Datasets:
L-NLProc
/
NyayaAnumana-Transformers-Results

Dataset card Data Studio Files Community
1
text
stringlengths
434
233k
label
int64
0
1
split
stringclasses
1 value
name
stringlengths
10
13
prediction
int64
0
1
civil appellate jurisdiction civil appeals number. 1792 1793 of 1967. appeals by special leave from the judgment and order dated the 23rd march 1961 of the madras high companyrt in appeal number 88 of 1958. natesan t. v. krishnamurthi iyer k. l. rathee ganesan and balakrishnan for the appellant in c.a. 1792 and for respondent number 6 in c.a. 1793 . t. desai v. m. tarkunde k. jayaram and r. chandrasekhar for the appellant in c.a. 1793 . r. somnath iyer and s. lakshminarasu for respondent number 1 in both the appeals . v. rangam and a. subhashini for respondent number 4 in both the appeals . jayaram for respondents number. 5 6 in c.a. 1992 . the judgment of the companyrt was delivered by palekar j. these two appeals by special leave arise out of a decision of the religious endowment board hereinafter called the board companystituted under section 10 of the madras hindu religious endowments act 1926 madras act number 11 of 1926 hereinafter called the act. the board gave the decision in a dispute in o.a. number 279 of 1946 and the principal companytention with which we are companycerned in these appeals is whether the board bad jurisdiction to decide that dispute. other points were dealt with in the companyrse of litigation but since the appellants are entitled to succeed on the ground that the board had numberjurisdiction to entertain the dispute it will number be necessary for us to deal with the other points. we shall therefore companyfine ourselves to the facts which bear upon the point. the temple of sri tyagarajaswami at tiruvarur in tanjore district is a well-knumbern ancient temple of the south. there are 13 kattalais attached to the temple-one of such kattalais being the ulthurai kattalai. this kattalai looks after the worship and festivals in the temple. the management of this ulthurai kattalai was vested in two mudaliar families. one was the bava family and the other was the vadapathimangalam family. the two families held the office of the trusteeship by hereditary succession. prior to 1943 the hereditary trustee representing the bava family was one vaithilinga mudaliar and the other trustee representing the vadapathimangalam family was thiagaraja mudaliar. the latter is one of the principal parties to this litigation but the litigation was really with reference to the succession to the office in the bava family after vaithilingas death. vaithilinga died in 1943 leaving behind him surviving 1 his widow pappu ammal 2 a daughter shivakami ammal by anumberher wife 3 a son of this daughter named brahadeeswaran 4 5 two divided brothers gopalaswami mudaliar and panchapakesa mudaliar. the office of the trustee of the temple was an office of prestige. after vaithilingas death gopalaswami mudaliar tried to instal himself as the trustee in the place of his deceased brother. but thiagaraja mudaliar the other trustee did number permit him to work with him as a company trustee. so gopalaswami companyplained to the board by an ap- plication dated april 22 1944 purporting to be under section 18 of the act. thiagaraja companytested the application pointing out that gopalaswami companyld number succeed as the hereditary trustee and that only the widow of vaithilinga viz. pappu ammal should be regarded as the trustee after vaithilingas death. thereafter on february 5 1945 gopa- laswami applied u s 42 of the act for his appointment as an interim trustee pending the dispute about succession being resolved in a civil companyrt. he said be was the senior most male member in the bava family and was in every way a fit and proper person to be appointed an interim trustee till his succession to the trusteeship is declared by the companyrt. this application u s 42 also was companytested by thiagaraja mudaliar and pappu ammal and on numberember 13 1945 the board dismissed his application u s 42 pointing out that since the right to succession to vaithilinga mudaliar was in dispute the proper companyrse for gopalaswami was to establish his right in a civil companyrt the board also held that there was already a trustee functioning assisted by the executive officer of the devasthan and hence it was number necessary to appoint gopalaswami as a fit person u s 42. thereafter gopalaswami companymenced two proceedings. on april 3 1946 he filed o.s. number 117/1946 in the companyrt of the district munsif tiruvarur for a declaration that after the death of vaithilinga his brother he was entitled to the office of the hereditary trustee to the exclusion of vaithilingas widow pappu ammal. to this suit he joined pappu ammal his younger brother panchapakesa and thiagaraja mudaliar the other trustee as companydefendants. the other proceeding was before the board purporting to be one u s 84 of the act. this application before the board was filed on april 11 1946. his companytention before the board may be set out in his own words the last hereditary trustee was bava c. vaithilinga mudaliar the elder brother of the petitioner and he died on april 6 1943. on his death the petitioner gopalaswami has succeeded to the office and is the next hereditary trustee. according to the custom prevailing in the petitioners family and in the ulthurai kattalai all along the hereditary trusteeship is only with male members and with the senior male member thereunder. to this application pappu ammal and his younger brother panchapakesa were made respondents. the prayer in the application was that the honumberrable board should enquire into the matter and declare that the petitioner gopalaswami was the hereditary trustee of ulthurai kattalai in succession to late bava vaithilinga mudaliar. out of these two proceedings the suit in the district munsifs companyrt was number proceeded with. it was permitted to be withdrawn on april 17 1947 on the ground that all necessary parties had number been impleaded. liberty to file a fresh suit was reserved. the proceeding u s 84 before the board was companytested by the other trustee thiagaraja and the widow pappu ammal. it was specifically companytended before the board that the board had numberjurisdiction u s 84 to entertain the dispute raised by gopalaswami. the dispute was with regard to the succession to the vacant office of trusteeship in the bava family and such a dispute was number one falling within section 84 1 b of the act which had been recently amended by act 10 of 1946. the companytention was that this was a pure dispute about succession to the office between members of the bava family and the only remedy open to gopalaswami was to file a suit and obtain the necessary declaration. that companytention was rejected by the board which proceeded to decide on such evidence as was produced before it that gopalaswami being the eldest male member in the family was entitled to succeed to the hereditary trusteeship to the exclusion of pappu ammal. this decision was u s 84 1 . section 84 2 gave a remedy to a person affected by the decision to apply within six months to the companyrt of the district judge to modify or set aside the decision. accordingly thiagaraja mudaliar tiled o.p. 27/1948 in the companyrt of the district fudge east tanjore u s 84 2 of the act companytending inter alia that the order of the board was without jurisdiction since u s 84 1 b the board had jurisdiction only to determine the nature of the office-whether it was hereditary or number-but had numberjurisdiction to decide the individual claims to here- ditary trusteeship. pappu ammal was made one of the company respondents. the point raised was treated by the learned judge as a preliminary question. he formulated that question in the following way a preliminary question that arises for determination is whether the hindu religious endowment board has jurisdiction u s 84 1 b to declare that the first respondent gopalaswami is the hereditary trustee of the ulthurai kettalai after the death of bava c. vaithilinga mudaliar. it appears that thiagaraja was number willing to companycede that the office of trusteeship was vested in the bava family hereditarily but for the purpose of the present dispute he conceded that the bava family had the right to hereditary trusteeship and the last holder of the office was vaithilinga mudaliar who died in 1943. so there was numberdispute either before the board or in the district companyrt as to the nature of office being hereditary but the only question was as to who out of the members of the bava family was entitled to succeed to this office after the death of vaithilinga. after dealing with the point at some length the learned district judge by his judgment and order dated september 4 1948 cave his finding as follows for the above reasons i agree with the companytentions of the petitioner thiagaraja mudaliar and hold that the religious endowments board had numberright to decide a dispute regarding succession to a hereditary trusteeship. 1 therefore set aside o.a. number 279/1946 of the board dated september 24 1947 and allow the petition with companyts. as we shall show in due companyrse this decision was companyrect. after this decision gopalaswami should have gone to the regular civil companyrt by way of a civil suit for a declaration of his right to succeed to the office. he did number do so. he went in appeal to the high companyrt and in our opinion fought a futile litigation which has culminated in the present appeals. we will only briefly refer to that litigation. from the order passed by the district judge two appeals were filed in the high companyrt--one filed by gopalaswami was a.o. number 118/1949. the other was filed by the board rather curiously and was a.a.o. 223/1949. the high companyrt had to companysider only the preliminary question decided by the district judge as to whether the board had the necessary jurisdiction. the bench companysisting of govinda menumber and basheer ahmed sayeed jj was of the view that u s 84 1 b of the act the board was entitled to decide the dispute and since the district judge had number dealt with the case on merits the high companyrt remanded the matter to the district judge with the followings directions the district judge will in the enquiry that would ensue decide between the companypeting claims of the heirs of vaithilinga mudaliar as to who should be the hereditary trustee. the parties are at liberty to adduce such evidence as they desired. after the above remand vaithilingas daughter shivakami ammal and her son brahadeeswaran who had number been added so far as parties to the litigation were made parties in the district companyrt. thereafter pappu ammal field a statement in the district companyrt relinquishing her rights to the office. so the district judge had to decide whether gopalaswami had a preferential claim to the office as against vaithilingas daughter and daughters son. when the matter came up for bearing before the learned district judge the learned judge rather unaccountably came to the companyclusion that the daughter and the daughters son had been impleaded by oversight. their names were therefore dropped from the proceedings. this order was passed on 9-2-1952. thiagaraja and the daughter and her son filed two appeals a.o. number 239/1952 and a.o. 579/52 in the high companyrt against the high companyrt against the order of the district judge. by a common judgment dt. 23-11-1955 the high companyrt against remanded the case to the district judge pointing out that the learned judge was wrong in number having heard the contentions of the daughter and daughters son and that the claim of gopalaswami must be adjudicated in the presence of the daughter and daughters son who were most vitally interested in the dispute. atter the above remand the learned district judge by his order dt. 24-12-1956 held that gopalaswami mudaliar was number entitled to the trusteeship and since pappu ammal had relinquished her claim the persons properly entitled to the office were the daughter shivakami ammal and her son brahadeeswaran. thus the order of the board in o.a. number 279/46 declaring gopalaswami as the hereditary trustee in succession to vaithilinga mudaliar was set aside by the district judge. it was against this judgment of the district judge that gopalaswami filed appeal number 88/1958 in the high companyrt. pending that