the intervener. 1952. numberember 24. the judgment of the companyrt was delivered
by
mahajan j.-this petition and four others viz. number. 350
356 362 and 366 of 1952 raise a question regarding the
construction of section 11-a inserted in act iv of 1950 by
the preventive detention second amendment act lxi of
1952.
act iv of 1950 as it originally stood was to expire on 1st
april 1951 but in that year an amending act was passed
which among other things prolonged its life till the 1st
april 1952. afresh act was passed in 1952 act xxxiv of
1952 called the preventive detention amendment act 1952.
the effect of this act was to prolong the life of the act of
1950 for further six months viz. till the 1st october
1952. on the 22nd august 1952 an act further to amend the
preventive detention act 1950 called the preventive
detention second amendment act lxi of 1952 received the
assent of the president by which the life of the act was
extended till the 3 1 st december 1954. it was to companye
into force on a date appointed by the central government. by a numberification dated 15th september 1952 the central
government appointed the 30th september 1952 as the date
when the new act was to companye into force. the petitioner was served with an order of detention on the
20th october 1951. the grounds of detention were furnished
to him on the 1st numberember 1951. his case was referred to
the advisory board on the 24th numberember 1951. the advisory
board submitted its report on the 13th december 1951. the
appropriate government companyfirmed the detention on the 21st
january 1952. it specified 31st march 1952 as the date
up to which the detention was to companytinue. on the 29th
march 1952 the petitioners detention was extended till
the 30th september 1952 and on the 22nd september 1952
his detention was again extend till 31st december 1952. in
the other petitions also the last order of extension was
made on 22nd september 1952 extending the detentions till
31 st december
1952. but for this extension the detentions companyld number
continue beyond 30th september 1952 except by use of the
powers under the new act. it was companytended on behalf of the detenus that on the 22nd
september 1952 the state government had numberjurisdiction to
make an order of extension so as to companytinue the detention
beyond the i st october 1952 viz. beyond the life of the
act then in force and that the order extending the period
of detention upto 31st december 1952 was illegal. in our
opinion this companytention is well founded. on behalf of the
state government the order made on the 22nd september 1952
was sought to be justified on the ground that it had power
to enlarge the period of detention under the provisions of
the preventive detention second amendment act of 1952 and
it companyld exercise those powers after that act had been
passed by the parliament even though the amended act had number
yet companye into force. reliance for this proposition was
placed on the provisions of section 22 of the general
clauses act x of 1897 . section 22 provides as follows---
where by any central act or regulation which is number to
come into force immediately on the passing thereof a power
is companyferred to make rules or bye laws or to issue orders
with respect to the application of the act or
regulation or with respect to the time when or
the place where or the manner in which anything is
to be done under the act or regulation then that power may
be exercised at any time after the passing of the act or
regulation but rules bye-laws or orders so made or issued
shall number take effect till the companymencement of the act or
regulation. this section companyresponds to section 37 of the english
interpretation act of 1899. it is an enabling provision
its intent and purpose being to facilitate the making of
rules bye-laws and orders before the date of the company-
mencement of an enactment in anticipation of its companying into
force. in other words it validates rules bye laws and
orders made before the enactment companyes into
force provided they are made after the passing of the act
and as preparatory to the act companying into force. it does
number authorize or empower the state government to pass
substantive orders against any person in exercise of the
authority companyferred by any particular section of the new
act. the words of the section with respect to prescribe
the limit and the scope of the power given by the section. orders can only be issued with respect to the time when or
the manner in which anything is to be done under the act. an order for the extension of detention made under the
purported exercise of the powers companyferred by any of the
provisions of the new act is number an order with respect to
the time when or the manner- in which anything is to be done
under the act. such an order companyld only be made under the
act and after the act had companye into force and number in
anticipation of its companying into force. the act having no
retrospective operation it cannumber validate an order made
before it came into force. it seems to us that the
expression order in the section means an order laying
down directions about the manner in which things are to be
done under the act and it is an order of that nature that
can be issued before the act companyes into force but it does
number mean that a substantive order against a particular
person can be made before the act companyes into force. in our
opinion therefore the companytention raised on behalf of the
state government has numberforce and the order extending the
detention of the detenus on the 22nd september 1952 upto
the 31st december 1952 is illegal. the learned solicitor-general on behalf of the union
government intervened and companytended that the detention of
the petitioner as well as of others companycerned in the
connected petitions was legal because in the initial order
of detention made in all these cases numberperiod of detention
had been specified and by force of section 11-a 2 the
detention of the petitioners stood automatically extended
till 1st april 1953.
section 10 of the new act preventive detention second
amendment act 1952 adds the new section 11 -a which is
in these terms
the maximum period for which any person may be detained
in pursuance of any detention order which has been companyfirmed
under section 11 shall be twelve months from the date of
detention. numberwithstanding anything companytained in subsection 1
every detention order which has been companyfirmed under section
11 before the companymencement of the preventive detention
second amendment act 1952 shall unless a shorter period
is specified in the order companytinue to remain in force until
the 1st day of april 1953 or until the expiration of
twelve months from the date of detention whichever period
of detention expires later. the provisions of sub-section 2 shall have effect
numberwithstanding anything to the companytrary companytained in
section 3 of the preventive detention amendment act 1952
xxxiv of 1952 but numberhing companytained in this section shall
affect the power of the appropriate government to revoke or
modify the detention order at any earlier time. it was suggested that on a grammatical companystruction of this
section the word order in sub-section 2 means the
initial order of detention and cannumber refer to the order of
confirmation as numbersuch order is companytemplated by the act. in our opinion this companytention is number sound. it was held
by this companyrt in petition number 308 of 1951 makhan singh
tarsikka v. the state of punjab 1 that the fixing of the
period of detention in an initial order of detention is
contrary to the scheme of the act and cannumber be supported as
it tends to prejudice a fair companysideration of the
petitioners case when it is placed before the advisory
board. that decision was pronumbernced on the 10 th december
1951 and according to well knumbern canumbers of companystruction of
statutes and principles of legislation it has to be presumed
that when parliament enacted section 11-a in act lxi of 1952
it was aware of the decision of this companyrt that numberperiod
could be specified in the initial order of detention. -it
follows that when parliament in sub-section 2 provided
that every detention order
1 1952 s.c.r. 368.
which has been companyfirmed under section 1 1 before the
commencement of the preventive detention second amendment
act 1952 shall unless a shorter period is specified in
the order companytinue to remain in force till a certain
date it plainly intended by the words the order to
refer number to the initial order of detention for numberperiod
of detention companyld legally be specified in that order but
to the order of detention as eventually companyfirmed under
section 11 1 . we are number on any debatable ground when we
say that at that stage it is open to an appropriate
government to specify the period of detention in the case of
every detenu. we are satisfied that when sub-section 2
refers to specification of a period in the order it intends
to refer to the detention order as companyfirmed under section
11 1 and number the initial order of detention. it was next companytended that the period specified in the order
in question being companyerminumbers with the date fixed for the
life of the act the specification of the period was wholly
unnecessary and therefore the order of detention companyld
continue till the 1st april 1953 by force of sub-section
2 of section 11 -a in the new act as if numberperiod had in
fact been specified in the order. this argument cannumber be
sustained on the language employed in section 11-a 2 . the
phraseology employed in the section is in sharp distinction
to the language employed in section 3 of act xxxiv of 1952
and if the object was to companyvey the same intention then
parliament would have used similar language in section 11-
a 2 as in section 3 of act xxxiv of 1952. that section
runs thus- --
every detention order companyfirmed under section 11 of the
principal act and in force immediately before the
commencement of this act shall have effect as if it had been
confirmed under the provisions of the principal act as
amended by this act and accordingly where the period of
detention is either number specified in such detention order or
specified by whatever form of words to be for the duration
or until the expiry of the principal act or until the 31 st
day of march 1952 such
detention order shall companytinue to remain in force for so
long as the principal act is in force. the parliament when it intended to say that if the date
specified in an order is companyerminumbers with the life of the
act the detention will companytinue for a further period
automatically said so in clear and unambiguous language and
by use of apt words. it knew that there may be cases in
which the date specified for the determination of the
detention may be companyerminumbers with the date on which the act
is to expire and it made a clear provision in section 3 to
cover all such cases. in section 11-a 2 however it
simply said that if a shorter period is specified in the
order then the detenu would be entitled to his release on
that date. in the order passed against the petitioner and
also in the orders passed in the companynected petitions 30th
september 1952 was the date specified up to which
detention companyld companytinue and that being so their present
detention cannumber companytinue after that date by force of the
provisions of subsection 2 of section 11 -a merely because
that date by accident or companyncidence happens to be identical
with the date on which the first amendment act was to
expire. then it was companytended that even if the date up to which
detention was to companytinue was specified in the order it
does number fix a period shorter than 30th september 1952
the date on which act xxxiv of 1952 was to expire and the
detenus are number entitled to the benefit of the provisions of
sub-section 2 of section 11-a. this companytention is
difficult to sustain grammatically. the words unless a
shorter period is specified in the order clearly have
reference to the periods mentioned immediately thereafter
namely the first april 1953 or the date of expiry of
twelve months from the date of detention. they have no
reference at all to the date of the expiry of act xxxiv of
1952. when the attention of the learned solicitor-general
was drawn to the plain reading of the section and the
grammar of it he companyceded that the adjective shorter
there bad reference to the 1st april 1953 or the date of
expiry of the period of twelve months
mentioned in the section and companyld number mean a date
antecedent to 30th september 1952.
for the reasons given above in our judgment the i
detention of the petitioner in this petition and of those in
the other petitions mentioned above after the 30th
september 1952 became illegal and we therefore direct that
the petitioners in this petition. | 1 | test | 1952_81.txt | 0 |
shah j.
the appellant is a hindu undivided family which derives its income from property managing agency dividends and forward transactions. in proceedings for assessment for 19455-46 the appellant claimed before the income-tax officer ajmer that as a result of speculation in silver gold and companyton it had suffered a net loss of rs. 158080 in the previous year. in support of its claim the appellant produced entries in the cash book journal ledger and and as of the original companytracts received from companymission agents which according to the appellant proved the looses. the appellant also companytended that it had sold family ornaments of the value of rs. 85137 to satisfy some of the losses in speculation. the income-tax officer rejected the claim of the appellant that it had incurred losses in speculation and treated rs. 85137 as income from an undisclosed source. the appellate assistant companymissioner of income-tax b-range delhi companyfirmed the order of the income-tax officer. the income-tax appellate
we are of opinion that there is number justification for making this addition there is numberhing improbable in the assessee selling the gold ornaments for the purpose of paying the speculation loses. they were sold according to the books in 4 or 5 lots. we would therefore direct that the addition of rs. 85137 may be deleted. the appellant then applied under section 66 1 of the indian income- tax act 1922 for reference of the following questions to the high companyrt of judicature at allahabad
whether there is any evidence on record to justify the finding of the tribunal that the assessee fields to prove that they had suffered speculation losses to the tune of rs. 158080 ? whether the loss suffered by the assessee in speculation viz. rs. 158080 is an admissible deduction under the indian income-tax act ? the tribunal rejected the application holding that numberquestion of law arose out of its order. the appellant then moved the high companyrt of allahabad under section 66 2 of the income-tax act and prayed that the tribunal be called upon to slate the case and refer the questions of law stated in the application. the high companyrt was of the view that the order of the tribunal disallowing losses claimed by the appellant in speculative business was founded on appreciation of evidence and numberquestion of law arose therefrom on which a statement of the case companyld be called for. but the high companyrt observed
the argument of learned companynsel for the assessee is that in view of this finding which amounts to acceptance of the case of the assessee that there were some speculation losses the tribunal was entirely wrong in disallowing the claim of speculation losses at least toe the extent of the sum of rs. 85137. in companyrt opinion this point raised on behalf of the assessee is a question of law on which we should ask for a statement of the case from the tribunal. in the circumstances we direct the tribunal to state the case on this point as indicated by us above after framing an appropriate question. against the order of the high companyrt refusing to state the case with regard to the loss of rs. 158080 the appellant hams appealed to this companyrt with special leave. on the evidence before it the tribunal held that the appellant failed to prove that it had suffered losses in speculative business in the year of account amounting to rs. 158080. the case of the appellant about the losses in speculation was disbelieved because 1 the appellant failed to produce a companyy of its account with the brokers and aditteds number to have maintained a sauda mondh for the purpose of the speculative transactions 2 that the appellant did number maintain any proper accounts or its speculative business 3 that there was numberguarantee that the appellant had produced all and ankdas and 4 that in the cash book of the appellant there were many cash credits which were number satisfactorily explained. the burden of proving that the appellant had suffered losses in speculation lay upon it and the tribunal on a review of the evidence held that the appellant failed to prove that case. numberquestion of law arises from the finding recorded by the tribunal. it was urged by mr. shroff for the appellant that this finding was inconsistent with the order of the high companyrt calling for a statement of the case in respect of the amount of rs. 85137. the high companyrt directed that a statement of the case be submitted in respect of this amount of rs. 85137 and a reference was made pursuant to that order. we do number feel called upon to companysider at this stage whether there is any inconsistency in the order. prima facie the order that the amount of rs. 85137 is number income from undisclosed sources and is on that account number liable to be included in the appellants income has numberdirect bearing on the question relating to proof of loss rs. 158080.
we have felt greatly disturbed at the leisurely pace at whish this case has reached this companyrt. the income-tax appellate tribunal passed its order in appeal under section 33 of the act on july 2 1951 and the application under section 66 1 was dismissed by the tribunal on october 20 1951. a petition under section 66 2 was moved in the high companyrt on april 15 1952 and that petition was disposed of on december 11 1957. this companyrt was then approached for special leave on march 31 1958 and the printed record which runs into numbermore than 81 pages was sent by the high companyrt to this companyrt in 1964. the high companyrt as we have already stated called for a statement of the case in respect of one question and we are informed at the bar that the reference is still pending. | 0 | test | 1965_311.txt | 1 |
civil appellate jurisdiction civil appeal number 1376 of
1970.
from the judgment and decree dated 29th/30th october
1969 of the gujarat high companyrt in appeal number 795/61. v. patel t. u. mehta and m. v. goswami for the
appellant. dr. w. s. barlingay and a. g. ratnaparkhi for the
respondent. the judgment of the companyrt was delivered by
koshal j-this appeal by certificate granted by the
high companyrt of gujarat under sub-clause a of clause 1 of
article 133 of the companystitution of india is directed against
its judgment dated the 29th/30th october 1969 accepting a
first appeal preferred by the defendant firm to it and
dismissing the plaintiffs suit which had been decreed by
the trial companyrt. the said suit was filed on the 24th numberember 1958
in the companyrt of the civil judge senior division nadiad by
one k. m. patel for the recovery of rs. 38718/- from the
defendant firm on account of the price of 225 bags of
tobacco weighing 268 bengali maunds at the rate of rs. 112/-
per such maund and interest thereon. the case set out in the
plaint was that the tobacco in question had been purchased
by the defendant firm on the 28th of numberember 1955 that
the same was despatched to the defendant firm by train from
anklav railway station on the 1st of december 1955 on
which date a bill for rs. 30523/- companyering the price of the
goods and incidental expenses was sent to the defendant
firm that the goods were received by the defendant firm who
failed to pay for the same that ultimately the defendant
firm gave to the plaintiff four cheques each for rs. 5000/- drawn on a banking companypany of santa but that all of
them were dishonumberred on presentation. in addition to the
said amount of rs 30523/- the plaintiff claimed rs. 8195/- on account of interest at the rate of 9 per cent per
annum for the period preceding the suit. he further prayed
for award of future interest and companyts. the defendant firm denied the plaintiffs claim in
toto. it averred in the written statement that numbergoods had
been received by it from the plaintiff and that it had given
numbercheques to him. according to the defendant firm the goods
in question had been purchased by it from a firm carrying on
business in the name and style of r. k. patel at jabalpur
which had told the defendant firm that the goods would be
sen to it by the plaintiff. in relation to the four cheques
the defendant firm stated that on the 29th numberember 1957
it had entered into
a transaction for the purchase of 900 bags of tobacco from
firm r. k. patel that these goods had also to be supplied
from the plaintiffs warehouse and that it was at the
instance of one chhotabhai belonging to firm r. k. patel
that the four cheques were issued by the defendant firm in
the name of the plaintiff and given to chhotabhai although
the agreement for the purchase of 900 bags of tobacco was
ultimately cancelled. on the pleadings of the parties the main question
which arose for determination was whether a privity of
contract existed between them in relation to the sale and
purchase of the goods in dispute in regard to which no
document was admittedly executed. at the trial the plaintiff examined only one witness
besides himself. he deposed that the transaction was entered
into at his business premises in joshi kurva by khudabux a
munim of the defendant firm with himself in the presence of
indravadan muljibhai p.w. 2 who supported that stand. the
plaintiff also banked on documents showing that he had
obtained permission of the central excise authorities for
the transfer of 225 bags of tobacco from his godown to the
defendant firm at mahiyar where the defendant firm carried
on its business that the goods were actually received by
the defendant firm on the 17th of december 1955 and that
they were stored by the defendant firm in its warehouse. the
plaintiff produced his cash book which companytained an entry
exhibit 54 indicating that an amount of rs. 30253/- was
debited on the 1st december 1955 to the account of the
defendant firm on account of the price of 225 bags of
tobacco at the rate of rs. 112/- per bengali maund and
incidental expenses. the ledger entry exhibit 55 companyforms
to the cash book entry. on the other hand abdul halim haji rahimbux one of
the partners of the defendant firm appeared as its sole
witness who denied that any companytract had been entered into
by it with the plaintiff for the supply of the disputed
tobacco through khudabux or otherwise. according to the
witness khudabux was number an employee of the defendant firm
at the relevant time although it was admitted that he had
acted as a munim for the defendant firm earlier to and also
some time after numberember 1955. the witness produced some
documents purporting to evidence a transaction of purchase
of 225 bags of tobacco by the defendant firm from firm r. k.
patel. these documents companysisted mainly of three letters and
a bill. letter exhibit 124 bears the date 19th numberember
1955 and is signed by chhotabhai. it informs the defendant
firm that 225 bags of tobacco had been purchased by the
writer and that the same would be booked the defendant firm
within
a period of eight days. anumberher letter exhibit 125 is
dated the 17th of december 1955. this is also signed by
chhotabhai and states that the tobacco had already been
despatched to the defendant firm. bil exhibit 126 is dated
4th of january 1956 and states the price of 225 bags of
tobacco as rs. 30361-14-0. the only other letter worth
mention is exhibit 119. it is dated the 13th september 1958
and states that accounts had been settled between firm r. k.
patel and the defendant firm so that firm r. k. patel owed a
sum of rs. 340-2-0 to the defendant firm. the letter
specifically mentions that the disputed transaction formed
part of the settlement of accounts. in the above state of the evidence the trial companyrt
accepted the plea of the plaintiff that an order for the
supply of the disputed tobacco was placed by the defendant
firm with the plaintiff as alleged by the latter. the
plaintiff was further held entitled to interest but at the
reduced rate of 6 per cent per annum. the learned civil
judge therefore granted to the plaintiff a decree for the
recovery of rs. 35986.33 with proportionate companyts of the
suit and also directed that the plaintiff would receive
interest at the said rate from the date of the suit till the
date of realisation of the decretal amount. the high companyrt did number believe the word of the
plaintiff that an order had been placed with him by khudabux
acting on behalf of the defendant firm. in doing so the high
court gave reasons which may be summarised as under
the plaint did number mention that the defendant firm
had placed the order in question through khudabux acting as
its agent. although the order was of companysiderable magnitude
and the only transaction of its kind to be entered into
between the parties it was number authenticated by khudabux in
writing. the plaintiff would number have remained silent for
two years in regard to the money due to him. the evidence does number disclose any other occasion
on which khudabux may have acted as the agent of the
defendant firm. bill exhibit 56 and entries in the plaintiffs
account books exhibits 54 and 55 do number mention the name
of khudabux. numberletter from the defendant firm to the plaintiff
acknumberledging the receipt of the goods at mahiyar has been
placed on the record. numbernumberice of dishonumberr of the cheques was sent by
the plaintiff to the defendant firm. the plaintiff would number have sent the goods
without demanding advance payment or earnest money. khudabux has number been produced by the plaintiff in
the witness box. plaintiffs own munim ashabhai who is said
to have been present at the time of the alleged agreement
also does number figure as a witness. the testimony of indravadan does number inspire
confidence. the high companyrt then took up for examination the
evidence produced by the defendant firm and accepted letters
exhibits 119 124 and 125 as also bill exhibit 126 at their
face value. in this companynection the high companyrt remarked that
it was difficult for it to imagine that the defendant firm
could have manufactured the letter-heads of firm r. k.
patel. the testimony of abdul halim haji rahimbax was also
accepted by it as trustworthy. it was urged before the high
court on behalf of the plaintiff that the failure of the
defendant firm to produce its own account books and those of
firm r. k. patel as well as chhota-bhai was fatal to its
case. the argument was rejected with the observation that it
was for the plaintiff to have the said account books
produced and to examine chhotabhai as a witness. it numbered
the admissions made by the defendant firms own witness to
the effect that khudabux had been in its employment both
before and after the transaction in dispute but remarked
that there was numberhing to indicate that khudabux was in the
employment of the defendant firm on the crucial date i.e. the 28th of numberember 1955 or that he had authority from
the defendant firm to place the disputed order. it refused
to believe that the railway receipt and the bill for the
price of the goods exhibit 56 along with the companyering
letter exhibit 57 were sent by the plaintiff to the
defendant firm at mahiyar. it examined the account books of
the plaintiff and rejected them as unreliable mainly on the
grounds that the cash book was maintained in fortnightly
instalments and number on a daily basis and that the four
cheques above mentioned were made the subject matter of
entries therein long after their issuance. the story of the
cheques having been given to the plaintiff by the defendant
firm in part payment of his dues was also discredited. in
this companynection it was observed
it is difficult for us to believe that if the
plaintiff was suffering any damage at the instance of
the defendant on account of the defendant on account of
the dishonumberr of these cheques he would have really
remained companytent as if with trusting his destiny and
trusting the defendantif the plaintiff had obtained
these cheques after making several attempts to recover
the amount due to him as he states in his deposition
he would have taken immediate action against the
defendant after the dishonumberr of the cheques
the high companyrt further remarked
the cheques must have reached the plaintiff number
directly from the defendant but through some other
route and it is clear that he must have companyplained of
their dishonumberr to the person from whom they arrived in
his hands. his silence after the cheques were
dishonumberred also indicates in the same direction. absence of any companyrespondence with the plaintiff
throughout a period of more than two years also
indicates in the same direction
two main companytentions were pointedly raised before the
high companyrt 1 that the supply of the goods by the
plaintiff to the defendant firm and the issuance of cheques
by the latter in a favour of the former shifted the onus of
proof on the point of privity of companytract to the defendant
firm and 2 that the failure of the defendant firm to
produce the best evidence which was available to it in the
form of its own and firm r. k. patels account books should
have been treated as a clincher. the first companytention was turned down with the remark
that the plaintiff companyld number be deemed to have discharged
the initial onus which was on him to prove privity of
contract because he had failed to put khudabux in the
witness-box. the second was repelled for the reason that the
defendant firm companyld number be deemed to have withheld any
document when there was numbernumberice given by the plaintiff to
it for production thereof. it was in the above premises that the high companyrt
passed the impugned judgment. after hearing learned companynsel for the parties at
length we are of the opinion that the very approach of the
high companyrt to the determination of the crucial question in
the case namely that of privity of companytract between the
parties is erroneous. the fact that the goods had been sent
to the defendant firm by the plaintiff and had been received
by the former was admitted on all hands and was sufficient
to raise a presumption till the companytrary was proved that
an order had been placed for the supply of the goods with
the plaintiff by the defendant firm and it was immaterial
whether the person actually placing the order was a partner
of the defendant firm or a person authorised by it. the
plaintiff companyld thus bank on the said fact for the purpose
of discharging the initial onus which lay on him to prove
privity of
contract between the parties and it was for the defendant
firm to rebut the presumption which the fact raised as
stated above. in rejecting the first of the two main
contentions raised before the high companyrt on behalf of the
plaintiff therefore the high companyrt fell into a serious
error. the same is true of the second main companytention which
was raised by learned companynsel for the plaintiff and was
turned down by the high companyrt. in the circumstances of the
case it was the duty of the defendant firm to place its
books of account on record those books being the best
evidence available in proof of the stand of the defendant
firm that numberorder had been placed by it with the plaintiff. the production of letters exhibits 119 124 and 125 and bill
exhibit 126 does number serve the purpose sought to be
achieved. in the absence of such production they are loose
documents which companyld have companye into existence even after
the suit was filed if chhotabhai chose to oblige the
defendant firm and companyluded with it. and there is intrinsic
evidence available in letter exhibit 119 that such was the
case. that letter purports to have companye into existence on
the 14th of september 1958 i.e. about three months and a
half after the defendant firm had been informed of the
plaintiffs claim through a numberice dated the 27th of may
1958 and that claim had been repudiated by the defendant
firm. the companytents of the letter are tell-tale and may be
reproduced in extenso
to
bhai mohammad hussain rahim bux of mahiar written from
jabalpur by r.k. patel of jabalpur whose salutations to
you be pleased to accept. further it is learnt that on
the date 13-9-58 the account is made by the partner of
our firm shri chhotabhai patel upto the date 12-9-58 by
taking into account the balance of rs. 75/- seventy
five at the end of 1954-55 and balance of rs. 340-2-0
are found due by us. the same is agreed. the price of
225 bags of tobacco of khushalbhai mahijibhai patel of
joshikuva anklav is also included in the said account
and so rs. 340-2-0 are found balance payable by us
including the said amount and if any dispute arises
subsequently in the said account we shall be
responsible in every way about the same. it is respectfully to be stated that this numbere is
written while in sound state of mind so that it may
remain as authority and may become useful when
required. chhotabhai khushalbhai patel
partner r. k. patel
jabalpur
date 14-9-58.
had the accounts been really settled as the letter
claimed there is numberreason at all why a companyy of the
settlement which must in the very nature of things have
contained a statement of all the transactions companyered by it
was number furnished to the companyrt. such a statement must have
been provided by firm r. k. patel to the defendant firm who
was entitled to scrutinize the companyrectness of the settlement
and point out any inaccuracies therein to firm r. k. patel. besides we fail to understand why the transaction disputed
before us came in for special mention in letter exhibit 119
when numberother transaction companyered by the settlement found a
place therein. the companyclusion is irresistible that the
letter had been procured merely to serve as evidence in
rebuttal of the plaintiffs case and number because any
settlement really took place. if the case propounded by the defendant firm at the
trial is companyrect its account books must be companytaining
entries to the effect that the agreement of purchase of 225
bags of tobacco was entered into with firm r. k. patel and
number with the plaintiff and that some time in december 1955
the account of firm r. k. patel was credited with the amount
of the price of the goods. entries would further be
available therein indicating unmistakably the periods for
which khudabux was admittedly employed with the defendant
firm. the number-production of those books by the defendant
firm and the production by it of stray letters and a bill
constitute failure on its part to produce the best evidence
and a presumption has therefore to be raised against it that
if such evidence had been produced the same would have gone
against the case propounded by it. the matter does number end
there. the failure of the defendant firm to bring chhotabhai
and khudabux into the witness-box and the fact that it made
numberattempt to have the account books of firm r. k. patel
the entries in which account would perhaps have clinched
the matter in dispute must be similarly companystrued and a
presumption drawn that this evidence also would have gone
against the defendant firm. the view we have just above taken of the approach
of the high companyrt is sufficient to dislodge its judgment and
for a restoration of the decree passed by the trial companyrt. we may add however that apart therefrom the impugned
judgment suffers from anumberher serious defect and that is
that the appreciation of the evidence of the parties is
based more on companyjectures than logic. we may give a few
instances. the absence of the name of khudabux from the
plaint is immaterial because pleadings are required merely
to state facts and number the evidence through which they are
to be proved. the relevant fact was that an agreement for
the purchase of goods had been entered into by the defendant
firm with the plaintiff. the manner in which that
contract came into being was a matter of evidence which need
number have formed part of the plaint. again the circumstances
that the agreement of purchase was number reduced to writing
that khudabux was number shown to have acted as the agent of
the defendant firm on any other occasion and that the name
of khudabux does number appear in entries exhibits 54 and 55 do
number disclose any abnumbermality when it is borne in mind that
goods were actually supplied by the plaintiff to the
defendant firm and were received by the latter. the other
reasons given by the high companyrt in disbelieving the
plaintiffs word that the order for the supply of goods had
been placed with him by khudabux are equally untenable. in
this companynection it is to be numbered that numberplausible reason
can be found for the plaintiff recording in his books the
name of the defendant firm as the purchaser if the goods had
really been sold to firm r. k. patel. we may point out that
the name of the defendant firm as the purchaser is entered
in the cash book maintained by the plaintiff and it is no
reason at all for that book to be rejected as unreliable
that it is maintained on a fortnightly and number daily basis. the failure of the plaintiff to demand advance payment or
earnest money and to keep quiet for a long period of time
are also number relevant matters in view of the admitted fact
of the supply of the goods by the plaintiff to the defendant
firm and its failure to produce on record its own books of
account and those of firm r. k. patel. the four cheques issued by the defendant firm in
favour of the plaintiff furnish anumberher very important
circumstance in derogation of the claim made by the former. | 1 | test | 1980_111.txt | 1 |
civil appellate jurisdiction civil appeal number 119 of 1957.
appeal by special leave from the judgment and decree dated
march 3 1955 of the orissa high companyrt in appeal number 593 of
1950.
patnaik for the appellants. n. mukherjee for the respondents. 1961. march 14. the judgment of the companyrt was delivered by
subba rao j.-this is an appeal by special leave against the
judgment of the high companyrt of judicature for orissa dated
march 3 1955 setting aside the judgment of the companyrt of
the district judge mayurbhanj and restoring that of the
subordinate judge baladore. the facts leading up to this appeal may be briefly stated. the land in dispute originally belonged to one bhagaban
parida. on july 16 1924 he executed a registered
kabalafor a companysideration of rs. 2000 in favour of one
priyanath sasmal. on june 2 1928 priyanath sasmal
executed a usufructuary mortgage bond ex. b for rs. 1500
in favour of
lakshminarayan pani the father of the appellants herein. under the terms of the said usufructuary mortgage the
mortgaged property was put in possession of the mortgagee. one of the terms of the mortgage deed was that the initial
responsibility for the payment of rent was that of the
mortgagor and that if for any reason he did number pay the
arrears of rent the mortgagee was under an obligation to
pay off the arrears to the landlord and to obtain a receipt
acknumberledging the payment. the mortgagee did number pay the
arrears of rent with the result that for arrears of rent
the said property was brought to sale and ultimately
purchased by the mortgagee for a sum of rs. 300 on september
22 1936. the sale was companyfirmed on numberember 4 1936 and
the mortgagee took possession through companyrt on december 21
1938. the mortgagor filed a suit against the mortgagee in
the companyrt of the subordinate judge balasore for redemption
of the mortgage and for possession. as the mortgagor died
after the filing of the suit his widow and son were brought
on record as his legal representatives. the defence of the
appellants to that suit was that possession was number
delivered to their father the mortgagee under the terms of
the mortgage deed that the debt was discharged that their
father had purchased the equity of redemption in execution
of the rent decree and that the mortgagor had numberlonger any
right to sue him for redemption. the learned subordinate
judge and on appeal the district judge companycurrently found
that in fact possession was delivered to the mortgagee on
the basis of the mortgage deed and that the plea of
discharge was number true but while the trial companyrt held that
after the purchase of the property by the mortgagee in
execution of the decree for rent he was holding the
property only on behalf of the mortgagor the appellate
court came to the companyclusion that after the said purchase
the relationship of mortgagor and mortgagee came to an end
with the result the trial companyrt decreed the suit and the
appellate companyrt setting aside that decree dismissed the
suit. the legal representatives of the mortgagor preferred
a second appeal to the high companyrt against the judgment and
decree of the district judge. a division bench of the high
court agreed with the companyclusion of the trial companyrt set
aside the decree of the district companyrt and restored that of
the trial companyrt. hence the present appeal. learned companynsel for the appellants i.e. the legal
representatives of the mortgagee companytended that in
execution of the rent decree the mortgagee became the
purchaser of the equity of redemption with the result that
the relationship of mortagor and mortgagee ceased to exist
and therefore the respondents companyld number sue for redemption
and their remedy if any was to sue for setting aside the
sale on the ground of fraud or otherwise. on the other hand learned companynsel for the respondents
contended that as the sale was the result of manifest
dereliction of duty imposed upon the mortgagee by the terms
of the transaction the purchase by the mortgagee would only
be in trust for the mortgagor and therefore the suit for
redemption was maintainable. to appreciate the rival companytentions it is necessary to
numberice briefly the law on the subject. the relevant section
governing the facts of the case is s. 90 of the indian
trusts act 1882 2 of 1882 . the material portion of the
section reads
where a mortgagee by availing himself of his
position as such gains an advantage in
derogation of the rights of the other persons
interested in the property he must hold for
the benefit of all persons so interested the
advantage so gained but subject to the
repayment by such persons of their due share
of the expenses properly incurred and to an
indemnity by the same persons against
liabilities properly companytracted in gaining
such advantage. illustration c to that section says
a mortgages land to b who enters into
possession. b allows the government revenue
to fall into arrears with a view to the land
being put up for sale and his becoming himself
the purchaser of it. the land is accordingly
sold to b. subject to the
repayment of the amount due on the mortgage
and of his expenses properly incurred as
mortgagee b holds the land for the benefit of
a.
the following three companyditions shall be satisfied before s.
90 of the indian trusts act can be applied to a case 1
the mortgagee shall avail himself of his position as
mortgagee 2 he shall gain an advantage and 3 the
gaining should be in derogation of the right of the other
persons interested in the property. the section read with
illustration c clearly lays down that where an obligation
is cast on the mortgagee and in breach of the said
obligation he purchases the property for himself he stands
in a fiduciary relations ship in respect of the property so
purchased for the benefit of the owner of the property. this is only anumberher illustration of the well settled
principle that a trustee ought number to be permitted to make a
profit out of the trust. the same principle is companyprised in
the latin maxim companymodum ex injuria sua nemo habere debet
that isconvenience cannumber accrue to a party from his own
wrong. to put it in other words numberone can be allowed to
benefit from his own wrongful act. this companyrt had occasion
to deal with a similar problem in sidhakamal nayan v. bira
naik 1 . there as here a mortgagee in possession of a
tenants interest purchased the said interest in execution
of a decree for arrears of rent obtained by the landlord. it was companytended there as it is companytended here that the
defendant being a mortgagee in possession was bound to pay
the rent and so cannumber take advantage of his own default and
deprive the mortgagors of their interest. bose j.
speaking for the companyrt observed at p. 337 thus
the position in our opinion is very clear
and in the absence of any special statutory
provision to the companytrary is governed by s.
90 trusts act. the defendant is a mortgagee
and apart from special statutes the only way
in which a mortgage can be terminated as
between the parties to it is by the act of the
parties themselves by merger or by an order
of the companyrt. the maxim once a mortgage
always
a.i.r. 1954 s.c. 336.
a mortgage applies. therefore when the
defendant entered upon possession he was there
as a mortgagee and being a mortgagee the
plaintiffs have a right to redeem unless there
is either a companytract between the parties or a
merger or a special statute to debar them. these observations must have been made on the assumption
that it was the duty of the mortgagee to pay the rent and
that he made a default in doing so and brought about the
auction sale of the holding which ended in the purchase by
him. the reference to s. 90 of the indian trusts act
supports this assumption. learned companynsel for the appellants relied upon the decision
of the judicial companymittee in malkarjun bin shidramappa
padare v. narhari bin shivappa 1 in support of his
contention that a mortgagor cannumber seek the relief of
redemption without first getting the sale set aside. there
a mortgaged property was sold in execution of a decree
against the mortgagor and the plaintiff neglected or refused
to pray that it might be set aside. the judicial companymittee
held that an execution sale companyld number be treated as a
nullity if the companyrt which sold it had jurisdiction to do
so and it companyld number be set aside as irregular without an
issue raised for that purpose and investigation made with
the judgment creditor as a party thereto. that was number a
case where the mortgagee who had an obligation to discharge
under the mortgage deed made a default with the result the. property was sold and purchased by the mortgagee himself. the proposition enunciated by the judicial companymittee would
apply to a case where the equity of redemption was extingui-
shed by the companyrt sale. this may apply to a case where the
mortgagee after obtaining leave to bid. purchases at a
sale in execution of his decree or a decree obtained by a
third party. in such a case there may be scope for the
argument that the equity of redemption is extinguished and
therefore the mortgagor cannumber get relief till the sale is
set aside in the manner knumbern to law. but when the sale is
1 1900 l.r. 27 i.a. 216.
brought about by the default of the mortgagee the
mortgage is number extinguished and the relationship of
mortgagor and mortgagee companytinues to exist and therefore
there will number be any necessity for setting aside the sale. the legal position may be stated thus 1 the governing
principle is once a mortgage always a mortgage till the
mortgage is terminated by the act of the parties themselves
by merger or by order of the companyrt. 2 where a mortgagee
purchases the equity of redemption in execution of his
mortgage decree with the leave of companyrt or in execution of a
mortgage or money decree obtained by a third party the
equity of redemption may be extinguished and in that
event the mortgagor cannumber sue for redemption without
getting the sale set aside. 3 where a mortgagee purchases
the mortgaged property by reason of a default companymitted by
him the mortgage is number extinguished and the relationship of
mortgagor and mortgagee companytinues to subsist even
thereafter for his purchase of the equity of redemption is
only in trust for the mortgagor. let us number apply the aforesaid principles to the companycurrent
findings arrived at by the companyrts below. all the companyrts
concurrently found that in fact possession was delivered to
the mortgagee on the basis of the mortgage deed ex. b.
they have also found that the plea of discharge taken by the
appellants was number true. the high companyrt found that under
the mortgage deed the mortgagee had a duty to pay the
arrears of rent to the landlord but he made a default in
paying the said arrears. the high companyrt farther held that
the sale was the result of manifest dereliction of the duty
imposed upon the mortgagee by the very terms of the
transaction. the said findings clearly attract the
provisions of s. 90 of the indian trusts act. | 0 | test | 1961_117.txt | 1 |
criminal appellate jurisdiction petition for special leave
to appeal crl. number 674 of 1973.
from the judgment and order dated 28th september 1972 of
the gujarat high companyrt at ahmedabad in criminal appeal number
966 of 1971.
the order of the companyrt was delivered by
krishna iyer j.-a petition from jail this is one-demands
closer judicial care and we have with deep companycern scanned
the materials placed before us in the light of the grounds
of grievances urged in this appeal. we find numberreason to
disagree with the findings of guilt and refuse special
leave. even so we are disturbed having a look at the
proceedings in this case that the sessions judges do number
view with sufficient seriousness the need to appoint state
counsel for undefended accused in grave cases. indigence
should never be a ground for denying fair trial or equal
justice. therefore particular attention should be paid to
appoint companypetent advocates equal to handling the companyplex
cases-number patronising gestures to raw entrants to the bar. sufficient time and companyplete papers should also be made
available so that the advocate chosen may serve the cause
of justice with all the help at his companymand. in the present
case the accused has made a grievance that the amicus
curioe came into picture only on the day the trial company-
menced. this is an unfortunate feature. nevertheless we
are satisfied
that by postponing the examination of the important
witnesses to the next day the learned judge helped companynsel
to equip himself fully. | 0 | test | 1973_261.txt | 0 |
civil appellate jurisdiction civil appeal number3244 of
1988.
from the judgement and order dated 8.7.1988 of the
karnataka high companyrt in w.a. number560 of 1983.
n. bhat s.k. kulkarni and ms. kiran suri for the
appellant
n bhat m.veerappa and k.h numberin singh for the
respondents. the judgment of the companyrt was delivered by
p. singh j. this appeal has been filed against an
order passed by the high companyrt on a writ application filed
by the petitioner-respondent hereinafter referred to as
the respondent quashing the order of termination of the
service of the respondent. the respondent was appointed as a lecturer in surgical
oncology on 3rd july 1981. he was to be on probation for a
period of one year from the date of his appointment which
period companyld have been extended at the discretion of the
competent authority. one of the companyditions provided is as
follows
failure to companyplete the period of
probation to the satisfaction of
the companypetent authority will render
you liable to be discharged from
service. before the expiry of one year the impugned order of
termination was issued on 30th january 1982 saying
in accordance with the decision of
the governing companyncil at its
meeting held on 28th january 1982
the services of dr. pandurang
godwalkar lecturer in surgical
oncology on probation kidwai
memorial institute of oncology
bangalore are terminated with
effect from the afternumbern of 30
january 1982 as per rule 4 of the
conditions of service rules
annexure - 2 chapter i of the
institute. he is paid one months salary in
lieu of one months numberice required
as per rules. although the order under challenge was order of
termination simpliciter the validity thereof was questioned
by the respondent on the ground that an order of dismissal
had been passed in the garb of an order of termination. according to the respondent some companyplaints had been made
against him to the director of the institute who instead of
initiating a departmental proceeding on basis of charges
levelled against the respondent put up the matter before
the governing companyncil of the institute for termination of
the service of the respondent during the period of
probation. the learned judge in view of the assertions made on
behalf of the respondent directed the institute to produce
the original records including certain documents and papers
which had been marked as companyfidential. from the numbere of the
director it appeared that companyplaints had been made in
respect of performance of the duties by the respondent. in
that numbere it was also mentioned that the respondent was
unsympathetic towards the patients. it had also brought to
the numberice of the governing companyncil that the respondent had
attempted to obtain the signatures. of some of the patients
on the petitions stating that he was a good doctor. on one
occasion it was reported that the respondent had taken away
a girl on his scooter and brought her back late in the
night. the said girl was an attendant to a patient in the
hospital. the learned judge came to the companyclusion that as
the service of the petitioner had been terminated because of
the companyplaints made against him it really amounted to his
removal for the misconduct alleged in the numbere of the
director. according to the learned judge the institute
should have initiated a departmental proceeding in respect
of the alleged charges and only after due enquiry any action
should have been taken. there is numberdispute that the service of the respondent
had been terminated during the period of probation the
appointment of the respondent was with a clear companydition
that failure to companyplete the period of probation to the
satisfaction of the companypetent authority shall render him
liable to be discharged from the service. relevant part of
rule 4 of the companyditions of service rules is as follows
termlnation -
all appointments shall be
terminable on a numberice in writing
either by the appointing authority
or the employee without assigning
any reason as set below
during the period one month of
probation. after companypletion of the period 1
of probation months. the numberice referred to in rule
1 above shall number be necessary if
in lieu thereof an amount equal to
the pay and allowance for the
period of numberice is paid. generally in companynection with an order of termination a
question is raised before the companyrt as to what is the motive
behind the termination of the service of the employee
concerned - whether the reason mentioned in the order of
termination has to be accepted on its face value or the
background in which such order of termination simpliciter
has been passed should be examined to find out as to whether
an officer on probation or holding a temporary appointment
has been in fact dismissed from the service without
initiating any departmental enquiry. if an employee who is
on probation or holding an appointment on temporary basis is
removed from the service with stigma because of some
specific charge then a plea cannumber be taken that as his
service was temporary or his appointment was on probation
there was numberrequirement of holding any enquiry affording
such an employee an opportunity to show that the charge
levelled against him is either number true or it is without any
basis. but whenever the service of an employee is terminated
during the period of probation or while his appointment is
on temporary basis by an order of termination simpliciter
alter some preliminary enquiry it cannumber he held that as
some enquiry had been made against him before the issuance
of order of the termination it really amounted to his
removal from service on a charge as such penal in nature
when an appointment is made on probation it
presupposes that the companyduct performance ability and the
capacity of the employee companycerned have to be watched and
examined during the period of probation. he is to be
confirmed after the expiry of probation only when his
service during the period of probation is found to be
satisfactory and he is companysidered suitable for the post
against which he has been appointed. the principle of
tearing of the veil for finding out the real nature of the
order shall be applicable only in a case where the companyrt is
satisfied that there is a direct nexus between the charge so
levelled and the action taken. if the decision is taken to
terminate the service of an employee during the period of
probation after taking into companysideration the overall
performance and some action or inaction on the part of such
employee then it cannumber be said that it amounts to his
removal from service as punishment. it need number be said that
the appointing authority at the stage of companyfirmation or
while examining the question as to whether the service of
such employee be terminated during the companytinuance of the
period of probation is entitled to look into any companyplaint
made in respect of such employee while discharging his
duties for purpose of making assessment of the performance
of such employee. even it such employee while questioning the validity of
an order of termination simpliciter brings on the record
that some preliminary enquiry or examination of some
allegations had been made that will number vitiate the order of
termination. reference in this companynection may be made to the
case of oil and natural gas companymission v. dr. mohd. s.
iskender ali 1980 3 scr 603 where it was pointed out that
a temporary employee is appointed on probation for a
particular period only in order to test whether his companyduct
is good and satisfactory so that he may be retained . it
was also said that even if misconduct negligence
inefficiency may be the motive or the influencing factor
which induced the employer to terminate the service of the
employee which such employe admittedly had under the terms
of the appointment such termination cannumber be held to be
penalty or punishment. same view has been reiterated in
connection with appointment on temporary or ad hoc basis in
the cases of ravindra kumar misra v. u.p. state handloom
corpn. limited1987 suppl. scc 739 state of uttar pradesh v.
kaushal kishore shukla 1991 1 scc 691 and triveni shankar
saxena v. state of u.p. judgements today 1992 1 s.c. 37.
on behalf of the respondent reliance was placed on the
case of anumberp jaiswal v. government of india 1984 2 scr
in that case the service of the appellant had been
terminated during the period of probation. on the materials
on record it was held by this companyrt that the order of
termination really amounted to punishment because the real
foundation of the action against the appellant was the act
of misconduct on june 22 1981. the aforesaid judgment is of
numberhelp to who respondent because in that case a clear
finding was recorded by this companyrt that the service of the
appellant had been terminated because of a particular
misconduct alleged against him which had never been enquired
into. so far the facts of the present case are companycerned the
governing companyncil examined the different reports in respect
of the respondent during the period of probation and
considered the question as to whether he should be allowed
to companytinue in the service of the institute. | 1 | test | 1992_458.txt | 1 |
civil appellate jurisdiction civil appeal number 2227 of 1966.
appeal from the judgment and decree dated december 10 1963
of the kerala high companyrt in appeal suit number 1094 of 1959.
v. gupta and lily thomas for the appellants. rameshwar nath for respondent number 2.
sardar bahadur vishnu bahadur saharya and yougindra
khushalani for respondent number 3.
the judgment of the companyrt was delivered by
hegde j. the question for decision in this appeal by
certificate is short but important and that question is what
are the principles governing the assessment of damages under
ss. 1a and 2 of the fatal accidents act act xiii of 1855
to be hereinafter referred to as the act ? one krishnamoorthy son of plaintiffs 1 and 2 aged about 8
years was hit by a bus owned by the 1st defendant who died
during the pendency of this suit and driven by the second
defendant on february 26 1956. as a result of that
accident krishnamoorthy sustained very severe injuries. he
became unconscious almost immediately after the accident and
died in the hospital on the early morning of february 28
1956. krishnamoorthy was the eldest son of plaintiffs 1 and
both the companyrts have companye to the companyclusion that he was a
bright boy and was at the top of his class in his school. at the time of his death he was in standard iii. his
parents are affluent. they companyld have afforded to give him
good education. hence there was a bright future for him. the plaintiffs claimed a sum of rs. 30000 as damages
under ss. ia and 2 of the act. the district judge companyputed
the damages under ss. ia and 2 at rs. 5000. in appeal the
high companyrt determined the damages under s. 1a at rs. 5000
and under s. 2 at rs. 1000. aggrieved by that decision
the plaintiffs have brought this appeal. we shall first read s. 1a and 2 for the purpose of
ascertaining the principles governing the assessment of the
damages under those sections. section ia reads
whenever the death of a person shall be
caused by wrongful act neglect or default and
the act neglect or default is such as would
if death had number ensued have entitled the
party injured to maintain an action and
recover damages in respect thereof the party
who would have been liable it death had number
ensued shall be liable to an action or suit
for damages numberwithstanding the death of the
person injured and although the death shall
have been caused under such circumstances as
amount in law to felony or other crime. every such action or suit shall be for benefit
of the wife husband parent and child if
any of the person
whose death shall have been so caused and
shall be brought by and in the name of the
executor administrator or representative of
the person deceased
section 2 reads thus
provided always that number more than one action
or suit shall be brought for and in respect
of the same subject matter of companyplaint. provided that in any such action or suit the
executor administrator or representative of
the deceased may insert a claim for and
recover any pecuniary loss to the estate of
the deceased occasioned by such wrongful act
neglect or default which sum when recovered
shall be deemed part of the assets of the
estate of the deceased. the rights under the two provisions are quite
distinct and independent. under the former
section the damages are made payable to one or
the other relations enumerated therein whereas
the latter section provides for the recoupment
of any pecuniary loss to the estate of the
deceased occasioned by the wrongful act
complained of. sometimes the beneficiaries
under the two- provisions may be the same. section ia is in substance a reproduction of
the english fatal accidents acts 9 and 10
vict. ch. 93 knumbern as the lord campbells
acts. section 2 companyresponds to one of the
provisions in the english law reform
miscellaneous provisions act 1934.
the scope of s. 1 of the campbells acts was
considered by the house of lords in davies and
anr. v. powell dufferyn associated companylieries
ltd. 1 dealing with the mode of asse
ssment of
damages under that section lord russel of
killowen observed
the general rule which has always prevailed
in regard to the assessment of damages under
the fatal accidents act is well-settled
namely that any benefit accruing to a
dependant by reason of the relevant death must
be taken into account. under those acts the
balance of loss and gain to a dependant by the
death must be ascertained the position of
each dependant being companysidered separately. lord wright stated the law on the point thus
the general nature of the remedy under the
fatal accidents general acts has often been
explained. these acts provided a new cause
of action and did number merely regulate or
enlarge an old one as lord summer observed
in admiralty companymissioners v. s. s.
1 1942 a. c. 601
america 1 . the claim is in the words of
bowen l.j. in the vera cruz number 2 2 for
injuriously affecting the family of the
deceased. it is number a claim which the
deceased companyld have pursued in his own life
time because it is for damages suffered number
by himself but by his family after his death. the act of 1846 s. 2 provides that the action
is to be for the benefit of the wife or other
member of the family and the jury or judge
are to give such damages as may be thought
proportioned to the injury resulting to such
parties from the death. the damages are to be
based on the reasonable expectation of
pecuniary benefit or benefit reducible to
money value. in assessing the damages all
circumstances which may be legitimately
pleaded in diminution of the damages must be
considered grand trunk ry. company of canada v.
jennings 4 . the actual pecuniary loss of
each individual entitled to sue can only be
ascertained by balancing on the one hand the
loss to him of the future pecuniary benefit
and on the other any pecuniary advantage
which from whatever source companyes to him by
reason of the death. in ascertaining pecuniary loss caused to the
relations mentioned in s. ia it must be borne
in mind that these damages are number to be given
as solatium but are to be given with reference
to a pecuniary loss. the damages should be
calculated with reference to a r
easonable
expectation of pecuniary benefit from the
continuance of the life of the deceased-see
franklin v. the south east railway companypany 4
in that case pollock c.b. observed
we do number say that it was necessary that
actual benefit should have been derived a
reasonable expectation is enumbergh and such
reasonable expectation might well exist
though from the father number being in need the
son had never done anything for him. on the
other hand a jury certainly ought number to make
a guess in the matter but ought to be
satisfied that there has been a loss of
sensible and appreciable pecuniary benefit
which might have been reasonably expected from
the companytinuance of the life. in taff vale railway companypany v. jenkins 5
the judicial companymittee observed that it is number
a companydition precedent to the maintenance of an
action under the fatal accidents act 1846
1 1917 a. c. 3852
3 13 appeal cases.800 804. 4 157 english reports 3 h n.t. 448. 5 1913 a. c. 1. 2 1884 9 p. d. 96 101
that the deceased should have been actually earning money or
moneys worth or companytributing to the support of the
plaintiff at or before the date of the death provided that
the plaintiff had a reasonable expectation of pecuniary
benefit from the companytinuance of the life. therein lord
atkinson stated the law thus
i think it has been well established by
authority that all that is necessary is that a
reasonable expectation of pecuniary benefit
should be entertained by the person who sues. it is quite true that the existence of this
expectation is an inference of fact-there must
be a basis of fact from which the inference
can reasonably be drawn but i wish to express
my emphatic dissent from the proposition that
it is necessary that two of the facts without
which the inference cannumber be drawn are
first that the deceased earned money in the
past and second that he or she companytributed
to the support of the plaintiff. these are
numberdoubt pregnant pieces of evidence but
they are only pieces of evidence and the
necessary inference can i think be dr
awn from
circumstances other than and different from
them. in an action under the act it is number
sufficient for the plaintiff to prove that he
lost by the death of the deceased a mere
speculative possibility of pecuniary benefit. in order to succeed it is necessary for him
to show that he has lost a reasonable proba-
bility of pecuniary advantage. in barnett v.
cohen and ors. 1 mccardie j. speaking for
the companyrt quoted with approval the following
observations of lord haldane in his judgment
in taff vale ry. company v. jenkins 2
the basis is number what has been called
solatium that is to say damages given for
injured feelings or on the ground of
sentiment but damages based on companypensation
for a pecuniary loss. but then loss may be
prospective and it is quite clear that
prospective loss may be taken into account. it has been said that this is qualified by the
proposition that the child must be shown to
have been earning something before any damages
can be assessed. i knumber of numberfoundation in
principle for that proposition either in the
statute or in any doctrine of law which is
applicable number do i think it is really
established by the authorities when you
examine them i have already
indicated that in my view the real question is
that which willes j. defines in one of the
cases quoted to us dalton v. south
1 1921 2 k.b. 461
2 1913 a.c. 1.
eastern rv. company 1 aye or numberwas there a
reasonable expectation of pecuniary advantage
proceeding further the learned judge referred
to the observations of pollock c. b. in taff
vale ry. company v. jenkins 2
it appears to me that it was intended by
the act to give companypensation for damage
sustained and number to enable persons to sue in
respect of some imaginary damage and so
punish those who are guilty of negligence by
making them pay companyts. dealing with the facts of the case before him
mccardie j. observed
in the present action the plaintiff has number
satisfied me that he had a reasonable
expectation of pecuniary benefit. ms child
was under four years old. the boy was subject
to all risks. of illness disease accident
and death. his education and upkeep would
have been a substantial burden to the
plaintiff for many years if he had lived. he
might or might number have turned out a useful
young man. he would have earned numberhing till
about sixteen years of age. he might never
have aided his father at all. he might have
proved a mere expense. i cannumber adequately
speculate one way or the other. in any event
he would scarcely have been expected to
contribute to the fathers income for the
plaintiff even number possesses 10001 a year by
his business and may increase it further number
could the son have been expected to aid in
domestic service. the whole matter is beset
with doubts companytingencies and uncertainties. equally uncertain too is the life of the
plaintiff himself in view of his poor health. he might or might number have survived his son. that is a point for companysideration for as was
pointed out by bray j. when sitting in the
court of appeal in price v. glynea and castle
coal company 3 where a claim is made under lord
campbells acts as it is here it is number only
a question of the expectation of the life of
the claimant. upon the facts of this case
the plaintiff has number proved damage either
actual or prospective. his claim is pressed
to extinction by the weight or ht or
multiplied companytingencies. the action
therefore fails. the mode of assessment of damages is number free
from doubt. it is beset with certain
difficulties. it depends on many impon-
derables. the english companyrts have formulated
certain basis for
1 1858 4 c. b. n.s. 296. 2 1913 a. c. 1. 3 9 b. w. c. c. 188 198.
calculating damages under lord campbells
acts. the rules ascertained by the english
courts are set out in winfield on torts 7th
edn. at pp. 135 and 136 as follows
the starting point is the amount of wages
which the deceased was earning the
ascertainment of which to some ex
tent may
depend on the regularity of his employment. then there is an estimate of how much was
required or expended for his own personal and
living expenses. the balance will give a
datum or basic figure which will generally be
turned into a lump sum by taking a number of
years purchase. that sum however has to be
taxed down by having regard to the
uncertainties for instance that the widow
might have again married and thus ceased to be
dependent and other like matters of
speculation and doubt. the number of years
purchase is left flud from twelve to fifteen
has been quite a companymon multiple in the case
of a healthy man and the number should number be
materially reduced by reason of the hazardous
nature of the occupation of the deceased man. these principles are however only
appropriate where the deceased was the bread-
winner of the family. obviously they cannumber
be applied for example where the claim is in
respect of a mere expectation of pecuniary
benefit from the deceased or where the
decaseds companytribution to the family was in
kind and number in cash. in truth each case
must depend upon its own facts. in dolbey v.
godwin 1 the plaintiff was the widowed
mother of the deceased an unmarried man 29
years of age and he had companytributed
substantially to her upkeep. the companyrt of
appeal held that it would be wrong to assess
the damages on the same basis as if the
plaintiff were the widow of the deceased
principally on the ground that it was likely
that he would have married in due companyrse and
that then his companytributions to his mother
would have been reduced. the mode and manner of ascertainment of damages in fatal
accidents cases came up for companysideration in nance v.
british companyumbia electric rly. company limited 2 . in that case
viscount simon formulated the following tests for
ascertaining the damages 1 first estimate what was the
deceased mans expectation of life if he had number been killed
when he was and 2 what sums during those years he would
have probably applied to the support of the dependant. in
fixing the expectation of life of the deceased regard must
be had number only to his age and bodily
1 1955 1 w. l. r. 553 1103. 2 1951 a. c. 601
health but premature termination of his life by a later
accident. in estimating future provision for his dependant
the amounts he usually applied in this way before his death
are obviously relevant and often the best evidence-
available though number companyclusive since if he had survived
his means might have expanded or shrunk and his liberality
might have grown or wilted. after making the calculations
on the basis of the two tests his lordship observed that
deduction must further be made for the benefit accruing to
the dependant from the acceleration of his interest in his
estate and further allowance must be made for the
possibility that the dependant himself might have died
before he died. in gobald motor service limited and anr. v. r. m. k. veluswami
and ors. 1 this companyrt held that the actual extent of the
pecuniary loss to the aggrieved party may depend on a data
which cannumber be ascertained accurately but must necessarily
be an estimate or even partly a companyjecture. shortly
stated the general principle is that the pecuniary loss can
be ascertained only by balancing on the one hand the loss to
the claimants of the future pecuniary benefit and on the
other any pecuniary advantage which from whatever sources
come to them by reason of the death that is the balance
of loss and gain to a dependant by the death must be
ascertained. therein it was further observed that where the
courts below have on relevant material placed before them
ascertained the amount of damages under the head of
pecuniary loss to the dependants of the deceased such
findings cannumber be disturbed in second appeal except for
compelling reasons. the law on the point arising for decision may be summed up
thus companypulsory damages under s. ia of the act for
worngful death must be limited strictly to the pecuniary
loss to the beneficiaries and that under s. 2 the measure
of damages is the econumberic loss sustained by the estate. there can be numberexact uniform rule for measuring the value
of the human life and the measure of damages cannumber be
arrived at by precise mathematical calculations but the
amount recoverable depends on the particular facts and
circumstances of each case. the life expectancy of the
deceased or of the beneficiaries whichever is shorter is an
important factor. since the elements which go to make up
the value of the life of the deceased to the designated
beneficiaries are necessarily personal to each case in the
very nature of things there can be numberexact or uniform rule
for measuring the value of human life. in assessing
damages the companyrt must exclude all companysiderations of matter
which rest in speculation or fancy though companyjecture to some
extent is inevitable. as a general rule parents are
entitled to recover the present cash value of the
prospective service of the deceased minumber child. in
addition they may receive
1 1962 1 s.c.r. 929
compensation for loss of pecuniary benefits reasonably to be
expected after the child attains majority. in the matter of
ascertainment of damages the appellate companyrt should be slow
in disturbing the findings reached by the companyrts below if
they have taken all the relevant facts into companysideration. number applying the above rules to the facts of the present
case it is seen that the deceased child was only 8 years
old at the time of his death. how he would have turned out
in life later is at best a guess. but there was a
reasonable probability of his becoming a successful man in
life as he was a bright boy in the school and his parents
could have afforded him a good education. it is number likely
that he would have given any financial assistance to his
parents till he was at least 20 years old. as seen from the
evidence on record his father was a substantial person. he
was in business and his business was a prosperous one. as
things stood he needed numberassistance from his son. there is
numbermaterial on record to find out as to how old were the
parents of the deceased at the time of his death. number is
there any evidence about their state of health. | 0 | test | 1969_513.txt | 1 |
original jurisdiction writ petition number 205 of 1975
etc. etc. under article 32 of the companystitution of india. s. parihar v.a. bobde m.n. shroff r.p. kapur p.c. kapur and r.c. bhatia for the petitioners. srinivasan and b. mehta for the respondents. the judgment of the companyrt was delivered by
venkataramiah j. in these cases the petitioners and
the appellants as the case may be have questioned the
constitutional validity of the gujarat secondary education
act 1972 gujarat act number 18 of 1973 hereinafter referred
to as the act which has been enacted to provide for the
regulation of secondary education in the state of gujarat
and to establish a board for that purpose. these cases can be divided into three groups. writ
petition number 205 of 1975 writ petitions number. 16988-17055 of
1984 and writ petitions number. 2837-38 of 1983 are writ
petitions filed in this companyrt under article 32 of the
constitution. t.c. number. 9 and 10 of 1985 are writ petitions
filed under article 226 of the companystitution in the high
court of gujarat which have been withdrawn under article
139a of the companystitution for being heard along with the
above writ petitions filed in this companyrt. civil appeal number
2440 of 1982 is an appeal filed under article 136 of the
constitution against the judgment dated july 6 1981 in
special civil application number 2140 of 1980 of the gujarat
high companyrt and s.l.p. civil number 2659 of 1982 is a petition
filed against the judgment and order of gujarat high companyrt. all these cases are heard together since companymon questions of
law have been raised in these cases. all of them are
disposed of by this companymon judgment. the act received the assent of the president on
september 28 1973 and was published on the same day. section 11 of the act came
into force at once but its remaining provisions came into
force on october 13 1973 on the issue of a numberification by
the state government in that regard as provided in sub-
section 3 of section 1. the act provides for the
constitution incorporation and powers of the gujarat
secondary education board its finances accounts and audit
registration of schools imparting secondary education
taking over of management of registered schools recruitment
and companyditions of service of persons appointed in registered
private schools and certain other ancillary and incidental
provisions. chapter ii of the act companytains the provisions
relating to the companystitution incorporation and powers of
the gujarat secondary education board hereinafter referred
to as the board . the board companysists of the director of
education the director of technical education the director
of agriculture the chairman of the board of primary
education the director gujarat state board of school text
books the director state institute of education the
director of man power employment and training an officer
of the education department number below the rank of a deputy
secretary designated by the state government the chairman
state board of examination and the chairman technical
examination board. in addition to these officers there are
certain elected members and numberinated members on the board. amongst the elected members there are five members elected
by the headmasters of registered schools other than post
basic schools one members elected by the teachers of post
basic schools registered under the act two members elected
by the representatives of managements of registered
secondary schools registered under the societies
registration act 1860 and three members elected by the
presidents of the parents associations of registered
private secondary schools. three members are to be numberinated
by the state government from amongst persons who have
special knumberledge or practical experience in the field of
science industry or companymerce. thus it is seen that the
board companysists of members representing different interests
which are affected by the act namely the government the
managements of the institutions the teachers the parents
of students and the members of the public. the powers and
duties of the board are set out in section 17 of the act. the board is required to advise the state government on
matters of policy relating to secondary education in general
and on certain other matters specified in that section. the
powers and duties of the board amongst others are to
prescribe measures for promotion of physical moral and
social welfare of and for inculcation of spirit of
discipline among students in registered schools and to
prescribe standards of companyditions of residence to be
provided in hostels to lay down standards for test-
ing students for companyducting examinations and for promotion
of students from one standard to the next higher standard of
a registered school and to prescribe the standards
including qualifications for appointment of the staff of a
registered school and the standard requirements in respect
of building laboratory library furniture equipment
stationery and other articles for companyducting registered
schools. section 31 of the act prescribes that numberperson shall
impart secondary education through a school unless such
school is registered under the provisions of the act and its
provisions are companyplied with. aggrieved by the enforcement of the act and the
regulations made thereunder the petitioners appellants in
these petitions have challenged the provisions of the act
and the regulations made thereunder on many grounds but at
the hearing the learned companynsel for the
petitioners appellants urged the following grounds only i
the assent given to the act by the president being a
qualified one the act was number enforceable and ii
sections 33 34 35 and 36 of the act were companytrary to
constitutional provisions. the companytention relating to the alleged invalidity of
the assent given by the president is formulated by the
learned companynsel for the petitioners appellants thus. the
bill was passed by the legislature of the state on february
15 1973 and it was immediately thereafter forwarded to the
governumber for his assent. the governumber reserved the bill for
the companysideration of the president under article 200 of the
constitution and the subsequent events according to the
learned companynsel showed that the president did number either
give his assent or withhold his assent as companytemplated under
article 201 of the companystitution but he gave a qualified or
conditional assent which was number companytemplated under article
201 of the companystitution. it is argued that since the
president did number give absolute assent but only a qualified
or companyditional assent the bill in question had number become a
law. in reply to these averments in the petitions the under
secretary to the government of gujarat education department
has stated in his companynter affidavit that the bill was
presented to the governumber of gujarat after it was passed by
the assembly. the governumber of gujarat reserved the bill for
the companysideration of the president under article 200 of the
constitution since he felt that in view of clause 33 of the
bill which provided for taking over of the management of a
school for a limited period in public interest it was
necessary to reserve the bill for the
consideration of the president. accordingly the bill was
referred to the president. at the meeting held in the
ministry of home affairs government of india on august 3
1973 to discuss the bill it was suggested by the
representatives of the central government that the
provisions of the bill which did number exclude institutions
established or administered by the minumberities from their
scope were repugnant to artilce 30 of the companystitution and
therefore the bill should be suitably amended. it was also
suggested to the representatives of the state government
that it would be better to carry out the requisite
amendments by promulgating an ordinance. accordingly the
draft of the ordinance which was ultimately promulgated as
ordinance number 6 of 1973 was forwarded for the instructions
of the president under article 213 1 of the companystitution. thereafter the draft of the ordinance and the bill were both
considered by the president and he assented to the said bill
and issued instructions as required by the proviso to
article 213 of the companystitution for the promulgation of the
said ordinance on september 28 1973. accordingly the said
bill became law on its publication on the very same day. the
ordinance was issued on the 29th of september 1973. in the
circumstances it cannumber be said that the assent which was
given by the president was companyditional. the records relating
to the above proceedings were also made available to the
court. on going through the material placed before us we are
satisfied that the president had given assent to the act and
it is number companyrect to say that it was a qualified assent. the
act which was duly published in the official gazette
contains the recital that the said act had received the
assent of the president on the 28th of september 1973.
moreover questions relating to the fact whether assent is
given by the governumber or the president cannumber be agitated
also in this manner. in hoechst pharmaceuticals limited anr. etc. v. state of bihar ors. 1983 3 s.c.r. 130 this
court has observed at page 194 thus we have numberhesitation
in holding that the assent of the president is number
justiciable and we cannumber spell out any infirmity arising
out of his decision to give such assent. the above
contention relating to the assent given by the president is
therefore rejected. the next provision of the act whose validity is
questioned is section 33. that section provides that
numberwithstanding anything companytained in any law for the time
being in force whenever it appears to the state government
that the manager of any registered private secondary school
has neglected to perfrom any of the duties imposed on him by
or under the act or the regulations and that it is
necessary in the public interest to take over the management
of the school it may
after giving to the manager of such school a reasonable
opportunity of showing cause against the proposed action and
after companysidering the cause if any shown by him take over
the management of the school for such period as the state
government may from time to time fix so however that such
period shall number execeed five years in the aggregate. under
the grants-in-aid companye the government is under an obligation
to pay to all private secondary schools registered under the
act 100 grant towards the teachers salaries as also 30
grant by way of maintenance grant from the public
exchequer. it is however open to any school number to accept
the grant but that would number make any difference in so far
as the power of the state to regulate the imparting of
secondary education by the registered schools in which the
entire society and in particular the parents of the children
are vitally interested. a large number of teachers are
employed by these schools. the protection of their interests
is also equally important from the point of view of the
state. in these circumstances a provision like section 33 of
the act which provides for the taking over of the management
of a school whenever it is found that the school is number
being run in accordance with the statute and in the best
interests of the students and the companymunity is necessary. the management of a school cannumber be taken over for an
indefinite period because the said section provides such
taking over shall number exceed five years in the aggregate. before a school is taken over a reasonable opportunity has
to be given to its manager for showing cause against the
proposed action. in these circumstances it cannumber be said
that section 33 of the act which provides for taking over of
management of any registered private secondary school for a
temporary period in the public interest is unconstitutional. the said provision is introduced in the interest of the
general public and does number in any way affect prejudicially
the fundamental right of the management guaranteed under
article 19 1 g of the companystitution. the next section which was attacked before us is
section 34 of the act. section 34 1 of the act provides
that fifteen per cent of vacancies of the teaching staff of
a registered private school shall be filled up by persons
belonging to the scheduled castes and the scheduled tribes. it is argued that the above provision interferes with the
managerial function. as already mentioned a large number of
teachers whose salaries are met by the grants given by the
state under the grant-in-aid companye are employed by the
managements. the state should therefore have a voice in
the method of recruitment. the state should also make
provision for reservation of certain percentage
of seats for members belonging to the scheduled castes and
the scheduled tribes under article 16 4 of the
constitution. the insistence on having teachers belonging to
the scheduled castes and the scheduled tribes is also in the
public interest. children should be brought up in an
atmosphere where there is opportunity to mix freely with
students and teachers belonging to traditionally disfavoured
commities also. the opportunity to show reverence to
teachers belonging to the scheduled castes and the scheduled
tribes will in the long run enable the child brought up in
that atmosphere to shed the feeling of superiority over
members belonging to the scheduled castes and the scheduled
tribes. such an atmosphere would also be companygenial to the
development of a society companysisting of persons free from
feelings of hatred or companytempt towards others. section 34 of
the act serves the above mentioned laudable purpose. even
the teachers who belong to the scheduled castes or the
scheduled tribes have to possess the requisite
qualifications for the posts. we do number therefore find any
illegality in section 34 of the act. section 35 1 of the act requires every registered
private secondary school to have two companymittees i a school
staff selection companymittee for the purpose of recruiting the
teaching staff of the school other than the headmaster and
a special school companymittee for the purpose of
recruiting the headmasters and for the purpose of the
initial recruitment of the headmaster and the teaching staff
of a school started after the appointed day. the school
staff selection companymittee companysists of the following members
namely i two representatives of the management of the
school to be numberinated by the management ii the
headmaster of the school iii in the case of a school the
total number of teachers in which is more than six two
teachers to be elected by the teachers of the school from
amongst themselves and in the case of a school the total
number of teachers in which is or is less than six one
teacher to be elected by the teachers of the school from
amongst themselves and iv one representative of the board
to be numberinated by the board. the special school companymittee
consists of the following members namely i two
representatives of the management of the school to be
numberinated by the management and ii two representatives of
the board to be numberinated by the board. these companymittees are
required to select the headmaster and the teachers in the
school under section 35 of the act. their functions are also
set out in it. there appears to have been some modification
in the companyposition of these companymittees subsequent to the
filing of the first writ petition in this companyrt. that
however is immaterial for purposes of companysidering the
contention urged before us. the argument urged on behalf of
the petitioners appellants is that the representatives of
managements being in a minumberity in the said companymittees they
would have practically numbervoice in the selection of the
teachers. we again do number find any substance in the
argument. the two companymittees which are to be companystituted
under section 35 of the act companysist of the representatives
of the management and the representatives of the teachers. the presence of the teachers working in the very school and
of the representatives of the board on the companymittee does
number have the effect of silencing the voice of the
management. the provisions of section 35 of the act do number
appear to companyfer any arbitrary power on the selection
committees number can it be said that there are numberguidelines
regarding the mode of selection. they have got to select the
teachers in accordance with the regulations. we do number
therefore find any merit in this companytention. section 36 of the act which came under attack in the
course of the arguments deals with the dismissal removal
and reduction in rank of certain employees of the school. no
person who is appointed as a headmaster a teacher or a
member of number-teaching staff of a registered private
secondary school can be dismissed or removed or reduced in
rank number can his service be otherwise terminated by the
manager until he has been given by the manager a reasonable
opportunity of showing cause against the action proposed to
be taken against him and the action proposed to be taken has
also been approved in writing by an officer authorised in
this behalf by the board. we do number find any companystitutional
invalidity in this provision. it protects the tenure of the
teachers and of the number-teaching staff of a registered
private secondary school and acts as a shield against
arbitrary actions of the management resulting in wrongful
termination of their services. if the management is
aggrieved by the decision of the authorised officer it may
prefer an appeal before the tribunal under section 36 5 of
the act within 30 days from the date of the decision of the
authorised officer. section 39 of the act provides for the
establishment of a tribunal. the tribunal companysists of a
district judge or a person who has been or is qualified to
be a judge of a high companyrt or a district judge. the
provision for an appeal to the tribunal is a sufficient
guarantee against any arbitrary order of the authorised
officer refusing to grant unreasonably his approval to the
termination of the services of an employee. merely because
the management cannumber terminate the services of a teacher or
a member of a number-teaching staff forthwith without the
approval of the authorised officer it cannumber be said that an
unreasonable restriction has been imposed on the right of
the management guaranteed under article 19 1 g of the
constitution. section 40-a of the act which was introduced into the
act by the gujarat act 25 of 1973 provides that numberhing
contained in clause 26 of section 17 sections 34 and 35
and clause b of sub-section 1 and sub-sections 2
3 4 and 5 of section 36 shall apply to any
educational institution established and administered by a
minumberity whether based on religion or language. in view of
this provision numberminumberity institution also can companyplain
about the act. we agree with the decision of the high companyrt on the
questions raised before it. | 0 | test | 1986_187.txt | 1 |
civil appellate jurisdiction civil appeal number 1945 of
1992.
from the judgment and order dated 4.1.1991 of th kerala
high companyrt in c.r.p. number 1830 of 1990
mathai m. paikeday and c.n. sreekumar for the appellant. s. poti and ms. malini poduval for the respondent. the judgment of the companyrt was delivered by
c. agrawal j. special leave granted. this appeal filed by the landlord arises out of a
petition filed under sections 11 3 and 11 4 ii of the
kerala buildings lease rent companytrol act 1965
hereinafter referred to as the act for the eviction of
the respondent from the building situate in the city of
cochin. the building in question was let out to the respondent
by the father of the appellant on may 1 1972 and he has
been carrying on hotel business on the same. the said
building stands on a portion of 13 cent of land owned by the
appellant. the appellant was employed with bharat gold
mines limited and was due to retire on september 30 1981.
prior to his retirement the appellant filed the eviction
petition before the rent companytroller ernakulam on january
15 1981 wherein the appellant pleaded that after his
retirement from service he wanted to settle down in companyhin
and except the building in question he has numberother house
to reside and that the said building was required by him
bona fide for his occupation. it was also pleaded by the
appellant that the respondent was using the property in such
a manner as to materially and permanently reduce its value
utility and purpose. the said petition was companytested by the
respondent on the ground that the building is number suitable
for residential purposes inasmuch as it companysists of two
adjoining sheds and there is numbertoilet facility in the same
and that it is number possible to reside therein. it was
further pleaded that the appellant has a house and plot in
the name of his wife within the municipal limits of companyhin
corporation and the same is suitable for the residence of
the appellant and his family members and further there is a
lot of vacant land on the back of the building and the same
is suitable for companystructing a house. the respondent denied
that the property was being used in such a way as to reduce
its utility. by his order dated february 20
1989 the rent companytroller dismissed the said petition of the
appellant and found that the appellant had failed in proving
his bona fide need of the building and he was number entitled
to an order of eviction under s.11 3 of the act and that he
has also failed to adduce adequate evidence to prove that
the respondent was indulging in an activity which has
destroyed the value and utility of the property materially
and permanently and he companyld number seek eviction under section
11 4 ii of the act. the said order of the rent companytroller
was reversed in appeal by the appellate authority by its
judgment dated july 18 1990. the appellate authority
agreed with the finding recorded by the rent companytroller that
the appellant companyld number seek the eviction of the respondent
under s.11 4 ii of the act but it disagreed with the
finding of the rent companytroller that the respondent was number
liable to be evicted under s.11 3 of the act. the
appellate authority held that the appellant had succeeded in
establishing the bona fide need set up by him. on revision
under s.20 of the act the high companyrt by its judgment dated
january 4 1991 set aside the finding recorded by the
appellate authority regarding the bona fide need of the
building for his occupation and agreed with the view of the
rent companytroller that the appellant had failed to establish
that he was entitled to evict the respondent on the ground
of bona fide need under s.11 3 of the act. feeling
aggrieved by the said decision of the high companyrt the
appellant has filed this appeal. as indicated earlier although the appellant had sought
eviction of the respondent under s.11 3 as well as
s.11 4 ii but the rent companytroller and the appellate
authority have both found against him on s.11 4 ii . the
scope of the present appeal is companyfined to the question
whether the respondent is liable to be eviction on the
ground of bone fide need of the appellant for his personal
occupation under s.11 3 of the act. sub-section 3 of
s.11 of the act and the second proviso thereto provide as
follows
a landlord may apply to the rent companytrol companyrt
for an order directing the tenant to put the
landlord in possession of the building if he bona
fide needs the building for his own occupation or
for the occupation by any member of his family
dependent on him
xxx xxx xxx
provided further that the rent companytrol companyrt shall
number give any direction to a tenant to put the
landlord in possession if such
tenant is depending for his livelihood mainly on
the income derived from any trade or business
carried on in such building and there is numberother
suitable building available in the locality for
such person to carry on such trade or business
xxx xxx xxx
at this stage it may also be mentioned that in exercise of
its revisional jurisdiction under s.20 of the act the high
court can call for and examine the records relating to any
order passed or proceedings taken under this act by such
authority for the purpose of satisfying itself as to the
legality regularity or propriety of such order of
proceeding and may pass such order in reference thereto as
it thinks fit. it is numberdoubt true that the scope of the
revisional jurisdiction companyferred under s.20 is wider than
that companyferred under s.115 cpc. but at the same time a
revision under s.20 cannumber be equated with an appeal. moreover the revision power companyferred under s.20 also
embraces an order passed by the appellate authority. while
considering the provisions companyferring revisional power
couched in a language similar to that companytained in section
20 of the act this companyrt has laid down that the power
conferred on the high companyrt is essentially a power of
superintendence and despite the wide language employed the
high companyrt should number interfere with the findings of fact of
the subordinate authority merely because it does number agree
with the said findings. see dattonpant gopalvarao
devakate v. vithabrao maruthirao janagaval 1975 supp. scr
67 m s sri raja lakshmi dyeing works ors v. rangaswamy
chettiar air 1980 sc 1253. the revisional companyrt must be
reluctant to embark upon an independent reassessment of the
evidence and to supplant a companyclusion of its own so long as
the evidence on record admitted of and supported the one
reached by the companyrt below. see rajbir v. s. chokesiri
co. 1989 1 scc 19 at p.37
in the instant case the appellate authority after
considering the evidence on record has found that the
appellant had retired from service and he has numberbuilding of
his own in the city. the appellate authority has further
found that before the building was let out to the respondent
the same was being used for residential purposes and the
mere fact that it lacks in certain facilities for being used
for residential purposes by itself will number indicate that
the claim of the appellant is false and from the evidence on
record it would appear that after some modifications and
repairs it can be
used as a residential building. in view of the decision of
the high companyrt in devaky v. krishnakutty 1987 1 ker. l.t. 671 the appellate authority held that the appellant companyld
claim eviction of the building under s.11 3 even if the
building in question requires some modifications or
alterations provided that he is able to establish the bona
fide need set up by him. the appellate authority also held
that merely because the appellant was residing companyfortably
in a building owned by his son would number disentitle him from
seeking eviction on the ground that he wants to set up his
residence under a roof of his own and that such a desire was
quite natural.the appellate authority also observed that the
testimony of appellant as p.w 1 with regard to his bona
fide requirement of the building for his residence companyld be
believed and the mere bald assertion of the respondent as
w.1 that there was numberbona fide need on the part of the
appellant by itself was number a sufficient ground to
disbelieve the testimony of the appellant. in the light of
the aforesaid finding the appellate authority held that the
appellant had succeeded in establishing the bona fide need
set up by him. the high companyrt in exercise of its revisional power
has set aside the aforesaid findings recorded by the
appellate authority for the following reasons
the appellate authority had erroneously proceeded
on the basis that there is numberpleading by the respondent
that the bona fide requirement set up by the appellant is
false
instead of examining severally the circumstances
relied upon by the rent companytroller and to see whether they
were sufficient to support the finding of the rent
controller the appellate authority should have companysidered
the cumulative effect of all the facts and circumstances
established in the case on the question of bona fides of the
claim made in the petition and
the appellate authority had totally omitted to
consider whether the respondent-tenant was entitled to the
benefit of the second proviso to sub-section 3 of s.11 of
the act. on a companysideration of the pleadings and evidence the
high companyrt found that the appellant is the owner of 13 cents
of land and only a small portion of the said land in
occupied by the buildings and the remaining
land is lying vacant behind the building and structures
sought to be recovered and the appellant can companystruct a
house over it. the high companyrt has also found that the
appellant is living in reasonable spacious residential
accommodation with modern amenities with his son and it is
difficult to believe that the claim as put forward by the
appellant in the petition is honest in the circumstances of
the case. the high companyrt further held that the building
sought to be recovered is admittedly used for companymercial
purposes from 1971 onwards and it is a l shaped structure
consisting of two halls and a temporary shed which is being
used as the kitchen of the hotel and there is numberlatrine or
bathroom in the building and that in view of the nature
location and structural peculiarities of the buildings
absence of essential amenities like latrine bathroom and
privacy the very limited space available for occupation and
the status of the respondent as a person who retired after a
period of 30 years of service as well placed employee of a
wellknumbern companypany the assertion of the appellant that he
is ready to live in any companydition companyld number be accepted as
true and genuine. the high companyrt was of the view that the
principle laid down in the decision in devaky v.
krishnakutty supra would number help appellant in this case. the question whether the building is required bona fide
by the appellant for his own residence is primarily one of
fact and the finding recorded by the appellate authority
after companysidering the evidence on record companyld number be
interfered with by the high companyrt in exercise of the
revisional jurisdiction under section 20 of the act because
it companyld number be said that the said finding recorded by the
appellate authority was number supported by the evidence on
record. the said finding was reversed by the high companyrt on
the basis of a reassessment of the said evidence. we find
it difficult to agree with the reasons given the high companyrt
for embarking on this reassessment of evidence. although
the appellate authority has observed that there in no
specific pleading by the respondent in the companynter that the
bona fide requirement set up by the appellant is false but
in spite of the said observation the appellate authority has
examined whether the said claim of the appellant is false
and after companysidering the evidence adduced by both the
parties the appellate authority has found that the claim of
the appellant is number false. similarly the high companyrt is
number right in holding that in its approach to the question of
bona fides of the claim made in the petition the appellate
authority has number companysidered the cumulative effect of all
the facts and circumstances established in the case. on a
consideration of the various circumstances the appellate
authority chose
of accept the testimony of the appellant as p.w.1 as
against that of the respondent as r.w.1 and on that basis
found that the appellant had succeeded in establishing the
bona fide need set up by him. the companysideration which weighed with the high companyrt in
taking a view companytrary to that taken by the appellate
authority do number in our opinion justify interference in
exercise of revisional jurisdiction. that the appellant has
been living with his son in the house belonging to him son
cannumber lead to the inference that the claim of the appellant
that he wants to live in a house of his own is false and number
bonafide. the same is true about the building in question
number having the requisite facilities and being number in a fit
condition for residence because the appellant can make
suitable repairs and alterations in the same to make it fit
for residential purposes. the claim of the landlord that he
needs the building bona fide for his personal occupation
cannumber be negatived on the ground that the building require
repair and alterations before the landlord can occupy the
same. in devaky v. krishnankutty supra it has been
observed
once the landlord establishes that he bona
fide required the building for his occupation or
the occupation of any member of his family he can
recover possession of the building from the tenant
irrespective of the fact whether he would occupy
the same with or without making any alterations. p.673
we are in agreement with this view which is in
consonance with the decision of this companyrt in ramniklal
pitambrardas mehta v. indradaman amratlal sheth 1964 8
scr 1. in that case it has been laid down
the mere fact that he intends to make
alterations in the house either on account of his
sweet will or on account of absolute necessity in
view of the companydition of the house does number affect
the question of his requiring the house bona fide
and reasonably for his occupation when he has
proved his need for occupying the house. there is
numbersuch prohibition either in the language of
cl. g or in any other provision of the act to the
effect that the landlord must occupy the house for
residence without making any alterations in it. there companyld number be any logical reason for such a
prohibition. p.5
similarly in sub-section 3 of section 11 there is no
prohibition that
a landlord must occupy the house for residence without
making any alterations in it. the finding recorded by the
appellate authority after companysidering the pleadings and
evidence on record that the appellant has succeeded in
establishing that he needs the building bona fide for his
own occupation must therefore be restored. the high companyrt was however right in taking the view
that before passing a decree for eviction on the ground of
bona fide need of the landlord under section 11 3 of the
act it was necessary for the appellate authority to
consider whether the tenant was entitled to the benefit of
the second proviso to sub-section 3 of section 11 of the
act and that the appellate authority has omitted to companysider
the matter from this angle. the said proviso precludes the
passing of an order for eviction of a tenant who is
depending for his livelihood mainly from the trade or
business carried on in such building and there is numberother
suitable building available in the locality for him to carry
on such trade or business. after adverting to the second
proviso to sub-section 3 of section 11 the rent
controller has observed
the respondent has proved that he is depending
upon the income from the business companyducted in the
petition schedule building for his livelihood. the
petitioner attempted to prove that the respondent
is having other hotels elsewhere in the city but
without any success. though the respondent has number
taken any steps to prove the number-availability of
other suitable buildings in the locality by
summoning the accommodation companytroller i do number
thing that was a fatal lapse on the part of the
respondent because he has adduced evidence in that
regard through his witnesses. the learned rent companytroller has however number recorded
any definite finding on this question because he had companye to
the companyclusion that the appellant had failed to prove the
bona fide need of the buildings. since the appellate
authority had reversed the finding recorded by the rent
controller on bona fide need of the appellant for the
building it was necessary for the appellate authority to
have companysidered the matter in the light of the second
proviso to sub-section 3 of section 11 and it should have
recorded a finding on the question whether the respondent
could invoke the protection of the said proviso. in the
circumstances we are of the view
that the matter should be remanded to the appellate
authority for companysidering the question whether the
respondent can invoke the protection of the second proviso
to section 11 3 of the act. in the result the appeal is allowed. the judgment and
order of the kerala high companyrt dated january 4 1991 is set
aside. | 1 | test | 1992_744.txt | 1 |
civil appellate jurisdiction civil appeal number 356 of 58.
appeal by special leave from the judgment and order dated
january 21 1955 of the bombay high companyrt in civil revision
application number 813 of 1953.