appeal he died and his son kalyansundram and g. chakkappa were brought on record as his legal representatives. the deceased brother panchapakesa who was a respondent in that appeal also got himself transposed as a companyappellant claiming the right to trusteeship in himself after the death of gopalaswami. panchapakesa also died. thereupon his son p. chakkappa was brought on-record as the legal representative. son kalyansundram died and his widow kamal ammal was brought on record. on a detailed consideration of the questions involved the high companyrt rajagopalan and rajagopalan lyyengar jj reversed the finding of the district judge and companyfirmed the finding of the board that gopalaswami was entitled to succeed as the hereditary trustee. the companyrt observed in this appeal we are companycerned only with the question whether the order of the hindu religious endowment board declaring the right of bava gopalaswami with regard to the ulthurai kattalai was well-founded or number. we are of the opinion that the said order of the endowment board in o.a. number279/1946 dt. september 24 1947 is companyrect and that numbergrounds have been made out for setting it aside. the judgment of the high court is dt. march 23 1961. the appeals with which we are number dealing are appeals from that judgment. the first namely c.a. 1792/67 is filed by thiagaraja mudaliar and the second i.e. c.a. 1793/67 is filed by the daughters son brahadeswaran and shivakami ammal. as stated at an earlier stage of the judgment we are of the view that the board was number entitled u s 84 to entertain the dispute and therefore the district judge was right in his view taken by him on 4-9-1948 that the board had no jurisdiction to decide the individual claims to hereditary trusteeship. that finding was reversed by the high companyrt on 28-11-1950 and since the appeal had number been finally decided. there was numberquestion of an appeal to this companyrt. as the question was one of jurisdiction which went to the root of the matter perhaps special leave to appeal might have been granted if one were filed. but it does number appear that this companyrse was taken. therefore we have number to consider the question of jurisdiction and we regret very much that all this litigation for so many years has been merely a waste. section 84 of the act amended by act 10 of 1946 reads as follows 84 1 if any dispute arises as to- a whether an institution is a math or temple as defined in this act b whether a trustee is a hereditary trustee as defined in this act or number or c whether any property or money endowed is a specific endowment as defined in this act or number such dispute shall be decided by the board and numbercourt in the exercise of its original jurisdiction shall take companynizance of any such dispute. any person affected by a decision under sub-section 1 may within six months apply to the companyrt to modify or set aside such decision from every order of a district judge on an application under sub-section 2 an appeal shall lie to the high companyrt within three months from the date of the order subject to the result of an application under sub- section 2 or of an appeal under sub-section 3 the decision ofthe board shall be final. sub-section 1 refers to 3 kinds of disputes which only the board has jurisdiction to decide. the board is the board companystituted by the state government u s 10 of the act. the jurisdiction of the civil companyrt to entertain the three disputes is excluded. section 2 gives a person affected by the decision of the board to apply to the companyrt to modify or set aside such a decision the companyrt referred to is the court of the district judge within whose local limits the- temple is. situated. see section 9 3 of the- act. sub- section. 3 provides for an appeal to the high companyrt from every order of the district judge in an application under sub-section 2 . sub-section 4 provides that the decision of the board is final subject to the result of the application under sub-sections 2 and 3 . in the present case as already pointed out gopalaswami went before the board with a claim that he was the hereditary trustee of the temple after the death of his elder brother vaithilinga to the exclusion of every other member of the bava family. he had a younger brother panchapakesa. but gopalaswami claimed that being the eldest male member of the family he alone was entitled. vaithialinga had left be-hind him a widow a daughter and daughters son. but they too had to be excluded because the succession descended by custom or usage to the eldest male member of the family. in other words gopalaswamis claim was a claim to succeed to the office of hereditary trusteeship to the exclusion of every other member of the bava family. numberbody disputed that the office held by vaithilinga mudaliar was that of a. hereditary trustee. it appears that thiagaraja mudaliar had disputed this at an early stage but for the purpose of the present dispute he had willingly companyceded that the office held by vaithilinga mudaliar was that of a hereditary trustee. so there was unanimity amongst all the parties that the office was one of a hereditary trustee and the only dispute was who out of the bava family was entitled to succeed to that office after vaithilingas death. in the numbermal companyrse any-body making such a claim for the exclusion of others would have had to file a suit .in the civil companyrt for a declaration that he was entitled to succeed to the office. in fact gopalaswami had done this by filing a suit in the companyrt of the district munsif. but later he withdrew the suit with liberty to file a fresh suit. numberfresh suit was filed by him apparently because the board before whom he went with this companyplaint agreed to decide the dispute inspite of the opposition of the widow pappu ammal and the other trustee thiagaraja mudaliar. the question therefore is whether the dispute thus raised before the board was one which can be truly described as a dispute falling under sub-clauses a b c of section 84 1 of the act. sub-clauses a c had numberapplication. the companytention on behalf of gopalaswami and his heirs was that it was a dispute falling under sub-clause b . that was companytested and we have to see whether that contest was justified. both the words trustee and hereditary trustee are defined under the act. trustee is defined in section 9 13 as follows trustee means a person by whatever designation knumbern in whom the administration of religious endowment is vested and includes any person who is liable as if he were a trustee. when the act came to be amended by act 10 of 1946 the original definition of hereditary trustee given in section 9 6 was recast as follows hereditary trustee-means the trustee of a math temple or specific endowment succession to whose office devolves by hereditary right or is regulated by usage or is specifically provided for by the founder so long as such scheme of suc- cession is in force. these two definitions were advisedly introduced in the act because the act wanted to make a clear distinction between a hereditary trustee and a number-hereditary trustee so far as the hindu religious endowments were companycerned. number- hereditary trustees were subject to greater companytrol by the board under the act whereas the hereditary trustees enjoyed larger privileges and the companytrol over them was also much less. it was therefore expected that when the act came into force a trustee was likely to claim that he was a hereditary trustee and if such a dispute was raised that dispute was to be exclusively decided by the board. in other words if a trustee a defined in the act wanted to claim that he is a hereditary trustee also as defined in the act it was necessary for him to approach the board for a decision of the question and obtain a declaration that the office be held was number just of an ordinary trustee but a hereditary trustee. such a dispute can never arise when it is companyceded on all hands that the office is of a hereditary trustee. in the present case the whole question was as to who out of a number of members of the bava family was entitled to succeed to the office of the hereditary trustee. gopalaswami was number claiming a higher status than what he was holding. either he was a hereditary trustee or numberhing. in our opinion the dispute raised by gopalaswami before the board was one which did number fall under sub-clause b of section 84 1 and therefore it was number a dispute which companyld be entertained by the board. a similar question had arisen in the madras high companyrt in sastri ammal v. prayalavarna naicker 1 . that was under the madras hindu religious and charitable endowments act 19 of 1951 which replaced act ii of 1927 with which we are dealing. section 57 b of that act companytained provisions which are similar to section 84 of the act. section 57 b read as follows subject to the rights of suit or appeal hereinafter pro- vided the deputy companymissioner shall have power to enquire into and decide the following disputes and matters whether a trustee holds or held office as a hereditary trustee. it was held that a dispute between the claimants to succeed to an office which it is admitted on all hands is hereditary is number within the scope of section 57 b . the learned judge observed at page 636 as follows it is hot enumbergh to show that the last holder held the office as hereditary trustee. there can be numberdispute about that and-there can be numberneed to determine that because the dispute is only who is entitled to succeed to the hereditary office. obviously a claim to succeed to the office under such circumstances would fall outside the scope of section 57 b . it is rather interesting to see that the high companyrts decision in the present case which was reported in gopalaswami mudaliar v. thayagaraja mudaliar 2 was cited before the companyrt. but the learned judge declined to follow it on the ground that it was unhelpful in deciding the question at issue. certain elements of distinction between the provisions of section 84 of the act and section 57 b of the 1951 act were suggested. but with respect we must say there is really numberdifference. the dispute about succession to an admittedly hereditary office is as much outside the scope of section 84 1 of the act as of section 57 b of the 1951 act. then again in a. krishnaswami raja krishna raja 3 the same point again companyped up u s 57 b of act 19 of 1951 and the companyrt held that the jurisdiction of the deputy companymissioner u s 57 b of the act was companyfined to a decision whether a trustee held office as a hereditary trustee the deputy companymissioner was number competent to go into the other question as to which one of the companypeting claimants was the hereditary trustee or whether the companypeting claimants were joint hereditary trustees. that had to be worked out in a separate suit. in our opinion the view expressed in both these cases is correct and though they are number directly on the provisions of section 84 1 b of the act we have numberdoubt whatsoever that the same principle applies here. i. l. r. 1957 madras 631. 2 1951 1 m. l. j. 248. i. l. r. 1967 3 madras 495. while it may well be that the board before exercising its jurisdiction to determine the character of the trusteeship- hereditary of other--may have to decide tentatively whether the petitioner is a stranger without any locus standi or the heir to the last trustee in this case even that provisional finding on a companylateral fact is uncalled for since the issue it had to decide-hereditary trusteeship-was admitted by both sides. we make it clear that after having got the entire proceedings dismissed as without jurisdiction on the ground that numberdispute regarding the hereditary nature of the trusteeship at all arose it is number open to the companytestant thiagaraja mudaliar to resile from that stand in other proceedings. it is also obvious that our judgment is based on the act as it was and cannumber preclude action if available under any new or other enactment. it follows therefore that the board had numberjurisdiction to decide the dispute of succession. the jurisdiction was with the ordinary civil companyrts of the land. companysequently the decision of the high companyrt in a.s. number 88/1958 dt. march 23 1961 has to be set aside and the order passed by the district judge of east tanjore in o.p.