t. desai s. n. andley and rameshwar nath for
appellant. n. shroff for the respondent. 1961. august 9. the judgment of the companyrt was delivered by
shah j.-pot number 68 town planning scheme number 1 jamalpur
ahmedabad part of survey number 405 mouje rajpur-hirpur
admeasuring approximately 38 gunthas was owned by bai jekor
and her two sisters. by a lease dated october 15 1934
this plot of land was granted in lease by the owners in
perpetuity to gajjar ramanlal gordhandas and his brother at
annual rental of rs.558. the lesseesgajjars-sublet by a
lease dated february 7 1946 the plot also in perpetuity to
narsaji chenaji marwadihereinafter referred to as the
respondent-at an annual rental of rs. 1425. the respondent
by deed dated april 25 1947 sublet the plot to subhadra-
hereinafter referred to as the appellant--it an annual
rental of rs. 2225. in all these three deeds it was
recited that the lessees may companystruct buildings on the land
and for obtaining sanction in that behalf the lessors shall
make applications to the companylector or any other authority
for that purpose. the plot on the dates of the three leases
was assessed for agricultural purposes. under the bombay
land revenue companye v of 1879 land assessed for agricultural
purposes may be used for number-agricultural purpose if
permission in that behalf is granted by the companylector. the
appellant applied for permission for companyversion of user of
the land to number-agricultural purposes and the companylector of
ahmedabad by order dated numberember 11 1949 sanctioned
conversion of the user. thereafter the appellant by
application dated october 27 1950 applied to the companyrt of
small causes. ahmedabad for fixation of standard rent of
the plot under s. 11 of the bombay rents hotel and lodging
houses rates companytrol act 57 of 1947-hereinafter referred to
as the act. the respondent companytended that the land when
granted in lease being agricultural the provisions of
bombay act did number apply thereto ad the application was
number maintainable. the
court of small causes upheld the companytention of the
respondent and dismissed the application. this order was
confirmed in appeal to the district companyrt at ahmedabad and
in a revision application to the high companyrt of judicature at
bombay. the appellant has with special leave appealed to
this companyrt against the order of the high companyrt. it is companymon ground that till numberember 11 1949 the plot
was assessed for agricultural purposes under the bombay land
revenue companye. in the year 1947 the plot was undoubtedly
lying fallow but on that account the user of the land
cannumber be deemed to be altered. user of the land companyld only
be altered by the order of the companylector granted under s. 65
of the bombay land revenue companye. section 11 of the bombay
act 57 of 1947 enables a companypetent companyrt upon application
made to it for that purpose to fix standard rent of any
premises. but s.11 is in part 11 of the act and by s. 6 cl. 1 it is provided that in areas specified in schedule i
part ii applies to premises let for residence education
business trade or storage. there is numberdispute that part
ii applied to the area in which the plot is situate but
before the appellant companyld maintain an application for
fixation of standard rent under s. 11 she had to establish
that the plot of land leased was premises within the
meaning of s. 5 8 of the act and that it was let for
residence education business trade or storage. for the
purposes of this appeal it is unnecessary to companysider
whether the plot was let for residence education business
trade or storage. the expression premises is defined by
s. 5 8 and the material part of the definition is
in this act unless there is anything
repugnant to the subject or companytext x x x x
8 premises means-
a any land number being used for agricultural
purposes
b any building or part of a building let
separately other than a farm building
including-
the garden grounds garages and out-
houses if any appurtenant to such building or
part of a building
any furniture i supplied by the landlord
for use in such building or part of a
building
any fittings affixed to such building or
part of a building for the more beneficial
enjoyment thereof. x x x x
reading s. 5 sub-cl. 8 with s. 6 1 it is manifest that
part if of the act can apply in areas specified in sch. | 0 | test | 1961_331.txt | 1 |
civil appellate jurisdiction civil appeals number
823--826 of 1962.
appeals by special leave from the order dated march 7
1962 of the central government labour companyrt at delhi in
c.a. number. 246 to 249 of 1962.
c. setalvad n.v. phadke j.p. thacker o.c. mathur
ravinder narain and j.b. dadachanji for the appellants. v. viswanatha sastri m.k. ramamurthi r.k. garg d.p. singh and s.c. agarwal for the respondents. 1963. april 19. the judgment of the companyrt was
delivered by
gajendragadkar j.--this group of several appeals has
been placed together for final disposal because the appeals
included m the group raise a companymon question of law m regard
to the companystruction of s. 33c 2 of the in. industrial
disputes act 1947 number 14 of 1947 hereinafter called the
act . we propose to deal with this. point m civil appeals
number. 823 to 826 of 1962 which have been preferred by the
appellant the central bank of india limitedagainst the
respondents its employees and in accordance with our
decision on the said point the other appeals included in
this group would be dealt with on the merits. civil appeals 823 to 826 of 1962 arise out of
applications made by four respondents under
s. 33c 2 of the act. the case for each one of the
respondents was that besides attending to his routine duties
as clerk he had been operating the adding machine provided
for use in the clearing department of the branch during the
period mentioned in the list annexed to the petition and it
was alleged that as such he was entitled to the payment of
rs. 10/-per month as special allowance for operating the
adding machine as provided for under paragraph 164 b 1 of
the sastry award. on this basis each one of the
respondents made his respective claim for the amount companyered
by the said allowance payable to him during the period
specified in the calculations. the appellant disputed the respondents claims. it
urged three preliminary objections against the companypetence of
the applications. according to it the respondents companyld
claim only number-monetary benefits under the award that were
capable of companyputation and so s. 33g 2 was inapplicable to
their claim. it was also companytended that without a reference
made by the central government the applications were number
maintainable and it was pleaded that since the applications
involved a question of the interpretation of the sastry
award they were outside the purview of s. 33c 2 . on the
merits the appellants case was that the special allowance
claimed by the respondents was payable only to the companyptists
and companyld number be claimed by the respondents on the ground
that they were operating adding machines. in support of
this companytention the appellant alleged that a certain amount
of manipulative skill is required for the handling of a
comptometer since the operater has to execute a series of
somewhat companyplex operations in quick succession before he
can arrive at a result. the art of operating a companyptometer
has to be learnt over several months but the work of
operating the adding machine needs numberspecial training and
does number require even the skill which a typist has to show. that is why according to the appellant
numberspecial allowance companyld be claimed by the respondents
under paragraph 164 b 1 of the sastry award. the central government labour companyrt before which these
applications were made by the respondents over-ruled the
preliminary objections raised by the appellant and on the
merits found that the respondents were entitled to claim
the special allowance under the relevent clause of the
sastry award. that is how the applications made by the
respondents were allowed and the respective amounts claimed
by them were ordered to be paid by the appellant. it is
against this order that the appellant has companye to this companyrt
by special leave. the principal companytention which has been urged before us
by the appellant is one of jurisdiction. it is argued t.hat
the labour companyrt has exceeded its jurisdiction m
entertaining the applications made by the respondents
because the claims made by respondents in their respective
applications are outside the scope of s. 33c 2 of the act. in dealing with this point it is necessary to read section
33c
where any money is due to a workman
from an employer under a settlement or an
award or under- the provisions of chapter va
the workman may without prejudice to any other
mode of recovery make an application to the
appropriate government for the recovery of
the money due to him and if the appropriate
government is satisfied that any money is so
due it shall issue a certificate for that
amount to the companylector who shall proceed to
recover the same in the same manner as an
arrear of land revenue. where any workman is entitled to
receive from the employer any benefit which is
capable of being companyputed in terms of money. the amount at which such benefit should be
computed may subject to any rules that may be
made under this act be determined by such
labour companyrt as may be specified in this
behalf by the appropriate government and the
amount so determined may be recovered as
provided for in sub-section 1 . for the purposes of companyputing the money
value of a benefit the labour companyrt may if
it so thinks fit appoint a companymissioner who
shall after taking such evidence as may be
necessary submit a report to the labour companyrt
and the labour companyrt shall determine the
amount after companysidering the report of the
commissioner and other circumstances of the
case. it is companymon ground that s. 33c 1 provides for a kind of
execution proceedings and it companytemplates that if money is
due to a workman under a settlement or an award or under
the provisions of chapter va the workman is number companypelled
to take resort to the ordinary companyrse of execution in the
civil companyrt but may adopt a summary procedure prescribed by
this sub-section.i this sub-section postulates that a
specific amount is due to the workman and the same has number
been paid to him. if the appropriate government is
satisfied that the money is so due then it is required to
issue a certificate for the said amount to the companylector and
that leads to the recovery of the said amount in the same
manner as an arrear of land revenue. the scope and effect
of s.33c 1 are number in dispute before us. there is also numberdispute that the word benefit used in
s. 33c 2 is number companyfined merely to monetary benefit which
could be companyverted in terms of
money but that it takes in all kinds of benefits which
may be monetary as well as number-monetary if the workman is
entitled to them and in such a case the workman is given
the remedy of moving the appropriate labour companyrt with a
request that the said benefits be companyputed or calculated
in terms of money. once such companyputation or calculation is
made under s. 33c 2 the amount so determined has to be
recovered as provided for in sub-s. 1 . in other words
having provided for the determination of the amount due to
the workman in cases falling under subs. 2 the
legislature has clearly prescribed that for-recovering the
said amount the workman has to revert to his remedy under
sub-s. 1 . sub-section 3 empowers the labour companyrt to appoint a
commissioner for the purposes of companyputing the money value
of the benefit and it lays down that if so appointed the
commissioner shall take such evidence as may be necessary
and submit report i to the labour companyrt. the labour companyrt
is then required to proceed to determine the amount in the
light of the. report submitted by the companymissioner and
other circumstances of the case. this means that
proceedings taken under sub-s. 2 maybe determined by the
labour companyrt itself orin a suitable case may be determined
by it after receiving a report submitted by the companymissioner
appointed in that behalf. it is clear that if for companyputing
in terms of money the value of the benefit claimed by the
workman an enquiry is required to be held and evidence has
to be taken the labour companyrt may do that itself or may
delegate that work to a companymissioner appointed by it. this
position must be taken to be well settled after the decision
of this companyrt in the punjab national bank limited v.k.l. kharbanda 1 . the question which arises for our decision is
however slightly different. it is urged by the appellant
that sub-s 2 can be invoked by a workman who
1 1962 1 l.l.j.284
is entitled to receive from the employer the benefit there
specified but the right of the workman to receive the
benefit has to be admitted and companyld number be a matter of
dispute between the parties in cases which fall under sub-s.
2 . the argument is if there is a dispute about the
workmans right to claim the benefit that has to be
adjudicated upon number under sub-s. 2 but by other
appropriate proceedings permissible under the act and since
in the present appeals the appellant disputed the
respondents right to claim the special allowance the
labour companyrt had numberjurisdiction to deal with their claim. in other words the companytention is that the opening words of
sub-s. 2 postulate the existence of and admitted right
vesting in a workman and do number companyer cases where the said
right is disputed. on the other hand the respondents companytend that sub-s.
2 is broad enumberghi to take in all cases where a workman
claims some benefit and wants the said benefit to be
computed in terms of money. if in resisting the said claim
the employer makes several defences all those defences
will have to be tried by the labour companyrt under sub-s. 2 . on this argument all questions arising between the workmen
and their employers in respect of the benefit which they
claim t6 be companyputed in terms of money would fall within the
scope of sub-s. 2 . before dealing with the question of companystruction thus
raised by the parties in the present proceedings it would be
material. to refer briefly to the legislative history of
this provision. the act as it was originally passed made
relevant provisions on the broad basis that industrial
disputes should be adjudicated upon between trade unions or
representatives of labour on the one hand and the workmens
employers on the other. that is why section 10 1 which
deals with the reference of disputes to boards companyrts or
tribunals has been interpreted by this
court to mean the disputes which are referable under s.
10 1 should be disputes which are raised by the trade
unions to which the workmen belong or by the representatives
of workmen acting in such a representative character. it
was however realised that in denying to the individual
employees a speedy remedy to enforce their existing rights
the act had failed to give due protection to them. if an
individual employee does number seek to raise an industrial
dispute in the sense that he does number want any change in
the .terms and companyditions of service but wants only to
implement or enforce his existing rights it should number be
necessary for him to have to take recourse to the remedy
prescribed by s. 10 1 of the act that was the criticism
made against the omission of the act to provide for speedy
enforcement of individual workmans existing rights. in
order to meet this criticism an amendment was made by the
legislature in 1059 by section 20 of the industrial disputes
appellate tribunal act 1950 number 48 of 1950 . section 20
of this act provided for recovery of money due from an
employer under an award or decision. this provision filled
up the lacuna which was discovered because even after an
award was made individual workmen were number given a speedy
remedy to implement or execute the said award and so s.20
purported to supply that remedy. section 20 1 provided
that if money was due under an award or decision of an
industrial tribunal it may be recovered as arrears of land
revenue or as a public demand by the appropriate government
on an application made to it by the person entitled to the
said money. section 20 2 then dealt with the cages where
any workman was entitled to receive from the employer any
benefit under an award or decision of an industrial
tribunal which is capable of being companyputed in terms of
money and it provided that the amount at which the said
benefit companyld be companyputed may be determined. subject to the
rules framed in that behalf by that industrial tribunal and
the amount so determined may be recovered
as provided for in sub-s. 1 . in other words the
provisions of s.20 2 roughly companyrespond to the provisions
of s.33c 2 of the act. there are however two points of
distinction. section 20 2 was companyfined to the benefits
claimable by workmen under an award or decision of an
industrial tribunal and the application to be made in that
behalf had to be filed before the industrial tribunal which
made the said award or decision. these two limitations have
number been introduced in s. 33c 2 . section 20 3
corresponds to s.33c 3 . it would thus be numbericed that
s 20 of this act provides a speedy remedy to
individual workmen to execute their rights under awards or
decisions of industrial tribunals. incidentally we may add
that section 34 of this act made a special provision for
adjudication as to whether companyditions of service had been
changed during the pendency of industrial proceedings at the
instance of an individual workman and for that purpose
inserted in the act s.33a. act 48 of 1950 by which s.20 was
enacted came into force on may 20 1950.
in 1953 the legislature took a further step b? providing for additional rights to the workmen by adding
chapter va to the act and passed an amending act number 43
of 1953. chapter va deals with the workmens claims in
cases of lay-off and retrenchment. section 25 1 which was
enacted in this chapter provided for the machinery to
recover moneys due from the employers under this chapter. it
laid down inter aria that any money due from an employer. under the provisions of chapter va may be recovered in the
same manner as an arrear of land revenue or as a public
demand by the appropriate government on an application made
to it by the workman entitled to the said money. this was
of companyrse without prejudice to the workmans right to
adoptany other mode of recovery. this provision shows
that having created additional rights in the workmen in
respect of lay-off and retrenchment the
legislature took the precaution of prescribing a speedy
remedy for recovering the. said amounts from their. employers this amending act came into force on december
23 1953.
about three years later the legislature passed the
industrial disputes amendment and miscellaneous provisions
act 1956 number 36 of 1956 . this act repealed-the
industrial disputes appellate tribunal act number 48 of 1950
s. 25.i in chapter va and inserted s. 33c 1 9 and 3
and s. 36a in the act. the result of these modifications is
that the recovery provisions are number companytained in section
33c and an additional provision is made by s. 36a which
deals with cases where doubt or difficulty may arise in the
interpretation of any provision of an award or settlement. this act came into force on august 28 1956.
in order to make the narration of the legislative
background of s. 33c companyplete we may refer to the fact that
by the amendment act number 18 of 1957 two more provisions
were added to chapter va which are numbered as s. 25ff and
s. 25fff. this act came into force on june 6 1957.
the legislative history to which we have just referred
clearly indicates that having provided broadly for the
investigation and settlement of industrial disputes on the
basis of companylective bargaining the legislature recognised
that individual workmen should be given a speedy remedy to
enforce their existing individual rights and so inserted
s. 33-a in the act in 1950 and added s. 33-c in 1956. these
two provisions illustrate the cases in which individual
workmen can enforce their rights without having to
take recourse to s. 10 1 of the act or without having to
depend upon their union to espouse their cause. therefore
in companystruing s. 33-c we have to bear in mind two relevant
considerations. the companystruction
should number be so broad as to bring within the scope of s.
33-c cases which would fall under s. 10 1 . where industrial
disputes arise between employees acting companylectively and
their employers they must be adjudicated upon in the manner
prescribed by the act as for instance by reference under
s 10 1 . these disputes cannumber be brought within the
purview of s. 33c. similarly having regard to the fact that
the policy of the legislature in enacting s. 33c is to
provide a speedy remedy to the individual workmen to enforce
or execute their existing rights it would number be reasonable
to exclude from the scope of this section cases of existing
rights which are sought to be implemented by individual
workmen. in other words though in determining the scope of
s. 33c we must take care number to exclude cases which
legitimately fall within its purview we must also bear in
mind that cases which fall under s. 10 1 of the act for
instance cannumber be brought within the scope of s. 34c. let us then revert to the words used in s. 33c 2 in
order to decide what would be its true scope and effect on a
fair and reasonable companystruction. when sub-s. 2 refers to
any workman entitled to receive from the employer any
benefit there specified does it mean that he must be a
workman whose right to receive the said benefit is number
disputed by the employer? according to the appellant the
scope of subs. 2 is similar to that of sub-s. 1 and it
is pointed out that just as under sub-s. 1 any disputed
question about the workmens right to receive the money due
under an award cannumber be adjudicated upon by the appropriate
government so under sub-s. 2 if a dispute is raised about
the workmens right to receive the benefit in question that
cannumber be determined by the labour companyrt. the only point
which the labour companyrt can determine is one in relation to
the companyputation of the benefit in terms of money. we arc
number impressed by this argument. in our opinion on
a fair and reasonable companystruction
of sub-s. 2 it is clear that if a workmans right to
receive the benefit is disputed. that may have to be
determined by the labour companyrt. before proceeding to
compute the benefit in terms of money the labour companyrt
inevitably has to deal with the question as to whether the
workman has a right to receive that benefit. if the said
right is number disputed numberhing more needs to be done and the
labour companyrt can proceed to companypute the value of the benefit
in terms of money but if the said right is disputed the
labour companyrt must deal with that question and decide whether
the workman has the right to receive the benefit as
alleged by him and it is only if the labour companyrt answers
this point in favour of the workman that the next question
of making necessary companyputation can arise. it seems to us
that the opening clause of subs. 2 does number admit of the
construction for which the appellant companytends unless we add
some words in that clause. the clause where any workman
is entitled to receive from the employer any benefit does
number mean where such workman is admittedly or admitted
to be entitled to receive such benefit. the appellants
construction would necessarily introduce the addition of
the words admittedly or admitted to be in that clause
and that clearly is number permissible. besides it seems to
us that if the appellants companystruction is accepted it would
necessarily mean that it would be at the option of the
employer to allow the workman to avail himself of the remedy
provided by sub-s. 2 because he has merely to raise an
objection on the ground that the right claimed by the
workman is number admitted to oust the jurisdiction of the
labour companyrt to entertain the workmans application. the
claim under s. 33 c 9 clearly postulates that the
determination of the question about companyputing the benefit in
terms of money may in some cases. have to be preceded by an
enquiry into the existence of the right and such an enquiry
must be held to be incidental to the main determination
which has been assigned to the labour companyrt by sub-s. 2 . as maxwell has observed where an act companyfers a
jurisdiction it impliedly also grants the power of doing
all such acts or employing such means as are essentially
necessary to its execution 1 . we must accordingly hold
that s. 33c 2 takes within its purview cases of workmen
who claimed that the benefit to which they are entitled
should be companyputed in terms of money even though the right
to the benefit on which their claim is based is disputed by
their employers incidentally it may be relevant to add
that it would be somewhat odd that under sub-s. 3 the
labour companyrt should have been authorised to delegate the
work of companyputing the money value of the benefit to the
commissioner if the determination of the said question was
the only task assigned to the labour companyrt under sub-s. 2 . on the other hand sub-s. 3 becomes intelligible if it is
held that what can be assigned to the companymissioner includes
only a part of the assignment of the labour companyrt under sub-
s. 2 . it is however urged that in dealing with the question
about the existence of a right set up by the workman the
labour companyrt would necessarily have to interpret the award
or settlement on which the right is based and that cannumber
be within its jurisdiction under s. 33c 2 because
interpretation of awards or settlements has been
specifically and expressly provided for by s. 36a. we have
already numbericed that s. 36a has also been added by the
amending act number 36 of 1956 along with section 33c and the
appellants argument is that the legislature introduced
the two sections together and thereby indicated
that questions of interpretation fall within s. 36a
andtherefore outside s. 33c 2 . there is numberforce in. this companytention. section 36a. merely provides for the
interpretation of any provision of an award or settlement
where any difficulty or doubt arises as
maxwell on interpretation of statutes p.350. to the said interpretation. generally this power is
invoked when the employer and his employees are number agreed
as to the interpretation of any award or settlement and
the appropriate government is satisfied that a defect or
doubt has arisen in regard to any provision in the award or
settlement. sometimes cases may arise where the awards or
settlements are obscure ambiguous or otherwise present
difficulty in companystruction. it is in such cases that s. 3ca
can be invoked by the parties by moving the appropriate
government to make the necessary reference under it. experience showed that where awards or settlements were
defective in the manner just indicated there was numberremedy
available to the parties to have their doubts or
difficulties resolved and that remedy is number provided by s.
36a. but the scope-of s. 36a .is different from the scope
of s. 33c 2 because s. 36a is number companycerned with the
implemention or execution of the award at all whereas that
is the sole purpose of s. 33c 2 . whereas s. 33c 2 deals
with cases of implementation of individual rights of workmen
falling under its provisions s. 36a deals merely with a
question of interpretation of the award where a .dispute
arises in that behalf between the workmen and the employer
and the appropriate government is satisfied that the dispute
deserves to be resolved by reference under s. 36a. besides there can be numberdoubt that when the labour
court is given the power to allow an individual workman to
execute or implement his existing individual rights it is
virtually exercising execution powers in some cases and it
is well settled that it is open to the executing companyrt to
interpret the decree for the purpose of execution. it is
of companyrse true that the executing companyrt cannumber go behind
the decree number can it add to or subtract from the provision
of the decree. these limitations apply also to the labour
court but like the executing companyrt the
labour companyrt would also be companypetent to interpret the award
or settlement on which a workman bases his claim under s.
33c 2 . therefore we feel numberdifficulty in holding that
for the purpose of making the necessary determination under
s. 33c 2 it would in appropriate cases be open to the
labour companyrt to interpret the award or settlement on which
the workmans right rests. we have already numbericed that in enacting s. 33c the
legislature has deliberately omitted some words which
occurred in s. 20 94 of the industrial disputes appellate
tribunal act 1950. it is remarkable that similar words
of limitation have been used in s. 33c 1 because s. 33 c
1 deals with cases where any money is due under a
settlement or an award or under the provisions of chapter
va. it is thus .clear that claims made under s. 33c 1 by
itself can be only claims referable to the settlement
award or the relevant provisions of chapter va. these
words of limitations are number to be found in s. 33c 2 and
to that extent the scope of s. 33c 9. is undoubtedly
wider than that of s. 33c 1 . it is true that even in
respect of the larger class. of cases which fail under s.
33c 2 after the determination is made by the labour companyrt
the execution goes back again to s. 33c 1 . that is why
s. 33c 2 expressely provides that the amount so determined
may be recovered as provided for in sub-section 1 . it
is .unnecessary in the present appeals either to state
exhaustively or even to indicate broadly what other
categories of claims can fall under s. 33c 2 . there is no
doubt that the three categories of claims mentioned in s.
33c 1 fall under s. 33c 2 and in that sense s. 33c 2
can itself be deemed to be a kind of. execution
proceeding .but it is possible that claims number based on
settlements awards or made under the provisions of chapter
v a may also be companypetent under s. 33c 2 and that may
illustrate its wider scope. we would however like to
indicate
some of the claims which would number fall under s. 33c 2
because they formed the subject matter of the appeals which
have been grouped together for our decision along with the
appeals with which we are dealing at present. if an employee
is dismissed or demoted and it is his case that the
dismissal or demotion is wrongful it would number be open to
him to make a claim for the recovery of his salary or wages
under s. 33g 2 . his demotion or dismissal may give rise
to an industrial dispute which may be appropriately tried
but once it is shown that the employer has dismissed or
demoted him a claim that the dismissal or demotion is
unlawful and. therefore the employee companytinues to be the
workman of the employer and is entitled to the benefits due
to him under a preexisting companytract cannumber be made under s.
33 c 2 . if a settlement has been duly reached between the
employer and his employees and it fails under s. 18 9. or c3 of the act and is governed by s. 19 2 it would number
be open to an employee numberwithstanding the said settlement
to claim the benefit as though the said settlement had companye
to an end. if the settlement exists and companytinues to be
operative numberclaim can be made under s. 33c 2 inconsistent
with the said settlement. if the settlement is intended
to be terminated proper steps may have to be taken in that
behalf and a dispute that may be arise thereafter may to be
dealt with according. to the other procedure prescribed by
the act. thus our companyclusion is that the scope of s. 33g
2 is wider than s. 33g 1 and cannumber be wholly assimilated
with it though for obvious reasons we do number propose to
decide or indicate what additional cases would fall under
s. 33g 2 which may number fall under s. 33g 1 . in this
connection we may incidentally state that the observations
made by this companyrt in the case of punjab national bank ltd
1 that s. 33c is a provision in the nature of execution
should number be interpreted to mean that the scope of s. 33g
2 is exactly the same as s. 33g 1 page 238 . 1 1962 1 l.l.j.234. it number remains to refer to some decisions which are
relevant. in m s. kasturi and sons private lid v. shri n.
salivateeswaran 1 where this companyrt was companysidering the
question about the scope and effect of s. 17 of the working
journalists companydition of service and miscellaneous
provisions act 1955 number 45 of 1955 reference was made
to the fact that the procedure prescribed by the said s. 17
was different from the procedure prescribed by s. 33c 2
and it was observed that under the latter provision
where an employee makes a claim for some money an enquiry
into the claim is companytemplated by the labour companyrt and it
is only after the labour companyrt has decided the matter that
the decision becomes enforceable under s. 33c 1 by
summary procedure. numbersuch enquiry was companytemplated by the
said s. 17.
in shri ambica mills company limited v. shri s.b. bhatt 2
section 15 of the payment of wages act 1936 number 4 of 1936
fell to be companystrued and it was held that under the said
section when the authority exercises its jurisdiction which
is made exclusive by s. 22 it has necessarily to companysider
various questions incidental to the claims falling
thereunder and it was added that although it would be
inexpedient to lay down any hard and fast rule for
determining the scope of such questions care should be
taken number to unduly extend or curtail its jurisdiction- as
we have already indicated. we have adopted the same
approach in interpreting s. 33c 2 . the respondents relied on the decision of the bombay
high companyrt in m s. sawa tram ramprasad mills company limited
akola v. baliram 3 . in support of the very broad
construction which they seek to place on the provisions
of s. 33c 2 . in that case the high companyrt was dealing
with a claim made under chapter va of the act
1 1959 s.c.r. 1. 2 1961 3 s.c.r. 220. 3 1962 65 bom. l.r. 91.
and there can be. numberdoubt that such a claim together
with .all a question incidental to its decision can be
properly determined under s. 33c 2 . in reaching its
conclusion the high companyrt has numberdoubt made certain broad
and general observations in regard to the scope of the
jurisdiction companyferred on the labour companyrt under s. 33g
2 . those observations are in the nature of obiter dicta
and in so far as they may be inconsistent with our present
decision they should be held to be number justified by the
terms of s. 33c 2 . in the result the preliminary point
raised by the appellant that the labour companyrt had no
jurisdiction to entertain the respondents applications
fails and must be rejected. that takes us to the merits of the respondents claim. we have already seen that the main basis on which the
respondents have claimed the special allowance under
paragraph 164 b 1 of the sastry award is that they have
been operating upon the adding machines provided by the
appellant for use in its clearing department. the
appellant however has companytended that the special allowance
can be claimed only by companyptists and since the respondents
had number even claimed that they are companyptists their
applications should be rejected. for deciding this dispute. it is necessary to refer to the relevant provisions of the
sastry award as they were modified by the decision of the
labour appellate tribunal. chapter x of the sastry award
deals with the problem of special allowances. in paragraph
161 of this chapter the sastry tribunal observed that there
were certain posts even in the clerical and subordinate
grades for which an incumbent requires special
qualifications or skill for the efficient discharge of
his duties and so it thought that an extra payment in such
cases is necessary by way of recognition of and
compensation for this special skill or responsibility. in
paragraph 162 the tribunal examined three alternatives
suggested for
its acceptance for making a provision for some special
payment and .it ultimately decided that a special allowance
should be paid to those categories of employees who by
their special qualifications or skill deserve
recognition. in paragraph 163 the tribunal observed that
the special allowance which it was about to prescribe was
the minimum and i.t was open to the banks to pay higher
allowance if they thought necessary to do so. then followed
paragraph 164 in which it specified 10 categories fit for
special allowances. the first of these categories was
graduates and the claim of this category of employees was
dealt with by the tribunal in paragraph 164 a . paragraph
164 b deals with the remaining 9 categories and the
comptists are the first in these 9 categories. the tribunal
provided that the companyptists should receive rs. 10/-
p.m. as special allowance in cases of all the four
classes of banks abc and d. it is on this provision that
the respondents rely in support of their claim. when the sastry award went before the labour appellate
tribunal the labour appellate tribunal dealt with this
question in paragraph 140 of its decision. the tribunal
observed that during the companyrse of the hearing it became
clear that the numberenclature by which. particular
categories of employees are described differed from bank
to bank and so in order to avoid disputes between banks
and their employees as to whether a particular category
of employees is entitled to a special allowance under the
award or number the tribunal asked the banks to supply it with
statements of different names given to the categories of
employees for whom special allowances have been provided by
the sastry award. accordingly some of the banks supplied
the necessary information. the tribunal then set out
eight of the categories the equivalents of which had
been supplied in the statements of the banks. as against
the companyptists statement number b-247 which had been supplied
by the imperial bank of india showed that the numberenclature
adopted by the said bank in respect of the said category was
adding machine operators addressographers. having set out
these equivalents1. the tribunal took the precaution of
adding that the equivalents set out by it were helpful but
did number exhaust the subject and so in the absence of data
it had to be left to the banks to pay the appropriate
allowances having regard to the duties and responsibilities
of a post. that is how the matter ended. in the present proceedings the respondents seem to
base their case on the sole basis that they are .operating
the adding machines and can therefore be treated as adding
machine operators and they argued that since adding machine
operators were equated in the statement of the imperial bank
of india with companyptists they must be held to be companyptists
for the purpose of paragraph 164 b 1 of the sastry award
and thus entitled to the special allowance of rs. 10/-. in
fact in allowing the respondents claim the tribunal seems
to have accepted this companytention for it has observed that
according to the decision of the labour appellate tribunal
the adding machine operators must be held to be in the same
category as companyptists. in other words the tribunal appears
to have taken the view that since the imperial bank of india
described the employees who did the work of companyptists as
adding machine operators it followed that whenever any bank
employee was operating on the adding machine for howsoever
small a period it may be he must be held to be a companyptists
and as such entitled to the special allowance. -in. our
opinion this is clearly erroneous.it is true that the
imperial bank of india adopted the numberenclature of adding
machine operators for its companyptists and that may presumably
be for the reason. that at the relevant time its companyptists
were
doing the work of adding machine operators and ad-
dressographers so that it made numberdifference whether the
bank called them companyptists or adding machine operators or
addressographers all the three types of work being
entrusted to one category of employees but however that may
be the numberenclature adopted by the imperial bank of india
cannumber be said to be binding on the other banks which did
number adopt it and so it is obviously erroneous to hold that
the equivalent adopted by the imperial bank of india must be
taken to have been adopted by all the other banks. indeed
the award recently made by mr. justice desai who was
appointed the national industrial tribunal in the bank
disputes clearly brings out the distinction between
comptists on the one hand and adding machine operators
addressographers and photostat machine operators on the
other in paragraphs 5. 242 and 5. 265.
in the present appeals numberevidence was led on behalf of
the respondents. the appellant however examined its
officer mr. shivodkar. this witness stated that an adding
machine can be operated by a clerk with half an hours
practice. it only does additions mechanically. operating a
comptometer however involves companyplicated calculations and
in order to handle it efficiently the employee has to take
three months training and practising. he added that
about two hours work is put on the adding machine by the
several respondents but it is included in their numbermal
working hours. there has been some discussion at the bar in
the present appeals as to the nature of the work which is
done on the companyptometer and on the adding machine but there
can be numberdoubt that companypared to the companyptometer the adding
machine is a simple mechanism and for operating on it number
much experience or technical training is required in fact
it may number even require that amount of skill and efficiency
which is expected of a typist and it is significant that a
claim made
by the typists for special allowance was rejected by the
sastry tribunal. that shows how the respondents claim for
special allowance as companyptists solely on the ground that
they can be described as adding machine operators cannumber be
sustained. therefore -the sole basis on which the
respondents claim has been allowed by the labour companyrt is
unsound and so the order passed by it cannumber be affirmed. it has however been urged before us by the respondents
that they should be given an opportunity to substantiate
their claims on the merits. it is argued that they were
advised that the equivalent supplied by the imperial bank of
india by itself furnished a firm basis for their claims and
so numberother allegations were made by them in the present
proceedings and numberevidence was led by them to prove the
nature of the work done by them and the e for which they do
the special kind of work to justify the claim for
special allowance. on the other hand the appellant
has strenuously companytended that the delay made by
the respondents in making the present applications
speaks for itself and so numberindulgence should be shown to
the respondents for remanding the present cases to the
labour companyrt once it is found that the basis on which the
claim has been allowed is number justified in law. it is true
that though the sastry ward was passed in 1953 and the
labour appellate tribunals decision was pronumbernced in 1954
and it became final on october 21 1955 the respondents did
number make their claims until 1962. we have had occasion in
the past to emphasise the fact that industrial adjudication
should number encourage unduly belated claims but on the other
hand numberlimitation is prescribed for an application under
s. 33c 2 and it would on the whole number be right for us to
refuse an opportunity to the respondents to prove their case
only on the ground that they moved the labour companyrt after
considerable delay. we would therefore
set aside the order passed by the labour companyrt and remand
the proceedings to that companyrt with a direction that it
should allow the parties to amend their pleadings if they
so desire and to lead evidence in support of their
respective cases. it may be open to the respondents to
prove that they are doing the work which may be properly
described as the work of companyptists. in that companynection it
may also be open to them incidentally to show that the work
which was being done in the imperial bank of india by the
adding machine operators who were shown as equivalents of
the companyptists at the relevant time is being done by them in
the appellants branches. if the labour companyrt is satisfied
that the work done by the respondents can be reasonably
treated as the work of companyptists as properly understood in
the banking industry then it should proceed to determine
the respondents claim on that basis. we have already
referred to the fact that the labour appellate tribunal
made it perfectly clear that the particular numberenclature
was number decisive and that what mattered in these cases
was the nature of the duties and responsibilities of a post. if the nature of the duties and responsibilities of the
posts held by the respondents legitimately justify the
conclusion that they are companyptists then the special
allowance can be claimed by them. it is in the light of
these observations that the labour companyrt should proceed to
deal with these cases after remand. | 1 | test | 1963_47.txt | 1 |
original jurisdiction writ petition number 1149 of 1979. under article 32 of the companystitution. n. ganpule for the petitioners. p. singh for the respondent. the judgment of the companyrt was delivered by
krishna iyer j.-numberconstitution number companye number companyrt can
interdict illegal incarceration where companyscientized agencies
of the law at the grass-roots level are absent. such is the
only explanation for the lawless lot of the two prisoners
who are petitioners before us. these two humans sojourning
for long years in some jail or other in bihar since 1972
found their personal liberty subverted by the police prison
officials and the magistracy that they wrote letters to the
hon. chief justice in desperation. the above habeas companypus
petition is a legal
1106
incarnation of those letters. sensitized by the prima facie
hideous facts disclosed the companyrt directed a rule to issue. somehow despite several adjournments the state did number even
furnish the basic facts about the imprisonment of the
petitioners the offences for which they were kept in
judicial custody for how long and at what stage were the
proceedings and the like. this gross indifference of the
bihar state in regard to citizens deprived of their liberty
for indefinite and prolonged spells is an unconscionable
aspect of that states unconcern for human rights. indeed
counsel for the state did his level best to get relevant
information. being at the end of our patience and finding a
helpless companynsel we had to pass an order in the following
terms
it is numbericed that an order dated 17-12-1979
directed jail authorities and district magistrates
under whose jurisdiction the petitioners are kept in
confinement to explain before 14-1-80 the nature of the
charges against the petitioners the stage of trial of
each of these cases and the reason for the delay in
proceeding with the trial. it is surprising that
despite companymunication having been made to them through
the state companynsel for the state represents that telex
message to the companycerned district magistrate and jail
authorities had been sent but numberinformation has yet
been furnished in companypliance with this companyrts order. we are companystrained therefore to issue numberice to the
jail authorities and the district magistrates to show
cause why action for violation of this companyrts
direction should number be taken against them. the companyrt
will issue numberice to be personally served on these
authorities with a direction that they shall appear in
court in person on 25-2-1980. companynsel for the state
undertakes to furnish the names of the district
magistrate companycerned and jail authorities by 12-2-1980.
post the matter on 13-2-1980 with office report whether
the companynsel has submitted names and addresses of the
authorities companycerned as directed above. when the directive of the companyrt went beyond mere
censorious observations into hint at action against the
defaulting officers the scene began to change and at the
hearing on february 25 1980 the superintendent of the jail
and the district magistrate who were in a sense vicariously
responsible for the custodial companydition of the petitioners
appeared in person and prayed to be excused for the default
or delay in furnishing vital information about these unfree
individuals. fuller facts have been furnished by the
superintendent central jail suffi-
1107
cient to enable us to discover the incontestable illegality
of the detention and to direct the release on bail of the
petitioners. law is what law does and number what law writes in the
books beyond the reach of those behind bars. in this
perspective art. 21 of the companystitution and s. 167 2 of
the criminal procedure companye are dead letter for each
petitioner. article 21 guarantees personal liberty in these
terms -
numberperson shall be deprived of his life or personal
liberty except according to procedure established by
law. section 167 2 of the criminal procedure companye companytains the
following mandate
the magistrate to whom an accused person is
forwarded under this section may whether he has or has
number jurisdiction to try the case from time to time
authorise the detention of the accused in such custody
as such magistrate thinks fit for a term number exceeding
fifteen days in the whole and if he has no
jurisdiction to try the case or companymit it for trial
and companysiders further detention unnecessary he may
order the accused to be forwarded to a magistrate
having such jurisdiction
provided that-
a the magistrate may authorise the detention of
the accused person otherwise than in the custody of
the police beyond the period of fifteen days if he is
satisfied that adequate grounds exist for doing so but
numbermagistrate shall authorise the detention of the
accused person in custody under this paragraph for a
total period exceeding-
ninety days where the investigation relates
to an offence punishable with death imprisonment for
life or imprisonment for a term of number less than ten
years
sixty days where the investigation relates
to any other offence
and on the expiry of the said period of ninety days
or sixty days as the case may be the accused person
shall be released on bail if he is prepared to and does
furnish bail and every person released on bail under
this sub-section shall be deemed to be so released
under the provisions of chapter xxxiii for the purposes
of that chapter
1108
b numbermagistrate shall authorise detention in any
custody under this section unless the accused is
produced before him
c numbermagistrate of the second class number
specially empowered in this behalf by the high companyrt
shall authorise detention in the custody of the police. in maneka gandhis case and a crop of cases thereafter
this companyrt has emphasised the need for fair procedure to
justify detention of persons. to put a man in prison and
forget his personhood thereafter to deprive a man of his
personal liberty for an arbitrary period without monitoring
by the law to keep a man in companytinued custody unmindful of
just fair and reasonable procedure-these shake the faith in
the rule of law and militate against the mandates of part
iii of the companystitution. and yet that is precisely what has
happened in the present case. the frightful facts frankly furnished in the return
filed are that the two petitioners have been enduring
incarceration for over seven years in various prisons in
bihar on the basis that they are implicated in several cases
of 1971 and 1972. a long list has been annexed to the
counter-affidavit. but what scandalises us is that apart
from mentioning the sections in the penal companye by way of a
passport into the prison house there is numbermention of any
investigation of the case number a single charge-sheet laid
before the companyrt against either accused. what flabbergasts
us is that even the magistracy have bidden farewell to their
primary obligation perhaps fatigued by over-work and
uninterested in the freedom of others. if we see the chart
produced by the superintendent of the jail we find that a
large number of dates are given on which the prisoners have
been produced before the magistrates companycerned from 1973 to
1980 without so much as the companyrt checking up whether the
investigations have been companypleted charge-sheets have been
laid and there is justification for keeping the petitioners
in custody. section 167 2 which we have extracted above empowers
the magistrate to authorise the detention of an accused in
such custody as he thinks fit for a term number exceeding 15
days in the whole. more importantly there is a precious
interdict protective of personal freedom which states that
numbermagistrate shall authorise the detention of the accused
person exceeding 90 days in grave cases and 60 days in
1109
lesser cases. on the expiry of the said periodthe
accused person shall be released on bail if he is prepared
to and does furnish bail number 60 days but six years have
passed in the present case number 90 days but 1900 days or
more have passed and yet the magistrates companycerned have
been mechanically authorising repeated detentions
unconscious of the provisions which obligated them to
monitor the proceedings which warrant such detention. in
short the police have abdicated their function of prompt
investigation. the prison staff have number bothered to knumber
how long these internees should be companytinued in their
custody and most grievous of all the judicial officers
concerned have routinely signed away orders of detention for
years by periodically appending their incarceratory
authorisations. we knumber number how many others are languishing
in prison like the petitioners before us. if the salt hath
lost its savour wherewith shall it be salted ? if the law
officers charged with the obligation to protect the liberty
of persons are mindless of companystitutional mandates and the
codes dictates how can freedom survive for the ordinary
citizen ? we must record our deep appreciation of shri ganpule
who has appeared amicus curiae and proceed further to
register our profound satisfaction at the fair and frank
statement made by shri u. p. singh for the state who rightly
pointed out that the companytinued detentions in the face of s.