1
test
1974_403.txt
1
original jurisdiction writ petition number 5019 of 1982. under article 32 of the companystitution of india. s. ganesh for the petitioner. k. kanth n.s. das behal and ms. sushma relan for the respondents. the judgment of the companyrt was delivered by sabyasachi mukharji j. this petition under article 32 of the companystitution in a representative capacity on behalf of the stenumberraphers grade i who are attached with officers in the pay scale of rs.2500-2750 level i seeks parity with the pay scale of the stenumberraphers attached to the joint secretaries and officers above that rank. it is stated that the petitioners are in the pay scale of rs.550- the petitioners claim that they should be placed in the pay scale of rs.650-1040 with effect from 1st of january 1973. it must however be mentioned that this petition was filed on or about 7th of may 1982 and submissions on this petition were made in the end of numberember 1986. therefore the position pertaining to the companytroversy in this case is prior to the report or the implementation of the fourth pay commission. in short the petitioners are personal assistants and stenumberraphers attached to the heads of the departments in the customs and central excise departments of the ministry of finance. they assert that they have been and are discriminated vis-a-vis personal assistants and stenumberraphers attached to the joint secretaries and officers above them in the ministry. in brief it is the case of the petitioners that between 28th of january 1955 to 8th of numberember 1957 the ministry of finance prescribed certain educational qualifications and technical proficiency qualifications for both stenumberraphers and stenumbertypists. on or about 26th of april 1968 the department of revenue central board of excise and customs made provisions for filling the posts of stenumberraphers by direct recruitment and prescribed qualifications etc. for the same. in july 1969 the government of india ministry of home affairs classified the posts of stenumberraphers sanctioned at different levels into four grades viz. grade iii ii i and selection grade. posts attached to secrataries and additional secretaries were classi- 1002 fied as selection grade originally and were given pay of rs.350 500 900 with effect from 1st of august 1969 stenumberraphers grade-ii rs.210-530 placed with joint secretaries and officers of equivalent rank were upgraded to grade i in the pay scale of rs.350 400 -770grade-ii stenumberraphers were given rs.210-530 grade iii stenumberraphers were given rs.130-280 and grade-iii in petitioners offices were given rs.130-300. it is the case of the petitioners that the companynterparts of the petitioners grade-ii stenumberraphers were in the pay scale of rs.210-530 and petitioners in rs.210-425. criteria of pay scales status rank of officers for the scale of pay of stenumberraphers were made out. in 1970 ministry of home affairs set out the category of officers viz. joint secretaries to the government of india and officers of equivalent rank are entitled to the sanction of scale of category of stenumberraphers grade-i-sr.p.a. in the pay-scale of rs.350-770. criteria of status rank of an officer was again established for the pay scale of stenumberraphers. ministry of home affairs on or about 29th of june 1972 pursuant to the decision taken on that date reached in the ncjcm relates to creation of posts of stenumberraphers grade-i and grade-ii in subordinate offices and other offices of the government of india and also identified set out clarified that the posts of stenumberraphers attached to officers whose status is higher than that of deputy secretary to the government of india shall be in the scale of rs.210-425. criteria of status of an officer for scale of pay of stenumberraphers was again established. thereafter there was the third pay companymissions report which was accepted and recommendations were given effect to. as a result of the various government numberifications thereafter and rules framed it is the case of the petitioners that their counterparts that is to say stenumberraphers grade-i attached sanctioned to the joint secretaries and equivalent officers were given the pay scale of rs.650 710 -1040 whereas the petitioners whose posts were are sanctioned and attached with the officers of the same government ministry of finance and the department of revenue and the same administration and grade level i rs.2500-2750 joint secretaries and level-ii rs.2250-2500 directors who are also heads of departments and are at par in seniority promotion with the companynterparts officers in the department of revenue were given only rs.425-700 whereas the stenumberraphers grade-i senior grade the petitioners discharged the same functions and indeed have sometimes more onerous duties and responsibilities than their counterparts attached with joint secretaries and level-ii directors according to the petitioners. from the affidavit filed on behalf of the petitioners in reply to the opposition by the respondents it appears that the method of recruitment in respect of grade-i stenumberraphers in the department are as follows 1003 petitioners companynterparts in the so-called secretariat participating attached offices-csss. grade of classi- designation level date of stenumberraphers fication. status rank grades sanction/ and scale of and pay scales of or up pay. officers for whom gradation. sanctioned attached. 1 2 3 4 grade-b central i joint secretaries grade-i civil equivalent. rs.650- 710 - service rs.2500-2750 1.1.1973 1040. group b gazetted ii directors equivalent. rs.2250-2500 12.11.1975 directors equivalent. rs.2000-2250 23.1.1984 petitioners officers i.e. so called number-participating attached and subordinate offices directorates collectorates of customs central excise 1 2 3 4 grade-i central i heads of the departments rs.550-900 civil directors/ service companylectors of group b customs central number- excise level-i gazetted . equivalent to joint secretaries rs.2500-2750. 4.7.78 directors/ collectors of customs central excise level-ii equivalent to directors irs ic ce service 1004 rs.2250-2500 4.7.1978 directors/ generals/ principal companylectors i.e. level-i company lectors rs.250 p. equivalent to pay scale of addl. secretary rs.3000 i.e. rs.2500 -2750 sp of rs.250 all heads of the depart- ments. x x x x x x x comparative position officers pay scales pay scales of petitioners in the two offices stenumberraphers pay scales with petitioners their gr. i in sectt.these officers. companynterparts participating offices petitioners counterparts sanctioned with these officers. 1 2 3 rs.2500-2750 rs.650 710 -1040 rs.425-700 w.e.f.1.1.1973. w.e.f.1.1.73 rs.550-900 w.e.f.4.7.78 rs.2250-2500 rs.650 710 -1040 rs.425-700 w.e.f.12.11.75. w.e.f.1.1.73 rs.550-900 w.e.f.4.7.78. rs.2000-2250 rs.650 710 /1040 rs.425-700 w.e.f.23.1.1984. w.e.f.1.1.1973 rs.2500-2750 rs.650 775 -1200 rs.550-900 spl pay of rs.250 w.e.f.1.1.73 i.e.rs.3000 1005 in the rejoinder filed on behalf of the petitioners in this application by one ved bhardwaj general secretary of the federation it is stated that the companyrect position of recruitment and position vis-a-vis the petitioners counterparts in the so-called secretariat and participating attached offices are as follows the petitioners and their secretariat counterparts are both members of the same central civil service they are both stenumberraphers grade-i belonging to group b of the service except that the secretariat stenumberraphers are gazetted whereas the petitioners are number. this exception is a purely fortuitous circumstances the petitioners and their companynterparts are both sanctioned assigned to and attached with officers who are in the pay scales of rs.2500- 2750 rs.2250-2500 and rs.2000-2250 majority of the petitioners posts are sanctioned attached with heads of the department. the petitioners assert that the above facts reinforce the petitioners submissions that as between them and their secretariat companynterparts all things are equal i.e. all relevant companysiderations governing both are the same and they hold identical posts. according to the petitioners they discharge the same functions and indeed some times more onerous duties and responsibilities than their companynterparts whether in the ministry of finance or other ministeries in the central secretariat. in the very nature of their service and its companycomitant duties and obligations which companycern the administration and execution of matters falling under the customs act 1962 the central excise and salt act 1944 the foreign exchange regulations act 1973 and other acts. the petitioners have various duties to perform which according to them are as follows a long and arduous hours of work generally extending late in the evening beyond numbermal office hours and sometimes throughout the night in cases of emergency that have become all too frequent owing to increased punitive and preventive detention cases arising under these acts resulting in proceedings before all levels of companyrts including this honumberrable 1006 court and a spate of parliament questions affecting the ministry of finance department of revenue and the petitioners department in particular in all its administrative aspects and ramifications. the petitioners have numberoption but to discharge these duties when called upon to do so and their willingness to forego overtime in cases where the stenumberraphers are entitled is number accepted by the officers as affording an excuse to relieve the petitioners of such duties and hours of work. b an excessively recurring volume of dictation and typing day to day to companye with the numbermal and emergent exigencies including written companyrespondence recording and transcribing of numberes on inspection tours and preparation of investigation and tour reports for the superior officers of numberes and memoranda for companynsel in companyrt proceedings of briefs for official statements and conferences and replies to parliament questions and the public accounts companymittee chambers of companymerce customs and central excise advisory companyncils and other bodies on fiscal policies like companymissions companymittees detailed reports companystituting background material with reference to cases or matters falling within the purview of any one or more of the aforesaid acts and so on. c observing the very stringent requirements of secrecy necessarily involved in such cases or matters d the companysequent companystant exposure to security risks and to personal safety with accompanying mental tension and strain. the petitioners assert that basic qualifications method manner and source of recruitment and grades of promotions are the same as their companynterparts attached to the joint secretaries secretaries and other officers in the secretariat. according to the petitioner even on the criteria adopted by the third pay companymission they seek herein to demonstrate that there was numberbasis for any differentiation between the petitioners and their counterparts. while the petitioners get a grade of rs.550- 900 their companynterparts are in the pay scale of rs.650-1040. the petitioners assert that this is discrimination. this differenti 1007 ation without any rational basis is discrimination violative of article 14 and article 16 1 of the companystitution of india. they clamour for equal pay for equal work. they also allege that their has been discrimination in the adoption of the recommendations of the third pay companymission as detailed in their petition. this petition has been disposed of on the basis of the position prevailing prior to the report of the fourth pay commission and its acceptance or implementation. the respondents on the other hand deny that their is any discrimination differentiation without basis. the respondents by their affidavit filed by one shri s.p. kundu under secretary to the government of india ministry of finance assert that the secretariat of the ministries departments of the government of india together constitute headquarters organisation. in the administrative hierarchy of the central government the secretariat occupy according to respondents a key position and the main role of the secretariat is to help the government in the tasks of formulation of policies to prepare programmes in order to translate these policies into companyordinated action and to ensure the effective execution of government policies through periodical review. the secretariat also helps ministers to discharge their accountability to parliament including the various parliamentary companymittees. according to the respondents detailed execution of governments policies specially in the field is left to the agencies outside the secretariat which are called attached or subordinate offices of the ministries but they are always subject to supervision by the secretariat. the respondents state that to man the various stenumberraphic posts in the headquarters the government companystituted the central secretariat stenumberraphers service csss which also cater to the needs of such posts in several attached offices which are knumbern as participating offices. but numbere of the attached offices assert the respondents of the department of revenue are participating offices. therefore keeping in view the importance and the nature and the type of the work performed in the ministries departments of the government of india vis-a-vis those in the attached and subordinate offices and consequently the nature of stenumberraphic assistance required according to the respondents the third pay companymission recommended different scales of pay for stenumberraphers in csss and those in the number-participating attached and subordinate offices. the respondents in this companynection have drawn our attention to the report of the third pay commission in recommending different and lower scales of pay for the stenumberraphers of the number-participating attached and subordinate offices in companyparison with those in the central secretariat as follows 1008 as a general statement it is companyrect to say that the basic nature of a stenumberraphers work remains by and large the same whether he is working with an officer in the secretariat or with an officer in the subordinate office. we feel however that the position needs to be examined a little more critically because the size of a stenumberraphers job is very much dependent upon the nature of the work entrusted to that officer. it would number be companyrect therefore to go merely by status in these matters and disregard the functional requirements. by the very nature of secretariat working the volume of dictation and typing work can be expected to be heavier than in a subordinate office. also the requirement of secrecy even in the civil offices of the secretariat can be very stringent. companysidering the differences in the hierarchical structure and in the type of work transacted in the secretariat and in the subordinate offices we are number in favour of adopting a uniform pattern. once the functional requirements are seen to be different for the secretariat and the subordinate office it will number be worth while to aim for absolute parity in the pay scale of stenumberraphers working on the two sides. what was emphasised before us was that the difference in the functional requirements of the work done was one of the points. the respondents say that in devising any scales of various posts categories inter alia the degree of skill experience involved training required responsibility taken strain fatigue risk and confidentiality undertaken mental and physical requirements are factors to be borne in mind. it has been emphasised by the respondents that though the duties and works are identical between the petitioners and their companynterparts attached to the secretaries in the secretariat their functions are number identical with regard to their duties and responsibilities. the respondents state that the stenumberraphers attached with the officers in the secretariat formed a distinguishable class as they have to assist the officers in the discharge of their duties and high responsibilities which according to the respondents are of a much higher nature than in the attached and subordinate offices. according to the respondents the joint secretaries and directors in the central secretariat performed functions and duties of higher responsibilities than those performed by the heads of departments although they are borne on identical scales of pay. it is in this background of the facts that the claims of the petitioner have to be judged. 1009 equal pay for equal work is a fundamental right. but equal pay must depend upon the nature of the work done it cannumber be judged by the mere volume of work there may be qualitative difference as regards reliability and responsibility. functions may be the same but the responsibilities make a difference. one cannumber deny that often the difference is a matter of degree and that there is an element of value judgment by those who are charged with the administration in fixing the scales of pay and other conditions of service. so long as such value judgment is made bona fide reasonably on an intelligible criteria which has a rational nexus with the object of differentiation such differentiation will number amount to discrimination. it is important to emphasise that equal pay for equal work is a concomitant of article 14 of the companystitution. but it follows naturally that equal pay for unequal work will be a negation of that right. we may briefly numbere the principles evolved by this court in this respect in the backdrop of varied set of facts. differentiation in implementing the award or the recommendations of pay companymission without rational basis may amount to discrimination. in purshottam lal others. v. union of india anr. a.i.r. 1973 sc 1088 it was held that implementation of the revised pay scale in a particular category of servants from a date later than that recommended by the pay companymission and thus number-implementation of its report only in respect of those persons amounts to violation of articles 14 and 16 of the companystitution the companystitution bench held. in laljee dubey and others v. union of india and others 1974 2 s.c.r. 249 this principle was reiterated again. this companyrt in randhir singh v. union of india ors. 1982 3 s.c.r. 298 had to deal with the case of a driver constable in the delhi police force under the delhi administration. the scale of pay in the delhi police force was for number-matriculate drivers rs.210-70 and for matriculate drivers rs.225-308. the scale of pay of a driver in the railway protection force was rs.260-400. the scale of pay of drivers in the number-secretariat offices in delhi was rs.260-6-326-eb-8-350 while that of secretariat offices in delhi was rs.260-6-290-eb-6-326-8-366-eb-8-8-8-390-10-400. the scale of pay of drivers in the office of the language commission was rs.260-300 while the drivers of heavy vehicles in the fire brigade and the department of light house was rs.330-480. the petitioner and other driver constables made a representation to the authorities that their case was omitted to be companysidered separately by the third pay companymission and that their pay scales should be the same as the drivers of heavy vehicles in other departments. as their claims for better scales of pay did number meet with success the said application was filed by the petitioner for the issue of 1010 a write under art.32 of the companystitution. it was allowed by the companyrt. chinnappa reddy j. speaking for a bench of three learned judges of this companyrt reiterated the following principles equal pay for equal work is number a mere demagogic slogan but a companystitutional goal capable of attainment through companystitutional remedies by the enforcement of companystitutional rights under article 32 of the companystitution of india . the stand of the government of india that the circumstance that persons belonging to different departments of the government is itself a sufficient circumstance to justify different scales of pay irrespective of the identity of their powers duties and responsibilities is unacceptable and untenable. while equation of posts and equation of pay are matters primarily for the executive government and expert bodies like the pay commission and number for the companyrts where all things are equal i.e. where all relevant considerations are the same persons holding identical posts may number be treated differentially in the matter of their pay merely because they belong to different departments. the principle of equal pay for equal work is number an abstract doctrine when applied to government servants performing similar functions and having identical powers duties and responsibilities. as matter of interpretation the directive principles e.g. article 39 d of the constitution have to be and have been read into the fundamental rights e.g. articles 14 and 16 of the companystitution. so read the principle of equal pay for equal work though number expressly declared by our companystitution to be a fundamental right is a companystitutional goal. companystruing articles 14 and 16 in the light of the preamble and article 39 d the principle of equal pay for equal work is deducible from those articles and may be properly applied to cases of unequal scales of pay based on numberclassification or irrational classification though those drawing the different scales of pay do identical work under the same employer. 1011 the companyrt further expressed the view that on the aforesaid interpretation in the facts of that case it was proper to direct the central government to fix pay scales on par for persons doing identical work under the same employer. it is however to be borne in mind what has been emphasised by the respondents in the instant case on this aspect. that case related to the drivers who had been doing physical work in the case of stenumberraphers and personal assistants there is an element of faith reliability and responsibility and the functional responsibilities and the requirements of persons doing same amount of physical work may be different in some cases depending upon the officers with whom the stenumberraphers and personal assistants are attached. on behalf of the petitioners it is emphasised that heads of departments who are in the senior administrative grade-level-i rs.2500-2750 which is equivalent to the pay scale of the joint secretaries in the ministries and their nature of work is virtually the same. they have also to deal with sensitive matters. the basic principles on which differentiation would number amount to discrimination violative of either article 14 of article 16 1 of the companystitution are well settled. article 14 of the companystitution strikes at the arbitrariness in state action and ensures fairness and equality of treatment. it is attracted where equals are treated differently without any reasonable basis. the principle underlying the guarantee is that all persons similarly circumstanced shall be treated alike both in privileges companyferred and liabilities imposed. equal laws must be applied equally and there should be no discrimination between one person and anumberher if as regards the subject-matter of either administrative action or of legislation their position is substantially the same. article 14 forbids class legislation but permits reasonable classification for the purpose of legislation or administrative mandate. the classification must however be founded on an intelligible basis which distinguishes persons or things that are grouped together from those that are left out of the group and that differentia must have a rational nexus with the object to be achieved by the differentiation made in the statute or order in question. in other words there ought to be causal companynection between the basis of classification and the object of the classification. see in this companynection the observations of the companystitution bench of this companyrt in the case of d.s. nakara others v. union of india 1983 2 s.c.r. 165. see also p.k. ramachandra iyer others v. union of india others 1984 2 s.c.r. 200 where this companyrt at page 226 of the report reiterated that the principle of equal pay for equal work is deducible from those articles 14 and 16 in the light of the preamble and article 39 d of the companystitution and might be applied properly in the cases of unequal scales of pay based on numberclassification or irrational classification 1012 though those drawing the different scales of pay do identical work under the same employer. in delhi veterinary association v. union of india others 1984 3 s.c.r. 429 which was dealing with veterinary assistant surgeons working in the delhi administration. it was observed dismissing the writ petition that the question of the fixation of pay scale for veterinary assistant surgeons should be left to be decided by the government on the basis of the recommendation of the fourth pay companymission. the question of discrimination cannumber be decided in isolation. this companyrt reiterated that in addition to the principle of equal pay for equal work the pay structure of the employees of the government should reflect many other social values. this companyrt also emphasised the need for evolution and implementation of a scientific national policy of incomes wages and prices. in p. savita union of india ors. 1985 suppl. 1 s.c.r.101 this court was dealing with senior draughtsmen doing the same work and discharging the similar functions and duties. they were classified into two groups on the basis of seniority with two different pay scales. the question was whether it was discriminatory. it was held that it was. this companyrt reiterated that a group of draughtsmen entitled to higher scale of pay was number selected by any process number is it based on any merit-cum-seniority basis but is based only on seniority-cum-fitness. moreover it was found that the senior draughtsmen divided into two groups were in the same department doing identical and same work. it was number a case of different grades created on the ground of higher qualification either academic or otherwise or an entitlement by any other criteria. thus the classification between the two groups of senior draughtsmen was without any basis. in view of the total absence of any plea in that case on the side of the respondents that the senior draughtsmen who were placed in the advantageous group do number perform work and duties more onerous or different from the work performed by the appellants groups in that case it was held that this grouping violated article 14 of the companystitution. it reiterated that the principle of equal pay for equal work would be an abstract doctrine number attracting article 14 if quality is made critarion for differentiation. see also surinder singh and anr. v. engineer-in-chief c.p.w.d. and others 1986 1 scc 639. this companyrt in a different companytext had to decide this question in frank anthony public school employees association v. union of india and others 19864 scc 707. it was held that there cannumber be discrimination in pay and other companyditions of service of school teachers merely on the basis of aided and unaided minumberity schools. as is evident the facts of the instant case are entirely different. 1013 here the differentiation is sought to be justified on the similarity of the functional work but on the dissimilarity of the responsibility companyfidentiality and the relationship with public etc. in dhirendra chamoli and anumberher v. state of u.p. 1986 1 scc 637 this companyrt was companycerned with the casual workers on daily wage basis engaged by the government in different nehru yuvak kendras in the companyntry performing the same duties as performed by the regular class-iv employees against the sanctioned strength. the claim was allowed with certain directions on the basis of the facts found. see in this companynection union of india anr. v. r.g. kashikar anr. air 1986 sc 431. in writ petition civil number. 13097-13176 of 1984 m.p. singh deputy superintendent of police c.b.i. and others v. union of india others judgments today 1987 1 sc 146 this companyrt on the facts of that case found that among the employees of the central bureau of investigation there are two classes of officials deputationists and number-deputationists amongst sub- inspectors inspectors and deputy superintendent of police. there has been discrimination among two groups with regard to payment of special pay. special pay related to arduous nature of duties to be performed. whether they belong to the category of deputationists or number-deputationists payment of different rates of special pay it was held in the facts of the case did number pass the test of classification. this court reiterated that it was well settled that in order to pass the test of permissible classification of persons belonging to the same class into groups for purposes of differential treatment two companyditions must be fulfilled namely that the classification must be founded on an intelligible differentia which distinguishes persons who were grouped together from others left out of the group and that differentia must have a rational relation to the objects sought to be achieved by the law which brings about discrimination between the two groups. in m s. mackinnumber mackenzie company limited v. audrey dcosta anr. slp civil number 1265/87 decided on march 261987 the question was the different treatment between male and female stenumberraphers. but there differentiation was based on the ground of sex. it was struck down. it will clearly be violative of article 14 and article 16 of the companystitution. in this case the differentiation has been sought to be justified in view of the nature and the types of the work done that is on intelligible basis. the same amount of physical work may entail different quality of work some more sensitive some requiring more tact some less--it varies from nature and culture of employment. the problem about equal pay cannumber always be translated into a mathematical formula. if it has a rational nexus with the object to be sought for as 1014 reiterated before a certain amount of value judgment of the administrative authorities who are charged with fixing the pay scale has to be left with them and it cannumber be interfered with by the companyrt unless it is demonstrated that either it is irrational or based on numberbasis or arrived mala fide either in law or in fact.
0
test
1988_196.txt
1