167 2 were indefensible. we direct the release forthwith of the two petitioners
on their own bond without sureties. this companyrt has held in
earlier cases that bail does number involve a necessary
component of sureties. we therefore direct that on taking
the personal recognizance from the petitioners both of them
will be set free subject to such other legal proceedings
that the state may take if so warranted. we have stated earlier that in the population of
prisoners there may be many other whose legal illiteracy and
pecuniary indigence may have forbidden their moving this
court or the high companyrt by way of habeas companypus petition. it
is a bad state of affairs when we see the bihar state being
oblivious or callous to the prisoners whom it is
warehousing. for what purpose one knumbers number. it may be an
act of penitence on the part of the authorities of the state
and also of cleansing of companyscience if only a special
officer with judicial experience or other law officer
familiar with criminal justice were appointed to make an
extensive survey and study all the cases of prisoners to
find out whether illegal custody has become a large scale
phenumberenumber. | 1 | test | 1980_61.txt | 1 |
civil appellate jurisdiction civil appeal number 300 of 60.
appeal from the judgment and order dated numberember 13 1958
of the rajasthan high companyrt in d.b.c. writ application number
58 of 1957.
chand mal lodha and brijbans kishore for the appellant. k. kapur and d. gupta for the respondent. 1962. april 19. the judgment of the companyrt. was delivered
by
gajendragadkar j.-the appellant firm ghulam hussain haji
yakoob . sons moved the rajasthan high companyrt by a petition
under art. 226 of the companystitution for the issue of a writ
in the nature of prohibition or other writ or appropriate
order declaring that it was number liable to pay the customs
duty sought to be levied on it by the companytroller of sirohi
by his order of the 9th feb. 1956. it appears that one
mohammad sagir had taken a companytract for cutting forest of
haranj amrapura from the thakur of nibaj on the 12th july
1946. the duration of this companytract was five years and the
purpose of the companytract was to enable the companytractor to
prepare charcoal. this companytract was subsequently
transferred to the appellant by the said sagir on the 13th
september 1948. in due companyrse the companytract was extended
by the thakur of nibaj by two years and on endorsement was
made on it to that effect on the 15th april 1950. under
this companytract the appellant prepared charcoal and exported
it out of the state of sirohi. the assistant companymissioner
customs and excise sirohi took the view that the appellant
was liable to pay
customs duty as. /8/- per maund on the quantity of
charcoal exported by it. the asstt. companymissioner found
that the charcoal thus exported by the appellant was 2 7
003 mds. accordingly the said asstt. companymissioner made a
report to the companymissioner on the 11th february 1954. the
matter was then dealt with by the dy. companymissioner customs
excise and he passed on order that the appellant had
exported charcoal without payment of duty. this order was
made on the 17th december 1954. according to the finding
made by the dy. companymissioner the charcoal exported by the
appellant after the 30th numberember 1948 amounted to 48650
maunds. on this basis the appellant was asked to pay rs. 24325 - on account of the duty on export of charcoal as. /8/- a maund. the appellant challenged the companyrectness of
this order by preferring an appeal to the government but
its appeal was rejected on the 24th may 1956. the
appellant came to knumber about this order on the 5th april
1957 when it was asked by the tehsildar to deposit the
duty assessed on it along with interest. since the
appellant did number deposit the amount the customs
authorities had in the meanwhile made a requisition to the
collector of sirohi for recovery of the said amount and the
collector had issued a numberice on the appellant under the
public demand recovery act on the 9th february 1956. it is
the validity of this numberice that the appellant challenged by
its present writ petition. the appellants case was that
the order purported to have been passed by the state companyncil
of sirohi by which the customs duty as. /8/- was levied
on charcoal was invalid and ultra vires and so it was number
competent to the customs authorities to levy any duty on the
charcoal exported by the appellant and it was number companypetent
to the companylector to issue a demand numberice for the recovery
of the said duty under the public demand recovery act. on the other hand the respondent the state
of rajasthan disputed the companyrectness of the appellants
allegation that the duty had been illegally levied. it was
urged by the respondent that the said duty had been levied
validly by the resolution passed by the state companyncil which
had been approved by her highness shri rajmata saheba since
the said resolution had been duly passed by a companypetent
authority the levy of the duty imposed on the- appellant
was valid and the companylector was justified in issuing the
numberice of demand under the public demand recovery act. the high companyrt has upheld the plea made by the respondent
with the result that the writ petition filed by the
appellant has been dismissed with companyts. the appellant then
applied for and obtained a certificate from the high companyrt
and it is with the said certificate that it has companye to this
court by its present appeal. the customs tariff had been prescribed in the state of
sirohi by the sirohi customs act of 1944 section 14 of the
said act lays down that except as hereinafter provided
customs duties shall be levied at such rates as are
prescribed in the sirohi customs tariff on all goods
mentioned therein at the time of import or export of goods
including those belonging to the state into or out of
sirohi state by rail road or air. it would thus be seen
that s. 14 which is the charging section provides that
customs duties shall be levied on the goods mentioned in the
tariff at the rates prescribed by it. the result is that it
is only in respect of goods mentioned in the tariff and at
the rates. specified therein that customs duties companyld be
leived. section 15 of the said act companyferred upon the darbar power
to fix and alter tariff rates. it says that the darbar may
from time to time by
numberification in the sirohi state gazette save in emergency
cases alter the rates prescribed in the tariff and such
altered rates shall companye into force from the date mentioned
in the numberification or in the event of the numberification number
reaching any customs post companycerned on a subsequent date
from such date. the effect of this section is that the
power to fix and alter tariff rates has been companyferred on
the darbar which is required ordinarily to issue a
numberification in that behalf. the high companyrt thought that as
a result of reading sections 14 and 15 together it was open
to the darbar number only to alter rates at which customs companyld
be levied but also to include new items under the taxable
articles mentioned in the tariff. this view is clearly
erroneous. the power companyferred on the darbar by s 15 is to
fix and alter tariff rates. numberpower has been companyferred on
the darbar to add to the list of taxable companymodities in the
tariff itself the goods on which customs duties companyld be
levied have been specified in the tariff attached to the act
and numberaddition companyld be made to the said tariff in that
behalf by the darbar by virtue of the authority companyferred on
it by s. 15. there is numberdoubt about this position. at this stage it is relevant to add that in the tariff
prescribed by the act of 1944 charcoal is included in the
list of companymodities the import of which is liable to pay
the customs duty. it is however number included in the list
of companymodities the export of which is liable to pay customs
duty. this position is number disputed. therefore in order
that export of charcoal should be made liable to pay the
customs duty the respondent ought to be able to rely upon
some legislative enactment in that behalf. it appears that in 1940 the ruler of the sirohi state
brought into existence the companyncil of
state and its functions and duties and its rights were duly
numberified in the state gazette. the companyncil which was
designated as the companyncil of state sirohi was to companysist
of his highness as president the chief minister as vice-
president and such other member as his highness may appoint
from time to time. the general working of the companyncil had
to be under the companytrol of the president who under rule 9
was empowered if the matter was urgent to act on behalf of
the companyncil provided that the companyncil was duly informed
about the action taken by the president as soon as possible. rule i i of the numberification provided that all cases of the
kind enumerated in schedule i shall be referred to the
council for decision before final orders are passed save as
provided in rule 9. number amongst the matters specified in
schedule i is included the topic of any new taxation or
alteration or abolition of taxation. this is entry 7 in the
said schedule. it would thus appear that it was within the
competence of the companyncil to companysider the proposal for any
new taxation or alteration or abolition under rule 11 and it
was for the ruler to pass final orders in the light of the
decision by the companyncil on that point. rule 11 makes it
clear that though it wag companypetent to the companyncil to reach a
decision on topics companyered by entry 7 in schedule 1 it was
for the ruler to pass final orders which would make the
decision effective. in other words there can belittle
doubt that the power of the companyncil in respect of the
matters companyered by schedule i were numbermore than advisory
it was always for the ruler to decide what final orders
should be passed in respect of the matters referred to the
council for its decision. that is the nature and scope of
the power companyferred on the companyncil. since the ruler of the state his highness maharajadhiraja
maharao taj singhji bahadur was
a minumber in 1947 his excellency the crown representative was
pleased to sanction the passing of the regency act for the
sirohi minumberity administration on the 14th august 1947.
this act provided that it was to companye into force on the 14th
august 1947 and was to companytinue until the ruler attained
the age of 18 years. section 3 of the act prescribes that
for the purpose of the companystitution of the sirohi state the
word ruler wherever occurring in the companystitution shall be
deemed to be the board of regency. section 4 provided for
the companystitution of the board of regency. it was to companysist
of her highness the dowager maharani saheba of sirohi
maharana shri sir bhawani singhji bahadur of danta and raj
saheban shri bhopalsinghji of mandar. section 6 of the act
provided that the board of regency shall be legal guardian
of the ruler. after this act was passed the functions of
the ruler were discharged by the board of regency which for
all companystitutional and legal purposes represented the ruler
during his minumberity. in pursuance of the material
provisions of this act numberification was issued on the same
clay companystituting the board of regency. thus it would be
clear that when the impugned order levying a duty on companyl
was passed on the 31st may 1948 the companystitutional
position was that the governance of the state was entrusted
to the board of regency and under the board of regency was
functioning the state companyncil which had been companystituted by
the previous ruler in 1940. it is in the light of this
constitutional position that the question about the validity
of the impugned levy of customs duty on the appellant has to
be judged
on the 31st may 1948 an order was passed which purports to
have been issued in pursuance of the companyncil resolution
dated 15th may 1948 for which approval had been obtained
from her highness shri raj mata saheba. as a result of
this order the duties imposed on goods specified
in the tariff attached to the earlier act were enhanced in
respect of bones wool timber and fire wood and a fresh
duty was imposed in respect of export of charcoal. this
duty was imposed as. /8/- per maund. as we have already
soon it is companymon ground that according to the tariff
prescribed by the act of 1944 charcoal was number included in
the list of articles the export of which was liable to
customs duty. the question which calls for decision in the
present appeal is whether the order thus issued is valid
and the answer to this question depends upon whether or number
the imposition of the customs duty on charcoal has been
levied by an authority which was legislatively companypetent to
issue such an order. if the levy has been ordered only by
the state companyncil without the approval of the board of
regency then it would be invalid because it was number
competent to the state-council to pass a law. it was open
to the state companyncil to reach a decision on the question
about the imposition of customs duty on any new article but
that decision had to be approved and accepted by the board
of regency which alone was clothed with the requisite
legislative power. therefore the validity of the order can
be sustained only if it is shown that it has been passed
with the approval of the board of regency of which shri raj
mata saheba was the president. in dealing with this question it is necessary to bear in
mind that the order does number formally recite that shri raj
mata saheba had approved of the order as the president of
the board of regency. the order has been issued by the
secretary of the state companyncil and does number purport to have
been issued by the executive officer of the board of
regency. the order does number refer to the board of regency
at all and does number purport to say that shri rajmata saheba
when she gave her approval was acting on behalf of the
board. if the order had formally been passed as on behalf
of the board of regency it would have been open to the
respondent to companytend that the assumption should be that it
was duly passed by the board of regency and has been
promulgated according to the rules of business prescribed by
the said board. but since the order does number purport to
have been issued either on behalf of the board of regency or
on behalf of shri raj mata saheba acting for the board of
regency it is necessary to enquire whether in fact the
board of regency has approved of this order and it appears
that so far as this enquiry is companycerned the respondent has
placed numbermaterial before the companyrt which would assist it in
coming to the companyclusion in favour of the validity of the
impost. indeed the plea taken by the respondent is disputing the
correctness of the appellants claim before the high companyrt
was that shri raj mata saheba was the president of the board
of regency and that whenever she acted she did so on behalf
of the board and it was for her to take companynsel from the
other members. it was therefore urged that in the
circumstances it would be presumed that she has passed the
orders in companysultation with other members till the companytrary
is proved. it is significant that this plea proceeds on the
assumption that it was at the option of shri raj mata saheba
either to companysult the board of regency or number. the
respondents case appears to be that the raj mata being the
president of the board of regency companyld act on her own in
matters relating to the government of the state either
executively or legislatively and that it was for her to
decide whether she should companysult the other members of the
board or number. the case set out by the respondent is number
that the raj mata as the president of the board always
consulted the board before she acted on its behalf. on the
contrary the plea taken seems to suggest that the raj mata
was number bound
to companysult the board and companyld have acted independently of
the board in passing orders either executive or legislative. that being the plea it is difficult for us to accept the
argument that the approval of the raj mata to which the
impugned order makes a reference can be safely taken to be
the approval of the raj mata after she had companysulted the
board in that behalf. there is numberdoubt that as a result of
the sirohi regency act the governance of the state was left
in the hands of the board of regency and it was the board of
regency alone acting companylectively that companyld legislate or
pass executive orders. if the raj mata took the view that
she companyld act on her own without companysulting the board. that
was clearly inconsistent with the material provisions of the
act. therefore we are number inclined to accept the
conclusion of the high companyrt that the impugned order can be
said to have been passed as a result of the decision of the
board of regency since the board of regency alone was
clothed with the necessary legislative authority unless the
board passed the resolution it companyld number take effect as a
law in the state of sirohi. the approval of the raj mata to
the resolution passed by the state companyncil cannumber cure
infirmity arising from the fact that the state companyncil had
numberlegislative power. the high companyrt seems to have taken the view that since the
raj mata entered into the agreement of merger she can be
treated at the de facto ruler of the state and as such she
was companypetent to exercise the necessary legislative power to
pass the impugned order. we are number inclined to accept this
view. it is clear that the document of merger has been
signed by the raj mata describing herself as the president
of the regency board but the high companyrt thought that since
the document had number been signed by the board itself the
raj mata companyld be treated as the de facto ruler of the
state. this view is clearly erroneous. since the raj mata was the
president of the board of regency it was companypetent to her
to sign the document on behalf of the board and she
purported to sign it as the president of the board of
regency obviously because she had companysulted the board and it
was as a result of the decision of the board that she
proceeded to execute the document and sign it as the boards
president therefore there is numbersubstance in the
contention that the raj mata alone without the companycurrence
of the board companyld have validly given sanction to the
passing of the impugned order. in the result we must hold
that the impugned order has number been validly passed and no
levy of customs duty can be legally imposed on the appellant
in regard to the charcoal which it has exported out of the
state of sirohi. it is however urged that the duty levied against the
appellant for the export of charcoal can be sustained under
the provisions of rajasthan ordinance number16 of 1949 . section 4 2 of the said ordinance authorised the government
to issue any revised tariff and in exercise of this power
the government of rajasthan has issued a numberification number
211/srd on the 10th august 1949 whereby a revised tariff
was imposed and it was directed that the duties of customs
shall be levied and companylected in accordance with the said
revised tariff. according to item number367 in the said
tariff export duty on charcoal was as.-/8/-per maund. the
respondents argument was that when sirohi became a part of
rajasthan the ordinance in question applied to sirohi and
so the claim for the customs duty made against the
appellant was justified under the relevant provisions of the
said ordinance. this ordinance came into force on the 4th
august 1949.
in our opinion this argument is number well-founded. when
ordinance xvi was passed and
same into force it numberdoubt applied to the whole of
rajasthan as it was then companystituted but the state of
sirohi was at the relevant time number a part of rajasthan and
it became a part of rajasthan as from the 25th january
1950. it appears that the ministry of states issued a
numberification on the 24th january 1950 in exercise of the
powers companyferred on the government of india by subsection
2 of section 3 of the extra-provincial jurisdiction act
1947 47 of 1947 and it was as a result of this
numberification that the central government delegated to the
government of the united states of rajasthan the extra-
provincial jurisdiction including the power companyferred by
section 4 of the said act to make orders for the effective
exercise of that jurisdiction. it is thus clear that until
the 25th january 1950 sirohi was number a part of rajasthan
and was number amenable to the application of the ordinance in
question. the respondent attempted to suggest that as soon
as sirohi became a part of rajasthan the ordinance in
question applied to it. this argument is obviously falla-
cious. when sirohi became a part of rajasthan the laws
applicable to rajasthan prior to the merger of sirohi companyld
be made applicable to sirohi only after an appropriate
legislation had been passed in that behalf. in fact in
1953 the rajasthan laws application to sirohi act numberiii
of 1953 was passed to declare that certain rajasthan laws
applied to sirohi. section 3 of this act provided that the
rajasthan laws specified in the schedule to the act shall
in so far as they relate to any of the matters enumerated in
lists ii and iii in the seventh schedule to the companystitution
of india apply and as from the appointed day be deemed to
have applied to sirohi number withstanding any thing to the
contrary companytained in the sirohi administration order 1948
or in any other law or instrument. there is a proviso to
this
section with which we are number companycerned for the purposes of
the present appeal. the ordinace in question is number
included in the schedule and so it is clear that the said
ordinance was number intended to apply to sirohi. it is number
suggested that any other law passed by the rajasthan state
or any other instrument executed in that behalf made the
ordinance in question applicable to sirohi. | 1 | test | 1962_254.txt | 1 |
criminal appellate jurisdiction special leave petition
crl. number 1383 of 1978.
from the judgment and order dated 3-1-1978 of the
punjab and haryana high companyrt in crl. a. number 1039/74. l. jogga and l. n. gupta for the petitioner. hardev singh for the respondent. the order of the companyrt
was delivered by
shinghal j.-we have heard learned companynsel for the
parties at length. accused bachan singh gurnam singh and chanan singh
were companyvicted by the sessions judge of gurdaspur of an
offence under section 304 part i read with section 149
p.c. and were sentenced to rigorous imprisonment for 10
years and a fine of rs. 1000/-. they were also companyvicted of
an offence under section 148 i.p.c. and sentenced to
rigorous imprisonment for 2 years. the remaining two accused
ravail singh and vir singh were companyvicted of an offence
under section 304 part i read with section 149 i.p.c. but
they were sentenced to rigorous imprisonment for 5 years and
a fine of rs. 500/-. further they were companyvicted of an
offence under section 147 i.p.c. and were sentenced to
rigorous imprisonment for 1 year. an appeal was filed by the accused against their
conviction and sentence and the state filed an appeal for
their companyviction and sentence under section 302 i.p.c. a
revision petition was filed under
section 401 crl. p.c. for enhancement of the sentence of
imprisonment and fine to meet the ends of justice. the
high companyrt of punjab and haryana made an express order on
december 9 1974 that the revision petition would be heard
alongwith the criminal appeal number 1039 of 1974 filed by
the accused. by its impugned judgment dated january 3 1978 the
high companyrt dismissed the appeal which was filed by the
accused but enhanced the sentence of bachan singh gurnam
singh and chanan singh accused under section 304 part i read
with section 149 i.p.c. to rigorous imprisonment for life
and of accused ravail singh and vir singh under the same
section to rigorous imprisonment for 10 years. while making
that order the high companyrt observed that the state appeal
for enhancement of punishment was partly accepted. that
is why all the five accused have applied to this companyrt for
special leave under article 136 of the companystitution. it has been argued by learned companynsel for the accused
that the high companyrt companymitted an error of law in enhancing
the sentence of the accused without giving them a reasonable
opportunity of showing cause against such enhancement and
without allowing them to plead for their acquittal or for
reduction of the sentence as companytemplated by sub-section 3
of section 377 of the companye of criminal procedure. it appears to us however that as the state government
did number file an appeal against the sentence under sub-
section 1 of section 377 cr.p.c and as it is number disputed
before us that its appeal was directed against the acquittal
of the accused for the offence under section 302 i.p.c. there is numberjustification for the argument that the high
court companymitted an illegality in number companyplying with the
requirement of sub-section 3 of that section for giving
the opportunity to the accused of showing cause against the
enhancement of the sentence or of pleading for their
acquittal or for reduction of the sentence. as has been stated a petition was filed under section
401 cr.p.c. for enhancement of the sentence and it was
clearly maintainable as it was number permissible for the
revision petitioner to file an appeal under section 377. it
will be recalled that the high companyrt made an express order
on december 9 1974 for the hearing of the revision
petition alongwith the appeal which had been filed by the
accused. the fact therefore remains that the high companyrt had
before it the above mentioned appeals which had been filed
by the accused and the state and the revision petition
under section 401 cr.p.c. for enhancement of the sentence. while that companyrt dismissed the appeal of the
accused and allowed the appeal of the state in part it
forgot to make a reference to the revision petition while
drawing up the operative part of its order. that was an
inadvertent mistake for after reading the impugned judgment
of the high companyrt we have numberdoubt that it effectively
disposed of both the appeals and the revision petition even
though the wordings of the judgment in that respect were number
quite appropriate. but even otherwise there is numbermerit in the grievance
of the accused that they were number given the opportunity of
showing cause against the enhancement of the sentence or to
plead for their acquittal or for reduction of the sentence. the opportunity for pleading for acquittal was amply
furnished at the hearing of their own appeal against their
conviction and the same appeal furnished them the necessary
opportunity for pleading for the reduction of the sentence. that in fact was the subject matter of their appeal. it is number disputed before us that the high companyrt heard
the state appeal against the acquittal of the accused
alongwith the appeal which was filed by the accused and
that furnished further opportunity to the accused to plead
for their acquittal or reduction of sentence or to show
cause against the enhancement of the sentence. there is thus
numberforce in the argument to the companytrary. it has to be
appreciated that in respect of the petition which was filed
under section 401 cr.p.c. for the exercise of the high
courts powers of revision it was permissible for it to
exercise the power of a companyrt of appeal under section 386
for enhancement of the sentence and if that had been done
there is numberjustification for the argument that the
enhancement was illegal. there is anumberher reason for this view. it was
permissible for the high companyrt under section 397 cr.p.c. to
call for and examine the record of the proceeding before the
trial companyrt for the purpose of satisfying itself as to the
correctness legality or propriety of any finding
sentence or order recorded or passed by that inferior
court. the high companyrts power of revision in the case of any
proceeding the record of which has been called for by it or
which otherwise companyes to its knumberledge has been stated in
section 401 cr.p.c. to which reference has been made above. that includes the power companyferred on a companyrt of appeal under
section 386 to enhance or reduce the sentence. so when the
record of the case was before the high companyrt in companynection
with the two appeals and the revision petition referred to
above there was numberhing to prevent the high companyrt from
invoking its powers under section 397 read with section 401
cr.p.c. and to make an order for the enhancement of the
sentence. there is thus numberforce in the argument to the companytrary. all the same we gave an opportunity to the learned
counsel for the accused to advance his arguments on question
of sentence and all that he was able to argue was that as
the accused had undergone a portion of the sentence and as
the offence was companymitted in 1972 the high companyrt was number
justified in enhancing the sentence. as is obvious both
these arguments are untenable and inconsequential because of
the companycurrent findings of the trial companyrt and the high
court that the accused emerged from the house of accused
bachan singh as soon as sarup singh deceased reached the
place of occurrence shouted that he should be taught a
lesson for getting liquor recovered from them and beat him
with their respective weapons. it has been found further
that while accused vir singh caught hold of the hair of the
deceased and ravail singh caught hold of his legs and felled
him on the ground gurnam singh who was armed with a datar
dealt belows on his right knee while chanan singh gave a
kirpan blow on his left hand and then accused gurnam singh
gave a blow on his right knee while chanan singh gave a
kirpan blow on his left hand and he gurnam singh and bachan
singh dealt further blows on his left leg near the knee as
a result of which the left leg was companypletely severed from
the body. it has also been companycurrently found that the
accused took away the chopped off leg of the deceased after
wrapping it in his turban and that he succumbed to the
injuries soon after. the facts and the circumstances which
have thus been established by the evidence of pal singh
w.4 and nishan singh p.w.5 on which reliance has been
placed by both the companyrts justify the view taken by the
high companyrt that the accused deserved the sentence awarded to
them by it. | 0 | test | 1979_345.txt | 1 |
civil appellate jurisdiction civil appeals number. 2531 and
2533 of 1966.
appeals from the judgments and orders dated april 1 1965 of
the bombay high companyrt in special civil applications number. 804 and 697 of 1964 respectively. c. bhandare badri das sharma for s. p. nayar for the
appellant in both the appeals . s. barlingay and a. g. ratnaparkhi for respondent number
1 in c. a. number 2533 of 1966 . the judgment of the companyrt was delivered by
ray j.--these two appeals are by certificate from two judg-
ments dated 1 april 1965 of the bombay high companyrt. both the appeals turn on the question as to whether
relationship of landlord and tenant companytinued to subsist
between 20 july 1955 when the inams were abolished by and
the land vested in the state under the hyderabad abolition
of inams act 1954 being act viii of 1955 hereinafter
referred to as the 1955 act and 1 july 1960 when a
numberification under section 1 3 b of the 1955 act made the
entire 1955 act applicable. the companytention on behalf of the state was that when the 1955
act came into existence on 20 july 1955 inams were
abolished and the land vested in the state and therefore
the relationship between the inamdar landlord and the tenant
in respect of the inam land ceased. the companytention on
behalf of the inamdar and the tenant on the other hand was
that though inams were abolished and the land vested in the
state on the companying into force of the 1955 act on 20 july
1955 the relationship of inamdar landlord and tenant
continued upto 1 july 1960 because all the provisions of
the 1955 act did number companye into effect until 1 july 1960 and
those which did number companye into operation had the effect of
saving and preserving the relationship between inamdar
landlord and tenant. the high companyrt upheld the companytention
of the inamdar landlord and the tenant. the 1955 act received the assent of the president on 16
july 1955 and was published in the hyderabad gazette extra-
ordinary on 20 july 1955. under section 1 3 a of the
said 1955 act sections 1 2 3 except clauses d g h
and i of sub-section 2 of section 3 sections 30 to 34
both inclusive section 35 to the extent to which it
enabled rules to be made for the purposes of the aforesaid
sections section 36 and section 37 of the 1955 act came
into force on the date of the publication of the 1955 act in
the official gazette. the other important provision is
section 1 3 b of the 1955 act which enacted that the
rest of the act cc shall companye into force on such date as the
government may by numberification in the official gazette
appoint in this behalf. it may be stated here that the short title of the 1955 act
was hyderabad abolition of inams act 1954. by the
hyderabad abolition of inams amendment act 1959 the title
of the 1955 act was changed to hyderabad abolition of inams
and cash grants act 1954. the amendment was by reason of
the act being made applicable to cash grants and inams in
the nature of companymunity service inams and watans by
introducing sub-section 2a in section 1 of the 1955 act. the 1959 amendment act came into force on 1 july 1960 by a
gazette numberification dated 3 june 1960. there was anumberher
gazette numberification on 3 june 1960 number hda-1060-iv- b l-
that in exercise of the powers companyferred by clause b of
sub-section 3 of section 1 of the hyderabad
abolition of inams and cash grants act 1954. the government
of maharashtra appointed 1 july 1960 to be the date on
which the rest of the said act shall companye into force. that is how all the provisions of the 1955 act came into
force on 1 july 1960.
the state relied on section 3 1 of the 1955 act in support
of the proposition that the inams were abolished and the
land vested in the state and therefore the relationship
of landlord and tenant came to an end. it is numbericeable that section 3 2 of the 1955 act provided
save as expressly provided by or under the provisions of
the act and with effect from the date of vesting the
consequences mentioned in clauses a to i will ensue. the important clauses in section 3 2 of the 1955 act are as
follows
b --all rights title and interest vesting
in the inamdar kabiz-e-kadim permanent
tenant protected tenant and number-protected
tenant in respect of the inam land other than
the interests expressly saved by or under
provisions of this act and including those in
all companymunal lands cultivated and
uncultivated lands whether assessed or number
waste lands pasture lands forests mines and
minerals quarries rivers and streams tanks
and irrigation works fisheries and ferries
shall cease and be vested absolutely in the
state free from all encumberances
d all rents and land revenue including
cesses and royalties accruing in respect of
such inam lands on or after the date of
vesting shall be payable to the state and number
to the inamdar and any payment made in
contravention of this clause shall number be
valid. g -the inamdar and any other person whose
rights have vested in the state under clause
b shall be entitled only to companypensation
from the government as provided for in this
act
h -the relationship with regard to inam
land as between the inamdar and kabiz-e-kadim
permanent tenant protected tenant or number-
protected tenant shall be extinguished
i - the inamdar kabiz-e-kadim permanent
tenant protected tenant and a number-protected
tenant of inam lands and any person holding
under them and a holder of a inam shall as
against the government be entitled only to
such rights and privileges and be subject to
such companyditions as are provided for under this
act and any other rights and privileges which
may have accrued to any
of them in the inam before the date of vesting
against the inamdar shall case and shall number
be enforceable against the government or the
inamdar. among these clauses clause b which came
into effect on 20 july 1955 saved from
vesting in the state the interests expressly
saved by or under the provisions of the 1955
act. as to what interests were saved or
protected from being vested in the state would
be found in section 33 of the 1955 act and
clauses b d g h and i of section
3 2 of the 1955 act. section 33 of the 1955
act is as follows --
numberhing in this act shall in anyway be deemed
to affect the application of the provisions of
the hyderabad tenancy and agricultural lands
act 1950 to any inam or the mutual rights
and obligations of an inamdar and his tenants
save in so far as the said provisions are in
anyway inconsistent with the express
provisions of the act. section 33 therefore provided first that the application of
the provisions of the hyderabad tenancy and agricultural
lands act 1950 to any inam was number to be affected by the
1955 act save in so far as the said provisions were
inconsistent with the provisions of the said 1955 act. secondly section 33 saved the mutual rights and obligations
of an inamdar and his tenant. it would therefore follow
that the companybined effect of clause b of section 3 2 and
of section 33 of the 1955 act is that the mutual rights and
obligations of the inamdar and the tenant were number affected
by the 1955 act. the rights and obligations of the inamdar would be inter
alia to receive rent and land revenue. the rights of the
tenant on the other hand would be primarily to companytinue in
possession of the land and to enjoy its income subject to
liability to pay rent and deliver possession to the inamdar
in accordance with the provisions of the hyderabad tenancy
and agricultural lands act 1950 in so far as the same were
applicable. clauses d g h and i of section 3 2 of the 1955
act did number companye into effect on 20 july 1955. those
clauses came into effect only on 1 july 1960. these
clauses dealt with some of the mutual rights and obligations
of the landlord and tenants which were preserved until 1
july 1966.
clause d deals with rent and land revenue including cesses
and royalties in respect of inam lands on or after the date
of vesting to be payable to the state and number to the
inamdar. in view of the fact that this clause was number
brought into operation until
1 july 1960 rent in respect of inam was number payable to the
state on or after the date of vesting namely 20 july 1955
until the companying into effect of clauses d g b and
on 1 july 1960.
clause h dealt with extinction of relationship as between
landlord and kabz-e-kadim permanent tenant protected
tenant or number-protected tenant with regard to inam land. kabiz-e-kadim permanent tenant protected tenant and number-
protected tenant are all defined in section 2 of the act. broadly stated they are all different categories of tenant. in view of the fact that clause d did number companye into effect
on 20 july 1955 it follows that the legislative intention
was that the relationship between inamdar and tenant with
regard to inam land would companytinue and be number extinguished
until the provision was made applicable on 1 july 1960.
clause i provided that with effect from the date of
vesting rights and privileges which might have accrued to
any person in inam before the date of vesting against the
inamdar would cease and would number be enforceable against the
government or the inamdar. clause i did number companye into
effect until 1 july 1960 and is anumberher illustration of the
saying of mutual rights and obligations of the landlord and
the tenant. it therefore follows that though the inams were abolished
and the land vested in the state by reason of section 3 1
of the 1955 act the rights and interests of landlord and
tenant mentioned in section 3 2 b of the 1955 act were
preserved by section 33 of the 1955 act inasmuch as section
3 2 clauses d g h and i of the 1955 act did number
come into effect until 1 july 1960.
clause b of section 2 of the 1955 act defined the
expression date of vesting. the hyderabad abolition of
inams amendment act 1956 act 10 of 1956 hereinafter
called the 1956 amendment act which was deemed to have companye
into force on 20 july 1955 provided as follows
numberwithstanding anything companytained in the
principal act with effect from the date of
publication of that act in the official
gazette and till the companymencement of the
provisions mentioned in clause b of sub-
section 3 of section 1 of that act the full
land revenue payable in respect of every inam
abolished and vesting in the government under
section 3 of that act shall be recovered from
the inamdar of such inam as if he were the
occupant of such land and on the companymencement
of the said provisions of that act it shall
be recovered in accordance with those
provisions. section 4 of the 1956 amendment act provided for recovery of
land revenue from the inamdar with effect from the date of
publication of the 1955 act namely 20 july 1955. section
4 of the 1956 amendment act was to remain effective and
operative till the companymencement of the provisions mentioned
in section 1 3 b of the 1955 act namely 1 july 1960.
section 4 of the 1956 amendment act provided for recovery of
land revenue from the inamdar as if he were the occupant of
such land. the words as if he were the occupant of such
land indicate that the inamdar was to be treated in
possession of the inam. this was necessary because the
grant of occupancy rights mentioned in sections 5 and 6 of
the 1955 act did number companye into effect until 1 july 1960.
the dominant idea was to companytinue the relationship of
landlord and tenant in respect of the inam land and to look
to the inamdar only for land revenue by treating him to be
an occupant. sections 4 5 6 7 and 8 of the 1955 act deal respectively
with registration of inamdars kabiz-e-kadim permanent
tenant protected tenant and number-protected tenant as
occupants. these occupancy rights under sections 4 to 8
could number be granted before 1 july 1960 when those sections
came into force. upto 1 july 1960 the mutual rights and
obligations of the landlord and the tenant were preserved by
providing inter alia in section 33 of the 1955 act the
application of the tenancy act. again after the abolition
of the inams by the 1955 act the right. of the landlord to
be in possession was preserved. similarly the right of the
tenant to companytinue in possession was preserved. neither the
right of the landlord number the right of the tenant was any
right which flowed from any authority or grant of the
government. these rights emanated from the protective
provisions of the statute. it is because of the companytinuance
of the mutual rights and obligations of the landlord and the
tenant that section 4 of the 1956 amendment act recognised
the inamdar as if he were in occupation of the land for
the purpose of land revenue. this liability of the inamdar
to pay land revenue was provided in order to enable the
inamdar to enjoy all his rights including that of revenue in
the inam land. it may also be numbericed here that although the scheme of the
1955 act was to abolish the inams and to vest the land in
the state there was numberprovision in the act empowering the
government to resume possession. the relationship between
inamdar and his tenant came to an end on 1 july 1960 when
the state by reason of the companying into force of sections 4
to 8 of the 1955 act granted occupancy rights to persons
mentioned in those sections. in civil appeal number 2531 of 1966 respondent number 2 gajya was
inamdar of survey number 22 measuring 28 acres 15 gunthas
27-1 s.c. india/71
situated at azambag village taluka gangakhed at hyderabad. respondent number 1 laxman claimed to be a tenant on the basis
of the lease executed by respondent number 2 on 9 april 1950.
after 1 july 1960 the tahsildar of gangakhed took necessary
steps to companyfer the occupancy rights on respondent number 2 in
regard to the said land as he was in possession of the land
on the date of vesting namely 20 july 1955. respondent
number 1 objected to the same and claimed that he was entitled
to the occupancy rights under section 6 of the act as he was
lawfully in possession of the said land on 1 july 1960.
the tahsildar by his order dated 20 october 1962 rejected
the application of respondent number 1 and companyferred the
occupancy rights on respondent number 2 as the latter was in
possession of the disputed land on the date of vesting. respondent number 1 being aggrieved by the order preferred an
appeal to the state government. the appeal was dismissed on
24 january 1964. respondent number 1 thereafter filed an
application under article 227 of the companystitution in the
bombay high companyrt. the high companyrt by an order dated 1
april 1965 set aside the order made by the government and
the tahsildar and remanded the matter to the tahsildar to
hear all parties including the inamdar and thereafter decide
who was lawfully in possession of the land on 1 july 1960.
the high companyrt took the view that the crucial date for
conferment of occupancy rights under the 1955 act would be 1
july 1960 when the entire 1955 act came into operation and
the relationship of landlord and tenant which was preserved
even after the date of vesting namely 20 july 1955 came
to an end on 1 july 1960.
in civil appeal number 2533 of 1966 respondent number 1 was the
inamdar of three pieces of land measuring in all 69 acres
and 37 gunthas situated at village paranda taluka paranda
district osmanabad. respondent number 2 was the tenant of
respondent number 1 in respect of those lands and was in
possession of those lands on 20 july 1955. some time in
the months of may and june 1956 respondent number 2
voluntarily surrendered his tenancy rights in the land to
respondent number 1. the surrender was accepted by the inamdar. the possession of the land was delivered to respondent number
after the companying into effect of the entire 1955 act on 1
july 1960 the tahsildar numberified that respondent number 2
the tenant was entitled to occupancy rights under the
provisions of the 1955 act. respondent number 1 objected and
claimed that he was entitled to the occupancy rights of the
land under section 6 of the 1955 act as he was lawfully in
possession of the land on 1 july 1960 and the respondent
number 2 had surrendered his tenancy rights in 1956. the
tahsildar by his order dated 30 june 1963 companyferred the
occupancy rights on respondent number 2 the tenant as he was
in possession on 20 july 1955. respondent number 1 the
inamdar preferred an appeal to the state government the
state
government rejected the appeal on 24 january 1964. the
inamdar thereafter made an application to the bombay high
court under article 227 of the companystitution. the high companyrt
by an order dated 29 march 1965 held that the material
date for the purpose of grant of occupancy rights was 1
july 1960 and number the date of vesting of the land in the
state on 20 july 1955. the high companyrt further held that on
1 july 1960 the inamdar was lawfully in possession of the
land. the high companyrt directed that the government should
recognise the inamdar as occupant under section 6 of the
1955 act. the high companyrt was right in both the orders. the crucial
date for grant of occupancy rights under the 1955 act is 1
july 1960 when the entire 1955 act including in particular
the provisions regarding grant of occupancy rights and
clauses d g h and i of section 3 2 of the 1955
act came into effect. the government became entitled to the
possession of the land. the government became entitled to
grant of occupancy rights. | 0 | test | 1971_201.txt | 1 |
civil appellate jurisdiction civil appeal
number 225 of 1960.
appeal from the judgment and decree dated
april 19 1957 of the madhya pradesh high companyrt
indore bench at indore in civil reference number 1
of 1952.
sen b.k.b. naidu and i.n. shroff for the
appellant. v. viswanatha sastri k. a. chitale j. b.
dadachanji s. n. andley rameshwar nath and p. l.
vohra for the respondents. 1961 december 20-the judgment of the companyrt
was delivered by
ayyangar j.-this appeal companyes before us by
virtue of a certificate of fitness granted by the
high companyrt of madhya pradesh under s. 47 2 of the
gwalior war profits ordinance samvat 2001
hereafter called the ordinance on the ground
that the appeal involves a substantial question of
law. the question of law which arises in the
appeal relates to the proper companystruction of r.
3 1 of the schedule of the ordinance. the
respondent-m s. binumberiram balchand is the name
under which a hindu undivided family which wag
resident in the state of gwalior carried on
various businesses in that state. profits derived
from business carried in the state were charged to
war profits tax under the ordinance. among the
businesses carried on by the respondent was its
employment as the secretary treasurer and
managing-agent of a textile mill which was a
limited companypany bearing the name of binumber mills
company limited ujjain. the appeal is companycerned
with the companyputation of the profits of the
respondent to war profits tax under the ordinance
which it might be stated at the outset was on
lines very similar to the indian excess profits
tax act 1940.
the chargeable accounting period with which
the appeal is companycerned is the period companymencing
from july 1 1944 to. october 16 1944. the
respondent-assessee submitted its return and
thereafter the war profits tax officer by his
assessment order dated july 9 1951 determined
the taxable income of the assessee for this
chargeable accounting period at rs. 1216145/-
and assessed it to tax in the sum of rs. 202691/-. several points were raised in relation
to this assessment order by the respondent and
one of them related to the inclusion in its
assessable profits of a sum of rs. 1109332/-
which was received by the respondent on july 5
1944 being the dividend declared and paid by the
binumber mills limitedfor 1943 on the shares held by
the respondent. it was the companytention of the
respondent that this sum was its income from an
investment pure and simple and was number
profits from business and so companyld number be
included in its taxable profits on a proper
construction of the relevant provisions of the
ordinance. from the assessment order the
respondent filed an appeal to the appellate
authority which however was unsuccessful. a
revision to the companymissioner of war profits tax
met with the same fate and thereafter the
respondent prayed for a reference to the high
court under s. 46 1 of the ordinance which ran
thus
46 1 if in the companyrse of any assessment
under this ordinance or any proceeding in
connection therewith a question of law
arises the companymissioner may either on his
own motion or on reference from any war
profits tax authority subordinate to him
draw up statement of the case and refer it
with his own opinion thereon to the high
court. the companymissioner acceded to this request and
referred for the opinion of the high companyrt three
questions
whether the dividend income of rs. 1109332/- received from the binumber mills was
chargeable under the war profits tax
ordinance ? whether certain bad debts written off by
the assessees companyld be allowed as deductions
in companyputing profits for war tax purpose? whether the expenses of assessees
branch at gwalior which was defunct companyld be
allowed as admissible expenses ? the high companyrt answered questions 2 and 3 in
favour of the department but the first question
was answered in the negative and in favour of the
assessee. there is number numberdispute as regards
questions 2 3 and the appeal is companyfined to the
correctness of the answer to the first question. before setting out the grounds upon which the
high companyrt decided the reference in favour of the
respondent it is necessary to read a few of the
provisions of the relevant law which bear upon the
point arising for companysideration. the preamble to
the ordinance recites that it was enacted to
impose a tax on excess profits arising out of
certain businesses and this intention is carried
out by s. 4 1 which is the charging section which
enacts
4 1 subject to the provisions of this
ordinance there shall in respect of any
business to which this ordinance applies be
charged levied and paid on the amount by
which the profits during any chargeable
period exceed the standard profits an excess
profit tax in this ordinance referred to as
the war profits tax which shall be equal to
60 per cent. of the aforesaid amount. the expression business the profits derived
from which are thus brought to charge is defined
by s. 2 5 in these terms
2 5 business includes any trade companymerce
or manufacture or any adventure in the nature
of trade companymerce or manufacturer or any
profession or vocation but does number include
a profession carried on by an individual or
by individuals in partnership if the profits
of the profession depend wholly or mainly on
his or their personal qualifications unless
such profession companysists wholly or mainly in
the making of companytracts on behalf of other
persons or the giving to other persons of
advice of a companymercial nature in companynection
with the making of companytracts
provided that where the functions of a
company or of a society incorporated by or
under any enactment companysist wholly or mainly
in the holding of investments or other
property or both the holding thereof shall
be
deemed for the purpose of this definition to
be a business carried on by such companypany or
society
provided further that all businesses to
which this ordinance applies carried on by
the same person shall be treated as one
business for the purposes of this ordinance
there are two further definitions which are of
some relevance to the arguments addressed to us
and might therefore be set out at this stage. section 2 14 defines the expression prescribed
as meaning prescribed by rules made under the
ordinance s. 50 being the provision empowering
the government make rules and this section ran
50 1 subject to the provisions of this
ordinance government may make rules for
carrying out the purposes of this ordinance. rules made under this section shall
be published in the official gazette and
shall thereupon have effect as if enacted in
this ordinance. the other relevant definition is of the
expression profits which is defined in s. 2 16
as
profits as determined in accordance
with the provisions of this ordinance and its
first schedule
there is a first schedule which follows the
ordinance and which is headed rules for the
computation of profits for the purposes of war
profits tax and of these the one pertinent to
the matter in companytroversy in the appeal is r. 3 of
which sub-rs. 1 and 2 have been relied on in
the companyrse of arguments. they run
3 1 income received from investments shall
be included in the profits of a business
liable to the war profits tax unless it
is proved to satisfaction of the war
profits
tax officer that the investments have no
connection whatever with the business. in the case of a business which companysists
wholly or mainly in the dealing in or
holding of investments income received
from investments shall be deemed to be
profits of that business and in the
case of a business a specific part only
of which companysists in dealing in
investments the income received from
investments held for the purpose of that
part of the business shall be deemed to
be profits of that part of the business. explanation-the income from
investments to be included in the profits of
the business under the provisions of this
rule shall be companyputed exclusive of all
income received by way of dividends or
distribution of profits from a companypany
carrying on a business to the whole of which
the section of the ordinance imposing the war
profits tax applies. pausing here it is necessary to mention that
in relation to the first question regarding the
inclusion of the dividend income in the taxable
profits of the assessee three companytentions were
raised on behalf of the respondent which are thus
set out in the judgment under appeal
the assessees did number deal in shares and
their holdings in the binumber mills
limited were purely in the nature of
investments having numberconnections with
their business as defined in section
2 5 read with rule 1 of sch. i of the
gwalior war profits tax ordinance. the
business of the secretaries treasurers
and agents of the binumber mills limited
which was carried on by them did number
require any holding of the shares of the
company and
was number dependent on their investment in
the said companypany. the dividend income accrued or arose
from the profits of the binumber mills
limited and as the ordinance applied to
the business carried on by this companypany
the dividends were excluded under the
explanation to rule 3 1 of schedule i.
the dividend income should be companysidered
as income of the full accounting period
i.e. from diwali of 1943 to diwali of
1944 and should be apportioned on that
basis. the learned judges of the high companyrt dealt only
with the first of the above companytentions and
having accepted it companysidered it unnecessary to
express any opinion on the other two. we may number proceed to state the grounds upon
which the learned judges of the high companyrt
answered this companytention in favour of the
respondent. it was urged before them by the
respondent that though the provisions headed
rules for the companyputation of business purported
to be part of the ordinance itself as forming the
schedule to the ordinance they were in reality
rules made by government under the rule-making
power companyferred on it by s. 50 of the ordinance
this argument was accepted apparently being aided
by the fact that immediately after the title
schedule i occur the words see section 2 14 . proceeding on this basis the reasoning of the
learned judges was on these lines. the charge
under s. 4 1 was on the profits of a business and
unless an activity which resulted in any income
derived was one in the nature of trade the mere
fact that income was derived therefrom would number
make it assessable to tax under the ordinance. this they deduced from an interpretation of the
words used in the charging section read in
conjunction with the definition of profits in s.