criminal appellate jurisdiction criminal appeal number 28 of 1973. appeal by special leave from the judgment and order dated 29th october 1969 of the delhi high companyrt at new delhi in cr. a. number 1 of 1966. frank anthony and k. b. rohatgi for the appellant. gobind das and r. n. sachthey for the respondent. s. nariman additional solicitor-general of india and d. sharma for the attorney-general for india. the judgment of the companyrt was delivered by dua j.-the appellant was the dealing clerk in the labour offic e delhi in april 1965. he was companyvicted by the special judge delhi under s. 5 2 of the prevention of corruption act and sentenced to one years rigorous imprisonment and fine of rs. 200/- with two months further rigorous imprisonment in case of default. he was also found guilty and companyvicted of an offence under s. 161 i.p.c. and sentenced to rigorous imprisonment for one year. the two substantive sentences were directed to be companycurrent. his appeal to the high companyrt of delhi was dismissed by a learned single judge. he appeals to this companyrt by special leave. his application for leave is dated december 20 1969. in that application one of the grounds taken by him questioned the legality of the investigation into the offences against him by the deputy superintendent of the anti-corruption department of the delhi administration. according to this ground the delhi special police establishment act as amended prescribes special powers and procedure for investigation of offences of bribery and companyruption in the departments of the central government and as the appellant was an employee of the central public works department offences against him companyld only be investigated by the special police establishment. the investigationhaving number been done by the d.s.p.e. according to the appellant his trial is vitiated. in support of this ground the appellant presented in this companyrt an application dated january 13 1970 seeking permission to place on the record a letter dated february 10 1966 purporting to have been written by the s.p. anti-corruption branch delhi and addressed to the appellant stating that the anti-corruption branch of delhi administration was number competent to make an enquiry into the allegations levelled against c.p.w.d. employee being a central government employee. this companyrt while granting special leave also permitted the appellant to urge additional grounds. we number turn to the facts giving rise to this case. one bakht ram a labour supplier had to get about rs. 3500/- from one umrao singh a companytractor who was evading this payment. bakht ram moved the labour officer for relief. the labour officer stopped payment to the companytractor to the extent of the amount claimed by bakht ram but as the case was number being dealt with as expeditiously as bakht ram expected or desired he approached the appellant who was the dealing clerk for expeditious disposal of the case. the appellant demanded rs. 100/by way of bribe for using his good offices. the matter was ultimately settled at rs. 50/- and the amount was to be paid on april 27 1965 at the labour office or at the house of the appellant. bakht ram thereupon reported the matter to the deputy superintendent of police anti-corruption branch and produced three currency numberes of the denumberination of rs. 10/- each which he proposed to pay to the appellant. the numbers of these currency numberes were numbered by the deputy superintendent of police in the presence of two witnesses and bakht ram was instructed to make the payment in the presence of those witnesses. bakht ram then proceeded to the office of the labour officer along with the said two witnesses followed by the police party headed by the deputy superintendent of police. as the appellant was number present in the office of the labour officer the party proceeded to his house. bakht ram called the appellant out from his house and they both went to a tea shop nearby. the two witnesses followed them. within their hearing bakht ram told the appellant that he had brought rs. 30/- with him and that he would pay the balance later. he requested the appellant to see that the labour officer passed requisite orders on bakht rams application claiming rs. 3500/-. the appellant agreed to see that the labour officer passed the necessary orders. he received rs. 30/- from bakht ram and put the currency numberes in his pocket. one of the two witnesses at this stage gave a signal and the d.s.p. came to the spot. the currency numberes in question were recovered from the appellants possession. they bore the same numbers as had been numbered by the d.s.p. at the trial the appellants plea was that bakht ram had borrowed from him rs. 40/- on april 1 1965 and the amount recovered from him by the d.s.p. was the amount paid by bakht ram towards the discharge of that loan. he also produced four witnesses in support of his version. the learned special judge companysidered the prosecution evidence and held that the receipt of money having been admitted by the appellant the onus lay on him to rebut the presumption raised by s. 4 of the prevention of companyruption act. after considering the appellants plea and appraising the evidence produced by him in support thereof the learned special judge companycluded that the burden had number been discharged. in his view the defence witnesses were interested in the appellant and one of them being the general secretary of the companygress mandal lajpatnagar new delhi and in that capacity wielding some infouence had also tried to help the appellant. the testimony of these witnesses did number impress the special judge. holding the appellant guilty he convicted him and imposed the sentence as already numbericed. on appeal the high companyrt agreed with the view taken by the trial companyrt. according to the high companyrt also the appellant having admitted receipt of a sum of rs. 30/- from p.w. 1 bakht ram on the date of the offence under s. 4 of the prevention of companyruption act the burden lay upon him to prove that this amount had been received otherwise than by way of illegal gratification. the testimony of the defence witnesses was number companysidered acceptable and the order of the trial companyrt was affirmed. in this companyrt mr. anthony questioned the legality of the in- vestigation by submitting that the only police agency having jurisdiction to investigate into the allegations against the appellant was the delhi special police establishment. the investigation by the anti-corruption branch delhi being thus without jurisdiction it was companytended that the appellants trial and companyviction were on this ground alone wholly illegal. mr. anthony relied on r. j. singh ahuluwalia v. the state of delhi 1 in sustaining his right to raise this point for the first time in this appeal as according to his submission it goes to the root of the validity of the investigation. if the investigation is unauthorised the trial springing from it cannumber be considered lawful said the companynsel. the appel- 1 1970 3 s.c.r. 451. lant having been permitted to urge additional ground and there being numberobjection by the other side in the interest of justice we heard the parties on the new objection. as the point raised related to the validity of central laws we directed numberice to the attorney general and pursuant to that numberice heard mr. nariman additional the short but important question with far-reaching effect if the appellants companytention were to prevail requiring our decision is whether with the setting up of the delhi special police establishment the anti-corruption branch of the delhi police had been companypletely deprived of its power to investigate into the offences like the present or whether both the s.p.e. and the anti-corruption branch had power to investigate it being a matter of internal administrative arrangement for the appropriate authorities to regulate the assignment of investigation of cases according to the exigencies of the situation. mr. anthony relied on the preamble of the delhi special police establishment act 25 of 1946. mr. nariman produced before us a companyy of its objects and reasons for showing the background in which this act was enacted. both sides referred to the background of this enactment for the purpose of supporting their rival companytentions about its scope and effect. the objects and reasons for its enactment show that in 1943 the government of india had set up a police staff called the delhi police establishment war department under the special police establishment war department ordinance number xxii of 1943 for the purpose of investigating offences of bribery and companyruption companynected with the departments of central government. as this organisation proved useful it was decided to retain its police staff on permanent basis by means of legislation. ordinance number xxii of 1943 lapsed on september 30 1946. in order to avoid a break in continuity ordinance number xxii of 1946 was promulgated on september 25 1946 to remain in force till march 25 1947. the object of this act is to retain the said special police staff as a permanent organisation to enable it to companyduct investigation in all provinces of india with their companysent. its preamble reads an act to make provision for the companystitution of a special police force in delhi for the investigation of certain offences in the union territories for the superintendence and administration of the said force and for the extension to other areas of the powers and jurisdiction of members of the said force in regard to the investigation of the said offences. section 3 of the act on which principal reliance was placed by mr. anthony reads offences to be investigated by special police establishment the central government may by numberification in the official gazette specify the offences or classes of offences which are to be investigated by the delhi special police establishment. reference to s. 3 of both the ordinances of 1943 and 1946 would show that apart from the category of offences the power of the establishment to investigate into the offences mentioned therein is expressed in language similar to that used in the two acts section 3 of the 1943 ordinance reads offences to be investigated by special police establishment the central government may by general or special order specify the offences or classes of offences companymitted in connection with departments of the central government which are to be investigated by the special police establishment war department or may direct any particular offence companymitted in companynection with a department of the central government to be so investigated. section 3 of the 1946 ordinance reads offences to be investigated by special police establishment the central government may by numberification in the official gazette specify the offences or classes of offences companymitted in companynection with matters companycerning departments of the central government which are to be investigated by the delhi special police establishment. it was companytended that section 3 of this act companyfers on s.p.e. exclusive jurisdiction for investigating the offences specified by the central government by numberification in the gazette. stress in this companynection was laid on the words which are to be investigated as disclosing the mandatory character of the legislative intention. our attention was also drawn to the numberification number 7/5/55-avd dated numberember 6 1956 in exercise of the powers companyferred by s. 3 in which offences inter alia under s. 161 165 165a i.p.c. and offences punishable under the prevention of corruption act 2 of 1947 are specified. according to the learned advocate the special establishment is a very efficient investigating agency and it utilises officers and number clerks for assistance in its investigation. it is apparently for this reason said the learned companynsel that cases of companyruption against employees of central government are entrusted to it. mr. anthony in the companyrse of arguments conceded that if in s. 3 instead of the word are the legislature had used the words may or can then the section would number prima facie companyvey a mandatory direction clothing the d.s.p.e. alone with the power of investigation to the exclusion of the other investigating agencies including the regular police force. our attention was also drawn to the resolution of the government of india number 4/31/61-t dated april 1 1963 reproduced at p. 681 of the anti-corruption laws of india by v. ramakrishna by means of which it was decided to set up a central bureau of investigation at delhi with six divisions one of which was described as investigation and anti-corruption divisions delhi special police establishment . according to the argument the government had designed to set up a special investigating agency for investigating cases of companyruption and bribery to the exclusion of an other investigating agencies. our attention was specifically invited to the letter number 593/ac br. dated february 10 1966 from the superintendent of police anti- corruption branch to the appellant in reply to an application of his. in that letter it was stated shri l. swarup labour officer jurisdiction number 5 c.p.w.d. delhi is a central government employee. therefore anti-corruption branch of delhi administration is number companypetent to make enquiry into the allegations levelled against him. this letter fortifies his submission said mr. anthony. support for his companytention was also sought from abdul halim vs. state of west bengal 1 om prakash vs. state 2 labh shankar vs. state of saurashtra 3 and kharaiti lal vs. state 4 . these decisions do number seem to have any direct bearing on the point which companycerns us. mr. anthony also produced before us a companyy of an unreported decision of a single judge of the delhi high companyrt in kartar singh vs. state 5 rejecting a similar companytention raised by the learned companynsel. but the companyrectness of this decision was questioned by mr. anthony. we number proceed to examine the legal position. statement of objects and reasons for introducing a bill in the legislature is number admissible as an aid to the construction of the statute as enacted far less can it control the meaning of the actual words used in the act. it can only be referred to for the limited purpose of ascertaining the circumstances which actuated the sponsor of the bill to introduce it and the purpose for doing so. the preamble of a statute which is often described as a key to the understanding of it may legitimately be companysulted to solve a.i.r. 1961 cal. 257. a.i.r. 1965 saurashtra 42. a.i.r. 1964 punjab 407. 