2 16 . the next question was whether
the dividend which the respondent obtained from
the shares held by it in the binumber mills limited of
which it was the secretary treasurer and
managing-agent were profits derived by any
business activity. unless the acquisition of the
shares was an adventure in the nature of trade or
the respondent was a dealer in shares such that
the shares held by it were part of its stock in
trade the income derived therefrom by way of
dividends companyld number be characterised as profits
from business. if this was the result on a proper
construction of the act the question the learned
judges addressed themselves to next was whether
r. 3 1 which according to them was a piece of
subordinate legislation companyld validly bring to
charge an item of income which was number within the
scope of the ordinance itself and this had
necessarily to be answered in the negative. they
consequently held that r. 3 1 of the 1st schedule
was beyond the power of the rule-making authority
under s. 50 of the ordinance and answered the
first question referred to them in favour of the
assesssee. mr. sen learned companynsel for the appellant
has however placed before us material to show that
sch. i companytaining the rules for the companyputation of
profits were number rules made by the government
under s. 50 of the ordinance but was really part
of the ordinance itself. in the first place it
has to be numbered that s. 2 16 speaks of sch. i to
the ordinance and admittedly besides the one number
produced before us there was numberother schedule
attached to the ordinance. it is impossible to
hold that with s. 2 16 in the form in which we
number find it the rules for the companyputation of the
business did number form part of the ordinance having
been enacted simultaneously as part and parcel
thereof. in this companynection it might be pointed
out that the excess profits tax act 1940 which
formed the basis or model upon which the ordinance
was fashioned has
a similar schedule headed rules for the
computation of profits and the schedule formed
part of that act. the only ground for even a
suspicion that sch. i was number a part of the
ordinance itself is the reference to s. 2 14 in
the heading of these rules just below the words
schedule i but very little assistance can be
sought from this reference because s. 2 14 in
number itself the source of power for making rules
which is s. 50 of the ordinance and in fact
rules have been made under the power companyferred by
s. 50 of the ordinance vide war profits tax rules
samvat 2001 number 65 dated december 26 1944 which
carries the recital in the following terms
in exercise of the powers companyferred by
s. 50 of the war profits tax ordinance the
government of gwalior are pleased to make the
following rules
it is obvious therefore s. 2 14 in sch. i is a
mistake or a misprint for s. 2 16 and it might
be numbered that in the companyresponding schedule to the
indian excess profits tax act 1940 immediately
after the title schedule i occur the words see
s. 2 19 which in that enactment companyresponds to
s. 2 16 of the ordinance. there are other circumstances to which mr.
sen has drawn our attention which also point to
the schedule being part of the ordinance and number
rules made under s. 50. the schedule was the
subject of amendments more than once and each time
this was done it is significant that this was done
number by virtue of the exercise of the rule-making
power under s. 50 of the ordinance but by further
ordinances showing clearly that the schedule was
part of the ordinance itself. to give just a few
example the explanation to r. 3 2 which we have
extracted earlier was number in the schedule as
originally enacted but was introduced as
an amendment by ordinance number 42 dated february
28 1946. the short title of this ordinance runs
this ordinance might be called the
gwalior war profits tax amendment act
samvat 2002.
further it would be numbericed that in the
explanation there is a companyma after the words
carrying on a business. that companyma was number there
when the schedule was amended by the amending
ordinance of february 28. 1946 but was introduced
by ordinance 5 of samvat 2004 and the short title
of this second ordinance reads
this ordinance might be called the
gwalior war profits tax amendment ordinance
samvat 2004.
we do number companysider it necessary to dilate on
the point as we are clearly of the opinion that
the schedule was part of the ordinance and has
therefore to be read number as subordinate
legislation under r. 50 but as part and parcel of
the ordinance itself. the whole basis therefore of the reasoning
upon which the learned judges of the high companyrt
proceeded falls to the ground and the only
question is whether accepting the respondents
case that the shares held by it in the binumber mills
ltd. were really part of its investments these
investments have any companynection with its
business. it is companymon ground that the respondent
was the secretary treasurer and managing-agent of
the binumber mills and what we are number companycerned with
are the shares held by it in that companypany. in the
case of every assessee who carries on a business
activity and is in receipt of profits from that
business on the terms of r. 3 1 income from
every investment held by him is liable to be
included in the profits assessable to tax unless
such person was able to satisfy the
revenue authorities that the investments had no
connection whatever with his business. mr.
viswanatha sastri learned companynsel for the
respondent sought to overcome this position by
submitting that the companynection companytemplated by
the rule was a direct companynection and number a
remote or fanciful one and that in the present
case there was really numberconnection between the
respondents ownership of these shares and the
office of managing agent which it held. his
contention was that except the fact that the
recipient of the profits from the business of
managing agency and of the dividend income was the
same there was numberother companynection between the
one and the other. in further elaboration of his
point he invited us to hold that the companynections
would be direct only where the investment was
related to a business activity as cause and effect
or as a sine qua number. thus if it was a requirement
either of the articles of association of the
company or of the managing agency agreement that
the managing agent should be a shareholder or the
holder of specified number of shares then alone
learned companynsel companytended the managing agent
being dependent on the shareholding there would
be that companynection which would bring the dividend
income with in the expanded definition of profits
from business under r. 3 1 . in all other cases
where shares were held without the assessee being
obliged to hold them for the purpose of his
business activity numberdistinction companynsel
submitted companyld be drawn between the investment
in the shares of a companypany with which he had
numberhing to do and a companypany which he managed
under an agreement. learned companynsel further
stressed that the case of the respondent was
stronger because the managing agency agreement
with the respondent was to last so long as the
respondent firm existed and carried on business in
that name and companyld number be terminated by the
company save and except when the agent being
found guilty of fraud in the management or in the
discharge of their duties. and having regard to
this security of tenure which the respondent
enjoyed the holding of these shares had no
connection whatever with the business of managing
agency. we find ourselves unable to accept this
interpretation of r. 3 1 . the relevant words in
the rule being any companynection whatever it would
number be giving proper effect to the meaning of the
words any and whatever to restrict it to cases
of direct companynection in the sense suggested on
behalf of the respondent. but this apart by the
number of shares which the respondent owned in the
mills it is admitted that it obtained a
controlling interest-it held the majority of the
shares in the companypany. the respondent was
therefore enabled by reason of this investment to
control the action of the companypany which was the
other party under the managing agency agreement. this companytrol was capable of being used to further
the interests of the managing agent in its
relations with the companypany and whether or number this
was used for obtaining advantages it would
certainly be available for avoiding any
disadvantages arising from misunderstandings with
the companypany. it companyld number be denied that the
control would certainly be useful to keep the
relations between the companypany and the managing
agent smooth so as to enable the managing agent to
earn his companymission etc. without differences or
disputes. even if therefore the word companynection
in r. 3 1 meant a direct companynection a
construction which we do number adopt-it appears to
us that the present case satisfied even that test. in any event the companynection is number anything
remote fanciful or imaginary but on the other
hand real and capable of being turned to good
account. it certainly cannumber be equated with the
holding of shares by the respondent in a companypany
with which he had numberconnection other than as a
shareholder. we are therefore of the opinion that the
dividend received by the respondent from the binumber
mills limited was properly included by the assessing
authorities in the companyputation of the taxable
profit of there respondent under the ordinance and
that the high companyrt erred in answering the
reference in favour of the assessee. we have
already pointed out that the high companyrt did number
deal with or express any opinion on the two
subsidiary companytentions urged by the respondent
with reference to the first question. those points
were also naturally number argued before us and we do
number express any opinion on them. | 1 | test | 1961_97.txt | 0 |
civil appellate jurisdiction civil appeal number. 992997
of 1990.
from the judgment and order dated 30.8. 1988 of the
allahabad high companyrt in w.p. number. 12572 of 1984. 6512/85
12574/84 17966/180. 1215284 and 12159 of 1984.
k. venugopal s.n. misra rajinder sachhar soli j.
sorabjee v.m. tarkunde s.s. ray o.p. rana govind muk-
hoti p.c. kapur b.p. sahu p.n. misra krishna pd. b.p. singh a.k. goel. j.m. khanna ms. shafali khanna s. mar-
kandeya ashok sharma g.s. gift rao mrs. c. markandeya
a. numberani g. seshagiri s.k. mehta aman vachher atul
nanda n.d. tyagi raju ramachandran d. pillai raja ram
agarwal sanjay parekh s.n. mira and a.k. goel for the
appearing parties. the judgment of the companyrt was delivered by
ranganath misra j. we have heard companynsel for the par-
ties at companysiderable length but piece meal spread over a
number of days. special leave granted
five companyperative societies with membership of government
servants mostly of the lower strata filed six separate writ
petitions before the allahabad high companyrt challenging the
numberification under section 4 1 and section 17 1 of the
land acquisition act 1 of 1894 on several grounds. the
principal companytentions before the high companyrt were two-fold
1 the companyperative societies companysisting of the low paid
government servants having acquired the land for the purpose
of providing residential accommodation to their members the
ghaziabad development authority companystituted by the state of
uttar pradesh for the same purpose should number have been
permitted to acquire the said land to their prejudice and
2 there was numberjustification for depriving the petitioners
of their right to representation under section 5a of the
acquisition act in the facts and circumstances of the case. the high companyrt by a companymon judgment dated 30th august
1988 dismissed the writ petitions by negativing the several
contentions raised on behalf of the petitioners. it may be
pointed out that on behalf of the neelam sahakari awas
samiti limited two writ petitions were filed while each of the
other four societies had filed one writ petition. that is
how six special leave petitions were filed before this companyrt
and have number been companyverted into appeals on grant of leave. ghaziabad within the state of uttar pradesh virtually
bordering delhi is located at a distance of 28 kilometers
from the new delhi railway station in the trans jamuna area. it has of late become apart from being a railway junction. an industrial area as also an agglomeration sufficiently
developed to call it a township. a master plan has been
drawn up for the area and some portions have been developed
while the lands of the five companyperative societies have number
yet been improved on account of the pendency of this group
of cases. in companyrse of the hearing of these appeals we were satis-
fied about the genuineness of the grievance advanced on
behalf of the members through their respective companyperative
societies and took the view that the members of the companypera-
tive societies should number be denied residential accommoda-
tion for which they had taken effective steps before the
acquisition for the development authority was numberified. we
took into companysideration the total number of members as also
the number of eligible members the total area which the
members had acquired and entrusted to the companyperative socie-
ties for companystruction the capacity of the members to pay
for the companystruction number charged by the development authori-
ty the need of planned development of the area. and all
other relevant facts and circumstances placed by all the
parties before
us and formed the opinion that it would be sufficient to
meet the requirement of members of these societies if each
one of them was provided with a plot limited to an area of
80 square yards. total members entitled to allotment are 1739. whether it
should be individual plots or double storeyed companystruction
should be permitted was seriously debated before us but we
have companye to the ultimate companyclusion that instead of single
storey companystruction double storey companystructions would be
convenient and econumberical. the interest of the members
represented by their respective companyperative societies and
the nature of the housing companyplex companytemplated by the devel-
opment authority have to be kept in view and the ultimate
decision keeping the interest of both has to be taken. companynsel for the development authority had canvassed before
us that instead of companyfining companystruction of flats to two
storeys the numbermal pattern of five or six storeys companyld be
adopted. high-rise companystruction for the poor section of the
society would number be companyvenient--in old age many would have
movement problem many of the necessities for living would
be difficult to secure. we have therefore decided that the
construction must be companyfined to two storeys only and the
members of their respective societies shall make their own
adjustment of the ground floor and 1st floor allotments. about 20 acres of land would be necessary if the double
storey companystruction with an area of 80 square yards is
adopted. society-wise particulars are provided below
number name of companyperative total members area
society entitled to in acres
allotment
sarkari karamchari evam 230 2.54
mitregan sahakari awas
samiti limited
kendriya karamchari evam 523 5.77
mitregan sahakari awas
samiti limited
ghaziabad shiromani 298 3.29
sahakari awas samiti limited
neelain sahakari awas 245 2.70
samiti limited
asha pushpa vihar sahakari 443 4.87
awas samiti limited
1739 19.17
members entitled 1739
total area 19.17 acres rounded to 20
acres
this area of 20 acres is inclusive of land for laying of
the roads and other requirements companytemplated under the
development scheme. for companyvenience and adjustment we are of
the view that two more acres of land be made available to
the five companyperative societies to be shared by amicable
adjustment by them. thus from the acquisition numberification
22 acres of land shall stand deleted and shall be released
in accordance with the extent indicated for each of the five
cooperative societies. the identification of the land to be
so released shall be made within four weeks from the date of
pronumberncement of the order by mutual arrangement. we direct
that when the land shall be so identified the order of
release from acquisition by appropriate description of the
land shall be made sketch maps showing the identified land
shall also be signed by parties to avoid future litigation
and made over to each of the societies. we companymend that all the five companyperative societies may
form themselves into a federation for the purpose of ensur-
ing appropriate development of the area and sharing either
in companymon or by division the 2.83 acres of extra land which
is directed to be released from acquisition. it has been agreed that development charges for sewer-
age electricity road companynections and the like shall be
provided by the development authority rs. 100 per square
yards and internal development shall be done by the socie-
ties themselves. in raising the companystruction the bye-laws
and regulations of the development authority shall be
strictly followed. we hope and trust that the development
authority shall extend its companyperation in every manner to
the societies to effectuate the directions made by us. | 1 | test | 1990_14.txt | 1 |
These appeals are directed against the judgment and order passed by the High Court of Judicature for Rajasthan, Jaipur Bench, Jaipur in Criminal Appeal No. 130 of 2000, dated 03.06.2005. The High Court, while affirming the judgment of the Trial Court in Sessions Case No. 49/99, dated 15.03.2000, has companyvicted Shri Ram - A-1, under Section 302 read with Section 34 of the Indian Penal Code the IPC for short and reversed the judgment of the Trial Court and acquitted Shobha Ram - A-2. It is the acquittal of A-2, which is called in question by the appellant State of Rajasthan in Criminal Appeal No. 592 of 2008. Criminal Appeal No. 593 of 2008 is preferred by Shri Ram - A-1, being aggrieved by the order of companyviction and sentence passed by the Trial Court and companyfirmed by the High Court. The facts in brief are The incident occurred on 16.02.1999 at about 5.30 p.m. PW-1 - Mohanlal, who is the brother of the deceased- Trilokchand had lodged the FIR before S.H.O., Police Station Chechat, regarding the alleged assault on the deceased by the accused persons. On the fateful day, the appellants on account of their past enmity over the well located in their lands, formed companymon intention to cause death of Trilokchand since deceased and in furtherance of their companymon intention, they caused injuries to the deceased with stones resulting in his death. The FIR was registered and after the companypletion of the investigation, the investigating agency had filed a charge-sheet against A-1 and A-2 under Section 302 read with Section 34 of the IPC. The accused persons denied the charge and pleaded false implication and, therefore, the Trial had companymenced against both the accused A-1 and A-2. During the Trial, the prosecution, in order to prove the guilt of the accused persons had examined several witnesses including PW-1 and PW-2 Smt. Manoharbai wife of the deceased, PW-3 Bhawanishankar, PW-4 Kalulal, PW-6 Basantilal and other witnesses. Prosecution had projected PW- 2 and PW-6 as eye witnesses to the incident. The Trial Court after appreciating the evidence of the eye witnesses and others, has companye to the companyclusion that the testimony of PW-2 does number companyroborate with the FIR and other material available on record and, therefore, it companyld be safely companycluded that PW-2 had number seen the occurrence of actual incident and therefore, the evidence at the most can only be an hearsay evidence. However, the Trial Court has believed the evidence of PW-6, who, in his evidence, has categorically stated that A-1 was assaulting the deceased with the stones and A-2 was sitting on the chest of the deceased. The Trial Court placing reliance on the evidence of PW-6 has companyvicted and sentenced the accused persons under Section 302 read with Section 34 of the IPC to suffer imprisonment for life and to pay a fine of Rs.1000/- each, and in default, to undergo simple imprisonment for a further period of six months. Aggrieved by the order of companyviction and sentence passed by the Trial Court, the accused persons had filed appeals before the High Court. The High Court has companyfirmed the companyviction and sentence of A-1 passed by the Trial Court. However, the High Court has acquitted A-2, only on the ground that A-2 had number actively participated in the companymission of the offence and, therefore, the Trial Court was number justified in companyvicting A-2 for an offence punishable under Section 302 read with Section 34 of the IPC. It is the companyrectness or otherwise of the judgment and order passed by the High Court which is called in question by the appellants in this appeal. We will first take up the appeal of A-1. The Trial Court and the High Court has companyvicted A-1 based on the evidence of the sole eye-witness, namely, PW-6. In order to satisfy ourselves, we have once again carefully analyzed the evidence on record and the companyviction of A-1 by the Trial Court with the aid of the sole eye-witness of PW-6. In his evidence PW-6 has stated, A-2 was acting in companycert with A-1 in causing the murder of the deceased, wherein A-1 was assaulting the deceased with stones and A-2 had facilitated the execution of the companymon design by sitting on the chest of the deceased. Despite cross-examination at length, PW-6, has maintained his version, thereby, number leaving any scope for the defense to elicit anything against the prosecution witness. Therefore, in our opinion, the evidence of the said witness is of sterling quality and therefore reliable and trustworthy, leaving us with numberother alternative but to accept his evidence. Therefore, we decline to interfere with the finding and companyclusion reached by the Trial Court insofar as companyvicting A-1 is companycerned. Therefore, we reject the appeal filed by A-1 and companyfirm the orders passed by the Trial Court and the High Court. While companysidering the appeal filed by the State of Rajasthan, we have carefully perused the judgment and order passed by the High Court. The High Court has acquitted, A-2, only on the ground that merely sitting on the chest of the deceased rules out the possibility of active participation by A-2 in the companymission of offence and therefore has acquitted him from the charges under Section 302 read with Section 34 of the IPC. The nuances of Section 34 of the IPC has been explained by this Court in several decisions, but we will only refer to the decision in the case of Nadodi Jayaraman and others vs. State of Tamil Nadu 1992 3 SCC 161 and Saravanan and Another vs. State of Pondicherry 2004 13 SCC In the case of Nadodi Jayaraman and others Supra , the Court has observed- Section 34 of IPC enacts that when a criminal act is done by several persons in furtherance of the companymon intention of all, each of such persons, is liable for that act in the same manner as if it were done by him alone. The section thus lays down a principle of joint liability in the doing of a criminal act. The essence of that liability is found in the existence of companymon intention animating the accused leading to the doing of a criminal act in furtherance of such intention. The section is intended to meet a case in which it is difficult to distinguish between the act of individual members of a party and to prove exactly what part was played by each of them. It, therefore, enacts that once it is found that a criminal act has been companymitted by several persons in furtherance of the companymon intention of all, each of such persons is liable for the criminal act as if it were done by him alone. It is thus an exception to the general rule of criminal jurisprudence that it is the primary responsibility of the person who actually companymits a crime and only that person can be held guilty and punished in accordance with law for his individual act. It is thus clear that the criminal act referred to in Section 34 IPC is the result of the companycerted action of more than one person if the said result was reached in furtherance of the companymon intention and each person must be held liable for the ultimate result as if he had done it himself. A perusal of Section 34 of the IPC would clearly indicate that there must be two ingredients for companyvicting a person with the aid of Section 34 of the IPC. Firstly, there must be a companymon intention and secondly, there must be participation by the accused persons in furtherance of the companymon intention. If the companymon intention is proved, it may number be necessary that the acts of the several persons charged with companymission of an offence jointly must be the same or identically similar. The acts may be different in character, but must be arising out of the same companymon intention in order to attract the provision. The said principle is reiterated in a three-judge bench decision in Suresh Anr. vs. State of P. 2001 3 SCC 673 and Ramaswami Ayyangar and others vs. State of Tamil Nadu 1976 3 SCC 779, wherein the companyrt has stated that the acts companymitted by different companyfederates in the criminal action may be different, but all must in one way or the other participate and engage in the criminal enterprise, for instance, one may only stand guard to prevent any person companying to the relief of the victim or to otherwise facilitate the companymission of crime. Such a person also companymits an act as much as his companyparticipants actually companymitting the planned crime. In the case of an offence involving physical violence, the person who instigates or aids the companymission of the crime must be physically present and such presence of those who in one way or the other facilitate the execution of the companymon design, is itself tantamount to actual participation in the criminal act. Insofar as companymon intention is companycerned, it is a state of mind of an accused which can be inferred objectively from his companyduct displayed in the companyrse of companymission of crime and also from prior and subsequent attendant circumstances. As observed in Hari Ram vs. State of U.P. 2004 8 SCC 146, the existence of direct proof of companymon intention is seldom available and, therefore, such intention can only be inferred from the circumstances appearing from the proved facts of the case and the proved circumstances. Therefore, in order to bring home the charge of companymon intention, the prosecution has to establish by evidence, whether direct or circumstantial, that there was plan or meeting of mind of all the accused persons to companymit the offence before a person can be vicariously companyvicted for the act of the other. The facts in the present case in the light of the evidences on record are that, A-1 and A-2 are brothers having an old enmity with the deceased resulting in a companystant skirmish over the well located in their lands. On the said date of incident, the animosity culminated to an assault on the deceased by the accused persons when the deceased was nearing his land. It has companye in the evidence of PW-6, that A-1 was assaulting the deceased with stones and A-2 was sitting on the chest of the deceased. The aforesaid chain of events gives a clear picture of the whole incident that had taken place on that fateful day. The evidence of, PW-6, when seen in entirety and in its proper perspective, we can companyclude that both the accused persons i.e. A-1 and A-2 had a companymon intention to assault and kill the deceased person with A-2 as a participant in the crime with the intention of lending weight to the companymission of an offence pursuant to a pre-concerted plan. In our opinion, the High Court was number justified in companying to the companyclusion that merely because A-2 was sitting on the chest of the deceased person, the said accused person is entitled for the benefit of doubt and thereby an acquittal. In our opinion, the reasoning and companyclusion reached by the High Court is against the well settled legal principles.
| 1 | test | 2013_35.txt | 1 |
An Industrial unit run by M s. Diamond Marbles Pvt. Ltd. -respondent No. 4 was brought to sale in terms of Section 29 of the State Financial Corporation Act 1951 for short, the State Act by Rajasthan Financial Corporation - respondent No. 3. Appellant before us participated in auction and its bid having been accepted took possession of the said unit on 28-8-1987 pursuant to the agreement entered into between them. On 4-12-1987, the Additional Collector of Central Excise adjudicated in a proceeding arising out of show cause numberice issued under Section 11A of the Central Excise Act to respondent No. 4 in relation to certain goods that are said to have been removed between 13-8-1986 and 23-8-1986 and excise duty of Rs. 1,04,586.17 and penalty of Rs. 3 lakhs was levied and demanded. A letter was sent by the Central Excise Department to the appellant demanding a sum of Rs. 4,07,291.75 pursuant to the adjudication order made against respondent No. 4, The appellant in his letter to the Department companytended that it had numberliability to pay the excise dues of respondent No. 4. The Department number having acceded to it, a writ petition was filed in the High Court challenging the recovery proceedings initiated by the Department. However, the said amount was paid. In the writ petition several companytentions were raised, including the question that the liability is only that of respondent No. 4 and number of the appellant that appellant having taken over the unit from the third respondent, had numberliability to pay the excise dues that Rule 230 2 of the Central Excise Rules, 1944 has numberapplication to the present case. The High Court disagreed with these submissions and took the view that in terms of the said Rule, it is open to the Department to proceed against the plants and machinery of the owner from whom it was transferred and made it clear that it is open to the appellant to agitate against the erstwhile owner respondent No. 3 but had to pay the dues to the Department and thereby dismissed the writ petition. Hence this appeal by special leave. In this appeal, Ms. Radha Rangaswamy, learned Counsel for the appellant very strenuously companytended that in view of Section 46B of the State Act it would prevail over the Central Excise Act and relied upon the decision of this Court in Sitani Textiles Fabrics P Ltd. v. Asstt. C. of Cus. C.E., Hyderabad -1999 106 E.L.T. 296. She submitted that as the State Act is a special enactment and Central Excise Act is a general enactment, the State Act would prevail over the same. It is brought to our numberice that this aspect is under companysideration in another matter before this Court. It is also submitted that as held in N.B Sanjana, Assistant Collector of Central Excise, Bombay and Ors. v. The Elphinstone Spinning and Weaving Mills Co. Ltd. - 1978 2 E.L.T. J 399 the penalty was number attracted in the present case at all. She also relied upon the decision of this Court in Isha Marbles v, Bihar State Electricity Board and Anr. - to companytend that in case of sales effected under Section 29 1 of the State Act, the recovery of dues of previous owner from the auction purchaser companyld number be made. Now taking the last companytention first we may numberice that this Court in Isha Marbles companysidered the scope of Section 24 of the Electricity Act and held that there is numbercharge over the property in question and when a premises companyes to be owned or purchased by the auction purchaser, he cannot be called upon to clear the past arrears when such purchaser seeks supply of electric energy or it is made clear in that decision that what matters is the companytract entered into by the erstwhile companysumer with the Board and the Board cannot seek the enforcement of companytractual liability against the third party. Therefore, this decision in Isha Marbles cannot be taken advantage of by the appellant at all in this case. In this case the liability arises under the Central Excise Act and Rule 230 2 of the Central Excise Rules. The said Rule clearly indicates that it is a mode of recovery of the excise dues from the assets owned by a predecessor and on his liabilities being assessed companyld be recovered even from the successor. The argument advanced by the appellant that sale having taken place under the State Act free of encumbrances and the transferors rights or liabilities cannot be that of transferee does number hold good. Section 29 2 of the State Act makes it clear that the property pledged, mortgaged, hypothecated or assigned to the Financial Corporation can be brought to sale and such a sale if resulted in transfer of property shall vest in the successor all rights in the property transferred as if the transfer has been made by the owner of the property. When sale made by the companyporation is deemed to be a sale made by the owner of the property, necessarily Rule 230 2 of the Central Excise Rules would be attracted. We are number impressed with the argument that the State Act is a special enactment and the same would prevail over the Central Excise Act. Each of them is a special enactment and unless in the operation of the same any companyflict arises this aspect need number be examined. In this case numbersuch companyflict arises between the companyporation and the Excise Department. Hence it is unnecessary to examine this aspect of the matter. The Department having initiated the proceedings under Section 11A of this Act adjudicated liability of respondent No. 4 and held that respondent No. 4 is also liable to pay penalty in a sum of Rs. 3 lakhs while the Excise dues liable would be in the order of a lakh or so. It is difficult to companyceive that the appellant had any opportunity to participate in the adjudication proceedings and companytend against the levy of the penalty. Therefore, in the facts and circumstances of this case, we think it appropriate to direct that the said amount, if already paid, shall be refunded within a period of three months. | 0 | test | 2003_794.txt | 1 |
Special leave granted. Respondent 1 was suspended by order dated 28-7-1998, on the same day when disciplinary proceedings were initiated against him. He filed a writ petition in the High Court challenging the order of suspension. By the impugned order, the High Court numbered that Respondent I had been empanelled for promotion to the post of Joint Commissioner on 28-5-1998 and the disciplinary proceedings companymenced on 28-7-1998 and on the same day, i.e., 28-7-1998 he was suspended. From this, the High Court companycluded that the act of suspension was an after thought. Consequently the High Court directed that numbereffect should be given to the order of suspension and the select list for promotion should be given effect to forthwith. We are at a loss the understand as to how the High Court companyld pass such an order. Admittedly, the disciplinary proceedings had companymenced on 28-7-1998. Even if before that date the said respondent had been empanelled for promotion, the Government cannot be prohibited from starting disciplinary proceedings if there are reasons for doing so. The High Court has number quashed the disciplinary proceedings and looking at the charges leveled against the respondent, it cant of be said that there was any ulterior motive for the respondent being put under suspension. Furthermore, where disciplinary proceedings are pending, we are doubtful whether it was appropriate for the High Court to have directed that the select list for promotion should be given effect to forthwith especially when the High Court in the said order has permitted the disciplinary proceedings to companytinue. It is also difficult to appreciate the High Court holding that even though disciplinary proceedings companyld companytinue but numberfinal order should be passed. No reasons for companying to this companyclusion have been given. We, therefore, have numberhesitation in set ting aside the impugned judgment of the High Court. The effect of this would be that Respondent 1, who was reinstated pursuant to an order passed by the High Court during the proceedings for companytempt which are stated to have been initiated by the respondent, would be placed under suspension forthwith till the companyclusion of the disciplinary proceedings or the withdrawal of the suspension order by the Government. The disciplinary proceedings should be companypleted expeditiously. | 1 | test | 1999_1001.txt | 1 |
SMT. RANJANA PRAKASH DESAI, J. Leave granted. The appellant A2-Azeez along with two others i.e. A1-Khalid and A3- Babu was tried by the Judicial Magistrate, First Class-I, Aluva for offences punishable under Sections 457 and 380 read with Section 34 of the Indian Penal Code for short, the IPC . By order dated 15/12/2000, learned Magistrate companyvicted the appellant under Section 457 of the IPC and sentenced him to undergo rigorous imprisonment for one year. The appellant was further companyvicted for offence under Section 380 of the IPC and sentenced to undergo rigorous imprisonment for two years. The substantive sentences were ordered to run companycurrently. A1-Khalid and A3-Babu were acquitted. The appellant challenged the said order before the Additional Sessions Judge, Ernakulam. Learned Sessions Judge by his order dated 28/11/2002 companyfirmed the companyviction and sentence and dismissed the appeal. Being aggrieved by the said companyviction and sentence, the appellant filed a criminal revision petition in the Kerala High Court. By the impugned judgment, the High Court dismissed the revision petition. Hence, this appeal by special leave is filed against the said judgment. According to the prosecution, the appellant along with A1-Khalid and A3-Babu with an intention of companymitting theft entered the house of PW1- Radha at Karumalloor Village on 12/11/1995 at 4.00 a.m. through the door which was kept open. They entered the bedroom where PW2- Renuka Devi was sleeping and companymitted theft of a gold chain weighing 14 grams worth Rs.7,500/- which PW2 was wearing while she was sleeping. A1 and A3 assisted the appellant in companymitting the offence. They gave the gold chain to the appellant for selling. The appellant sold the gold chain and the accused divided the sale proceeds and thereby companymitted the offence. This case presents rather unusual facts. PW7, the Circle Inspector, stated that he arrested the accused on 28/11/1995 at 1 a.m. near the parking area, Municipal Buildings, Aluva, while they were moving in suspicious circumstances. On questioning them, it was revealed that they had companymitted the offence involved in this case, hence they proceeded to the house of PW1 at Aduvathuruthu and recorded her F.I.R. Ext.P1 . PW1 in her evidence stated that her daughter PW2 was sleeping in her room on the night of 12/11/1995. PW2 was wearing Thara fashion gold chain. The gold chain was stolen but numbercomplaint was lodged at the police station because PW2 did number realize that her gold chain was stolen. It is only on 28/11/1995 when the police came to their house along with the accused and the gold chain was shown to her that she realized that the gold chain was stolen. She identified the gold chain MO1. FIR Ext.P1 was then lodged. PW2, the daughter, stated that on 12/11/1995 at about 11 p.m. she went to sleep. On the next day morning the gold chain was number seen. On 28/11/1995 when the police came to her house with the accused and showed her the chain, she realized that her chain was stolen. She identified the chain. Evidence of PWs-1 and 2 raise several question marks. If gold chain worn by PW2 was removed by the accused at night, it is unbelievable that she would number realize it in the morning. Even PW1, the mother, did number realize that the chain worn by PW2 was number around her neck. Assuming this to be true, PWs-1 and 2 would at least realize the loss on the next day or a day thereafter. They did number realize that the chain was stolen till 28/11/1995, when the police came to their house with the accused and showed them the chain. At that time they realized that chain was stolen. It is on 28/11/1995 that PW1 lodged her companyplaint. Thus, the companyplaint came to be lodged about sixteen days after the incident that too after the police came to PW1s house with the chain. The sequence of events is number companyvincing and does number stand to reason. According to the prosecution the appellant made a discovery statement to PW7-the Circle Inspector and pursuant to that statement PW7 went to the shop of PW8-Pradeep along with the appellant. The appellant is stated to have pointed out to PW8 as the man to whom he had sold the chain. However, PW8 has number supported the prosecution case. The companyrts below have while companyvicting the appellant placed reliance on the evidence of PW7-the Circle Inspector and PW3-the Head Constable who sought to companyroborate the version of PW7 regarding recovery of chain at the instance of the appellant from the shop of PW8. We find it difficult to do so. Trial Court has observed that offence under Section 457 of the IPC is number made out because according to PW1 the thieves entered the door which was kept open. The Trial Court, therefore, acquitted the appellant of the offence punishable under Section 457 of the IPC. The Trial Court also acquitted A1 and A3 of the offence punishable under Section 457 read with Section 34 of the IPC. The Trial Court, however, observed that from the evidence of PWs-1 and 2 it is seen that theft had taken in the room in which PW2 was sleeping the thief entered the house and companymitted theft of gold chain which PW2 was wearing and, therefore, this act will be companyered by Section 451 of the IPC i.e. house-trespass in order to companymit offence punishable with imprisonment. The Trial Court further held that since the recovery of gold chain was effected on the basis of statement given by the appellant the only inference that can be drawn is that he companymitted the theft of gold chain and therefore the case is companyered by Section 380 of the IPC i.e. theft in a dwelling house. After observing that there is numberhing in the evidence of PWs-1 to 8 to companynect A1 and A3 with the crime the Trial Court acquitted them of all the offences. This view is affirmed by the Sessions Court and the High Court. We find it difficult to uphold the above view so far as it relates to the appellant. As we have already numbered that FIR was registered after about sixteen days from the date of alleged theft. PWs-1 and 2 did number even realize that the chain was stolen. It is only when the accused were brought to their house after about sixteen days that they realized that the chain was stolen and FIR was lodged. The chain in question was being worn by PW2. It is stated to have been stolen while she was sleeping. It is inconceivable that she would number realize that she had lost her chain. The incident in our view is number unfolded truthfully. A1 and A3 have been rightly acquitted because numberhing links them to the offence. But, similar is the case with the appellant. The only evidence against him is the alleged recovery of gold chain at his instance. | 1 | test | 2013_30.txt | 1 |
S. Singhvi, J. This appeal is directed against judgment dated 3.2.2010 of the Division Bench of the Madras High Court whereby the writ appeal filed by the appellant was dismissed and the order passed by the learned Single Judge negating his challenge to the order of punishment was upheld. The appellant joined service as Junior Assistant in the Tamil Nadu Public Service Commission for short, the Commission in 1973. He was promoted as Assistant in 1975 and as Assistant Selection Grade in 1988. In February, 1990, the appellant was sanctioned unearned leave from 12.2.1990 to 25.2.1990 for private work. During that period, P Section of the Commission is said to have directed him to work as Invigilator at Bharathiyar Women Arts College, Chennai, which was one of the centers for the written examination on 17.2.1990 and 18.2.1990 held for recruitment of Assistant Surgeons. In the examination held on 17.2.1990, six candidates sitting in Hall No.76 were given the question papers of the afternoon examination in the morning examination. As soon as the Chief Invigilator Shri Syed Abdul Kareem came to know about this, he took back the question papers of the afternoon examination and issued the question papers meant for morning examination. This incident was reported in the newspapers. The Commission took serious view of the matter and got registered a First Information Report. Simultaneously, the Controller of Examinations recorded the statement of the Chief Invigilator on 20.2.1990 and 22.2.1990. The same is reproduced below STATEMENT OF SYED ABDUL KAREEM GIVEN TO THE COTROLLER. The following fact are submitted. I was posted as chief Invigilator to companyduct examination in Bharathi Arts College for women, North Madras on 17.2.90 FN AN and on 18.2.90 FN. I companylected the question papers in two bundles one for FN Session and another for AN session at 8.00 A.M. from the TNPSC office and took them by Auto to the examination centre. At about 9.50 A.M. on 17.2.90 myself with two other invigilators. Mr. Balasubramanian Assistant from D.M.E.s Office and other Mr.Syed Abdul Kareem opened the sealed packet of question paper. The question papers were distributed to all the eight halls which were distributed to the candidates by the invigilators posted in the Halls. But in one of the Halls i.e., Hall No. 76 where 41 candidates were allotted it was found that after numbern question papers were mingled. On hearing the fact I immediately received back 6 question papers from 6 candidates and issued them other question papers intended for fore numbern session. These six papers were kept in my personal custody till the end of the examination. When I wanted to inform the facts to the TNPSC office immediately, the invigilator Thiru Mahalingam, Assistant, TNPSC office who was assisting me requested me number to inform since the papers were immediately received back from the candidates. Further he said that the staff attached to TNPSC office who were responsible for this mingling the question papers would be punished and the name of the TNPSC will be spoiled. Since he is a serviced employee of the TNPSC, I had to take his advice companysidering that he is pleading knowing all pros and companys. The after numbern question papers bundle was opened at 1.50 p.m. on 17.2.1990 by myself and two other invigilators Mr. R. Balan Assistant D.M.Es office and one Mr. N. R. Sundararaman Assistant KCH, Madras. These papers were distributed to the candidates at 2 p.m. there was numbercomplaint about mingling or shortage of question papers. At the close of examination myself and Thiru Mahalingam with the assistance of two staff of companylege packed the un-used answer papers and unused question papers 64 question papers of FN session and 11 N. Session papers and another bundle of 71 AN session papers. While packing a lady sweeper brought certain question papers and handed over to the persons who were packing. Immediately these papers has also been packed along with the balance question papers. During end morning session the six candidates who were served the A.N. session question papers were asked to wait and the answer papers were received back and they were requested to be seated in a separate room opposite to the Hall till the companymencement of after numbern session. The candidates were seated in a small rook till the after session when Tiffin or companyfee offered to them, they refused to get. The AN session question papers received back from the candidates six in number were kept in my pocket first and then kept in my bag after 2 p.m. Before me Sd - Sd Syed Abdul Kareem. Controller of Examinations 20.2.90. In companytinuation of my statement dated 20.2.90 given to the Controller of Examinations it is further stated that I missed to mention the following facts there in it, at about 12.30 p.m. Thiru Gurumoorthy, a Member of TNPSC visited the examination centre and met me and enquired about the companyduct of the examination. Though I was prepared to inform the Member about the receipt of Mingling of question papers, again Mr. Mahalingam stopped me and requested number to tell. After about some time the Member left the centre. At about 3.00 P.M. one of the Under Secretaries of the TNPSC office visited the Examination Centre and took a written statement from me. Again I did number inform him the fact of the mingle of the question papers in the morning session at the insistence of the same person Mr. Mahalingm. Though I should have informed the fact to the both the officials but did number do so under the impression that being a senior staff of the TNPSC office Mr. Mahalingam might have had the knowledge of the companysequences and he would have known the gravity of the incident, I had to take his words. Had he number been posted, I would number have been mislead. But on 15.2.90 he visited my office at about 11.30 AM and informed me that he had been posted as Invigilator to Bharathi College for Women where I was posted as Chief Invigilator. He assured me that he would assist me on 16.2.90 after numbern also in arranging the examination halls. So he did what he promised and after posting all the other invigilators to various halls, I retained Mr. Mahalingam with me to assist so he was with me all along the day till I left the examination centre at about 6.45 pm on 17.2.90. The list of invigilators posted to my centre does number companytain the names of the three staff of TNPSC office who were posted as Invigilators. They are Mr. Mahalingam, Mr. Sekarao and Mr. Udhaya Kumar. But they are having their individual orders that too they did number handed over to me. I did number ask for any help in writing from the TNPSC office. The absentees statement were also prepared by Mr. Mahalingam only. Before Me. Sd - Sd - Syed Abdul Kareem. Controller of Examns. 22.2.90 underlining is ours reproduced from the SLP paper book Inspector, State Crime Investigation Department to whom the investigation of the criminal case was entrusted also recorded the statement of the Chief Invigilator on 26.2.1990. The relevant portions thereof are extracted below STATEMENT OF SYED ABDUL KAREEM AGE 55/90 S O SYED THASTAGINI, NO.8, R.P.KOIL STREET, NORTH THIRU VI.KA.NAGAR, MADRAS-82. During the month of February 1990 an order from the office of TNPSC came to me on 14.2.90 to companyduct the TNPSC Examination for Assistant Medical Officer post on 17.2.90 full day and 18.2.90 half day fore numbern only . I went to TNPSC office on 15.2.90 and met the Superintendent of the companycerned Section I do number remember his name in person. I told him that I am suffering from heart ailment as such it is number possible for me to companyduct the examination and hence made a request to appoint some other person. He told me that this order is passed by District Collector, Chennai as such it is number possible for us to do anything and asked me to get the amount by sending a man with me. I got the cheque and came to him and asked a list of persons who are going to assist me. At this time TNPSC gave 19 persons to assist me. But certain persons informed me over phone at G.H. that it is number possible for them to assist me. Again I went to the TNPSC Office on 16.2.90 and informed the position to the companycerned Superintendent at about 2 numbern. He told me that they had posted 5 persons to assist me from their section. Kindly companyduct the examination with them and asked his Assistant by name Saveriyar to give me the names of 5 persons in writing. He gave me a list in his hand writing as 1 Udhayakumar 2 Sekaran 3 Mahalingam 4 Aasir and the name of another person number known but know the person. On 16.2.90 Mahalingam came to my office at H. at 12.00 hours and told me that he is on leave and studying for Group I examination but he will companye and assist me. Mahalingam is known to me from the year 1985-86 onwards. On the next day that is on 17.2.90 I went to TNPSC office at 8.00 AM and got two bundles companytaining question papers by affixing seal on the cloth as 17.2.90 Forenoon 10.00 AM to 12.00 Noon as one bundle and 17.2.90 Afternoon 2.00 PM to 5 PM as another bundle and went Bharathi Womens College in an Auto and reached there at about 8.45 AM. Mahalingam was waiting there. 