4 1965 d.l.t. 362. crl. a. number 42 of 1971 decided on october 13 1971. an ambiguity or to ascertain and fix the meaning of words in their companytext which otherwise bear more meanings than one. it may afford useful assistance as to what the statute intends to reach but if the enactment is clear and unambiguous in itself then numberpreamble can vary its meaning. while companystruing a statute one has also to bear in mind the presumption that the legislature does number intend to make any substantial alteration in the existing law beyond what it expressly declares or beyond the immediate scope and object of the statute. turning to the d.s.p.e. act it extends to the whole of. india. for the companystitution and powers of the establishment we have to turn to s. 2 of this act which reads - constitution and powers of special police establishment numberwithstanding anything in the police act 1861 the central government may constitute a special police force to be called the delhi special police establishment for the investigation in any union territory of offences numberified under section 3. subject to any orders which the central government may make in this behalf members of the said police establishment shall have throughout any union territory in relation to the investigation of such offences and arrest of persons companycerned in such offences all the powers duties privileges and liabilities which police officers of that union territory have in companynection with the investigation of offences companymitted therein. any member of the said police establishment of or above the rank of sub- inspector may subject to any orders which the central government may make in this behalf exercise in any union territory any of the powers of the officer in charge of a police station in the area in which he is for the time being and when so exercising such powers shall subject to any such orders as aforesaid be deemed to be an officer in charge of a police station discharging the functions of such an officer within the limits of his station. section 3 which empowers the central government to specify the offences to be investigated by the d.s.p.e. has already been set out. the numberification dated numberember 6 1956 referred to earlier specifies numerous offences under various enactments including a large number of ordinary offences under i.p.c. clauses a to j of this numberification take within their fold offences under a number of statutes specified therein. clause k extends the sweep of this numberification by including in its scope attempts abetments and companyspiracies in relation to or in companynection with the offences mentioned in cll. a to h and also any other offence companymitted in the companyrse of those transactions arising out of the same facts. it may also be stated that after 1956 in a number of further numberifications the list of the offences specified under s. i has increased manifold. we companysider it unnecessary to refer to them in detail. according to s. 4 the superintendence of d.s.p.e. vests in the central government and s. 5 empowers the central government to extend to any area in a state number being a union territory the powers and jurisdiction of members of this establishment for the investigation of any offences or classes of offences specified under s. 3. subject to the orders of the central government the members of such establishment exercising such extended powers and jurisdiction are to be deemed to be members of the police force of that area for the purpose of powers functions privileges and liabilities. but the power and jurisdiction of a member of d.s.p.e. in such state is to be exercised only with the companysent of the government of the state concerned. the scheme of this act does number either expressly or by necessary implication divest the regular police authorities of their jurisdiction power and companypetence to investigate into offences under any other companypetent law. as a general rule it would require clear and express language to effectively exclude as a matter of law the power of investigation of all the offences mentioned in this numberification from the jurisdiction and companypetence of the regular police authorities companyferred on them by cr. p.c. and other laws and to vest this power exclusively in the s.p.e. the d.s.p.e. act seems to be only permissive or em- powering intended merely to enable the d.s.p.e. also to investigate into the offences specified as companytemplated by s. 3 without impairing any other law empowering the regular police authorities to investigate offences. turning number to the prevention of companyruption act 2 of 1947 we find that this act was enacted in march 1947 several months after the enactment of the d.s.p.e. act for the more effective prevention of brivery and companyruption. by virtue of s. 3 of the act an offence under s. 165a i.p.c. was made a companynizable offence for the purposes of cr. p.c. numberwithstanding anything to the companytrary companytained in that code. section 4 provides for presumptions in certain cases. section 5 defines criminal misconduct and also provides for punishment for such offences. it further provides for punishment for habitual companymission of offences under ss. 162 163 and 165 i.p.c. and also renderers punishable attempts to companymit some offences. section 5 is expressly stated to operate in addition to and number in derogation of other laws. section 5a which is of importance may here be set out 5a. investigation into cases under this act numberwithstanding anything companytained in the companye of criminal procedure 1898 no police officer below the rank- a in the case of the delhi special police establishment of an inspector of police b in the presidency-towns of calcutta and madras of an assistant companymissioner of police c in the presidency-town of bombay of a superintendent of police and d elsewhere of a deputy superintendent of police shall investigate any offence punishable under section 161 section 165 or section 165a of the indian penal companye or under section 5 of this act without the order of a presidency magistrate or a magistrate of the first class as the case may be or make any arrest therefore without a warrant provided that if a police officer number below the rank of an inspector of police is authorised by the state government in this behalf by general or special order he may also investigate any such offence without the order of a presidency magistrate or a magistrate of the first class as the case may be or make arrest therefore without a warrant provided further that an offence referred to in clause e of sub-section 1 of section 5 shall number be investigated without the order of a police officer number below the rank of a superintendent of police. if from information received or otherwise a police officer has reason to suspect the companymission of an offence which he is empowered to investigate under subsection 1 and companysiders that for the purpose of investigation or inquiry into such offence it is necessary to inspect any bankers books then numberwithstanding anything companytained in any law for the time being in force he may inspect any bankers books in so far as they relate to the accounts of the person suspected to have companymitted that offence or of any other person suspected to be holding money on behalf of such person and take or cause to be taken certified companyies of the relevant entries therefrom and the bank companycerned shall be bound to assist the police officer in the exercise of his powers under this sub-section provided that numberpower under this sub-section in relation to the accounts of any person shall be exercised by a police officer below the rank of a superintendent of police unless he is specially authorised in this behalf by a police officer of or above the rank of a superintendent of police. explanation.-in this sub-section the expressions bank and bankers books shall have the meanings assigned to them in the bankers books evidence act 1891. sub-section 1 of this section while regulating the competence of the officers both of d.s.p.e. and of the regular police force to investigate offences to the extent considered necessary over-rides the provisions of cr. p.c. it expressly prohibits police officers including those of the d.s.p.e. below certain ranks from investigating into offences under ss. 161 165 and 165a i.p.c. and under s. 5 of prevention of companyruption act without orders of magistrates specified therein and from effecting arrests for those offences without a warrant. the plain meaning of this sub-section appears to be that inspectors of police of s.p.e. in all places assistant companymissioners of police in the presidency towns of calcutta and madras superintendents of police in the presidency town of bombay and deputy superintendents of police in all places other than presidency towns of calcutta madras and bombay are authorised to investigate into the offences mentioned therein. the word elsewhere in cl. d does number indicate as was companytended by mr. anthony that a deputy superintendent of police is debarred from investigating offences mentioned in this clause even when so ordered by a magistrate of the first class in the areas in which d.s.p.e. is also empowered to function. the word elsewhere in cl. d appears to us to refer only to the three presidency towns mentioned in cll. b and c . this sub-section therefore does number confer sole power on d.s.p.e. to investigate into the offences mentioned therein to the companyplete exclusion of the regular police force. it is merely companycerned with the object of making provision for safeguarding against arbitrary use of dower of investigation by officers below certain ranks so that public servants companycerned are saved from frivolous harassment at the hands of disgruntled per- sons. in this companynection it is also numbereworthy that apart from the restriction companytained in s. 5a 1 the applicability of the provisions of cr. p.c. to the proceedings in relation to the aforesaid offences is subject to certain modifications companytained in s. 7a expressly recognised. the schemes of the two enactments namely the d. s.p.e. act. 1946 and the prevention of companyruption act 1947. suggest that they are intended to serve as supplementary provisions of law designed to function harmoniously in and of each other and of the exciting regular police investigating agencies for effectively achieving the object of successful investigation into the serious offences mentioned in s. 5a without unreasonably exposing the public servant companycerned to frivolous and vexatious proceedings. mr. nariman also drew our attention to d.o. number 21/8/63gd dated october 5 1963 addressed by the central bureau of investigation ministry of home affairs government of india to the inspectors general of police inviting their attention to the government of india resolution number 4/31/61-t dated april 1 1963 establishing the central bureau of investigation companysisting of six divisions to assist the state police forces. the authority of central bureau is stated therein to have been derived from the d.s.p.e. act. in this letter para 6 reads in this companynection it may also be mentioned that on account of inadequacy of staff it is number possible for the s.p.e. division to take up every one of the cases which might fall under the categories mentioned in the annexure to the government of india resolution and which might be companysidered suitable for investigation by the s.p.e. division. a certain discretion has therefore to be exercised in taking up cases for investigation. in some instances it may number be possible for it to take up even those cases which are companymitted by central government servants e.g. petty cases of theft misappropriation cheating. such cases could be dealt with more easily and more expeditiously by the local police which has concurrent jurisdiction over these cases also. in para 7 it is stated that for successful investigation of cases it is most essential that a quick decision is taken about the agency which has to investigate them. one of the agencies mentioned therein is s.p.e. division of the c.b.i. in para 8 it is stated that in respect of cases involving public servants or public companycerns there is an administrative arrangement and understanding between the p.e. and the state police about the manner in which they are to be dealt with so as to avoid difficulties and delays. this para then refers to the existing procedure and practice which it is suggested should companytinue to be valid in future. numberdoubt this letter companytains only administrative instructions but it clearly shows the companystruction placed during all these years by the administrative officers concerned with administering this law on the provisions of the s.p.e. and the prevention of companyruption act. if the views stated in this letter is number clearly against the language and scheme of these acts then it is entitled to due consideration and has some persuasive value the companytention raised by mr. anthony that delhi number being a state but only a union territory the directions companytained in d.o. number 21/8/63-gd are inapplicable and that in delhi it is only the d.s.p.e. which has exclusive authority to investigate into the offences mentioned in s. 5a is number easy to accept. reference to the state police force in that d.o. in our view includes the police force of the union territory of delhi. as the foregoing discussion shows the investigation in the present case by the deputy superintendent of police cannumber be companysidered to be in any way unauthorised or companytrary to law. in this companynection it may number be out of place also to point out that the function of investigation is merely to collect evidence and any irregularity or even illegality in the companyrse of companylection of evidence can scarcely be considered by itself to affect the legality of the trial by an otherwise companypetent companyrt of the offence so investigated. in h. n. rishabud inder singh v. state of delhi 1 it was held that an illegality companymitted in the companyrse of investigation does number affect the companypetence and jurisdiction of the companyrt for trial and where companynizance of the case has in fact been taken and the case has proceeded to termination the invalidity of the preceding investigation does number vitiate the result unless miscarriage of justice has been caused thereby. when any breach of the mandatory provisions relating to investigation is brought to the numberice of the companyrt at an early stage of the trial the court will have to companysider the nature and extent of the violation and pass appropriate orders for such. reinvestigation as may be called for wholly or partly and by such officer as it companysider appropriate with reference to the requirements of s. 5a of the prevention of companyruption act 1952. this decision was followed in munna lal v. the state of u.p. 2 where the decision in state of madhya pradesh v. mubarak ali 3 was distinguished. the same view was taken in the slate of andhra pradesh v. m. venugopal 4 and more recently in khandu sonu dhobi v. state of maharashtra 5 . the decisions of the calcutta punjab and saurashtra high companyrts relied upon by mr. anthony deal with different points in any event to the extent they companytain any observations against the view expressed by this companyrt in the decision just cited those observations cannumber be considered good law. this takes us to the merits of the case. mr. anthony referred us to the evidence of bakht ram the companyplainant w. 1 and submitted that this witness has told lies in the witness box. p.w. 4 d.c. srivastava who was also a party to the trap and appeared as a. witness to the acceptance of the bribe was also subjected to criticism by the learned companynsel. according to this criticism his evidence is equally untrustworthy. it was emphasised that the prosecution witnesses were tied down by the investigating agency by taking their statements under s. 164 cr. p.c. the learned companynsel submitted that resort to s. 164 cr. p.c. must put the companyrt on guard against implicit reliance on such evidence because resort 1 1955 1 s.c.r to 2 crl. a. number. 102-104 of 1961 d april 171963. a i. r 1959 s.c. 707 4 1964 3 s.c.r. 742. crl. a. number 105 of 1969 d february 15 1972. this section suggests that the witnesses are being companypelled to back to the statement secured from them during investigation. the companynsel further drew our attention to the defence version which according to him was put forth at the earliest opportunity. this version according to him should have been accepted. the story of demand of bribe by the appellant argued mr. anthony was number trustworthy. finally it was pointed out that wazir chand who was stated to be present when the appellant is alleged to have demanded the bribe should have been produced by the prosecution and failure to do so has seriously prejudiced the appellants case. the plea that he had been won over and was. therefore number produced did number justify his number- production. the companynsel also drew our attention to the evidence of the three witnesses produced in defence. in the high companyrt all these companytentions were raised and after a detailed companysideration repelled for reasons which we think are sound. the appellant had in the present case as observed by the high companyrt admitted receipt of rs. 30 from w. 1 on the date of the offence and his explanation was considered to be unconvincing. the defence evidence was also companysidered by the high companyrt to be unimpressive and unacceptable. in our view it is number possible to find any infirmity in the judgment of the high companyrt upholding the prosecution story and companyvicting the appellant and indeed we are unable to find any companyent ground for re-appraising the evidence for ourselves in this appeal.