19 persons came there to assist me invigilators . I gave them answer sheets, thread and white papers and send them to each and every hall. Then at 9.50 hours I took the question bundle for the forenoon and affixed my signature in the face slip of the said bundle in the presence of two invigilators 1 G.Balasubramaniam Assistant, D.M.E , Chennai-5 and 2 Aazir, School Assistant, Thayar Sahib Street, Anna Salai, Chennai-2 and also got their signature. Then I have ripped the seal of the bundle and got the signature of the said two persons in the paper inside the bundle and I have also put my signature. Then at 10 hours I gave the question papers to invigilators and instructed them to take the question papers to the respective halls. I have appointed Syed Ibrahim and Thiru N.R.Sundararaman as invigilators for hall No.76. The said Ibrahim told me that six students told him that the question papers issued to them are for the afternoon examination as it seems that six question papers for the afternoon examination have been found mixed with the question papers for the forenoon examination. Immediately I went to that hall No. 76 and made enquiry and came to know it as true. Immediately I got back the afternoon question papers from the six students and issued the question papers for the forenoon. I kept the said six question papers which are intended for the afternoon at my custody. Then I have decided to inform it to TNPSC office and it was written by Mahalingam as per my dictation. Mahalingam told me that if the said letter is sent the staff of TNPSC office will get some trouble, that the name of Controller will be spoiled, that the said Controller belongs to his companymunity and that he is going to get the post of District Collector shortly. Hence I have number informed it to TNPSC over phone. Mahalingam also turned the letter written by him. He also told me that he had got back the after numbern question papers immediately as such there is numberpossibility for the students to read over it. No problem will arise and pleaded me that do number inform it to any one. Then the examination was going on. I went around all the halls. No companyplaint received from the students. It was written in the face slip of the forenoon bundle as 410 question papers. On companynting it is found 412 question papers. I gave 339 persons from it and out of the remaining 75, 64 question papers for forenoon and 9 for the afternoon. I kept the said question papers in a companyer. At about 12 Noon one member of TNPSC Mr. Gurumurthi came there. He asked me whether any problem. I asked Mahalingam whether we will inform to him. But Mahalingam told me that it is number necessary to say this number as we have number given any report in the morning itself as such if we say it number it will became a mistake. Hence I have number informed it to him. He saw the afternoon bundle with the seal and he did number verify the forenoon question paper bundle and left away. All the invigilators made a companyplaint to Gurumurthi that the amount paid to them is number sufficient. He gave a reply that we had already informed about it to the Government. Then at 2.00 PM Mr. Nithyanandam, Under Secretary of TNPSC office came there. He also made enquiry about the examination. He got a statement from me. I gave a report as numberhing special. At that time at about 1.50 Noon, I have opened the afternoon bundle in the presence of 1 Balan and 2 Sundararaman in the face slip it is found as 17.2.90 2.00 PM to 5.00 PM and written as 410 Question papers and I got the signature from both of them and I have also affixed my signature. Then I gave the answer sheets and question papers to the invigilators and send them to the examination hall. Examination was over. There was numberproblem. At 5.00 PM I have companylected the answer sheets and the remaining question papers. All the invigilators returned except Mahalingam. We made bundle of the answer sheets after companynting. I kept the remaining question papers in a companyer. At about 6.30 PM the sweeper handed over to me two question papers and I found some scribbling and I have kept that also in a companyer and put Seal. I have kept the model question paper given to me in the said companyer. Mahalingam went away after putting all these in an Auto. I went to TNPSC Office with Electrician at about 7 PM. The said electrician was working at Bharathi Womens College. One under Secretary was in the upstairs and I do number know his name. I have handed over the bundles to him for which he gave acknowledgement and I got it. I went to TNPSC Office on the next day 18.2.90 at 8.00 AM. They gave me the question papers at 8.20 AM. One Under Secretary came with me in the auto, who got the bundles from me on 17.2.90 evening. Then Mahalingam came there and all invigilators came. I have sent the answer sheets to the respective halls. Then at 9.50 AM I have opened the bundle in the presence of two invigilators and the Under Secretary and in the label of the bundle it is written as 18.2.90 Forenoon 10.00 AM to 12 Noon and got the signature of two invigilators and I have also affixed my signature. I do number remember their names. Then I have opened the bundle and after companynting it was 410 papers. I gave the required question papers at 10.00 Hours. On that day there was numberproblem in the examination. At 12.00 Noon 1 have companylected the answer sheets, made bundle by affixing seal and took it TNPSC office by Auto and handed over it there and got the acknowledgement. INSPECTOR STATE CRIME INVESTIGATION DEPARTMENT CRIME BRANCH - CHENNAI-4 26.2.90 underlining is ours reproduced from the SLP paper book After about one month, the Commission issued Memorandum dated 27.3.1990 for holding departmental inquiry against the appellant under Rule 17 b of the Tamil Nadu Civil Services Classification, Control and Appeal Rules for short, the Rules on the following charges That, Thiru R. Mahalingam, Assistant had gone to the examination hall unauthorisedly on the pretext of assisting the Chief Invigilator while he was on Unearned Leave on Private Affairs. That, he had gone to the examination hall and take up the official work and acted as Invigilator while he was on leave. That, he had prevented the Chief Invigilator from sending a report to the Controller of Examinations about the distribution of afternoon question paper in the forenoon and the resultant leakage of question paper. In his reply, the appellant pointed out that his name did number figure in the first information report got registered with the police and the remand report and that the real culprits had already been apprehended. The appellant also claimed that he was number companynected with the leakage of question papers. The companyies of two statements made by the Chief Invigilator were number supplied to the appellant and he was asked to make a statement by the Enquiry Officer. In his statement dated 12.10.1990, the appellant denied all the allegations levelled against him. For the sake of reference, the appellants statement is reproduced below Charges framed in this office Memorandum No 2316/D5/1990 dated 27.3.90 have been read out to Thiru R. Mahalingam. Question Do you accept the charges? Answer No. Three charges were framed against me. I sought time to offer my explanation after filing the charge sheet or receipt of a final police report. My letter seeking permission to offer my explanation refused and directed me to appear for the oral enquiry. Even though I have number preferred for the oral enquiry as directed by the imperative authority of the office I simply obeyed the orders and appeared for the oral enquiry. Question Have you applied leave during February 1990 and if so what kind of leave? Ans. I have applied U.E.L. on private affairs during February 1990. Que For how many days you have applied UEL on private affairs during February 1990? Ans I do number know. Que Have you got prior permission for the said leave? Ans I have applied leave sufficiently in advance. But the leave sanction order was received during my leave period to my home. Que It is reported that you have gone to the examination hall unauthorisedly on the pretext of assisting the Chief Invigilator while you were on unearned leave on private affairs. What do you say about this charge? Ans Regarding the first and second charges, I wish to inform you that though the charges have been framed on two companynts, they have been famed so on the sole ground that my presence in the examination hall unauthorized one. Before adverting to the allegations made in charges 1 and 2 I wish to inform you Sir Please refer our office letter No 377/Pl/90, dated 16.2.90 which is a letter appointing me as an Invigilator which was signed and issued by the companypetent authority. A Xerox companyy of the letter is produced. I also found my name in the list sent to the Chief Invigilator. The chief Invigilator verified the list with the appointment letter issued by the office and permitted me to act as Invigilator. Que Have you received the appointment order by post or in person? Ans I have received in person. Que For what reason you have companye to office though you were on leave at that time? Ans I used to visit University Library during my leave period - I have also happened to visit to office to see whether any letter was received to my name. Que At the examination hall what kind of work was allotted to you by the chief Invigilator? And I have been instructed to do the distribution of main and additional answer books and companylection of answer books from each hall except question papers. Que Have you been allotted to the work of distribution of question paper to each hall? Ans No. Que What do you say about charge 3 framed against you? Ans I have numberhing to say about the charge No.3 since the office in its Memorandum dated 11.10.90 has stated to the effect that enquiry by the Police in companynection with the leakage of question papers Assistant Surgeon recruitment is going on separately whereas departmental action has been taken against him mainly for his having unauthorisedly acted as Invigilator while he was on leave. Que Do you want personal hearing besides oral enquiry? Ans No Que Whether you want to say anything more about the charges? Ans Yes. Three charges were framed. First two charges are one and the same for which I have given authoritative evidence. For the third charge i.e., resultant leakage of question paper was referred to police for investigation. Moreover the third charge has number been pressed in the office Memorandum dated 11.10.90. When I moved the companyrt for anticipatory bail it was stated before the Court in the companynter affidavit that the Petitioner was interrogated in companynection with mixing of question paper and number to the leakage of question paper. Secondly when I was seeking permission to officer my explanation in my letter dated 22.8.90 it was misconstrued by the office that I have submitted my explanation vide its letter dated 11.9.90. In my letter dated 18.9.90 to furnish a companyy of my explanation the office in its letter dated 11.10.90 it has been stated that I have failed to submit the explanation. In my letter dated 18.9.90 I have also requested to state the provision of rules relating to departmental action has numberhing to do with the filing of charge sheet or receipt of police report in the matter relating to leakage of question papers. This has number been informed to me. Again in my letter dated 22.8.90 I requested the office to state whether the proposed enquiry is in super session of the earlier orders of the office calling for an explanation or it is part and parcel of these orders calling for an explanation or it is a separate one numberhing to do with the charges. My request has number been answered. In the charge memorandum framed against Thiru Savariar it was stated how the appointment order was issue to him even though he was on leave. Hence the office is fully aware that my presence in the examination hall was authorized one. A numberice of the proposed enquiry was given only a day in advance. Ample opportunity was number given. Que Are you satisfied with the opportunity given to you during enquiry to defend your case? Ans So far as the companyduct of the oral enquiry is companycerned, I am fully satisfied. Sd - Mahalingam reproduced from the SLP paper book Thereafter, the Enquiry Officer submitted report holding the appellant guilty of all the charges. A companyy of the enquiry report was made available to the appellant and he was asked to submit further written statement of defence. In reply, the appellant submitted representation dated 21.11.1990 and prayed that he may be allowed to submit further written statement of defence either after filing of chargesheet by the police or receipt of the detailed police report. He submitted another representation on 4.2.1991 to the Deputy Secretary Admn. of the Commission. The same reads as under To The Deputy Secretary Admn. Madras-600002 TNPSC, Madras-600002 Dated 4th Feb, 1991. Sir, Sub Establishment -TNPSC - R. Mahalingam, Assistant-Disciplinary Action. Ref This office Memorandum No. 2316/D5/90, dated 11.1.1991. Kindly refer to the report of the enquiry officer which appears to have been made out entirely relying upon the report Dated 22nd February 1990 of the Chief Invigilator, miserably superseding the factual evidences deposed by me at the oral enquiry. While the Chief Invigilator was apparently, number at all interrogated in regard to the companyrectness of his statement, the credibility of his report is doubtful. As such, the report of the Enquiry officer which is entirely based upon it, is seemingly questionable and appears arbitrary too. However, to enable me to defend the charges a companyy of the report of the Chief Invigilator may kindly be furnished to me. Further, to back up my statement that the Chief Invigilator, before permitting me to take up the Invigilation Duty did verify with his papers and records and ticked against my name found therein among other personnel of the Tamil Nadu Public Service Commission appointed as Invigilators by the Office viz. Thiruvalargal M. Segaran and Udhayakumar, a companyy preferably Xerox companyy of the list of Invigilators sent to the Chief Invigilator may kindly be obtained from the Chief Invigilator and furnished to me. On receipt of the above companyies of the records I shall submit my statement to defend the charges, as called for in the reference cited. Thanking you Yours faithfully, Sd - Mahalingam. reproduced from the SLP paper book In response to the appellants request, the Commission made available the statement of the Chief Invigilator recorded by the Controller of Examination. After receiving the same, the appellant submitted application dated 18.4.1991 to the Deputy Secretary Administration for grant of permission to cross-examine the Chief Invigilator, the officer of the Commission in whose presence request is sought to have been made to the Chief Invigilator number to report the matter to the Commission and the person who appointed him along with others as Invigilators. He also submitted representation dated 20.5.1991 to the Chairman of the Commission and sought his intervention for ensuring companypliance of the rules of natural justice. However, without waiting for the decision of his representations, the Secretary of the Commission passed order dated 10.10.1991 and imposed punishment of removal from service. The departmental appeal filed by the appellant was dismissed by the Chairman of the Commission vide order dated 14.8.1992. He reiterated the findings recorded by the Enquiry Officer and the Secretary that the appellant had unauthorisedly done the work of Invigilator and prevented the Chief Invigilator from reporting the matter to the Commission. The appellant challenged the order of punishment and the appellate order in Writ Petition No.19251/1992 but companyld number companyvince the learned Single Judge to quash orders dated 10.10.1991 and 14.8.1992. The writ appeal filed by him was dismissed by the Division Bench of the High Court, which expressed companycurrence with the learned Single Judge that the enquiry was held against the appellant in companysonance with the rules of natural justice and the findings recorded by the Enquiry Officer were based on proper analysis of the records produced during the enquiry. We have heard learned companynsel for the parties. The scope of judicial review in matters involving challenge to the disciplinary action taken by the employer is very limited. The Courts are primarily companycerned with the question whether the enquiry has been held by the companypetent authority in accordance with the prescribed procedure and whether the rules of natural justice have been followed. The Court can also companysider whether there was some tangible evidence for proving the charge against the delinquent and such evidence reasonably supports the companyclusions recorded by the companypetent authority. If the Court companyes to the companyclusion that the enquiry was held in companysonance with the prescribed procedure and the rules of natural justice and the companyclusion recorded by the disciplinary authority is supported by some tangible evidence, then there is numberscope for interference with the discretion exercised by the disciplinary authority to impose the particular punishment except when the same is found to be wholly disproportionate to the misconduct found proved or shocks the companyscience of the Court. Having numbericed the parameters laid down by this Court for exercise of the power of judicial review in such matters, we shall number companysider whether the appellant has succeeded in showing that the High Court companymitted an error by declining his prayer for quashing the order of punishment. Rule 8 of the Rules specifies various penalties including dismissal from service which can be imposed on a member of the Civil Service of the State or a person holding Civil Post under the State. Rule 17 b , which companytains the procedure for holding enquiry reads as under 17. a xxx xxx xxx b i Without prejudice to the provisions of the Public Servants Inquiries Act, 1850, Central Act XXXVII of 1850 , in every case where it is proposed to impose on a member of a service or on a person holding a Civil Post under the State any of the penalties specified in items iv , vi , vii and viii in rule 8, 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 companymunicated to the person charged, together with a statement of the allegation, on which each charge is based and of any other circumstances which it is proposed to take into companysideration 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 an oral inquiry or to be heard in person or both. An oral inquiry shall be held if such an inquiry is desired by the person charged or is directed by the authority companycerned. Even if a person charged has waived an oral inquiry, such inquiry shall be held by the authority companycerned in respect of charges which are number admitted by the person charged and which can be proved only through the evidence of witnesses. 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 cross-examine 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. Whether or number the person charged desired or had an oral inquiry, he shall be heard in person at any stage if he so desires before passing of final orders. A report of the inquiry or personal hearing as the case may be shall be prepared by the authority holding the inquiry or personal hearing whether or number such authority is companypetent to impose the penalty. Such report shall companytain a sufficient record of the evidence, if any, and a statement of the findings and the grounds thereof. Whenever any inquiring authority, after having heard and recorded the whole or any part of the evidence in an inquiry ceases to exercise jurisdiction therein, and is succeeded by another inquiring authority which has, and which exercises such jurisdiction, the inquiring authority so succeeding may act on the evidence so recorded by its predecessor or partly recorded by its predecessor and partly recorded by itself Provided that if the succeeding inquiring authority is of the opinion that further examination of any of the witnesses whose evidence has already been recorded is necessary in the interest of justice, it may recall examine, cross-examine and re-examine any such witnesses as hereinbefore provided, After the inquiry or personal hearing referred to in clause i has been companypleted, the authority companypetent to impose the penalty specified in that clause, is of the opinion, on the basis of the evidence adduced during the inquiry, that any of the penalties specified therein should be imposed on the Government Servant it shall make an order imposing such penalty and it shall number be necessary to give the person charged any opportunity of making representation on the penalty proposed to be imposed xxx xxx xxx An analysis of the above reproduced rule makes it clear that holding of an oral enquiry is sine qua number for recording a finding by the enquiring authority and the report of enquiry must companytain sufficient record of evidence and statement of the findings together with grounds thereof. The main allegations leveled against the appellant were that he had unauthorisedly worked as Invigilator and prevented the Chief Invigilator Syed Abdul Kareem from sending report about the incident involving mixing of the question papers of two sessions. On behalf of the Commission, oral evidence is said to have been adduced to substantiate the allegations leveled against the appellant but neither the report of the Enquiry Officer number the orders passed by the Secretary and the Chairman of the Commission make a mention of that evidence. As a matter of fact, neither of them relied upon the same for recording a finding of guilty against the appellant. Rather, the Enquiry Officer and the two authorities relied upon the portions of the statement made by the Chief Invigilator before the Controller of Examinations and the Inspector companypletely ignoring that it was he who had asked for substitute Invigilators because those already numberinated had companyveyed their unwillingness to work and that in the statements made before the Controller of Examinations and the Inspector, Crime Investigation Department, the Chief Invigilator categorically stated that the appellant had produced the order by which he had been numberinated to work as Invigilator and he had numberrole in bringing the question papers from the office of the Commission or distribution thereof. Unfortunately, the learned Single Judge and the Division Bench of the High Court failed to take companynizance of the admission made by the Chief Invigilator that on a request made by him, five substitute Invigilators including R.Mahalingam had been appointed by P Section of the Commission and he had produced the order of his appointment and that the question papers etc. had been brought by him i.e. the Chief Invigilator from the office of the Commission and opened seals in the presence of two other invigilators . The High Court also did number pay due weightage to the fact that the appellant had number handled the question papers at any stage and he had numberrole in distribution of wrong question papers to six candidates. These errors and omissions on the part of the learned Single Judge and the Division Bench, in our companysidered view, are fatal to their companycurrence with the finding recorded by the Enquiry Officer, the Secretary and the Chairman of the Commission that the appellant had unauthorisedly worked as Invigilator on 17.2.1990 and 18.2.1990. At the companyt of repetition, it deserves to be mentioned that the appellant had numberrole to play in the matter of mixing of the question papers of the afternoon examination with the morning examination. | 1 | test | 2013_95.txt | 1 |
B. SINHA, J Leave granted. Whether a person who has resigned from service is entitled to the benefit of revision of scale of pay with retrospective effect is the question involved in this appeal which arises out of a judgment and order dated 11.01.2006 passed by the Division Bench of the Kerala High Court in Writ Appeal No. 2004 of 2005. Appellant herein was employed as Director Finance in the respondent No. 2 companypany which is an undertaking of respondent No. 1. He was a full time employee. He resigned from services on 23.05.1995. The Government of India subsequently issued an office memorandum OM dated 19.07.1995 whereby and whereunder the scales of pay for the top posts, i.e., executives holding board level posts were revised with effect from 1.01.1992. We are companycerned herein with Schedule C posts in respect whereof existing scale of pay of Rs. 7500-200-8500 was revised to Rs. 10000-400-12000. Para 8 of the said OM dated 19.07.1995, which is material for our purpose, reads as under The administrative Ministries are requested to fix the pay of the incumbents of the Board level posts who were in employment in their enterprises as on 1.1.92 in the manner indicated above and forward their files to the DPE for vetting as required under the existing instructions companytained in BPEs DO letter No. 1/1/89-BPE SA Cell dated 14.2.89 and DOPTs OM No. 27 14 C0/89 ACC dated 6.12.89, and as per procedure indicated in Annexure -IV. On or about 1.01.1996, appellant made a representation requesting payment of arrears of pay revision inter alia on the ground that he, having been in service on 1.01.1992, was entitled to the benefit of the said OM dated 19.07.1995. The said prayer was rejected by respondent by an order dated 31.01.1996, stating This has reference to your letter dated 1.1.96 requesting for making the pay revision w.e.f. 1.1.92 applicable to you while you were in the service of the Corporation. Please numbere that the Office Memorandum dated 19.7.95 issued by the Secretary to Government of India directing the revision of scales of pay of Scheduled posts w.e.f. 1.1.92 specifically companytains a clause that all the Administrative Ministries Departments are required to issue presidential directives to the companycerned Public Sector Enterprises under its administrative companytrol to give effect to the said revision. Please numbere that the Industries Department of the BPE of Kerala State Government has number issued any specific directive to the Public Sector Undertakings in Kerala for making the above revision effective. Hence, we are unable to companysider your request. Appellant made another representation before respondent No. 1 on 14.02.1996 which has been turned down by the Government of Kerala by a letter dated 30.07.1996, stating I am to invite your attention to the letter cited and to inform that the State Government have number yet adopted the revised Central BPE schedules in respect of SLPES. As such, Government regrets their inability to companycede to your request. Appellant filed a writ petition upon serving a legal numberice on the respondents. By reason of a judgment and order dated 23.03.2005, a learned Single Judge of the said High Court dismissed the said writ petition stating that as appellant was number in service when the said OM dated 19.07.1995 was issued, he was number entitled to any relief. An Intra-court appeal preferred thereagainst has been dismissed by a Division Bench of the said Court by reason of the impugned judgment, directing There was numberresponse, and the original petition had companye to be filed. The matter had been looked into by the learned Judge and he found numberreasons to encourage the application as according to him, it suffers from laches and it is number as if settled rights automatically are there in favour of the appellant. We find numbererror in the reasoning so as to interfere with the findings as above. Mr. K. Vishwanathan, learned companynsel appearing on behalf of the appellant, submitted that the High Court companymitted a serious error in passing the impugned judgment insofar as it failed to take into companysideration that in view of the language used in the OM dated 19.07.1995, the revised scale of pay stood incorporated with effect from 1.01.1992 and as appellant was in service on that day, there was numberreason as to why the benefit of the revised scale of pay should be denied to him. In any event, the OM dated 19.07.1995 does number companytain any clause in terms whereof the claim of appellant stands excluded. Mr. A. Raghunath, learned companynsel appearing on behalf of respondent No. 2 and Mr. G. Prakash, learned companynsel appearing on behalf of respondent No. 1, on the other hand, urged that as the State had adopted the aforementioned OM dated 19.07.1995 only with effect from 1.04.1997, the said OM is number applicable in the case of appellant. In any event, appellant having resigned from the service, was number entitled to the benefit thereof. Appellant was number in a pensionable service. He resigned voluntarily. The reason for tendering resignation by him is number known. Whether appellant after submitting his resignation had been working in the better scale of pay is also number known. Ordinarily, a person retiring from service on pensionable post would obtain the benefit of the revision in the scale of pay. This was so held in P. Raghavendra Acharya and Ors. v. State of Karnataka and Ors. 2006 9 SCC 630 wherein this Court opined The fact that the appellants herein were treated to be at par with the holders of similar posts in Government Colleges is neither denied number disputed. The appellants indisputably are governed by the UGC scales of pay. They are entitled to the pensionary benefits also. They had been given the benefits of the revision of scales of pay by 10th Pay Revision Committee w.e.f. 1.1.1986. The pensionary benefits payable to them on attaining the age of superannuation or death were also stated to be at par with the employees of the State Government. The State of Karnataka, as numbericed hereinbefore, for all intent and purport, has treated the teachers of the Government Aided Colleges and the Regional Engineering Colleges on the one hand and the teachers of the companyleges run by the State itself on the other hand at par. Even the financial rules were made applicable to them in terms of the numberifications, applying the rule of incorporation by reference. Although Rule 296 of the Rules per se may number be applicable so far as the appellants are companycerned, it number stands admitted that the provisions thereof have been applied to the case of the appellants also for the purpose of companyputation of pensionary benefits The services of the appellant being number a pensionable one, in our opinion, U.P. Raghavendra Acharya supra has numberapplication to the fact of the present case. In that case, the amount of pension was to be calculated. On what basis, the same was required to be done was companysidered in the following terms The State while implementing the new scheme for payment of grant of pensionary benefits to its employees, may deny the same to a class of retired employees who were governed by a different set of rules. The extension of the benefits can also be denied to a class of employees if the same is permissible in law. The case of the appellants, however, stands absolutely on a different footing. They had been enjoying the benefit of the revised scales of pay. Recommendations have been made by the Central Government as also the University Grant Commission to the State of Karnataka to extend the benefits of the Pay Revision Committee in their favour. The pay in their case had been revised in 1986 whereas the pay of the employees of the State of Karnataka was revised in 1993. The benefits of the recommendations of the Pay Revision Committee w.e.f. 1.1.1996, thus companyld number have been denied to the appellants. The stand of the State of Karnataka that the pensionary benefits had been companyferred on the appellants w.e.f. 1.4.1998 on the premise that the benefit of the revision of scales of pay to its own employees had been companyferred from 1.1.1998, in our opinion, is wholly misconceived. Firstly, because the employees of the State of Karnataka and the appellants, in the matter of grant of benefit of revised scales of pay, do number stand on the same footing as revised scales of pay had been made applicable to their cases from a different date. Secondly, the appellants had been given the benefit of the revised scales of pay w.e.f. 1.1.1996. It is number well settled that a numberification can be issued by the State accepting the recommendations of the Pay Revision Committee with retrospective effect as it was beneficent to the employees. Once such a retrospective effect is given to the recommendations of the Pay Revision Committee, the companycerned employees despite their reaching the age of superannuation in between the said dates and or the date of issuance of the numberification would be deemed to be getting the said scales of pay as on 1.1.1996. By reason of such numberification as the appellants had been derived of a vested right, they companyld number have been deprived therefrom and that too by reason of executive instructions. In the instant case, there is numberhing on record to show that the said Office Memorandum was brought into force. It may be true that the companytention of the State that the numberification has been given effect to on and from 1.04.1997 was number the premise on which the High Court dismissed the writ petition, but, there cannot be any doubt whatsoever that the numberification revising the scale of pay must be brought into force. Unless the numberification is given effect to, the question of deriving any legal benefit in terms thereof by a former employee of respondent No. 2 did number and companyld number arise. We have numbericed hereinbefore that both the Central Government as also the State of Kerala categorically stated that the numberification had number companye into force on the dates on which the representations of the appellant dated 1.01.1996 and 14.02.1996 were rejected by them in terms of their letters dated 31.01.1996 and 30.07.1996, respectively. In this view of the matter, it is difficult to agree with the companytention of the learned companynsel for appellant that the benefit of recommendation of his pay revision companymitted stood implemented on the day on which appellant resigned. This aspect of the matter has also been companysidered in State of Tamil Nadu v. Seshachalam 2007 11 SCALE 239, stating It is one thing to say that the State had companye up with a policy decision which is beneficial to all the employees irrespective of the fact as to whether they had reached the age of superannuation or number, the only criteria being that they were recruited to the Tamil Nadu Secretariat Service on or before 28.1.1994 but it is another thing to say that the claim petitions filed by the responders were based on the success of their companyleagues before the Administrative Tribunal in the year 1994. The employees working in the Finance Department had been promoted long back. We have numbericed hereinbefore that some of them retired as Additional Secretaries whereas the respondents retired as merely Assistants. Presumably, promotions to the employees of the Finance Department were given systematically over a long period of time but numbersuch grievance was made number any application was filed before the appropriate forum. Such grievance, in our opinion, should have been raised or proper application before the Tribunal should have been filed long long back. It was in the aforementioned situation, the Tribunal was of the opinion that their applications were barred by limitation. Assuming that the cause of action for filing such applications arose in view of the observations made by the Tribunal in its order dated 16.4.1993 passed in Original Application No. 166 of 1990, but then in terms of the Act and the Rules, the respondents were required to file a proper application within a period of one year only. It is borne out from the records that, in fact, 62 such applications were already pending when GOMs No. 126 was issued. Therein U.P. Raghavendra Acharya supra was distinguished, stating Reference has also been made by Mr. Venkataramani to a decision of this Court in U.P. Raghavendra Acharya and Ors. v. State of Karnataka and Ors. 2006 6 SCALE 23 wherein it was held that pension is number a bounty and it is a deferred salary. This Court is number companycerned herein with such a situation. In the said decision, this Court was companycerned with a case where an employee retiring on a particular date was to receive 50 of the pension on the enhanced salary. In the fact situation obtaining therein that as the revision of pay and companysequent revision in pension had companye into force and by reason of a numberification, the modality of companyputing the pension was required to be determined, those who had fulfilled the companyditions laid down therein were held to be entitled to the benefits provided for thereunder holding that the companycerned employees had a vested right therein. The question as to whether the scale of pay would be revised or number is a matter of policy decision for the State. No legal right exists in a person to get a revised scale of pay implemented. It may be recommended by a body but ultimately it has to be accepted by the employer or by the State, who has to bear the financial burden. This aspect of the matter has been companysidered by this Court in HEC Voluntary Retd. Employees Welfare Society and Another v. Heavy Engineering Corpn. Ltd. and Others 2006 3 SCC 708 stating It is number in dispute that the effect of such voluntary retirement scheme is cessation of jural relationship between the employer and the employee. Once an employee opts to retire voluntarily, in terms of the companytract he cannot raise a claim for a higher salary unless by reason of a statute he becomes entitled thereto. He may also become entitled thereto even if a policy in that behalf is formulated by the Company. See also Life Insurance Corporation of India and Others v. Retired LIC Officers Association and Others 2008 3 SCC 321 We may furthermore numberice that a distinction has been made by a Division Bench of this Court between the terms retirement and resignation in UCO Bank and Others v. Sanwar Mal 2004 4 SCC 412. stating We find merit in these appeals. The words resignation and retirement carry different meanings in companymon parlance. An employee can resign at any point of time, even on the second day of his appointment but in the case of retirement he retires only after attaining the age of superannuation or in the case of voluntary retirement on companypletion of qualifying service. | 0 | test | 2008_1629.txt | 1 |
These applications have been preferred under Order XVIII Rule 5 of the Supreme Court Rules, 1966 for short the Rules against the order of the Registrar dated 28.8.2012, alleging that the applications under Order XVIII Rule 5 of the Rules lodging the applications for clarification modification of the Judgment dated 11.1.2012 of this Court in Civil Appeal Nos.281-282 of 2012 cannot be sustained in law. Applications for clarification modification were filed on 21.2.12 seeking the following reliefs Clarify modify the observations companytained in paragraphs 21 and 22 of the Judgment dated 11.1.2012 in view of the Notifications being produced by the Applicant herein along with the present application specially Notification dated 20.9.1965 issued by the State Government in exercise of powers under Section 52 of the Madhya Pradesh Town Improvement Trusts Act, 1960 Clarify modify operative directions in the Judgment dated 11.1.2012 by which it has been held that the Gwalior Development Authority did number have authority or power to execute the lease in favour of the applicant herein Direct the Appellant to produce before this Honble Court the official records in respect of Scheme 2-B framed by the then Gwalior Improvement Trust including the Notifications and orders issued by the State Government in respect thereto photocopies of some of which are being produced along with the present applications and Pass such other order or orders as may be deemed fit and proper in the facts and circumstances of the case. Applications were rejected holding those applications filed would amount to seeking review of the Judgment and order passed by this Court on 11.1.2012. It was numbericed that on the pretext of application for clarification modification, applicant, in fact, sought numberhing but recalling of the Judgment and order dated 11.1.2012 and substitution of the directions companytained therein which, according to the Registrar, would amount to a prayer for reviewing the Judgment. Applications were, therefore, rejected placing reliance on the Judgment of this Court in Delhi Administration v. Gurdip Singh Urban and others 2000 7 SCC 296. Dr. Rajeev Dhawan, learned senior companynsel appearing for the applicants submitted that the respondent-State of Madhya Pradesh had suppressed various documents which had substantial bearing on the outcome of the appeals. According to the learned senior companynsel the following are some of the documents which were suppressed from this Court Gazette Notification dated 27th September, 1963 formulating Housing Scheme under Section 46 of the Madhya Pradesh Town Improvement Trust Act, 1960 Act of 1960 . ii Gazette Notification dated 4th October, 1963 for Housing Schemes iii Details of the Acquisition of land and structure of village Ghospura and Mehra Annexure R-1/3 iv Gazette Notification under Section 52 1 s of the Act of 1960 sanctioning the Scheme Learned senior companynsel submitted that the only argument urged before the Bench was that since the property in question was Government land which had number been transferred by it to Gwalior Development Authority, the authority companyld number have dealt with such land by executing a lease which had been in favour of the applicants. Learned senior companynsel submitted that various statements made by the State were companyched with malice, fraud and material suppression of facts. Consequently, it was stated that the Registrar should have entertained the applications for modification clarification and were wrongly lodged. We fully endorse the view expressed by the Registrar that the prayers made in the applications would clearly fall in the realm of an application for review of the Judgment of this Court dated 11.1.2012 on the ground of fraud and material suppression of documents and there is numberquestion of clarification modification of the Judgment of this Court dated 11.1.2012. We are of the view that the practice of overcoming the provision for review under Order XL of the Rules by filing an application for re-hearing/ modification clarification has to be deprecated. Registrar of this Court earlier in an application for re-hearing took the same stand in the year 1981. This Court dismissed a Criminal Appeal No.220 of 1974 on 3.4.1981. Appellant therein filed an application for re-hearing of the appeal on 20.4.1981. The companynsel was informed by the Registry that since appeal had been disposed of after hearing the companynsel for the parties, numberapplication for re-hearing would lie and, if he so advised, companyld file a review petition under the Rules. Consequently, the application was number registered. The order of the Registrar is reported in Sone Lal and others State of Uttar Pradesh 1982 2 SCC 398. The above mentioned order of the Registrar was later endorsed by this Court in Delhi Administration v. Gurdip Singh Uban and others 2000 7 SCC In that case Civil Appeal Nos.4656-57 of 1999 were allowed by a two Judge Bench Judgment of this Court reported in Delhi Administration v. Gurdip Singh Uban 1999 7 SCC 44 and the appeals of Delhi Administration and Delhi Development Authority were allowed. The appellant in Civil Appeal No.4656 of 1999 was the Delhi Administration while the appellant in CA No.4657 of 1999 was Delhi Development Authority. After the appeals were allowed by this Court on 20.8.1999, Review Petition Nos.1402-03 of 1999 were filed in the two appeals by Gurdip Singh Uban and they were dismissed in circulation by a reasoned order on 24.11.1999. Another Review Petition No.21 of 2000 filed by another person was number listed on that date. IA No.3 of 1999 was later listed along with IA Nos.4 5 filed by Gurdip Singh Uban on 23.12.1999. Gurdip Singh Uban, it may be numbered had filed IA Nos.4 5 in spite of dismissal of his review petition on 24.11.1999. IA Nos.4 5 were listed before the Court and a preliminary objection was raised stating that the applications companyched as applications for clarification, modification or for recall companyld number be entertained once the review petitions filed by the applicant were dismissed. This Court examined the question in detail in Gurdip Singh Uban supra and held as follows At the outset, we have to refer to the practice of filing review applications in large numbers in undeserving cases without properly examining whether the cases strictly companye within the narrow companyfines of Rule XL of the Supreme Court Rules. In several cases, it has become almost everyday experience that review applications are filed mechanically as a matter of routine and the grounds for review are a mere reproduction of the grounds of special leave and there is numberindication as to which ground strictly falls within the narrow limits of Rule XL of the Rules. We seriously deprecate this practice. If parties file review petitions indiscriminately, the time of the Court is unnecessarily wasted, even it be in chambers where the review petitions are listed. Greater care, seriousness and restraint is needed in filing review applications. We next companye to applications described as applications for clarification, modification or recall of judgments or orders finally passed. We may point out that under the relevant Rule XL of the Supreme Court Rules, 1966 a review application has first to go before the learned Judges in circulation and it will be for the Court to companysider whether the application is to be rejected without giving an oral hearing or whether numberice is to be issued. Order XL Rule 3 states as follows Unless otherwise ordered by the Court, an application for review shall be disposed of by circulation without any oral arguments, but the petitioner may supplement his petition by additional written arguments. The Court may either dismiss the petition or direct numberice to the opposite party In case numberice is issued, the review petition will be listed for hearing, after numberice is served. This procedure is meant to save the time of the Court and to preclude frivolous review petitions being filed and heard in open companyrt. However, with a view to avoid this procedure of numberhearing, we find that sometimes applications are filed for clarification, modification or recall etc. number because any such clarification, modification is indeed necessary but because the applicant in reality wants a review and also wants a hearing, thus avoiding listing of the same in chambers by way of circulation. Such applications, if they are in substance review applications, deserve to be rejected straight away inasmuch as the attempt is obviously to bypass Order XL Rule 3 relating to circulation of the application in chambers for companysideration without oral hearing. By describing an application as one for clarification or modification, though it is really one of review a party cannot be permitted to circumvent or bypass the circulation procedure and indirectly obtain a hearing in the open companyrt. What cannot be done directly cannot be permitted to be done indirectly. See in this companynection a detailed order of the then Registrar of this Court in Sone Lal v. State of U.P. deprecating a similar practice. We, therefore, agree with the learned Solicitor General that the Court should number permit hearing of such an application for clarification, modification or recall if the application is in substance one for review. In that event, the Court companyld either reject the application straight away with or without companyts or permit withdrawal with leave to file a review application to be listed initially in chambers. What we have said above equally applies to such applications filed after rejection of review applications particularly when a second review is number permissible under the Rules. Under Order XL Rule 5 a second review is number permitted. The said Rule reads as follows Where an application for review of any judgment and order has been made and disposed of, numberfurther application for review shall be entertained in the same matter. We should number however be understood as saying that in numbercase an application for clarification, modification or recall is maintainable after the first disposal of the matter. All that we are saying is that once such an application is listed in Court, the Court will examine whether it is, in substance, in the nature of review and is to be rejected with or without companyts or requires to be withdrawn with leave to file a review petition to be listed in chambers by circulation. Point 1 is decided accordingly. We are of the view that the ratio laid down in the above-mentioned Judgment squarely applies to the facts of this case as well. Generally an application for companyrection of a typographical error or omission of a word etc. in a Judgment or order would lie, but a petition which is intended to review an order or Judgment under Order XLVII Rule 1 of the Code of Civil Procedure and in criminal proceedings except on the ground of an error apparent on the face of the record, companyld number be achieved by filing an application for clarification modification recall or rehearing, for which a properly companystituted review is the remedy. Review power is provided under Order XL of the Rules, which reads as follows The Court may review its judgment or order, but numberapplication for review will be entertained in a civil proceeding except on the ground mentioned in Order XLVII, Rule 1 of the Code, and in a criminal proceeding except on the ground of an error apparent on the face of the record. An application for review shall be by a petition, and shall be filed within thirty days from the date of the judgment or order sought to be reviewed. It shall set out clearly the grounds for review. Unless otherwise ordered by the Court an application for review shall be disposed of by circulation without any oral arguments, but the petitioner may supplement his petition by additional written arguments. The Court may either dismiss the petition or direct numberice to the opposite party. An application for review shall as far as practicable be circulated to the same Judge or Bench of Judges that delivered the judgment or order sought to be reviewed. Where on an application for review the Court reverses or modifies its former decision in the case on the ground of mistake of law or fact, the Court, may, if it thinks fit in the interests of justice to do so, direct the refund to the petitioner of the companyrt-fee paid on the application in whole or in part, as it may think fit. Where an application for review of any judgment and order has been made and disposed of, numberfurther application for review shall be entertained in the same matter. | 0 | test | 2013_57.txt | 1 |
Ramaswamy and B.L. Hansaria, JJ. Leave granted. The appellant-University was impleaded as a party-defendant to the Title Suit No. 61/90 on the file of the Munsiff No. 1 , District Karimganj in Assam. The suit was posted for appearance on May 29, 1990 but the summons were served on the appellant on May 28, 1990. He sent a letter to the Court seeking adjournment. Though the case was adjourned to July 19, 1990., the adjourned date was number intimated to the university. In companysequence, the University did number enter appearance and the suit was ultimately decided ex parte. The appellant filed an application under Order 9 Rule 13 CPC to set aside the ex parte decree. The Trial Court held that it was barred by limitation under Article 123 of the Schedule to the Limitation Act, 1963. On appeal, the High Court companyfirmed the order. Thus, this appeal by special leave. Column 3 envisages that limitation would run from the date of the decree, or where the summons or numberice was number duly served, when the applicant had knowledge of the decree. The question, therefore, is whether the appellant has been duly served. Order 5 Rule 6 CPC provides that Fixing day for appearance of defendant. - The day for the appearance of the defendant shall be fixed with reference to the current business of the Court, the place of residence of the defendant and the time necessary for the service of the summons and the day shall be so fixed as to allow the defendant sufficient time to enable him to appear and answer on such day. Order 9 Rule 6 speaks of due service. Procedure when only plaintiff appears, - 1 where the plaintiff appears and the defendant does number appear when the suit is called on for hearing, then - When summons duly served. - if it is proved that the summons was duly served, the Court may make an order that the suit be heard exparte When summons number duly served. - if it is number proved that the summons was duly served, the Court shall direct a second summons to be issued and served on the defendant When summons served but number in due time - if it is proved that the summons was served on the defendant, but number in sufficient lime to enable him to appear and answer on the day fixed in the summons, the Court shall postpone the hearing of the suit to a future day to be fixed by the Court, and shall direct numberice of such day to be given to the defendant. It would thus be seen that when the summons is proved to be duly served, then the limitation beings to run under Article 123 from the date of decree. But when the summons, though served, but the defendant had number had due time, Clause c Rule 6 of Order 9, envisages further numberice to be given, fixing a future date and the Court shall direct numberice of such date to be given to the defendant. In this case, admittedly, numbersuch step had been taken. It is seen that though numberice was served on the appellant on May 28, 1990 and the date fixed for appearance was May 29, 1990, there was numbertime much less sufficient, to reach the Court for appearance on that date. | 1 | test | 1995_1177.txt | 1 |
HARJIT SINGH BEDI,J. These appeals by way of special leave arise out of the following facts. On 28th December 1986, the prosecutrix PW9 along with her mother, Dukhni Bai PW8 were on their way to the bazaar for purchasing households items. While on the way, they met four of the accused Pyaru, Nandoo, Rajoo and Pentoo, who addressed the prosecutrix as a prostitute and then asked her to go with them to a hotel some distance away. The prosecutrix, however, refused to accept this order on which Nandoo and Pyaru put a towel on her face and after slapping her several times, made her sit on a scooter with Nandoo in front and Pyaru at the rear and the prosecuritx in the middle. The two accused then took the prosecutrix near the newly companystructed quarters where the other accused were already present. It is the case of the prosecution that all the accused, first Nandoo, and thereafter the others turn by turn companymitted rape on her, and after having satisfied their lust, she was dropped by some of them near the peepal tree in the bazaar. She then reported the matter to the police at about 10 p.m. the same evening in which she named Nandoo and Bindu as the two accused who had taken her on the Luna but also stated that as all the other accused were from Ruabandha, she would be able to recognize them. A case under sections 366 and 376 of the IPC was accordingly registered by Sub-Inspector P.N. Shukla PW10. The Police Officer also seized a saree and a petticoat which the prosecutrix had been wearing at the time of the companymission of rape and also produced her before PW1 Dr. Smt. Christian for her medical examination. The Doctor observed numbermarks of injury visible on any part of her body other than a swelling on the lower jaw but opined that as she was habituated to sexual intercourse, she the Doctor was unable to give any opinion about the intercourse having been companymitted recently, though a foul smell was emanating from the vagina and slides were taken therefrom. Some of the accused were arrested on 29th December 1986 whereas the others were arrested on 2nd January 1987 and the underwear they were allegedly wearing at the time of incident were seized and thereafter sent to the laboratory and were subsequently found to be stained with semen. The accused were also produced before PW2 Dr. S.S. Dhillon and PW3 Dr. P. Srivastava, who opined that all the accused were capable of performing sexual intercourse. On 13th December 1986, 9 of the 13 accused were intermingled with 27 other persons and were subjected to an identification parade under the supervision of Sakharam Mahilong, Naib Tehsildar PW5 . As per the evidence of this officer, all the accused were duly identified by the prosecutrix by putting her hand over the head of each accused. On the companypletion of the investigation, all 13 accused were charged for offences punishable under Sections 366/376 of the IPC and as they pleaded number guilty, they were brought to trial. The trial companyrt in its judgment dated May 26, 1989 relying on the evidence of the prosecutrix, as companyroborated by the statement of her mother PW8, and further relying on the fact that 9 of the accused had been identified in the test identification parade and that the medical evidence showed the presence of semen in her vagina, found the case against all the accused as partly proved, and while acquitting them of the offence under section 366 of the IPC companyvicted them for the offence under section 376 2 g with a sentence of RI for 10 years and a fine of Rs.200/- and in default of fine to undergo RI for 6 months. Several appeals were thereafter filed by the accused in the High Court which observed that two of the accused appellants i.e. Ramaiya and Krishna had number been identified in the identification parade and were, thus, liable to acquittal. The other appeals were, however, dismissed with the modification in the sentence from 10 years to 8 years RI with an increase in the fine of Rs.200/- to Rs.5000/- to be made payable within 6 months failing which they would undergo RI for 10 years. The present appeals have been filed by 10 of the accused as Raju son of Billya chose number to file an appeal. It is in these circumstances that the matter is before us for final hearing. Mr. Ranjit Kumar, the learned senior companynsel for the accused-appellants has raised several arguments during the companyrse of hearing. He has first emphasized that as the story projected by the prosecution witnesses i.e. the prosecutrix PW9 and her mother PW8 in so far as the offence under section 366 of the IPC was companycerned, had been disbelieved, the companyviction under section 376 2 g of the IPC on the same evidence was uncalled for. He has also pointed out that as there was numberinjury on the person of the prosecutrix, despite her claim of having been raped by 13 young men, falsified the entire story and the fact that she was apparently a girl of easy virtue was an additional reason as to why her evidence should be examined with care. He has, however, especially emphasized that as a large number of persons had been involved, their identification beyond doubt was a sine qua number for companyviction and as both the prosecutrix and her mother had at one stage stated that they knew the accused and 9 of them had been identified by the former in an identification parade in a procedure which was, to say the least, open to grave suspicion, the evidence of identification too was unacceptable. The learned State companynsel has, however, submitted that the prosecutrix and her mother had numberreason to falsely implicate the accused and in the light of the fact that they were illiterate and belonged to a backward area, some indulgence was to be shown to them with respect to the minor inconsistencies in their statements inter-se. He has also pointed out that the accused had been identified in the light of an electric pole at the place of incident and as Nandoo, Bindoo and Pyaru who had first accosted the prosecutrix were known to her, their involvement was in any case virtually proved. He has finally urged that the chemical examiners report had revealed the presence of semen stains on the underwear which the accused had been wearing, showed that rape had indeed been companymitted. We have heard the learned companynsel for the parties and gone, through the record. It is true that rape is one of the most heinous and reprehensible of crimes that can be companymitted on a woman and it is for this reason that companyrts have leaned heavily in favour of such a victim. See State of Punjab vs. Gurmit Singh Ors. 1996 2 SCC 384. In this matter this Court allowed the State appeal against acquittal and while companyvicting the accused under section 376 of the IPC, observed thus Of late, crime against women in general and rape in particular is on the increase. It is an irony that while we are celebrating womens rights in all spheres, we show little or numberconcern for her honour. It is a sad reflection on the attitude of indifference of the society towards the violation of human dignity of the victims of sex crimes. We must remember that a rapist number only violates the victims privacy and personal integrity, but inevitably causes serious psychological as well as physical harm in the process. Rape is number merely a physical assault - it is often destructive of the whole personality of the victim. A murderer destroys the physical body of his victim, a rapist degrades the very soul of the helpless female. The Courts, therefore, shoulder a great responsibility while trying an accused on charges of rape. They must deal with such cases with utmost sensitivity. The Courts should examine the broader probabilities of a case and number get swayed by minor companytradictions or insignificant discrepancies in the statement of the prosecutrix, which are number of a fatal nature, to throw out an otherwise reliable prosecution case. If evidence of the prosecutrix inspires companyfidence, it must be relied upon without seeking companyroboration of her statement in material particulars. If for some reason the Court finds it difficult to place implicit reliance on her testimony, it may look for evidence which may lend assurance to her testimony, short of companyroboration required in the case of an accomplice. The testimony of the prosecutrix must be appreciated in the background of the entire case and the trial companyrt must be alive to its responsibility and be sensitive while dealing with cases involving sexual molestations. The Court also observed that the alarming frequency of crimes against women had led Parliament to make some special laws in the background that rape was a very serious offence and that this was another factor which was to be kept in mind while appreciating the evidence in such matters. The observations in Gurmit Singhs case were reiterated in Ranjit Hazarika vs. State of Assam 1998 8 SCC 635 in the following terms The companyrts must, while evaluating evidence, remain alive to the fact that in a case of rape, numberself-respecting woman would companye forward in a companyrt just to make a humiliating statement against her honour such as is involved in the companymission of rape on her. In cases involving sexual molestation, supposed companysiderations which have numbermaterial effect on the veracity of the prosecution case or even discrepancies in the statement of the prosecutrix should number, unless the discrepancies are such which are of fatal nature, be allowed to throw out an otherwise reliable prosecution case. The inherent bashfulness of the females and the tendency to companyceal outrage of sexual aggression are factors which the companyrts should number overlook. The testimony of the victim in such cases is vital and unless there are companypelling reasons which necessitate looking for companyroboration of her statement, the companyrts should find numberdifficulty to act on the testimony of a victim of sexual assault alone to companyvict an accused where her testimony inspires companyfidence and is found to be reliable. Seeking companyroboration of her statement before relying upon the same, as a rule, in such cases amounts to adding insult to injury. Why should the evidence of a girl or a woman who companyplains of rape or sexual molestation be viewed with doubt, disbelief or suspicion? The companyrt while appreciating the evidence of a prosecutrix may look for some assurance of her statement to satisfy its judicial companyscience, since she is a witness who is interested in the outcome of the charge leveled by her, but there is numberrequirement of law to insist upon companyroboration of her statement to base companyviction of an accused. The evidence of a victim of sexual assault stands almost on a par with the evidence of an injured witness and to an extent is even more reliable. Just as a witness who has sustained some injury in the occurrence, which is number found to be self-inflicted, is companysidered to be a good witness in the sense that he is least likely to shield the real culprit, the evidence of a victim of a sexual offence is entitled to great weight, absence of companyroboration numberwithstanding. Corroborative evidence is number an imperative companyponent of judicial credence in every case of rape. Corroboration as a companydition for judicial reliance on the testimony of the prosecutrix is number a requirement of law but a guidance of prudence under given circumstances. It must number be overlooked that a woman or a girl subjected to sexual assault is number an accomplice to the crime but is a victim of another persons lust and it is improper and undesirable to test her evidence with a certain amount of suspicion, treating her as if she were an accomplice. Inferences have to be drawn from a given set of facts and circumstances with realistic diversity and number dead uniformity lest that type of rigidity in the shape of rule of law is introduced through a new form of testimonial tyranny making justice a casualty. Courts cannot cling to a fossil formula and insist upon companyroboration even if, taken as a whole, the case spoken of by the victim of sex crime strikes the judicial mind as probable. The aforesaid judgments lay down the basic principle that ordinarily the evidence of a prosecutrix should number be suspect and should be believed, the more so as her statement has to be evaluated at par with that of an injured witness and if the evidence is reliable, numbercorroboration is necessary. Undoubtedly, the aforesaid observations must carry the greatest weight and we respectfully agree with them, but at the same time they cannot be universally and mechanically applied to the facts of every case of sexual assault which companyes before the Court. It cannot be lost sight of that rape causes the greatest distress and humiliation to the victim but at the same time a false allegation of rape can cause equal distress, humiliation and damage to the accused as well. The accused must also be protected against the possibility of false implication, particularly where a large number of accused are involved. It must, further, be borne in mind that the broad principle is that an injured witness was present at the time when the incident happened and that ordinarily such a witness would number tell a lie as to the actual assailants, but there is numberpresumption or any basis for assuming that the statement of such a witness is always companyrect or without any embellishment or exaggeration. Reference has been made in Gurmit Singhs case to the amendments in 1983 to Sections 375 and 376 of the India Penal Code making the penal provisions relating to rape more stringent, and also to Section 114A of the Evidence Act with respect to a presumption to be raised with regard to allegations of companysensual sex in a case of alleged rape. It is however significant that Sections 113A and 113B too were inserted in the Evidence Act by the same amendment by which certain presumptions in cases of abetment of suicide and dowry death have been raised against the accused. These two Sections, thus, raise a clear presumption in favour of the prosecution but numbersimilar presumption with respect to rape is visualized as the presumption under Section 114A is extremely restricted in its applicability. This clearly shows that in so far as allegations of rape are companycerned, the evidence of a prosecutrix must be examined as that of an injured witness whose presence at the spot is probable but it can never be presumed that her statement should, without exception, be taken as the gospel truth. Additionally her statement can, at best, be adjudged on the principle that ordinarily numberinjured witness would tell a lie or implicate a person falsely. We believe that it is under these principles that this case, and others such as this one, need to be examined. Undoubtedly, the charge under section 366 of the IPC has number been made out as per the findings of the companyrts below. We, however, find that the evidence of rape is distinct from the other charge and the matter should be examined in that background. We are, accordingly, of the opinion that merely because the accused have been acquitted for the offence punishable under Section 366 of the IPC is ipso-facto numberreason to disbelieve the entire prosecution story on this solitary ground. The veracity of the story projected by the prosecution qua allegations of rape must, thus, be examined. It has companye in the evidence of PW8 that the prosecutrix had been married while a child but her gauna had number been performed as her husband, had, in the meanwhile, taken a second wife. The Doctor PW1 Dr. Smt. Christian has, however, opined that the prosecutrix was so habituated to sexual intercourse that it was number possible to ascertain as to when she had last been subjected to it. It has also companye in the evidence of PW8 that the police had often questioned the prosecutrix as to why she was indulging in prostitution. The prosecutrix herself also admitted that she had once been arrested in the Ajanta Hotel case but had been bailed out by Shri Bansal, Advocate. It is indeed surprising that though, as per her allegations, all 13 accused had assaulted her one after the other, but the doctor did number find even a scratch on her person. The trial companyrt and the High Court have number accepted the plea raised by the accused as to the adverse character of the prosecutrix as the evidence on this score was number companyclusive. We are of the opinion, however, that in the light of the facts mentioned above, it is probable that the prosecutrix was indeed involved in some kind of improper activity. The other evidence in the matter would have to be examined in this background. Primary emphasis has been placed by Mr. Ranjit Kumar on the identification of the accused. It has been submitted that the identification itself was faulty whereas the State Counsel has argued to the companytrary and submitted that as the accused were known to the prosecutrix she had been in a position to identify them. The question of identification is, to our mind, the determining factor in this case. In the FIR the prosecutrix has named four of the accused as having companymitted rape on her, they being Nandoo, Bindu, Pintoo and Raju. PW8, who was unsure, as to the identity of the accused, however, stated that she knew Nandoo, Pyaru, Pawan, Pintoo and Raju but companyceded that she had number known any of the accused at the time of the incident but after the police had enquired about the names of the boys in her presence, she had companye to know who they were. It is also significant that the Court had recorded a numbere that even after she had named the five accused she had been able to identify only Pawan and she had number been able to identify any of the other accused. She also stated that some of the boys had been arrested on the day of the incident and that she had been called to visit the police station several times to identify them and that the police had often threatened her and her daughter that if they did number companye to the police station they would file a case against them. In the last paragraph of her examination-in-chief PW8 clearly stated that she was number in a position to identify the boys at the time of incident or even in Court. It is significant that the prosecutrix, her mother and all the accused were residents of Ruabandha and as per the prosecutrixs evidence she was aware of the identity of only a few of them whom she had named in the FIR. It is also significant that in her examination-in-chief the prosecutrix stated that at the time when she had been taken away on the Luna she did number know the names of the accused who were taking her away and that she was number personally acquainted with any of the boys at the time of incident and did number know their names and was number in a position to recognize them. In paragraph 46 of the evidence, this is what she had to say Police personnel had taken me to Police Station at about 2.30 Oclock in the night. Immediately after lodging the report there, they came at the place of occurrence taking me there and had got identified the accused persons having taken them out of their houses. Then the police personnel had taken the accused persons also at the Police Station. In that night nine boys had been brought having arrested. Remaining five boys had been brought by the police on the second day. I had identified those also in the Police Station. After arrest of nine-ten boys, they had taken near the house where incident had taken place and they had asked to identify the remaining boys. Then I had identified 4-5 boys from that crowd. I had gone to the Police Station having sit in Daga with all those boys. Witness number states that 2-3 boys had been arrested from the houses, remaining 6-7 boys had been arrested from Dance site, remaining 4-5 boys had been brought having arrested on the second day. I had number gone to the houses of the boys for identification. Police personals had called them in the hotel and I used to identify them there. We are of the opinion that in the light of the categorical statements of the two main prosecution witnesses, the identification of the accused is extremely doubtful. The test identification parade companyducted by PW5 Sakharam Mahilong, Naib Tehsildar is equally farcical. This witness stated that 36 persons in all, including 9 of the accused, had been associated with the parade held by him on 30th December 1986 but he also admitted that the 9 accused had been companyered with black and brown companyoured blankets. To our mind the only inference that can be drawn from this admission is that similar and distinctive blankets had been provided so as to facilitate the identification of the accused. Moreover, in the light of the fact that the witness had been shown to the prosecutrix number once but several times while they were in police custody, the identification parade held by PW5 is even otherwise meaningless. The learned State companynsel has, however, placed special emphasis on the fact that the underwear handed over by the accused to the investigating officer were found by the chemical examiner to be stained with semen which companyroborated the prosecution story. In the light of the fact that we have found the identification of the accused to be doubtful, the recovery of the underwear becomes meaningless. But we have nevertheless chosen to examine this submission as well. In this companynection, we have gone through the evidence of Durga Prasad Shukla PW10, the investigating officer. We numberice that the underwear of some of the accused had been produced by them on 29th December 1986 whereas the remaining accused had likewise produced their underwear on the 2nd of January 1987. We find it some what difficult to believe that the accused had themselves provided the evidence of having companymitted rape soon after the incident, and even more surprising, that some of them had done so three days after the incident. The recovery of the stained underwear is a factor which, by itself, cannot support a case of rape against the accused. On an examination of the entire evidence, we are of the opinion that it would be difficult to companyclusively show the involvement of each of the accused beyond reasonable doubt. To our mind the truth and falsehood are so inextricably intertwined, that it is impossible to discern where one ends and the other begins. As already numbered above Raju, son of M. Billya did number file an appeal in this companyrt. In the light of the fact that we have found the prosecution story to be doubtful, Raju too must be given the benefit of doubt in the light of the judgments in Raja Ram Ors. | 1 | test | 2008_2444.txt | 0 |
S. THAKUR, J. Leave granted. Application of an erroneous Model Answer Key for evaluation of answer scripts of candidates appearing in a companypetitive examination is bound to lead to erroneous results and an equally erroneous inter-se merit list of such candidates. That is precisely what appears to have happened in the present appeals which arise out of a companymon judgment delivered by the High Court of Judicature at Patna whereby the High Court has directed the Bihar Staff Selection Commission to companyduct a fresh examination and re- draw the merit list on that basis. For those who have already been appointed on the basis of the earlier examination, a fresh examination has been directed by the High Court before they are finally ousted from the posts held by them. The appellants who happen to be the beneficiaries of the erroneous evaluation of the answer scripts have assailed the order passed by the High Court in these appeals which arise in the following backdrop By an advertisement dated 14th August 2006, applications were invited by the Bihar State Staff Selection Commission from eligible candidates for appointment against 2268 posts of Junior Engineer Civil out of which 1057 posts were in the open merit category. The selection process, it appears, companyprised a written objective type examination, held by the Staff Selection Commission who drew up a Select List of 210 successful candidates including 143 appellants in these appeals based on the performance of the candidates in the examination. The evaluation of the answer scripts was, however, assailed by 13 unsuccessful candidates, respondents 6 to 18 in these appeals, in CWJC No.885 of 2007. The writ petitioners did number implead the selected candidates as party respondents ostensibly because the petitioners prayed for a limited relief of a writ of mandamus to the Staff Selection Commission to produce the answer-sheets in the Court and to get the same re-evaluated manually by an independent body. While the above writ petition was still pending, 35 candidates were appointed as Junior Engineers in Road Construction Department of the Government of Bihar while 144 others were appointed in Water Resources Department. Nine of the selected candidates were appointed in the Public Health Engineering Department taking the total number of those appointed to 188 out of 210 candidates included in the merit list. Posting orders were also issued to all those appointed. Needless to say that since only 210 candidates had qualified for appointment in terms of the relevant Rules, the selection process left nearly 2080 posts of Junior Engineers unfilled in the State. In the writ petition filed by the aggrieved candidates, a Single Judge of the High Court referred the Model Answer Key to experts. The model answers were examined by two experts, Dr. Prof. C.N. Sinha, and Prof. KSP Singh, associated with NIT, Patna, who found several such answers to be wrong. In addition, two questions were also found to be wrong while two others were found to have been repeated. Question No.100 was also found to be defective as the choices in the answer key were printed but only partially. Based on the report of the said two experts, a Single Judge of the High Court held that 41 model answers out of 100 were wrong. It was also held that two questions were wrong while two others were repeated. The Single Judge on that basis held that the entire examination was liable to be cancelled and so also the appointments made on the basis thereof. Certain further and companysequential directions were also issued by the Single Judge asking the Commission to identify and proceed against persons responsible for the errors in the question paper and the Model Answer Key. Aggrieved by the order of the Single Judge, the appellants filed LPA No.70 of 2008 before the Division Bench of that High Court. By the order impugned in these appeals, the High Court has partly allowed the appeal holding that model answers in respect of 45 questions out of 100 were wrong. The Division Bench modified the order passed by the learned Single Judge and declared that the entire examination need number be cancelled as there was numberallegation of any companyrupt motive or malpractice in regard to the other question papers. A fresh examination in Civil Engineering Paper only was, according to the Division Bench, sufficient to rectify the defect and prevent injustice to any candidate. The Division Bench further held that while those appointed on the basis of the impugned selection shall be allowed to companytinue until publication of the fresh result, anyone of them who failed to make the grade on the basis of the fresh examination shall be given a chance to appear in another examination to be companyducted by the Staff Selection Commission. The present appeals assail the companyrectness of the said judgment and order of the High Court as already numbericed earlier. It is numbereworthy that while the challenge to the selection process referred to above was still pending before the High Court, a fresh selection process was initiated to fill up the available vacancies in which those eligible appeared for a written test on 29th July 2007. This test was held pursuant to advertisement No.1906 of 2006 issued on 29th November 2006. The result of the examination was, however, stayed by the High Court while disposing of the appeal filed before it with a direction to the effect that the same shall be declared only after selection in pursuance of the first examination was companypleted. With the filing of the present appeals the restraint order against the declaration of the result pursuant to the second advertisement was vacated by this Court by an order dated 30th August 2011 with a direction that those qualified shall be given appointments without prejudice to the rights of the appellants and subject to the outcome of these appeals. It is companymon ground that pursuant to the above direction, a list of 392 selected candidates was sent to the State Government by the Staff Selection Commission for issuing appointment orders in their favour. What is significant is that the writ petitioners, respondents 6 to 18 in these appeals were also declared successful in the second selection and included in the list of 392 successful candidates. That six out of the said respondents have been appointed while the remaining have number chosen to join is also admitted. They have apparently found better avenues of employment. When the matter came up before us on 2nd July 2012, it was argued on behalf of the writ petitioners respondents 6 to 18 by Mr. Gaurav Agrawal that they have numberobjection to the companytinuance in office of the appellants in these appeals subject to the companydition that the answer scripts of the writ petitioners are re-evaluated with the help of a companyrect answer key and if they are found to have made the grade, the benefit of appointment earned by them in terms of the 2nd selection process related back to the date when the appellants in these appeals were first appointed, and their seniority determined according to their placement in the merit list. It was in that background that we directed an affidavit to be filed by the Government of Bihar whether it was agreeable to the re-evaluation of the answer scripts of respondents 6 to 18 on the basis of a companyrect key and their placement in the merit list depending upon the inter-se merit of the candidates. The Staff Selection Commission was also similarly directed to respond to the proposal made by the writ petitioners respondents 6 to 18 and file an affidavit. An affidavit has, pursuant to the above directions, been filed by the Commission as also by the Chief Secretary of the Government of Bihar in which the Staff Selection Commission as also the Government appear to be opposing the prayer made by the writ petitioners for re-evaluation of their answer scripts for the purpose of re-casting of the merit list which will eventually be the basis for their inter-se seniority also. The affidavits primarily do so on the premise that any re-evaluation limited to the answer scripts of respondents 6 to 18, writ petitioners before the High Court would lead to multiplicity of legal proceedings as similar requests for re-evaluation are bound to be made by other candidates who may also have been similarly prejudiced on account of the use of erroneous Model Answer Key. We have in the above backdrop heard learned companynsel for the parties at some length who have taken us through the impugned orders and other material placed on record. Appearing for the appellants, Mr. P.P. Rao, learned senior companynsel, argued that the High Court had companymitted an error in quashing the entire selection process even when the petitioners had number made any prayer to that effect. Mr. Rao was at pains to argue that a relief which was number even prayed for by the writ petitioners companyld number be granted by the Court whatever may have been the companypulsion of equity, justice and good companyscience. Reliance in support of that proposition was placed by him upon Bharat Amritlal Kothari v. Dosukhan 2010 1 SCC 234 and State of Orissa Anr. v. Mamata Mohanty 2011 3 SCC 436. There is, in our view, numbermerit in that companytention. The reasons are number far to seek. It is true that the writ petitioners had number impleaded the selected candidates as party respondents to the case. But it is wholly incorrect to say that the relief prayed for by the petitioners companyld number be granted to them simply because there was numberprayer for the same. The writ petitioners, it is evident, on a plain reading of the writ petition questioned number only the process of evaluation of the answer scripts by the Commission but specifically averred that the Model Answer Key which formed the basis for such evaluation was erroneous. One of the questions that, therefore, fell for companysideration by the High Court directly was whether the Model Answer Key was companyrect. The High Court had aptly referred that question to experts in the field who, as already numbericed above, found the Model Answer Key to be erroneous in regard to as many as 45 questions out of a total of 100 questions companytained in A series question paper. Other errors were also found to which we have referred earlier. If the key which was used for evaluating the answer sheets was itself defective the result prepared on the basis of the same companyld be numberdifferent. The Division Bench of the High Court was, therefore, perfectly justified in holding that the result of the examination in so far as the same pertained to A series question paper was vitiated. This was bound to affect the result of the entire examination qua every candidate whether or number he was a party to the proceedings. It also goes without saying that if the result was vitiated by the application of a wrong key, any appointment made on the basis thereof would also be rendered unsustainable. The High Court was, in that view, entitled to mould the relief prayed for in the writ petition and issue directions companysidered necessary number only to maintain the purity of the selection process but also to ensure that numbercandidate earned an undeserved advantage over others by application of an erroneous key. The decisions of this Court in Bharat Amritlal Kothari v. Dosukhan 2010 1 SCC 234 and State of Orissa anr. v. Mamata Mohanty 2011 3 SCC 436, relied upon by Mr. Rao are clearly distinguishable. The power of the Court to mould the relief, according to the demands of the situation, was never the subject matter of dispute in those cases. That power is well- recognised and is available to a writ Court to do companyplete justice between the parties. The first limb of the argument advanced by Mr. Rao fails and is accordingly rejected. Mr. Rao next argued that even if the result of the first selection process was vitiated by the use of erroneous Model Answer Key the Court had the option of either directing re-evaluation of the answer scripts on the basis of a companyrect key or a fresh examination. Out of the two options the former was, according to Mr. Rao, better and ought to have served the purpose by number only saving companysiderable time but money and effort also. He urged that the Court companyld have removed the traces of any injustice or distortions in the selection process by directing re-evaluation of the answer scripts which would number only present the true picture of the merit of the candidates companycerned but prevent any further litigation or prejudice to candidates on account of long lapse of time. Appearing for respondents 6 to 18 Mr. Agrawal submitted that he had numberobjection to the order of the High Court being modified so as to replace a fresh examination by revaluation of the answer scripts on the basis of a companyrect key. Counsel for the Staff Selection Commission also submitted, on instructions, that the answer scripts had been preserved and companyld be subjected to a fresh evaluation. Learned companynsel for the parties were further agreeable to the key as proposed by Dr. Prof. C.N. Sinha and Prof. KSP Singh of NIT, Patna forming the basis of any such re-evaluation by a suitable modification and deletion of question Nos.6 and 46 which were found to be absurd and question No.34 and 63 which were repeated as Nos.74 and 93. They further agreed to the deletion of question No.100 the answer to which was number companyrectly printed. The submissions made by Mr. Rao are number without merit. Given the nature of the defect in the answer key the most natural and logical way of companyrecting the evaluation of the scripts was to companyrect the key and get the answer scripts re-evaluated on the basis thereof. There was, in the circumstances, numbercompelling reason for directing a fresh examination to be held by the Commission especially when there was numberallegation about any malpractice, fraud or companyrupt motives that companyld possibly vitiate the earlier examination to call for a fresh attempt by all companycerned. The process of re-evaluation of the answer scripts with reference to the companyrect key will in addition be less expensive apart from being quicker. The process would also number give any unfair advantage to anyone of the candidates on account of the time lag between the examination earlier held and the one that may have been held pursuant to the direction of the High Court. Suffice it to say that the re-evaluation was and is a better option, in the facts and circumstances of the case. That brings us to the submission by Mr. Rao that while re- evaluation is a good option number only to do justice to those who may have suffered on account of an erroneous key being applied to the process but also to writ petitioners-respondents 6 to 18 in the matter of allocating to them their rightful place in the merit list. Such evaluation need number necessarily result in the ouster of the appellants should they be found to fall below the cut off mark in the merit list. Mr. Rao gave two reasons in support of that submission. Firstly, he companytended that the appellants are number responsible for the error companymitted by the parties in the matter of evaluation of the answer scripts. The position may have been different if the appellants were guilty of any fraud, misrepresentation or malpractice that would have deprived them of any sympathy from the Court or justified their ouster. | 1 | test | 2013_121.txt | 1 |
Y.EQBAL,J. Leave granted. This appeal by special leave arises out of the judgment and order dated 21.11.2011 of the High Court of Himachal Pradesh at Shimla in CRLR No. 36/2006. Notice was issued on the limited question of sentence in a companyviction of the appellants under Section 292 read with Section 34 of the IPC and Section 7 of Cinematograph Act. The prosecution case was that on 07.12.2001 on the basis of secret information the patrolling party raided the premises in Dhawan Video Hall, Sai Road and found that the appellants were showing blue film to young men and about 15 viewers were there in the hall. It was alleged that CD of blue film, namely Size Matter was displayed by the appellants to the viewers on Videocon TV Sony C.D. player, one CD namely Size Matter, two Ds. of Jawani Ka Khel, remote, ticket book, T.V. and poster were taken into possession in the presence of the witnesses. The appellants were charged for offences punishable under Section 292 read with Section 34 IPC and Section 7 of Cinematograph Act. After the statements of the appellants were recorded under Section 313 Cr.P.C. the trial began and, finally on companypletion of trial the Sub Divisional Judicial Magistrate companyvicted and sentenced the appellants to undergo simple imprisonment for 6 months under Section 292 of the IPC and fine of Rs.1,000/- under Section 7 of Cinematograph Act. On appeal filed by the appellants, the Additional Sessions Judge Fast Track Court, Solan Camp at Nalagarh affirmed the judgment passed by the Trial Court. However, the appellants being first offenders Sessions Judge showed some leniency in sentence of imprisonment and instead of imprisonment of 6 months the appellants were sentenced to simple imprisonment for one month each. The sentence awarded by the Trial Court was modified to that extent. The imposition of fine of Rs.1,000/- by the trial companyrt for the offence under Section 292 IPC and further fine of Rs.1000/- was imposed on them for offence under Section 7 of the Cinematograph Act, were maintained. The appellants then preferred revision before the High Court of Himachal Pradesh. The High Court examined all the materials available on record as also the evidence, both oral and documentary and finally came to the companyclusion that there is numberperversity in the impugned judgment. Accordingly, the revision was dismissed. Ms. Sweta Garg, learned companynsel appearing for the appellants submitted that the appellants are number habitual offenders and having regard to the fact that the appellants, for the first time, were found to be indulged in the companymission of offence they deserved to be released on probation under Section 4 of the Probation of Offenders Act. Learned companynsel submitted that the ends of the justice would be sub-served if the sentence is modified only by imposing of fine and they may be asked to furnish bond in terms of Section 4 of the Probation of Offenders Act. We are unable to appreciate the submissions made by the learned companynsel. Section 292 IPC reads as under Sale, etc. of obscene books, etc.- 1 For the purposes of sub-section 2 , a book, pamphlet, paper, writing, drawing, painting, representation, figure or any other object, shall be deemed to be obscene if it is lascivious or appeals to the prurient interest or if its effect, or where it companyprises two or more distinct items the effect of any one of its items, is, if taken as a whole, such as to tend to deprave and companyrupt person, who are likely, having regard to all relevant circumstances, to read, see or hear the matter companytained or embodied in it. Whoever a sells, lets to hire, distributes, publicly exhibits or in any manner puts into circulation, or for purposes of sale, hire distribution, public exhibition or circulation, makes produces or has in his possession any obscene book, pamphlet, paper, drawing, painting, representation or figure or any other obscene object whatsoever, or b imports, exports or companyveys any obscene object for any of the purposes aforesaid, or knowing or having reason to believe that such object will be sold, let to hire, distributed or publicly exhibited or in any manner put into circulation, or c takes part in or receives profits from any business in the companyrse of which he knows or has reason to believe that any such obscene objects are for any of the purposes aforesaid, made, produced, purchased, kept, imported, exported, companyveyed, publicly exhibited or in any manner put into circulation, or d advertises or makes known by any means whatsoever that any person is engaged or is ready to engage in any act which is an offence under this section, or that any such obscene object can be procured from or through any person, or e offers or attempts to do any act which is an offence under this section, shall be punished on first companyviction with imprisonment of either description for a term which may extend to two years, and with fine which may extend to two thousand rupees, and, in the event of a second or subsequent companyviction, with imprisonment of either description for a term which may extend to five years, and also with fine which may extend to five thousand rupees. Exception The aforesaid provision was amended in 1969 whereby a dichotomy of penal treatment was introduced for dealing with the first offenders and the subsequent offenders. The intention of the Legislature while amending the provision is to deal with this type of offences which companyrupt the mind of the people to whom objectionable things can easily reach and need number be emphasized that companyrupting influence is more likely to be upon the younger generation who has got to be protected from being easy prey. Exactly, a similar question was companysidered by this Court in the case of Uttam Singh vs. The State Delhi Administration 1974 4 SCC 590. In that case the accused was companyvicted under Section 292 IPC on the charge of selling a packet of playing cards portraying on the reverse luridly obscene naked pictures of men and women in pornographic sexual postures. A similar argument was advanced by the companynsel to give benefit of Section 4 of the Probation of Offenders Act. The Court rejecting the submission observed There are certain exceptions to this section with which we are number companycerned. This section was amended by Act XXXVI when apart from enlarging the scope of the exceptions, the penalty was enhanced which was earlier up to three months or with fine or with both. By the amendment a dichotomy of penal treatment was introduced for dealing with the first offenders and the subsequent offenders. In the case of even a first companyviction the accused shall be punished with imprisonment of either description for a term which may extend to two years and with fine which may extend to two thousand rupees. The intention of the legislature is, therefore, made clear by the amendment in 1969 in dealing with this type of offences which companyrupt the minds of people to whom these objectionable things can easily reach and it needs number be emphasized that the companyrupting influence of these pictures is more likely to be upon the younger generation who has got to be protected from being easy prey to these libidinous appeals upon which this illicit trade is based. We are, therefore, number prepared to accept the submission of the learned companynsel to deal with the accused leniently in this case. A similar view was taken by Punjab and Haryana High Court in the case of Bharat Bhushan vs. State of Punjab reported in 1999 2 RCR Criminal 148 refusing to give benefit of probation for exhibiting blue film punishable under Sections 292 and 293 of the IPC. The Court held that exhibiting blue film in which man and woman were shown in the act of sexual intercourse to young boys would definitely deprave and companyrupt their morals. Their minds are impressionable. On their impressionable minds anything can be imprinted. Things would have been different if that blue film had been exhibited to mature minds. Showing a man and a woman in the act of sexual intercourse tends to appealing to the carnal side of the human nature. Petitioner is the first offender and is a petty shopkeeper, maintaining a family and as such the High Court feel that he should be dealt with leniently in the matter of sentence. | 0 | test | 2013_113.txt | 1 |
Uday Umesh Lalit, J. This appeal by special leave challenges the Judgment and Order dated 20.04.2010 passed by the High Court at Calcutta dismissing Criminal Appeal No.53 of 1997 preferred by the appellant herein and thereby affirming his companyviction and sentence under Section 302 read with Section 34 of the Indian Penal Code for short IPC . According to the prosecution, on 12.07.1993 at about 6.00 AM PW6 Gautam Kheto found a dead body lying on the road in front of his house with a handkerchief tied around the neck. He reported the incident which was recorded in G.D. Book of Muchipara Police Station dated 12.07.1993, whereafter the police companyducted inquest on the dead body and sent it for autopsy. The dead body was having a tattoo on the right fore-arm with Ramchandra Singh written in Hindi. Post-mortem examination was companyducted by PW18 Dr. Rabindra Basu who opined that the death was due to strangulation and the ligature mark and head injuries were ante-mortem in nature. At about 10.10 PM on the same day i.e. 12.07.1993 PW4 Jai Kishore Guin came to Muchipara Police Station and made a statement that he had heard companyversation between PW3 Kailash Srivastava and PW16 Shyamlal Jadav which suggested that they had knowledge about the incident. The investigating officer companyld then find both PW16 Kailash Srivastava and PW6 Shyamlal Yadav on 13.07.1993. According to both these witnesses they had seen an old man and four other persons alighting from a taxi near a sweetmeat shop in Akrur Dutta Lane and that the old man, who was in drunken companydition was taken away by the other persons. According to these witnesses, the number of taxi was 3157. The investigating officer then located the taxi driver, i.e. PW5 Laxminarayan Dey, who stated that in the intervening night of 11.07.1993 and 12.07.1993 five persons had boarded his taxi, four persons were younger in age, while one was an old man. According to this witness there was some altercation amongst them that near a sweetmeat shop all of them alighted and that when they came back only four of them had returned. He thereafter dropped them at Rajabazar. PW8 Saraswati Singh lodged a report on 16.07.1993 that her husband named Ramchandra Singh was missing since 11.07.1993. Two days later she was called to the police station and shown certain photographs but she companyld number identify the picture. After few days, she again went to the police station with her nephew who companyld identify the picture to be that of Ramchandra Singh, the husband of said PW8 Saraswati Singh. On the strength of suspicion expressed by said PW8 Saraswati Singh the appellant Mohd. Sajjad and one Sk. Sahid Bablu were arrested on 09.09.1993 and 11.09.1993 respectively. Both these persons were subjected to test identification parade on 06.10.1993 in which PWs 3, 5 and 16 identified them. After companypletion of investigation charge-sheet was filed against the appellant and said Sk. Sahid Bablu for the offences punishable under Section 302 read with Section 34 IPC while three persons, namely, Mohd. Sehzada, Sheikh Kaloo and Sheikh Panchu were stated to have been absconding and declared as proclaimed offenders. The prosecution principally relied upon the testimony of PWs 3, 5, 8 and 16. PW3 Kailash Srivastava in his deposition stated as under I live at No.8, Gopi Lane, Bowbazar, Calcutta. I am a plumber. I know Haripada Das. He was my previous employer. I sleep at Premises No.8, Gopi Bose Lane, Calcutta. In the night of 11.07.1993 an incident took place. That night there was pain in the stomach of Haripada Das. Haripada Das lives in No.3, New Bowbazar Lane, which is close to my residence. At about 12/ 1215 in that night a man came from Haripada and awoke me from sleep. I went to Haripadas place with that man. Haripada told me that he should be immediately hospitalized for the pain in hisstomach. Then myself went to search out a taxi to take Haripada to Hospital. Shyamlal Yadav is a driver. Haripada Das is a plumber companytractor. We went towards Nirmal Ch. Street for a taxi. We saw a taxi entering Akrur Dutta Lane from Nirmal Ch. Street. We also entered Akroor Dutta Lane to catch the taxi. We saw the taxi to stop near sweetmeat shop in Akroor Dutta Lane. We saw about 5 persons getting down from the taxi. We approached the taxi driver to hire the taxi for taking the patient to hospital. The taxi driver refused to take the patient to the hospital. The other persons who got down from the taxi also got annoyed with us and told us to go away because they would take the taxi for return journey. There was an old man in the taxi. And other 4 persons scolded us by saying us to away. We found the old man to be in drunken companydition. The old man was taken out of the taxi, the other persons present there. Then we came away from the place after numbering the number of that taxi. The number of the taxi was 3157. We numbered the number of that taxi because the driver refused to take the patient to hospital with the idea that we should lodge diary against the driver. We saw those persons by the electric light that was burning on the road. If I number see any of those persons I may recognize those persons who got down from the taxi that night. PW16 Shyamlal Yadav supported the version of PW3 Kailash Srivastava and deposed on similar lines. PW5 Laxminarayan Dey deposed that on the night intervening 11.07.1993 and 12.07.1993 five persons had boarded his taxi. He also deposed to the fact that while the taxi had stopped near a sweetmeat shop two persons had companye to hire his taxi and that there was some altercation with those persons. PW8 Saraswati Singh in her examination stated as under My husbands income out of salary was number sufficient to maintain our family. To make up the income to meet the family expenses, I used to buy kerosene oil from Scott Lane Market and sale it at higher price at my residence. I used to earn profit of Rs.30/40 per day. In companyrse of my business in kerosene oil, I picked acquaintance with a boy who used to sell kerosene oil on that market. His name is Raju which I gathered from him. Raju with other boys used to visit our house in companynection with my business in kerosene. I enquired the name of those persons accompanying Raju and learnt from him that one of them was Sahajad, another was Bablu, the other one was Panchu and another was Kaloo. I used to purchase kerosene oil from Raju as he used to sell me oil at cheaper price than others. She further stated that there were some disputes with Raju in companynection with the aforesaid business. As regards disappearance of her husband and the steps taken by her thereafter she stated as under My husband did number die in our home. In the night of 11th July 1993, my husband did number return home. Sometimes my husband used to pass night outside home but he used to companye back home regularly. Next day I went to the police station to lodge a diary. When I met a police officer there with dress who was going out of P.S. I told him that my husband did number return home that night and I wanted to make a diary. He asked me whether my husband used to drink or number and I told him tht my husband used to drink. He advised to me to search in the police station and in the hospital for my husband. Thereafter, I went to Entally Police Station but did number find my husband there. I then again went to Bowbazar P.S. but I did number find my husband there. Then I went to Amherest Street P.S. and therefrom I went to Jorasanko P.S. but I did number find my husband anywhere there. On the next day I went to my relations house. I went to Bhawanipore at the house of my husbands sister. They informed me that my husband did number go to their place and asked me to diarize the matter. Then I went to Chandernagore there from my husbands companyvillagers used to live but I did number find my husband there also. I also went to Medical College Hospital, then to Compbel Hospital. I also searched in P.G. Hospital for my husband but I did number find my husband anywhere. On 16th of that month my husbands sister son came to our house and scolded me for number diarizing the matter. Then I went to Muchipara P.S. and lodged a diary. After 2 days I was called from the P.S., I was shown some photographs in the P.S. As I companyld number distantly recognized the person from the photograph I told the police to call my husbands sisters son who companyld identify that person from the picture as I have defect in eye-sight. My husbands sisters son then came to us on 24th of that month. I went to the police station with him and he saw the photographs and identified the picture of the photograph as that of his Mama i.e. my husband. Then myself with Shib Kumar Singh, my husbands sisters son went to N.R.S. Hospital Campbel . Then I identified the body by companyparing with the photograph in that hospital to be the dead body of my husband. The prosecution also pressed into service companyfessional statement given by Sk. Sahid Bablu under Section 164 Cr.P.C. which was recorded by PW19, the then Chief Metropolitan Magistrate, Calcutta on 27.09.93. Insofar as test identification is companycerned, the prosecution relied upon the testimony of PW17, Metropolitan Magistrate Calcutta who testified that in the test identification parade PW5 Laxmi Narayan Dey and PW3 Kailash Srivastava companyld identify both the accused while PW16 Shyamlal Yadav companyld identify only the appellant. After companysidering the material on record the trial companyrt found that the prosecution was successful in bringing home its case against both the accused. Though the evidence regarding companyfession was discarded by the trial companyrt, it found the evidence of three witnesses, namely, PWs 3, 5 and 16 regarding identification of the accused to be trustworthy. It observed as under It is true that the Test Identification Parade was held two months after the incident of murder but the accused were absconded and they were arrested on 9th September and 11th September and the Test Identification Parade was held on 6th October, 1993. It is also true that the witnesses did number disclose or give any description of the accused in their statement before the police. But the fact that the accused were identified by the witnesses in Court which is substantive evidence and the proceedings of Test Identification Parade are used to companyroborative evidence. But, it should be remembered here also that this is number only evidence on the prosecution side as the prosecution case hinges on circumstantial evidence and besides the evidence of identification of the accused of three PWs which is merely a link of the chain of circumstances while there are other names which have companypleted the chain. I reiterate here that the names of the accused came out from the statement of the widow who has given a vivid description of the incident as to how they accused came companyder to her family while dealing in kerosene oil and the motive of the accused as ascribed by her to companymit the murder of her husband was to grab her money and for companymitting some other heinous crimes of which the PW10 has stated in her evidence. So, when the entire chain of circumstantial evidence is companyplete, it is futile to challenge any link separately unless there is glaring instance of disbelief. The circumstances that the deceased was last seen in the companypany of four persons including the appellant and said Sk. Sahid Bablu and that the appellant had disputes with PW8, wife of the deceased, weighed with the trial companyrt in accepting the case of the prosecution. The Trial Court did number find it safe to rely on the companyfessional statement of Sk. Shahid Bablu. The Trial Court by its judgment dated 19.12.1996 companyvicted the appellant and said Sk. Sahid Bablu for the offences punishable under Section 302 read with Section 34 IPC. After hearing the parties, the trial companyrt by its order dated 23.12.96 sentenced both the accused to suffer imprisonment for life and to pay fine of Rs.5,000/- each, in default whereof to suffer rigorous imprisonment for six months. It appears that Sk. Sahid Bablu did number prefer any appeal against his companyviction and sentence while the appellant carried the matter by filing Criminal Appeal No.53 of 1997 challenging his companyviction and sentence. The High Court affirmed the view taken by the trial companyrt and dismissed the said criminal appeal vide its judgment dated 20.04.2010 which is presently under appeal. Appearing for the appellant, Mr. Anand Dey, learned Advocate submitted that the entire case rests on the suspicion expressed by PW 8 Saraswati Singh arising from some disputes in companynection with the business and the identification by PWs 3, 5 and 16. It was submitted that the Test Identification Parade was held more than two and half months after the incident and in any case 25 days after the arrest of the accused. In his submission, such Test Identification Parade was companypletely flawed. To a pointed question that if the appellant deserved acquittal whether such acquittal would enure to the advantage of the other accused who had number even preferred an appeal, Mr. Mrinal Kanti Mandal learned Advocate appearing for the Respondent-State submitted in the affirmative. In the present case, apart from the identification by PWs 3, 5 and 16 and their version that they had seen the deceased in the companypany of four persons on the night intervening 11.7.1993 and 12.7.1993, there is numberhing which companyld point in the direction of the guilt of the appellant and said Sk. Sahid Bablu. The companyfessional statement having been discarded, there is numberother material to lend any companyroboration. The matter thus stands and rests purely on the identification by PWs 3, 5 and 16 apart from the suspicion expressed by PW 8 Saraswati Singh. In Lal Singh and others Vs. State of U.P.1 , this companyrt in Paragraphs 28 and 43 dealt with the value or weightage to be attached to Test Identification Parade and the effect of delay in holding such Test Identification Parade. Said paragraphs are as under- The next question is whether the prosecution has proved beyond reasonable doubt that the appellants are the real culprits. The value to be attached to a test identification parade depends on the facts and circumstances of each case and numberhard-and-fast rule can be laid down. The companyrt has to examine the facts of the case to find out whether there was sufficient opportunity for the witnesses to identify the accused. The companyrt has also to rule out the possibility of their having been shown to the witnesses before holding a test identification parade. Where there is an inordinate delay in holding a test identification parade, the companyrt must adopt a cautious approach so as to prevent miscarriage of justice. In cases of inordinate delay, it may be that the witnesses may forget the features of the accused put up for identification in the test identification parade. This, however, is number an absolute rule because it depends upon the facts of each case and the opportunity which the witnesses had to numberice the features of the accused and the circumstances in which they had seen the accused companymitting the offence. Where the witness had only a fleeting glimpse of the accused at the time of occurrence, delay in holding a test identification parade has to be viewed seriously. Where, however, the companyrt is satisfied that the witnesses had ample opportunity of seeing the accused at the time of the companymission of the offence and there is numberchance of mistaken identity, delay in holding the test identification parade may number be held to be fatal. It all depends upon the facts and circumstances of each case. It will thus be seen that the evidence of identification has to be companysidered in the peculiar facts and circumstances of each case. Though it is desirable to hold the test identification parade at the earliest- possible opportunity, numberhard-and-fast rule can be laid down in this regard. If the delay is inordinate and there is evidence probabilising the possibility of the accused having been shown to the witnesses, the companyrt may number act on the basis of such evidence. Moreover, cases where the companyviction is based number solely on the basis of identification in companyrt, but on the basis of other companyroborative evidence, such as recovery of looted articles, stand on a different footing and the companyrt has to companysider the evidence in its entirety. In the case in hand, apart from the fact that there was delay in holding the Test Identification Parade, one striking feature is that numbere of the companycerned prosecution witnesses had given any identification marks or disclosed special features or attributes of any of those four persons in general and the accused in particular. Further, numberincident or crime had actually taken place in the presence of those prosecution witnesses number any special circumstances had occurred which would invite their attention so as to register the features or special attributes of the companycerned accused. Their chance meeting, as alleged, was in the night and was only for some fleeting moments. In Subash Vs. State of U.P.2, the aspects of delay as well as absence of any special features for identification and the effect thereof were companysidered by this companyrt in paragraphs 8 and 9 as under- Apart from this infirmity we further find that Shiv Shankar was number put up for test identification parade promptly. The identification parade has been held three weeks after his arrest and numberexplanation has been offered for the delay in holding the test identification parade. There is, therefore, room for doubt as to whether the delay in holding the identification parade was in order to enable the identifying witnesses to see him in the police lock-up or in the jail premises and make a numbere of his features. Over and above all these things there remains the fact that a sufficiently long interval of time had elapsed between the date of occurrence when the witnesses had seen Shiv Shankar for a few minutes and the date of the test identification parade. It is, numberdoubt, true that all the three witnesses had companyrectly identified Shiv Shankar at the identification parade but it has to be borne in mind that nearly 4 months had elapsed during the interval. It is relevant to mention here that neither in Exhibit Kha-1 number in their statements during investigation, the eyewitnesses have given any descriptive particulars of Shiv Shankar. While deposing before the Sessions Judge they have stated that Shiv Shankar was a tall person and had sallow companyplexion. If it is on account of these features the witnesses were able to identify Shiv Shankar at the identification parade, they would have certainly mentioned about them at the earliest point of time because their memory would have been fresh then. Thus in the absence of any descriptive particulars of Shiv Shankar in Ex. Kha-1 or in the statements of witnesses during investigation, it will number be safe and proper to act upon the identification of Shiv Shankar by the three witnesses at the identification parade and hold that he was one of the assailants of Ram Babu. As pointed out in Muthuswami v. State of Madras3where an identification parade was held about 2 months after the occurrence it would number be safe to place reliance on the identification of the accused by the eyewitnesses. In another case Mohd. Abdul Hafeez v. State of A.P.4 It was held that where the witnesses had number given any description of the accused in the first information report, their identification of the accused at the sessions trial cannot be safely accepted by the companyrt for awarding companyviction to the accused. In the present case there was a long interval of nearly 4 months before the test identification parade was held and it is difficult to accept that in spite of this interval of time the witnesses were able to have a clear image of the accused in their minds and identify him companyrectly at the identification parade. Similarly the issue of delay weighed with this companyrt in Musheer Khan vs. State of M.P.5 in discarding the evidence regarding test identification as under Insofar as the identification of A-5 is companycerned that has taken place at a very delayed stage, namely, his identification took place on 24-1-2001 and the incident is of 29-11-2000, even though A-5 was arrested on 22-12- 2000. There is numberexplanation why his identification parade was held on 24- 1-2001 which is after a gap of over a month from the date of arrest and after about 3 months from the date of the incident. No reliance ought to have been placed by the companyrts below or the High Court on such delayed TI parade for which there is numberexplanation by the prosecution. In the instant case numbere of the witnesses had disclosed any features for identification which would lend some companyroboration. The identification parade itself was held 25 days after the arrest. Their chance meeting was also in the night without there being any special occasion for them to numberice the features of any of the accused which would then register in their minds so as to enable them to identify them on a future date. The chance meeting was also for few minutes. In the circumstances, in our companysidered view such identification simplicitor cannot form the basis or be taken as the fulcrum for the entire case of prosecution. The suspicion expressed by PW 8 Saraswati Singh was also number enough to record the finding of guilt against the appellant. We therefore grant benefit of doubt to the appellant and hold that the prosecution has failed to establish its case against the appellant. Mr. Mrinal Kanti Mandal, learned Advocate is right in submitting that in certain cases this Court had granted benefit even to a number- appealing accused. | 1 | test | 2017_14.txt | 1 |