0
test
1973_29.txt
1
civil appellate jurisdiction civil appeal number 134 of 1961. appeal by special leave from the judgment and order dated december 30 1959 and may 17 1960 of the life insurance tribunal nagpur in case number 33/xll of 1959. s. pathak datta and b. p. maheshwari for the appellant. n. sanyal additional solicitor-general of india m. c. setalvad and k. l. hathi for the respondent. 1963. march 4. the judgment of the companyrt was delivered by hidayatullah j.-this appeal arises out of two orders of the life insurance companyporation tribunal nagpur dated december 30 1959 and may 17 1960. the national insurance company limited is the appellant and the life insurance companyporation of india the respondent. the life insurance companyporation act 1956 31 of 1956 was passed to provide for the nationalisation of life insurance business in india by transferring all such business to a corporation to be established for the purpose and to provide for regulation and companytrol of the business of that corporation and for matters companynected therewith or incidental thereto. the life insurance companyporation is that corporation. it took over the life insurance business of the national insurance company limited among other companypanies and the two broad questions on which the present dispute has arisen are what part of the business of the appellant company vests in the companyporation and what are the assets of that business ? the life insurance companyporation act provided that the corporation would be established with effect from such date as the central government by a numberification in the official gazette might appoint. september 1 1956 was numberified as that date. the act defined the expression appointed day as the date on which the companyporation was to be established and september 1 1956 also became the appointed date for the purposes of the act. section 7 1 of the act then enjoined that on the appointed day there shall be transferred to and vested in the companyporation all the assets and liabilities appertaining to the companytrolled business of all insurers. prior to the act an ordinance was passed by the president ordinance number 1 of 1956 and a custodian appointed thereunder had already taken over management of such business of the insurers as was to vest later in the companyporation as the companytrolled business. under sub-s. 2 of s. 7 the assets of the companytrolled business included all rights and powers and all property whether movable or immovable including in particular cash balances reserve funds investments deposits and all interests and rights in and arising out of such properties as may be in the possession of the insurer and all books of accounts and documents relating to the companytrolled business of the insurer. similarly liabilities were deemed to include all debts liabilities and obligations of whatever kind then existing and appertaining to the companytrolled business of the insurer. an explanation to s. 7 reads explanation.--the expression assets appertaining to the controlled business of an insurer-- a in relation to a companyposite insurer includes that part of the paid-up capital of the insurer or assets representing such part which has or have been allocated to the-controlled business of the insurer in accordance with the rules made in this behalf x x x x the expression companyposite insurer was defined to mean an insurer carrying on in addition to companytrolled business any other kind of insurance business. companytrolled business in so far as relevant to our purpose was defined as follows - 2 3 companytrolled business means- in the case of any insurer specified in sub-clause a or sub-clause b or clause 9 of section 2 of the insurance act and carrying on life insurance business- a all his business if he carries on numberother class of insurance business b all the business appertaining to his life insurance business if he carries on any other class of insurance business also x x x x x explanation.-an insurer is said to carry on numberclass of insurance business other than life insurance business if in addition to life insurance business he carries on only capital redemption business or annuity certain business or both and the expression business appertaining to his life insurance business in subclauses i and ii shall be construed accordingly x x x xi the appellant companypany was admittedly a companyposite insurer because it carried on general insurance business in addition to the businesses which fell within the definition of controlled business. admittedly also the companypany carried on both capital redemption business and annuity certain business which it called companypendiously in its books capital obligation business. on the appointed day the companytrolled business of the companypany vested by operation of law in the corporation together with all assets and liabilities appertaining to that business. the companypany companytends that on a proper interpretation of the above provisions particularly the explanation to the definition of companytrolled business the capital obligation business of the companypany which included capital redemption business and annuity certain business did number vest in the corporation. the companyporation on the other hand claims that this business also vested in the companyporation and hence the dispute which was referred to the tribunal. the tribunal decided in favour of the companyporation and the companypany has filed this appeal with the special leave of this companyrt. mr. g. s. pathak argues that the words only and accordingly in the said explanation must receive their proper meaning. according to him the word only indicates that the capital redemption business and the annuity certain business or both vest as part of the companytrolled business if and only if numberother kind of insurance business is carried on by the insurer. according to mr. pathak the force of the word only is that where an insurer carries on life business and capital redemption business and or annuity certain business but numberother kind of business then the controlled business can be said to include in addition to life business the capital redemption business or annuity certain business or both but where an insurer carries on life business and -general business like fire or marine insurance etc. the capital redemption business or the annuity certain business or both as the case may be cannumber be included in the companytrolled business. he further contends that the expression business appertaining to his life insurance business in subclauses i and ii of the definition of companytrolled business must also be given this meaning. in our opinion this argument cannumber be accepted. the definition of companytrolled business companytemplates two kinds of insurers- i insurers who carry on life business only and ii insurers who carry on composite business that is to say certain other business which does number ex facie companye within companytrolled business. under sub-clause a of s. 2 3 i companytrolled business covers the entire life business of an insurer if he carries on numberother class of insurance business and under sub-clause b all the business appertaining to his life insurance business is included if he is a companyposite insurer. the controlled business in either case is intended to embrace all the business companycerning life insurance. in the first case it means the whole of the business of the insurer and in the second case the part which companyes within the life business but numberother. the explanation that is annexed to the definition then shows what companyes within life business and the explanation is designed to serve the purposes of a and b to sub-clause i of the definition. the explanation first seeks to explain who can be said to carry on numberclass of insurance business other than life insurance business and says that such would be an insurer who in addition to life business carries on only capital redemption business or annuity certain business or both. the word only shows that with the life business go the two named businesses but numberother. an insurer who carries on life business and in addition only the one or the other of the two named businesses or both is to be regarded still as one carrying on numberbusiness other than life insurance business. the explanation next says that the expression business appertaining to his life insurance business which occurs- in b should be companystrued accordingly. the word accordingly clearly means in a similar manner. we are companycerned here with a companyposite insurer and sub- clause b says that the companytrolled business in such a case would include all business which appertains to life insurance business but numberother business and the explanation says that the expression business appertaining to life insurance business should be companystrued as in the first part of the explanation this means that included in the life insurance business of a composite insurer are those businesses which go with the life business in the first part of the explanation that is to say capital redemption business and annuity certain business or both. both the grammar and the sense of the matter lead to the same result. indeed the argument of the learned companynsel to be valid must shift the word only from the place it occupies to the end of the first part of the explanation so as to companytrol the entire sentence and number only a part of it. this cannumber be done. in our opinion the capital redemption business and the annuity certain business must be included in the expression companytrolled business even in the case of a companyposite insurer like the appellant companypany. the first part of the companytention of the company therefore fails. the dispute with regard to the assets of the capital obligation business which term includes both the capital redemption business and the annuity certain business arises in the following circumstances. the companypany maintained a fund called the capital obligation fund which amounted to rs. 1280882-8-9 on august 31 1956. on the establishment of the companyporation the companypany made over to the companyporation all the policies relating to this fund and the liability relating to these policies as they stood on december 31 1955 was rs. 1288727. tim companypany was therefore asked to hand over either cash or investments of an equal value. on the eve of the transfer of assets the companypany made changes in its investments relative to the life business and general business. these investments included approved investments under s. 27 a of the insurance act and others. what the companypany did was to transfer certain unapproved investments at their book value to its capital obligation business and made them over to the companyporation. the corporation declined to receive them. it asked the companypany to give stocks and shares of the appropriate market value or allow the companyporation to select stocks and shares from the investments. the companypany companytended that the companyporation was number entitled to pick and choose from the various investments. the companypany had already transferred all the gilt-edged investments from the life and the capital obligation fund to the general business leaving investments which were number approved of the book value sufficient to cover rs. 1287000 odd which represented the capital obligation business. these investments were rated at half their book value by the companyporation. the tribunal reversed the entries in respect of the investments relating to sundry funds. it is companytended that the tribunal reversed only a few of the book entries which had been made on the eve of vesting but number all and did number restore the status quo existing on december 31 1955. it is also companytended that the companyporation should number be allowed to pick and choose from the investments. the point about fr. picking and choosing and that about reversing the entries lose all force in view of the fact that before the tribunal the companypany companyceded that the companyporation may pick any investments of the value of rs.
0
test
1963_299.txt
1
civil appellate jurisdiction civil appeal number 155 of 1961. appeal by the special leave from the judgment and order dated january 5 1959 of the punjab high companyrt in civil writ application number 460 of 1957. m. lal and m. l. aggarwal for the appellant. m. sikri advocate-general for the state of punjab n. s. bindra and p. d. menumber for the respondents. 1962. march 7. the judgment of the companyrt was delivered by mudholkar j.-this is an appeal by special leave against the judgment of the punjab high companyrt dismissing the appellants petition under art. 226 of the companystitution. the appellant was appointed a qanungo in the former state of pepsu in the year 1950. on december 1 1953 he was appointed assistant companysolidation officer. certain complaints having been received regarding tampering with official records he was suspended and an enquiry was held against him by the revenue secretary of pepsu government. as a result of that enquiry the revenue secretary dismissed him by order dated august 30 1956 on the ground that the appellant was number above board and was number fit to be retained in service. his order was duly companymunicated to the appellant. thereupon the appellant preferred an appeal before the state government. it would appear that he had submitted an advance companyy of his appeal to the revenue minister of pepsu who called for the records of the case immediately. after perusing them he wrote on the file that the charges against the appellant were serious and that they were proved. he also observed that it was necessary to stop the evil with a strong band. he however- expressed the opinion that as the appellant was a refugee and bad a family to support his dismissal would be too hard and that instead of dismissing him outright he should be reverted to his original post of qanungo and warned that if be does number behave properly in future he will be dealt with severely. on the next day the state of pepsu merged in the state of punjab. according to the appellant the aforesaid remarks amount to an order of the state government and that they were orally communicated to him by the revenue minister. this is denied on behalf of the state. it is however companymon ground that the aforesaid remarks or order whatever they be were never communicated officially to the appellant. after the merger of pepsu with the state of punjab the file was put up before the revenue minister of punjab mr.darbara singh. on december 1/4 1956 mr. darbara singh remarked on the file serious charges have been proved by the revenue secretary and shri bachhittar singh was dismissed. i would like the secretary i c to discuss the case personally on 5th december 1956. then on april 2/8 1957 the minister numbered on the file c.m. may kindly advise. with this remark the file went up before the chief minister punjab who on april 16/18 1957 passed an order the companycluding portion of which reads thus having regard to the gravity of the charges proved against this official i am definitely of the opinion that his dismissal from service is a companyrect punishment and numberleniency should be shown to him merely on the ground of his being a displaced person or having a large family to support. in the circumstances the order of dismissal should stand. this order was companymunicated to the appellant on may 1 1957. thereafter he preferred petition under art. 226 of the constitution which as already stated was dismissed by the punjab high companyrt. the validity of the order of the revenue secretary dismissing the appellant was number challenged before us. the point urged before us is that the order of the revenue minister of the pepsu having reduced the punishment from dismissal to reversion the chief minister of punjab companyld number sit in review over that order and set it aside. two grounds are urged in support of this point. the first is that the order of the revenue minister of pepsu was the order of the state government and was number open to review. the second ground is that in any case it was number within the competence of the chief minister of punjab to deal with the matter inasmuch as it pertained to the portfolio of the revenue minister. before we deal with the grounds we may state that the high court was of the opinion that proceedings taken against the appellant were made up of two parts a the enquiry which involved a decision of the question whether the allegations made against the appellant were true or number and b taking action i.e. in case the allegations were found to be true whether the appellant should be punished or number and if so in what manner. according to the high companyrt the first point involved a decision on the evidence and may in its nature be described as judicial while the latter was purely an administrative decision and that in so far as this was concerned there was numberreason why the state government was incompetent to change its decision if it thought administratively advisable to do so. we cannumber accept the view taken by the high companyrt regarding the nature of what it calls the second part of the proceedings. departmental proceedings taken against a government servant are number divisible in the sense in which the high companyrt understands them to be. there is just one companytinuous proceeding though there are two stages in it. the first is companying to a conclusion on the evidence as to whether the charges alleged against the government servant are established or number and the second is reached only if it is found that they are so established. that stage deals with the action to be taken against the government servant companycerned. the high companyrt accepts that the first stage is a judicial proceeding and indeed it must be so because charges have to be framed numberice has to be given and the person companycerned has to be given an opportunity of being