Dr. B. S. CHAUHAN, J. This appeal has been preferred against the impugned judgment and order dated 2.5.2003, passed by the High Court of Judicature at Allahabad in Civil Misc. Writ Petition No. 749 of 2003, by way of which the High Court has allowed the writ petition quashing the order of the State Government by which the Public Distribution System hereinafter called as PDS through the Gram Panchayats had been withdrawn. Facts and circumstances giving rise to this appeal are The PDS was formulated for urban rural companysumers with the objective of monitoring the supplies of food grains and other essential companymodities, of securing their equitable distribution and availability at the fair price, and of stabilising the prices of the essential companymodities in the open market. With these objectives in mind, various schemes were prepared to help the beneficiaries, such as Annapurna Anna Yojana, Antyodaya Ann Yojana, BPL, etc. In order to achieve the aforesaid objectives, the Government of India, in exercise of its power under Section 5 of the Essential Commodities Act, 1955 hereinafter referred to as the EC Act , issued Notification dated 9.6.1978 delegating the power to the State Governments to pass orders specifying certain companyditions pertaining to the PDS. In pursuance of the said instrumental delegation, the State Government passed the Uttar Pradesh Scheduled Commodities Distribution Order, 1990 hereinafter called as Order 1990 on 3.7.1990. The said Government Order in short G.O. companyferred the power on the District Magistrate or an authority designated by him to grant cancel the licenses for Fair Price Shops. In view of the 73rd Constitutional Amendment Act, w.e.f. 14.4.1993, a three-tier system of Panchayats Gram Panchayat at the village level, Kshetriya Panchayat at the block level, and Zila Panchayat at the district level was established. In the State of U.P., the Gram Panchayat is governed by the U.P. Panchayat Rajya Act, 1947 hereinafter called as U.P. Act 1947 the Kshetriya Panchayat and Zila Panchayat are governed by the U.P. Kshetriya Panchayats and Zila Panchayats Act, 1961 hereinafter called as Act 1961 . The said Acts were amended by U.P. Act No. 9/94, by which the work of distribution of such food grains was assigned to Kshetriya Panchayats, w.e.f. 22.4.1994. The Government of U.P. issued an order dated 10.8.1999, companyferring the power to allot and cancel the fair price shops in rural areas, with certain guidelines, on the Gram Panchayats. As there had been numberproper distribution, and companysidering the companyplaints, the Government withdrew the order dated 10.8.1999 vide G.O. dated 13.1.2000 and reinforced the earlier policy dated 3.7.1990. The Central Government, in exercise of its power under Section 3 of the EC Act, issued an order dated 31.8.2001, namely, Public Distribution System Control Order, 2001 hereinafter referred as Order 2001 for maintaining supplies and securing availability and distribution of essential companymodities under the PDS, and therein delegating all its powers in this regard to the State Governments. In pursuance thereof, the State of U.P. also issued a G.O. dated 28.10.2001, designating the officers of the District level, viz., District Magistrate, Sub-Divisional Magistrate, District Supply Officer to ensure the proper supply and distribution of such companymodities. In view of the provisions of Article 243-G of the Constitution of India, 1950 hereinafter called Constitution , the Government of P. issued G.O. dated 17.8.2002, providing for the implementation of the reservation policy in favour of persons belonging to Scheduled Castes Scheduled Tribes Other Backward Classes and further for horizontal reservation for women, handicapped persons, etc., and for the allotment of fair price shops in the rural areas to them under PDS. Zila Parishad, Ghaziabad, Respondent No.1, filed the writ petition before the Allahabad High Court challenging the order dated 13.1.2000, i.e., order of withdrawal of the distribution from the Gram Panchayats, on the ground that, in view of the provisions of Sections 32 and 33 of the Act 1961, PDS companyld only be assigned to the Kshetriya and Zila Panchayats. Furthermore, direction was sought to quash the existing public distribution system of essential companymodities in rural areas under the impugned G.O. dated 13.1.2000, read with G.O. dated 3.7.1990. Direction was also sought for further mandamus to the State Government to companyfer the power to deal with the essential companymodities to the Zila Panchayats for the purpose of distribution in rural areas with the companyoperation of Kshetriya Panchayat and Gram Panchayat. The said writ petition was opposed by the State Government. However, it has been allowed vide impugned judgment and order. Hence, this appeal. Before taking up the appeal on merit, it may be necessary for this Court to deal with the procedural requirement in filing the writ petition and appeal. In fact, in view of the instrumental delegation by the Central Government, the State Government had companyferred the power to grant and cancel the licence of fair price shops to the Gaon Sabha, and it had never been companyferred upon the Kshetriya Panchayat or Zila Panchayat. Power to deal with PDS by Gram Panchayat was withdrawn by the State of U.P. vide order dated 13.1.2000. Respondent, Zila Parishad filed writ petition for quashing of the order dated 13.1.2000, though by numberstretch of the imagination the said respondent No.1 companyld claim itself to be an aggrieved party. In fact, it had numberlocus to challenge the said order of withdrawal dated 13.1.2000. The State of U.P. and a few District Officials were impleaded as respondent No.1 before the High Court. None of the Gram Panchayats was party to the said petition. The High Court reached its decision on the legal issues, without companysidering the locus standi of Zila Parishad, respondent No.1. The High Court came to the companyclusion that the power of dealing with PDS companyld be companyferred only on Kshetriya Panchayat. Neither Zila Panchayat number the Gaon Sabha number the District Collector companyld be assigned the said job. However, Respondent No.1, Zila Panchayat has number preferred any appeal against the impugned judgment and order. None of the Gram Panchayats which were aggrieved by the order of withdrawal dated 13.1.2000 had ever approached any companyrt for any relief whatsoever. Be that as it may, the appeal is pending since 2003, and this Court has stayed the operation of the impugned judgment and order. Subsequently, a large number of developments have taken place, and this Court had issued numberice to the Union of India. Ms. Indra Jaisingh, learned ASG, appearing for the Union of India, submitted that Article 243-G is merely an enabling provision and number a source of power. The Union of India has delegated its power to the Government of U.P. to designate authority to implement PDS. Therefore, it is open to the Government of U.P. to appoint either the Kshetriya Panchayat or the District Collector or any other authority for the said purpose. In view of the fact that the Kshetriya and Zila Panchayats are also eligible and capable of carrying out the duty, it is for the Government of U.P. to designate the said authority, either one of them or someone else, but unless such designation is made in favour of either of them, numbere of them can claim it as a matter of right. The High Court erred in allowing the writ petition filed by Respondent No.1 without taking the aforesaid averments into companysideration. Thus, the appeals deserve to be allowed with a clear stipulation that in case the State allocates the work to Kshetriya Panchayat or Zila Panchayat, the respective panchayat may carry out the same. Mr. Ratnakar Dash, learned senior companynsel appearing for the State of U.P. has adopted the submissions made by Ms. Indra Jaisingh, learned ASG, and further companytended that writ petition would number have been entertained by the High Court for want of necessary parties. The Government of U.P. was companypetent to withdraw the allocation made in favour of the Gram Panchayat. None of the Gram Panchayats had ever approached the companyrt for any relief. The judgment and order impugned is liable to be set aside. Per companytra, Mr. Ashok Mathur, learned companynsel appearing for Respondent No.1 has submitted that if the submissions advanced on behalf of the appellants are accepted, the amendment in the Constitution introducing the Articles 243-G and 243-N become meaningless. The said amendment had been made for the purpose of decentralisation of power and thus the High Court reached the companyrect companyclusion in regard to giving effect to the legislative intent of decentralisation of power and companyferring the PDS to the local authorities who companyld better cater to the needs of the poor people. Thus, the appeal is liable to be dismissed. We have companysidered the rival submissions made by learned companynsel for the parties and perused the record. The U.P. Act 1947 is referable to Entry 5 of List II of the Seventh Schedule to the Constitution and Section 15 of the Act lays down the powers and functions of the Gram Panchayats. The Central Government enacted the EC Act under Entry 33 b of List III of the Seventh Schedule to the Constitution. Section 32 of the Act 1961 lays down the powers and functions of the Kshetriya Panchayats and enumerates the same in Schedule I thereof. Section 33 further lays down the powers and functions of Zila Panchayats and enumerates the same in Schedule II thereof. The Central Government by issuing Notification dated 9.6.1978 delegated its power under the EC Act to the State Governments. In view thereof, the State of U.P. issued the Order dated 3.7.1990, and clause 3 thereof provided for setting up fair price shops. The 73rd Amendment to the Constitution came into effect on 24.4.1993 and, as a companysequence of such amendment, the Eleventh Schedule was added to the Constitution Item No. 28 of the said Schedule refers to PDS. To give effect to the 73rd Amendment, the P. Act 1947 and the Act 1961 were amended on 22.4.1994 by the State Government, creating certain enabling provisions for those Kshetriya and Gram Panchayats. The Government of U.P. vide its order dated 10.8.1999 empowered the Gram Panchayats with regard to PDS with certain guidelines for allotment of fair price shops, administration, supervision and monitoring thereof. However, the said order had been withdrawn by the State Government vide its order dated 13.1.2000. The Central Government, in exercise of its power under EC Act, issued an order dated 31.8.2001 providing for identification of families below the poverty line, and empowering the State Governments to issue ration cards to them under certain schemes. The Central Government companymitted itself to supply the food grains to the State Governments for that purpose, and the State Governments were given power of monitoring the PDS, including the functioning of fair price shops. Clause 7 thereof dealt with licensing of fair price shops which reads as under State Government shall issue an order under Section 3 of the EC Act for regulating the sale and distribution of essential companymodities. The licences to the fair price shops owner shall be issued under the said order and shall lay down the duties and responsibilities of the fair price shops owner. The responsibilities and duties of fair price shops owner shall include, inter-alia, . Clause 6 provides for monitoring, and Clause 7 thereof provides that State shall appoint the appellate authority for the purpose of its order. Pursuant to the said order, the State of U.P. issued a O. dated 28.12.2001, providing guidelines in tune with the PDS order by which it was the District Magistrate who was assigned the duty to ensure that food grains acquired by ration shop keepers reached the shops and were distributed. The Government of U.P. issued another G.O. dated 17.8.2002, providing reservation in allotment of fair price shops in companyformity with Article 243-G of the Constitution, which had a provision for reservation of vacant shops for Scheduled Castes, Scheduled Tribes and Other Backward Classes. The High Court allowed the writ petition filed by Respondent No.1 on the ground that matters listed in the Eleventh Schedule to the Constitution included the PDS as Item No. 28 and, therefore, the entire PDS companyld number be carried by G.O.s issued under the EC Act. The High Court found that the delegation of authority to the District Magistrate was number in companysonance with Article 243-G of the Constitution and the laws made thereunder were absolute. In view of the companystitutional amendment, it was number open to the State Government to assign companyfirm such powers upon the District Magistrate. It may also be pertinent to mention here that during the pendency of these appeals the Central Government issued the Public Distribution Control Amendment Order, 2004 to amend the Order 2001. As a companysequence thereof, the State of U.P. passed the U.P. Scheduled Commodities Distribution Order 2004. Clause 4 thereof reads Running of fair price shops- A fair price shop shall be run through such person and in such manner as the Collector subject to the directions of the State Government may decide A person appointed to run a fair price shop under sub- clause i shall act as the agent of the State Government and iii A person appointed to run a fair price shop under sub- clause i shall sign an agreement, as directed by the State Government regarding running of the fair price shops as per the draft appended to this order before the companypetent authority prior to companying into effect of the said appointment. Clause 21 thereof provides for monitoring in accordance with the order issued by the State Government. The powers of entry search and seizure have also been companyferred upon the companypetent authority. Clause 28 thereof provided for the provisions of appeal before the Divisional Commissioner, and Clause 30 provided for the savings which reads as under Any act performed under the provisions of the Order 1990, which is hereby repealed prior to the companymencement of this order shall be deemed to have been validly performed under the provisions of this order. Clause 31 thereof provided that this order would prevail over the previous orders of the State Government. Article 243-G of the Constitution reads Subject to the provisions of this Constitution, the Legislature of a State may, by law, endow the Panchayats with such powers and authority as may be necessary to enable them to function as institution of self government and such law may companytain provisions for the devolution of powers and responsibilities upon Panchayats at the appropriate level, subject to such companyditions as may be specified therein, with respect to a the preparation of plans for economic development and social justice. b the implementation of schemes for economic development and social justice as may be entrusted to them including those in relation to the matters listed in the Eleventh Schedule. Emphasis added The High Court has companysidered the nature of the aforesaid Constitutional provision and held as under In our opinion, this provision is only an enabling provision, it enables the Legislature of a State to endow the Panchayats with certain powersHence, the Legislature of a State is number bound to endow the Panchayats with the powers referred to Article 243-G, and it is in its discretion to do so or number. At any event there is numbermention of the public distribution system in Article 243-G of the Constitution. Thus, it is evident that the High Court has taken a view that the provision of Article 243-G is merely an enabling provision, and it is number a source of legislation. This view seems to be in companysonance with the law laid down by this Court in U.P. Gram Panchayat Adhikari Sangh Ors. v. Daya Ram Saroj Ors., 2007 2 SCC 138, wherein an observation has been made that Article 243-G is an enabling provision as it enables the Panchayats to function as institutions of self- government. Further, this Court numbered that such law may companytain provisions for the devolution of powers and responsibilities upon Panchayats, subject to such companyditions as may be specified therein, with respect to the implementation of schemes for economic development and social justice as may be entrusted to them, including those in relations to the matters listed in the Eleventh Schedule. The enabling provisions are further subject to the companyditions as may be specified. Therefore, it is for the State Legislature to companysider companyditions and to make laws accordingly. It is also open to the State to eliminate or modify the same. Therefore, it is apparent that Article 243-G read with Eleventh Schedule is number a source of legislative power, and it is only an enabling provision that empowers a State to endow functions and devolve powers and responsibilities to local bodies by enacting relevant laws. The local bodies can only implement the schemes entrusted to them by the State. Be that as it may, there is numberchallenge by the respondent No.1 to the aforesaid view taken by the High Court, therefore, there is numberoccasion for us to companysider the issue any further. At this juncture, Ms. Indra Jaisingh, learned ASG has submitted that the High Court has recorded the finding that the impugned G.Os. Government Orders dated 3.7.1990 and 13.1.2000 are ultra vires to clause 28 of Schedule 1 of the Act, 1961, since the said orders companyferred the powers to deal with the essential companymodities upon the District Magistrate and Sub-Divisional Magistrate though such powers companyld be companyferred only upon the Kshetriya Panchayats, without companysidering the efficacy of provisions of Article 254 of the Constitution which provide that if the Central Legislation is occupying a field, any law made by the State which is inconsistent or in companyflict with the Central law would be void. In support of her submissions, the learned ASG has placed a very heavy reliance upon the judgments of this Court in M s. Fatehchand Himmatlal Ors. v. State of Maharashtra, AIR 1977 SC 1825 A.B. Krishna Ors. v. State of Karnataka Ors., AIR 1998 SC 1050 Dharappa v. Bijapur Coop. Milk Producers Societies Union Ltd. 2007 9 SCC 109 and Offshore Holdings Private Limited v. Bangalore Development Authority Ors., 2011 3 SCC 139 wherein the companycept of repugnancy and doctrine of occupied field had been fully explained. Whatever may be the merit of the case, the issues raised before this Court have neither been agitated before the High Court number the same have been companysidered. There are numberproper pleadings in respect of the said issues. No factual foundation had been laid down by any of the parties to deal with such issues number the necessary proper parties are before us. More so, the judgment and order impugned before us was passed by the High Court about one decade ago. Subsequent to the said judgment, many developments had taken place and a large number of orders have been passed by the Central Government as well as by the State of U.P. Thus, in view of the same, it is neither desirable number permissible for us to examine the issues raised by learned ASG at this stage and we do number think it proper to enter into the said companytroversy. As explained hereinabove, the writ petition had been filed by the respondent number1 without having any locus standi number it companyld claim to be a person aggrieved of the order of the Government dated 13.1.2000, withdrawing the order dated 10.8.1999 companyferring the power to allot and cancel the fair price shops in rural areas on the Gran Panchayats. The writ petition was filed in 2003 after a delay of 3 years. The writ petition was liable to be dismissed on the ground of delay and laches. Respondent number1 companyld number maintain the writ petition as it companyld number be aggrieved of the Government Order dated 13.1.2000. | 1 | test | 2013_101.txt | 1 |
Rajendra Babu, J. The respondents, who are companytract casual workers, filed a writ petition before the High Court companytending that in view of the order of the High Court dated August 13, 1993 in FMAT No. 3614 of 1992, they are entitled to wages on par with class IV employees of the appellant and sought for directions to make such payment as per the pay revised from time to time. The appellant opposed the claim made in the writ petition on the ground that against the order of the Calcutta High Court in FMAT No. 3614 of 1992, an appeal by special leave was filed before this Court which was disposed of with certain observations. The order of the High Court in FMAT No. 3614 of 1992, having merged in the order of this Court and this Court having number specifically stated that the wages payable to the respondents would be on par with class IV employees of the appellant, the payment of wages as claimed by the casual workers is untenable. The learned Single Judge of the High Court analyzing the order of the High Court in FMAT No. 3614 of 1992 and the order of this Court companycluded that this Court having affirmed the reasoning of the division bench and there is numberconflict thereto. The appellant appears to be piqued by the fact that the casual workers have to be paid at the enhanced wages of the class IV workers and they have numberobjection to pay at the old rates at which they had been paid. The companytention that the casual workers cannot be put on par with the workers in the regular service was number allowed to be raised in view of the fact that the issue had been determined finally between the parties inter se, by the orders made in the earlier proceedings. Thus, the learned Single Judge allowed the writ petition. In the writ appeal against this order, the arguments advanced before the learned Single Judge were reiterated. The division bench again examined the companytentions of the appellant with reference to the orders of the High Court and of this Court in the earlier proceedings and held that the view taken by the learned Single Judge is justified and did number interfere with the same except to reduce the period for companypliance. In this appeal, the learned Counsel for the appellant submitted that a careful analysis of the reasoning of this Courts order would indicate that what was observed was that there should be numberdisparity between the different kinds of casual workers and numberother reasoning had been given in the said order and inasmuch as the payments had been made on a certain basis, that position was number disturbed, which means that they would number be entitled to enhanced payments given to the class IV employees. It is submitted that there has been numberenquiry at all as to the parity between the class IV employees and the casual workers. We will examine each of these companytentions. On the earlier occasion, materials had been placed before the companyrt in the shape of a letter sent by Shri S.N. Singh, Officer on Special Duty, Labour Department Government of West Bengal, to the following effect I am directed to refer to your letter No. F/34/18/5/79 dated 1-6-1979 on the above subject and to say that minimum rates of wages in respect of office establishments employees have number yet been fixed under the Minimum Wages Act, 1948. There is, therefore, numberstatutory minimum rates of wages for such employees. The minimum rates of wages fixed under the Minimum Wages Act, 1948 for employees employed in organised sector are allowed to persons employed either as a badly or on casual or temporary basis. The rate is for the job and number for the person. The nature of the employment does number in any way influence the rates of wages of casual and temporary workmen even in Government undertaking and establishment. On the basis of the aforesaid principle the daily rate of casual workers should be l/26th of the monthly wages of class IV employees. With regard to the nature of the work performed by the respondents as casual workers, the Assistant Department Manager of the appellant at Bankura issued the following certificate Certified that 59 casual labourers are working under M.R.M. F.S.D. Bikna since 1976. The said casual labourers doing the job of Fumigation Brushing Dusting spraying etc. which are actually the work of class IV staff. They are doing their job with satisfaction of F.C.I. and they have gathered sufficient knowledge about the work they person as stated above. The letter of the Labour Department and the certificate issued by the Assistant Department Manager of the appellant at Bankura are in companyformity with Rule 25 2 v a of the Central Rules framed under Contract Labour Regulation and Abolition Act, 1970. These two materials clearly indicate that the respondents were doing the job, which is on par with the work of class IV employees. Further the wages to be payable to them on daily rate would be I /26th of the monthly wages of the class IV employees. These materials were available before the High Court at the time of disposal of FMAT No. 3614 of 1992 and at the time when an interim order was granted in yet another proceeding wherein this principle was adopted. Therefore, the grievance sought to be made out by the learned Counsel for the appellant that there has been numberinquiry as to parity with regard to class IV employees and the wages payable to the casual workers is palpably incorrect and is number borne out by record at all. This Court on the earlier occasion, after setting out certain principles that there should be numberdistinction amongst different classes of workers, observed as under We are satisfied that in the facts and circumstances of the present case, numberinterference is called for by this Court. We, however, make it clear that we are number adjudicating in respect of any other right to claim of the respondents. Accordingly, the appeal is dismissed. But in the facts and circumstances of the case should be numberorder as to companyts. Further, the High Court had given a finding that since some casual workers appointed directly by the appellant and some employed by the companytractors are working in the same godown and on the same work, there companyld number be any scope for making any difference and to deny equal pay for equal work. Proceeding further it was stated that on the principles set out earlier with reference to the letter of the Labour Department, the wages will have to be paid regularly to the respondent at the same rate at which it was paid to the regular employees of the appellant doing identical work which has to be worked out on daily rate basis from March, 1989. | 0 | test | 2000_1559.txt | 1 |
Leave granted. Respondent 1 Insurance Company is represented by its companynsel. It is the main companytesting respondent. Respondent 2 is served and he has number chosen to companytest this proceeding. In our view, the order of the High Court challenged in this appeal cannot be sustained for obvious reasons. The breadwinner in the family, Kumari Nalini Nayak who was maintaining her old mother and blind brother met with a motor accident and got killed on 22-6-1984. The result was that the appellant-claimants were left destitutes. They filed a claim petition before the Motor Accidents Claims Tribunal claiming a total companypensation of Rs 2 lakhs. On adjudication of the claim the Tribunal awarded a sum of Rs 1,32,000 as companypensation. An appeal was filed by the Insurance Company as well as the owner of the truck who was Appellant 2 before the High Court and who is Respondent 2 before us. The High Court in the said appeal reduced the companypensation to Rs 1 lakh. In our view the said decision of the High Court cannot be sustained. Kumari Nalini Nayak who was the breadwinner of the family was drawing a salary of Rs 1767 at the time of her death. She had a lucrative earning career before her if she had number died prematurely. Under these circumstances, companysidering her future economic prospects if she would number have died, at least Rs 1000 per month would have been made available to the claimants i.e. the old mother and blind brother as Kumari Nalini Nayak was a spinster and she had decided number to marry in order to support her old mother and blind brother. Thus, applying multiplicand of Rs 1000 per month substantial amount would have been available to the claimants even beyond Rs. 1,32,000 as awarded by the Tribunal. However, the claimants were satisfied with the amount of Rs 1,32,000 and they had number filed any cross-appeal or cross-objection against the order of the Tribunal. Under these circumstances, we fail to appreciate as to how the High Court felt satisfied in reducing the companypensation amount of Rs 1,32,000 as awarded by the Tribunal to Rs 1 lakh, Only on this, short ground the companypensation amount of Rs 1,32,000 awarded by the Tribunal to the claimants is restored. | 1 | test | 1998_83.txt | 1 |
Leave granted. The respondent is an Executive Engineer working in the Department of Water Resources of the appellant-Government. He worked as Assistant Engineer from 3.6.89 to 25.7.92 at Bhopal and after a short spell of six months again he was transferred to Bhopal in the promoted post of Executive Engineer and he companytinued at Bhopal from 19.10.92 to 9.7.93. The Department initiated orders of transfer at the instance of the Chief Engineer. The respondent came to be transferred from Bhopal to Jagdalpur vide proceedings dated 9.7.93. He challenged the companyrectness thereof by filing A.No.489/93 before the Administrative Tribunal at Bhopal. The Tribunal by its order dated 7.8.93 allowed the application, quashed the order of transfer and directed that it would be open to the Government to pass appropriate orders for transfer on the administrative grounds as per rules and law. It has also directed that the respondent would number be transferred during the period of ban. Calling in question the above order, this appeal, by special leave, came to be filed. The main ground on which the Tribunal quashed the order of transfer was that since there was a ban imposed for transfer of the officers during the period of Presidents Rule until prior approval of the Governor was obtained which was number done in this case. Therefore, the transfer without such approval is bad in law. The learned companynsel appearing for the State has placed before us the proceedings of transfer initiated in File No.3 B /160/93/P/31 which would show that on the recommendation made by the Chief Engineer, the respondent was proposed to be transferred as Executive Engineer from Hydromateorology Division at Bhopal to the office of the Supdtg. Engineer, W.R.Circle, Jagdalpur in a vacant post. When it was submitted to the Secretary, after giving approval, the Secretary despatched the file to the Advisor to the Governor. The Adviser to the Governor has given his approval on 9.7.93 and on the same day the orders of transfer came to be issued. It is companytended for the respondent that the respondent had already worked at Jagdalpur from 1982 to 1989 and when he was transferred to Bhopal, there was numberjustification to retransfer him again to Jagdalpur. We cannot appreciate these grounds. The companyrts or Tribunals are number appellate forums to decide on transfers of officers on administrative grounds. The wheels of administration should be allowed to run smoothly and the companyrts or tribu- nals are number expected to interdict the working of the administrative system by transferring the officers to proper places. It is for the administration to take appropriate decision and such decisions shall stand unless they are vitiated either by malafides or by extraneous companysideration without any factual background foundation. In this case we have seen that on the administrative grounds the transfer orders came to be issued. Therefore, we cannot go into the expediency of posting an officer at a particular place. It is next companytended that the approval of the Governor is a companydition precedent. Unless the Governor gives his ap- proval, the order of transfer is bad in law. We find numberforce in the companytention. Under the business rules the powers of the Governor during emergency would be delegated to various officers to be exercised on his behalf, We have seen the proceedings that the papers have been placed before the Adviser A.S. . Obviously, the Adviser A.S. had been given power to appeal all the orders of transfer and the Administrator had given his approval on 9.7.1993. When he had given his approval, it should be deemed that he acted on behalf of the Governor in exercising the statutory powers. Therefore, it is number necessary that the Governor should personally sign the orders. Under the business rules only files in certain cases will be submitted to the Governor for his personal companysideration but number all matters of administrative routine. In this -view, the transfer order being an administrative routine, delegation has been made to the adviser A.S. . Therefore, the order of transfer is perfectly legal and valid. It is further companytended that in an unfortunate situation the respondents wife companymitted suicide leaving three children and he would suffer extreme hardship if has to work in the tribal area. This companyrt cannot go into that question of relative hardship. | 1 | test | 1995_2.txt | 1 |
A. BOBDE, J. This appeal is directed against the judgment dated 01.09.2010 of the Delhi High Court in Criminal Appeal No.232 of 1997 filed by the appellant-Suresh Singhal against his companyviction and the sentence awarded to him. The appeal filed by the State seeking death penalty for the appellant and against the acquittal of Roshal Lal was dismissed by the High Court in Criminal Appeal No.226 of 1997. THE INCIDENT The appellant was prosecuted for the incident that occurred on the 04.03.1991 at about 5.15 pm. The deceased-Shyam Sunder and Kishan Lal, both brothers, were killed in the incident at the office of Lala Harkishan Dass located at Rajendra Park, Nangloi. The statement of Lala Harkishan Dass was recorded. He had arranged a meeting for settling a dispute that had arisen between the appellant and the deceased. The appellant had apparently agreed to sell a property through a property dealer, namely the deceased-Shyam Sunder. The purchasers were the Gurdaspur Party. Apparently there was some misunderstanding between the parties and eventually a meeting was arranged at the office of Lala Harkishan Dass. The deceased-Shyam Sunder and his two brothers Hans Raj and Kishan Lal were already at the office of Lala Harkishan Dass. The appellant-Suresh Singhal and his father Pritpal Singhal accompanied by another man Roshan Lal reached the office at about 5.00 pm. As soon as they entered the office, there was an altercation between the appellant and the deceased. The appellant took out his revolver and shot Shyam Sunder. Thereafter, the appellant and his father Pritpal Singhal who had companye to the office in a car, left the car behind and fled the place in the car of another visitor. In the incident Shyam Sunder and Kishan Lal were killed. The Sessions Court companyvicted the appellant for the murder of Shyam Sunder under Sections 302 and 304 read with Section 34 of Indian Penal Code hereinafter referred to as IPC for the murder of Kishan Lal. His companyappeallant-Pritpal Singhal who died on 28.03.2007, during the pendency of the suit was also companyvicted under Section 307 read with Section 34 of IPC for attempting the murder of Hans Raj. The third accused Roshan Lal was acquitted. WITNESSES TO THE SHOOTING The actual shooting was claimed to have been witnessed by Lala Harkishan Dass PW-2 , Hans Raj PW-3 and Raj Kumar PW-4 . Lala Harkishan Dass PW-2 was declared hostile. Hans Raj PW-3 is the injured eye-witness, and the brother of the deceased-Shyam Sunder. Two distinct versions about the actual shooting have arisen from the deposition of the witnesses. One version is that there was numberscuffle before which the appellant fired at the deceased. The other is that there was a scuffle in which the appellant was attempted to be strangulated. NO SCUFFLE The first version is mainly deposed to by Hans Raj PW-3 . Hans Raj is the brother of the deceased. He went to the office of Lala Harkishan Dass where the parties had decided to meet to resolve the dispute. He deposed that the moment the deceased entered the room, the appellant asked his brother-the deceased, to tell him what had happened yesterday. The deceased got up and responded to it by asking the appellant whether he had companye to settle the dispute or to quarrel. The appellant said that there wont be any quarrel but something different would happen. This witness said that he then took out a revolver from his companyt pocket and fired at my brother-Shyam Sunder. This is all that the witness stated about the actual shooting. Thereafter this witness stated that he tried to catch hold of the appellant but the appellant exhorted his father to finish all the brothers. Thereafter, Pritpal Singhal took out a revolver from his pocket and both the appellant as well as Pritpal Singhal started firing at him and his brother-Kishan Lal. In the firing he was injured and received one bullet in his stomach. This version significantly does number speak of any scuffle preceding the shooting. In the cross-examination later on, he specifically stated in the cross-examination that there was numberscuffle in which the deceased tried to strangulate the appellant. This witness thus clearly stated that the appellant shot the deceased as soon as he rose. The narration of this witness is significant since he suggests that the deceased was sitting when the appellant entered the room and after a menacing exchange of words, shot the deceased as soon as he got up. Another witness Tarsem Kumar P.W. 30 stated in his deposition that at that time, Shyam Sunder was sitting by my side on a sofa and he said that he has been shot at with a bullet. I did number hear anything except this. I did number even hear the numberse of firing. PW-30 in his deposition suggests that the appellant shot him from the front as he got up. This throws a doubt on the credibility of this witness because the entry wound of the bullet is on the back of deceased, and number in the front. Thus we are number inclined to accept the narration of PW-30 and PW-3, who have both stated that the appellant fired at the deceased from the front. SCUFFLE The other version deposed by Subhash Chand Mahajan PW-23 and Sarover Kumar PW-27 is that there was a scuffle between the three brothers i.e. deceased-Shyam Sunder, Kishan Lal and Hans Raj on one hand, and the appellant-Suresh Singhal on the other hand. The deceased tried to strangulate the appellant as they fell during the struggle, and thereafter pulled out his gun and shot the deceased. He then exhorted his father to shoot the others. Subhash Chand Mahajan PW-23 stated in his cross examination that he saw the appellant on the floor being strangulated. The witness stated that there was a scuffle and thereafter a shot fired. The other witness Sarover Kumar PW-27 belongs to the Gurdaspur Party and as such is number a direct party to the dispute between the appellant and the deceased. He stated that immediately after the appellant- Suresh Singhal and Pritpal Singhal arrived, there was a scuffle between the appellant-Suresh Singhal on one hand and the three brothers including the deceased-Shyam Sunder on the other. He deposed that there were shouts of Chhodo Chhodo during the scuffle and then the deceased-Shyam Sunder cried Hai Mujhe Goli Lag Gayi i.e. I have been shot. He stated that he immediately ran out of the side gate along with the other persons and hid behind the cement bags. The testimony of this witness has remained unshaken in cross-examination. In fact in cross-examination, the witness stated that a scuffle took place within the twinkling of an eye after the appellant and the others entered the office. The stark difference between the two versions is that of the scuffle preceding the incident of the shooting. Whether there was a scuffle or number determines the tenability of the main submission advanced by Mr. Sushil Kumar, the learned senior companynsel, that the appellant acted in the exercise of his right of private defence and shot the deceased. It may be numbered that, both the Sessions Court and the High Court have found that there was a sudden fight in the companyrse of which a companymon intention developed between the appellant and his father to cause the death of the deceased-Shyam Sunder and Kishan Lal. Having closely examined the evidence, we are of the view that in fact a scuffle did take place. In this scuffle, Shyam Sunder alone, or along with his two brothers tried to strangulate the appellant-Suresh Singhal. The appellant reached for his revolver, upon which the deceased released him and turned around to run away. At this point the appellant shot at him, either still lying down or having got up. This probablizes and explains the fact that it was number a close shot and that the bullet entered the body below the right shoulder of the deceased at the back and travelled upwards. NOT A CLOSE SHOT The shot in question was obviously number a close shot. There was numberblackening, tattooing or charring around the bullet entry wound. In fact, the doctors specifically stated that the shot was fired from a distant range. It is well known that the shooting from close quarters chars or blackens the body. It would be germane to quote from Modis Textbook of Medical Jurisprudence and Toxicology 25th Edition . p. 631 with reference to the above- When there is a close shot that is in the range of powder blast and the flame is within one to three inches, for small arms there is a companylar of soot and grease if present on the bullet around the circular wound of entry. Singed hairs may be seen if the body is number companyered with clothing. Partially burnt and unburnt grains of powder are blasted into the skin causing a tattooing which cannot be easily wiped off. Wadding, pieces of clothing or other debris may be found lodged in the wound. The entry wound of a revolver fired very near or in companytact with the skin is generally stellate or cruciform in shape instead of being circular. When it is fired beyond a distance of 12 inches, there are numberpowder marks of soot or heat effects around the wound. If the revolver is fired close to the skin but held at an angle, the smudging and tattooing is limited only to one side of the bullet hole. The wound of exit is often larger than the wound of entrance, and its edges are irregular and everted, but free from scorching and tattooing. The statement of the doctor that it was shot from a distant range has number been challenged in the cross-examination. There is another reason which lends credence to the assumption that the shot was number fired from close quarters, and that is the fact that the bullet did number exit the body. Indeed this happens when the bullet being fired from a distance loses its velocity. We have made these observations to support the inference that there is numberreliable evidence to show that the appellant shot the deceased at close quarters when he was being strangulated. The shot was in all probability fired when the deceased released the appellant during the scuffle, and on seeing him reach for his gun moved away to escape after turning around. RECOVERY AND BALLISTIC EXPERT REPORT We must at this stage advert to the recovery from the scene and the ballistic expert report. Altogether 7 bullets were fired, and numberempty cartridge cases were recovered from the scene of the crime. One empty .32 bore Smith Wesson revolver was recovered from Suresh Singhal. One .32 bore Smith Wesson revolver was recovered from Pritpal Singhal. One .22 HP rifle and nine empty cartridges were also recovered from the roof of Pritpal Singhals house. One .32 bullet was taken out from the body of deceased-Shyam Sunder. Three .32 bullets were recovered from the body of deceased Kishan Lal. The appellant and his father both had licensed revolvers but the forensic report does number definitely disclose that the bullets came from the licensed guns belonging to the appellant and Pritpal Singhal. Products of companybustion of cartridge powder were detected only in the barrel of the .32 revolver recovered from Pritpal Singhal. Products of companybustion of cartridge powder companyld number be detected in the barrel of the revolver recovered from the appellant or the .22 HP rifle. All the .32 cartridge cases were found to have been fired from a single .32 calibre fire arm, but numbere of them from any of the two .32 revolvers which were seized. The .32 lead bullet recovered from the body of deceased was fired from .32 calibre fire arm. The reports states that this bullet companyld have been fired from the revolver seized from Pritpal Singhal, and number from the revolver seized from the appellant. However, a definite opinion was number given for the want of sufficient characteristic marks on the crime bullets. The three bullets recovered from the body of Kishan Lal companyld number be linked with any of the .32 revolvers seized. The ballistic expert report shows that numbere of the bullets were recovered from the .32 weapon seized from the appellant. It is thus number possible to determine the weapon that was used by the appellantSuresh Singhal. PRIVATE DEFENCE With regard to the evidence that the appellant was being assaulted and in fact attempted to be strangulated, it needs to be companysidered whether the appellant shot the deceased in the exercise of his right of private defence. Such a right is clearly available when there is a reasonable apprehension of receiving the injury. The right of private defence is companytemplated by Section 97 of IPC which reads as follows- Section 97. Right of private defence of the body and of property. Every person has a right, subject to the restrictions companytained in section 99, to defend First His own body, and the body of any other person, against any offence affecting the human body Secondly The property, whether movable or immovable, of himself or of any other person, against any act which is an offence falling under the definition of theft, robbery, mischief or criminal trespass, or which is an attempt to companymit theft, robbery, mischief or criminal trespass. In Darshan Singh vs. State of Punjab and Another1, this companyrt laid down the following principles which emerged upon the careful companysideration and scrutiny of a number of judgments as follows- The following principles emerge on scrutiny of the following judgments Self-preservation is the basic human instinct and is duly recognised by the criminal jurisprudence of all civilised companyntries. All free, democratic and civilised companyntries recognise the right of private defence within certain reasonable limits. The right of private defence is available only to one who is suddenly companyfronted with the necessity of averting an impending danger and number of self-creation. A mere reasonable apprehension is enough to put the right of self- defence into operation. In other words, it is number necessary that there should be an actual companymission of the offence in order to give rise to the right of private defence. It is enough if the accused apprehended that such an offence is companytemplated and it is likely to be companymitted if the right of private defence is number exercised. The right of private defence companymences as soon as a reasonable apprehension arises and it is companyerminous with the duration of such apprehension. It is unrealistic to expect a person under assault to modulate his defence step by step with any arithmetical exactitude. In private defence the force used by the accused ought number to be wholly disproportionate or much greater than necessary for protection of the person or property. It is well settled that even if the accused does number plead self- defence, it is open to companysider such a plea if the same arises from the material on record. The accused need number prove the existence of the right of private defence beyond reasonable doubt. The Penal Code companyfers the right of private defence only when that unlawful or wrongful act is an offence. A person who is in imminent and reasonable danger of losing his life or limb may in exercise of self-defence inflict any harm even extending to death on his assailant either when the assault is attempted or directly threatened. Having regard to the above, we are of the view that the appellant reasonably apprehended a danger to his life when the deceased and his brothers started strangulating him after pushing him to the floor. As observed by this Court a mere reasonable apprehension is enough to put the right of self-defence into operation and it is number necessary that there should be an actual companymission of the offence in order to give rise to the right of private defence. It is enough if the appellant apprehended that such an offence is companytemplated and is likely to be companymitted if the right of private defence is number exercised. It was argued by Mr. P.K. Dey, learned companynsel for the State, that the deceased and his brothers were unarmed and there was numberneed for the appellant to have used the gun. Given the fact that the deceased and the others were attempting to strangulate the appellant, it would have been unrealistic to expect the appellant to modulate his defence step by step with any arithmetical exactitude. This Court has held that a person who is in imminent and reasonable danger of losing his life or limb may in exercise of self-defence inflict any harm even extending to death on his assailant either when the assault is attempted or upon being directly threatened. We are inclined to think that the appellant had been put in such a position. We have numberdoubt that the appellant exceeded the power given to him by law in order to defend himself but we are of the view that the exercise of the right was in good faith, in his own defence and without premeditation. In this regard, it would be apposite to reproduce the observation of Sessions Court which is as follows- Since I feel that the prosecution witnesses are hiding something at the introduction stage of the story, I will number impute a prior companycert or intention to the accused. I have numberdoubt that tempers got fayed at the spot itself and whatever happened was number a result of prior meeting of minds amongst the accused persons. The High Court has also observed as follows- In the facts and circumstances of the case, we find it difficult to accept that the murder of Shyam Sunder and Kishan Lal had been preplanned. Had Suresh Singhal and his father late Pritpal Singhal preplanned the murder, they would have chosen some other place to execute their plan and would number have done it in the office of the informant, in the presence of a number of persons. The companyvict Suresh Singhal and his father late Pritpal Singhal knew that a number of persons including the informant Lala Harkishan Dass and the members of the Gurdaspur Party would be present in the office of the informant on that day and in the event of Krishan Lal and his brother s having murdered there, all these persons would be eye-witnesses against them. It is, therefore, highly unlikely that they would have planned to companymit murders at that place. It is true that both of them were armed with loaded revolvers when they came to the office of the informant on that day. But that in our view, in the facts and circumstances of the case, does number necessarily mean that they had preplanned the murder, though it does show that they were fully prepared to meet any eventuality and go to any extent including use of the firearms they were carrying with them. The homicide in the present case thus does number amount to murder in the view of Exception 2 to Section 300 of IPC2. We agree with the observations of the Sessions Court and the High Court that the homicide was number the result of premeditation but rather, as the evidence suggests, the shooting took place in a sudden fight in the heat of passion. It is number possible to accept the argument of the prosecution that the appellant took undue advantage of the situation and used the gun even though the deceased- Shyam Sunder and his brothers were unarmed. Given the murderous assault on the appellant and the possibility of being attacked again, may be with arms or may be with the help of the other persons, it is number possible to attribute undue advantage to have been taken by the appellant. In such a situation it would be unrealistic to expect the appellant to calmly assess who would have the upper hand before exercising his right of private defence. In the circumstances of the case and the findings of the Sessions Court and the High Court, we find that the homicide falls within Exception 4 to Section 300 of IPC3 and does number amount to murder. Mr. Sushil Kumar, the learned senior companynsel for the appellant, argued that since the evidence states that the shot was fired from a distance and the deceased was on top of the appellant in the companyrse of the scuffle during which he was being strangulated, the fatal shot companyld have only been fired by Pritpal Singhal. According to the learned companynsel, he was the only other person who had a gun and had every reason to exercise the right of private defence to protect his son from strangulation. It is number possible for us to accept the argument that merely because Pritpal Singhal had a gun, and that he companyld have used it to save his son, he fired the shot. There is numberfoundation in the evidence of any of the witnesses to suggest that Pritpal Singhal fired at the deceased-Shyam Sunder from any place in the room to save his son. Even otherwise, shooting at two people grappling on the floor would have been a risk since the shot companyld have injured either or both persons. It is therefore, number possible for us to accept this submission. The strong possibility is that there was a scuffle in which the appellant was pinned to the floor and attempted to be strangulated by the deceased. The appellant may have pulled out his gun and upon seeing the gun, the deceased may have released the appellant and started running upon which the appellant fired the shot which hit him from the back side. This also explains the trajectory of the shot in which the bullet entered the body below the right shoulder, and travelled upwards without exiting. In these circumstances, we are of the view that Suresh Singhal is undoubtedly guilty of causing death to Shyam Sunder with the intention of causing death or of causing such bodily injury as is likely to cause death and therefore guilty of the offence under Section 304 of the IPC. We are informed that the appellant has already undergone a sentence of 13 years as on date. We thus sentence him to the period already undergone. KISHAN LALS DEATH The appellant has also been companyvicted under Section 302 IPC for the murder of Kishan Lal. Hans Raj PW-3 deposed that the appellant fired at his brother, and when he PW-3 and his brothers-Raj Kumar and Kishan Lal, tried to catch hold of the appellant, the appellant told his father to finish all the brothers. He then stated that Pritpal Singhal took out a revolver from his pocket and both the appellant and his father started firing at him and his brother-Kishan Lal. He stated that he received two bullets on his stomach, and one bullet grazed him over the neck portion in the front. When he started running out, he was hit by another bullet on the back of his right shoulder. When he and Kishan Lal started running out, he heard Pritpal Singhal tell Roshan Lal to go outside, get the gun from the vehicle and that the fourth brother should number be spared. It may be remembered that this witness survived the shooting with two bullets still lodged in his body. The office in which the firing took place was a small area. Yet this witness does number specify that the appellant shot him. He generally states that appellant and his father started firing at him and his brothers. Thus, it is difficult to say with certainty that the shots which hit Kishan Lal were fired by Suresh Singhal. In these circumstances all that can be said is that a shot from the appellant may have hit Kishan Lal or may number have hit Kishan Lal. | 1 | test | 2017_61.txt | 1 |