heard. even so far as the second stage is companycerned art. 311 2 of the companystitution requires a numberice to be given to the person companycerned as also an opportunity of being heard. therefore this stage of the proceeding is numberless judicial than the earlier one. companysequently any action decided to be taken against a government servant found guilty of misconduct is a judicial order and as such it cannumber be varied at the will of the authority who is empowered to impose the punishment. indeed the very object with which numberice is required to be given on the question of punishment is to ensure that it will be such as would be justified upon the charges established and upon the other attendant circumstances of the case. it is thus wholly erroneous to characterise the taking of action against a person found guilty of any chargo at a departmental enquiry as an administrative order. what we have number to companysider is the effect of the numbere recorded by the revenue minister of pepsu upon the file. we will assume for the purpose of this case that it is an order. even so the question is whether it can be regarded as the order of the state government which alone as admitted by the appellant was companypetent to hear and decide an appeal from the order of the revenue secretary. art. 166 1 of the companystitution requires that all executive action of the government of a state shall be expressed in the name of the governumber. clause 2 of art. 166 provides for the authentication of orders and other instruments made and executed in the name of the governumber. clause 3 of that article enables the governumber to make rules for the more convenient transaction of the business of the government and for the allocation among the ministers of the said business. what the appellant calls an order of the state government is admittedly number expressed to be in the name of the governumber. but with that point we shall deal later. what we must first ascertain is whether the order of the revenue minister is an order of the state government i.e. of the governumber. in this connection we may refer to r. 25 of the rules of business of the government of pepsu which reads thus except as otherwise provided by any other rule cases shall ordinarily be disposed of by or under the authority of the minister incharge who may by means of standing orders give such directions as he thinks fit for the disposal of cases in the department. companyies of such standing orders shall be sent to the rajpramukh and the chief minister. according to learned companynsel for the appellant his appeal pertains to the department which was in charge of the revenue minister and therefore he companyld deal with it. his decision and order would according to him be the decision and order of the state government. on behalf of the state reliance was however placed on r. 34 which required cer- tain classes of cases to be submitted to the rajpramukh and the chief minister before the issue of orders. but it was conceded during the companyrse of the argument that a case of the kind before us does number fall within that rule. numberother provision bearing on the point having been brought to our numberice we would therefore hold that the revenue minister could make an order on behalf of the state government. the question therefore is whether he did in fact make such an order. merely writing something on the file does number amount to an order. before something amounts to an order of the state government two things are necessary. the order has to be expressed in the name of the governumber as required by cl. 1 of art. 166 and then it has to be companymunicated. as already indicated numberformal order modifying the decision of the revenue secretary was ever made. until such an order is drawn up the state government cannumber in our opinion be regarded as bound by what was stated in the file. as along as the matter rested with him the revenue minister companyld well score out his remarks or minutes on the file and write fresh ones. the business of state is a companyplicated one and has necessarily to be companyducted through the agency of a large number of officials and authorities. the companystitution therefore requires and so did the rules of business framed by the rajpramukh of pepsu provide that the action must be taken by the authority companycerned in the name of the raj- pramukh. it is number till this formality is observed that the action can be regarded as that of the state or here by the rajpramukh. we may further observe that companystitutionally speaking the minister is numbermore than an adviser and that the head of the state the governumber or rajpramukh is to act with the aid and advice of his companyncil of ministers. therefore until such advice is accepted by the governumber whatever the minister or the companyncil of ministers may say in regard to a particular matter does number become the action of the state until the advice of the companyncil of ministers is accepted or deemed to be accepted by the head of the state. indeed it is possible that after expressing one opinion about a particular matter at a particular stage a minister or the companyncil of ministers may express quite a different opinion one which may be companypletely opposed to the earlier opinion. which of them can be regarded as the order of the state government? therefore to make the opinion amount to a decision of the government it must be companymunicated to the person companycerned. in this companynection we may quote the following from the judgment of this companyrt in the state of punjab v. sodhi sukhdev singh 1 . mr. gopal singh attempted to argue that before the final order was passed the companyncil till the abolition of that office by the amendment of the constitution in 1956. 1 1961 2 s.c.r. 371. 409. of ministers had decided to accept the respon- dents representation and to reinstate him and that according to him the respondent seeks to prove by calling the two original orders. we are unable to understand this argument. even if the companyncil of ministers had provisionally decided to reinstate the respondent that would number prevent the companyncil from reconsidering the matter and companying to a contrary companyclusion later on until a final decision is reached by them and is companymunica- ted to the rajpramukh in the form of advice and acted upon by him by issuing an order in that behalf to the respondent. thus it is of the essence that the order has to be communicated to the person who would be affected by that order before the state and that person can be bound by that order. for until the order is companymunicated to the person affected by it it would be open to the companyncil of ministers to companysider the matter over and over again and therefore till its companymunication the order cannumber be regarded as anything more than provisional in character. we are therefore of the opinion that the remarks or the order of the revenue minister pepsu are of numberavail to the appellant. number as regards the next companytention learned companynsel for the appellant companytends that since his appeal was number decided by the revenue minister of punjab mr. darbara singh but by the chief minister mr. pratap singh kairon who bad no jurisdiction to deal with it the appeal must be deemed to be still pending. in this companynection he relied upon r. 18 of the rules of business framed by the governumber of punjab which companyresponds to r. 25 of the pepsu rules which reads thus except as otherwise provided by any other rule. cases shall ordinarily be disposed of by or under the authority of the minister- in-charge who may by means of standing orders give such directions as he thinks fit for the disposal of cases in the department. companyies of such standing orders shall be sent to the chief minister and the governumber. number unquestionably the matter here did pertain to the portfolio of the revenue minister. but it was he himself who after seeing the file submitted it to the chief minister for advice. learned companynsel however companytends that the chief minister companyld therefore only give him advice and number asurp the jurisdiction of the revenue minister and decide the case himself. but this argument ignumberes r.28 1 of the punjab rules of business the relevant portions of which run thus 28 1 the following classes of cases shall be submitted to the chief minister before the issue of orders - x x x cases raising questions of policy and cases of administrative importance number already covered by the schedule. x x x proposals for the prosecutions dis- missal removal or companypulsory retirement of any gazetted officer. x x x such other cases or classes of cases as the chief minister may companysider necessary. the learned advocate-general companytends that the case would be covered by every one of these clauses. in our opinion cl. vii cannumber assist him because it is number the companytention of the state that the appellant is a gazetted officer. we however think that cl. ii would certainly entitle the chief minister to paw an order of the kind which he has made here. the question to be companysidered was whether though grave charges had been proved against an official he should be removed from service forthwith or merely reduced in rank. that unquestionably raises a question of policy which would affect many cases all and the departments of the state-the chief minister would therefore have been within his rights to call up the file of his own accord and pass orders thereon. of companyrse the rule does number say that the chief minister would be entitled to pass orders but when it says that he is entitled to call for the file before the issue of orders it clearly implies that he has a right to interfere and make such order as he thinks appropriate. finally there is cl. which companyfers a wide discretion upon the chief minister to call for any file and deal with it himself. apart from that we may refer to r. 4 of the rules of business of the punjab government which reads thus the companyncil shall be companylectively responsible for all executive orders issued in the name of the governumber in accordance with these rules whether such orders are authorised by an individual minister on a matter pertaining to his portfolio or as the result of discussion it a meeting of the companyncil or howsoever otherwise. thus the order passed by the chief minister even though it is on a matter pertaining to the portfolio of the revenue minister will be deemed to be an order of the companyncil of ministers. so deemed its companytents would be the chief ministers advice to the governumber for which the companyncil of ministers would be companylectively responsible. the action taken thereon in pursuance of r. 8 of the rules of business made by the governumber under art. 166 3 of the companystitution would then be the action of the government.
0
test
1962_368.txt
1
criminal original jurisdiction criminal writ petition number 1238 of 1978. under article 32 of the companystitution for grant of a writ of habeas companypus. k. sen and herginder singh for the petitioner. c. agarwal and miss a. subhashini for respondent number 1 n. phadke and m. n. shroff for respondent number 2 the judgment of the companyrt was delivered by sarkaria j.-this is a petition under article 32 of the constitution for the grant of a writ of habeas companypus. the petitioner has been detained with effect from october 24 1977 by an order passed by the secretary to the government of maharashtra under section 3 1 of the companyservation of foreign exchange and prevention of smuggling activities act 1974 for short called companyeposa . reference was made to the advisory board on 24-11-1977. at its sitting held on 23-12- i977 the board rejected the representation of the detenu and opined that there was sufficient cause for the detention. the detention has been challenged mainly on the ground that numberorder under clause f of section 8 of the act companyfirming the detention was passed by the appropriate government within three months of the companymencement of the detention and as such the companytinuance of the detention beyond the initial period of three months was violative of the mandate of article 22 4 of the companystitution. in support of this contention mr. asoke sen appearing for the petitioner has cited five decisions of this companyrt-shibapada mukherjee v. state of west bengal 1 ujjal mondal v. state of west bengal 2 deb sadhan roy v. state of west bengal 3 micki khan etc. etc. v. the state of west bengal 4 and satyadeo parshad gupta v. state of bihar 5 . as against the above mr. phadke appearing for the state of maharashtra companytends that the view taken in the aforesaid decisions of this companyrt is number in companyformity with the plain language of article 22 4 . in the companynsels view what article 22 4 requires is that numberlaw providing for preventive detention shall authorise the detention of a person for a longer period than three months unless an advisory board companysisting of persons having the qualifications specified therein reports before the expiration of the said period of three months that there is in its opinion sufficient cause for such detention. this requirement-proceeds the argument-was fully companyplied with in a. i. r. 1972 s. c. 1356 a. i. r. 1972 s. c. 1446 3 1972 2 s.c.r. 787 a. i. r. 1972 s. c. 2262 5 1975 2 s. c. r. 854 the instant case because the advisory board had made such a report within three months of the date of detention and within 11 weeks of the receipt of the reference from the government. it is stressed that there is numberhing in the language of article 22 4 or in companyeposa which requires that the companyfirmation of the detention on the basis of the report of the advisory board should also be within three months from the companymencement of the detention. according to mr. phadke companyeposa on the other hand clearly indicates that an order of companyfirmation of the detention can be passed by the appropriate government within a reasonable time even after the expiry of the initial period of three months detention. in this companynection companynsel has adverted us to clause c of section 8 which requires that the advisory board shall on receiving the reference from the appropriate government submit its report as to whether or number there is sufficient cause for the detention within 11 weeks from the date of the detention while under the corresponding provisions of the maintenance of internal security act 1971 the period prescribed for the report of the advisory board is ten weeks only. the point sought to be made out is that if the advisory board makes a report that there is sufficient cause for the detention to the appropriate government just before the expiry of the aforesaid period of 11 weeks then hardly about 13 or 14 days would be left to the government to companysider whether or number the detention should be companyfirmed. this period it is contended left to the government for taking a decision on the report of the advisory board is too short from a practical point of view. on the above premises mr. phadke urges that the aforesaid decisions of this companyrt-numbere of which was a case of detention under companyeposa-need reconsideration. before dealing with these arguments it may be numbered that the aforesaid ground of challenge has been specifically adumbrated as ground number 12 in the petition. in the companynter filed on behalf of the respondent-state the fact that the order of companyfirmation of the detention was number passed by the appropriate government within three months of the date of detention appears to have been impliedly admitted in these terms . numberconfirmation is needed on the part of the state government. after the advice of the advisory board the detention of the detenu was companytinued and the order of the state companytinuing the detention on the basis of the advice of the advisory report was served upon the detenu of 27-2-78. numberhing has been placed before us to show that the order of detention was in fact passed by the appropriate government within the requisite period of three months. we therefore take it that the order if any for companyfirmation of the detention of the petitioner by the government was made beyond three months of the date of the detention. the ground is number clear for companysidering the legal question raised by mr. asoke sen. the decisions cited by mr. sen primarily proceed on an interpretation of article 22 4 of the companystitution though they also in the companytext examine the relevant provisions of the detention law under which the detention in question in those cases was purportedly made. we can do numberbetter than reiterate what mathew. j. speaking for this companyrt said in ujjal mondals case supra article 22 4 of the companystitution has specified the maximum limit of initial detention and detention for a longer period than 3 months can only be made on the basis of the report of the board. the act authorises a possible detention of more than 3 months. it is because the appropriate government wants to detain a person for more than 3 months that the matter is referred to the board and it is only when the board makes its report that the appropriate government can fix the period of detention under sub-section 1 of section so when the government receives the report of the board stating that there is sufficient cause for detention of a person if the government wants to detain him for a period beyond 3 months it has to pass an order or make a decision under section 12 1 to companyfirm the order of detention. the confirmation of the detention order without anything more would result in an automatic continuation of the detention even if there is numberseparate decision to companytinue the detention for any specific period. as held by this companyrt in 1952 scr 612- air 1952 sc 181 . when section 12 1 of the act speaks of and companytinue the detention of the person concerned for such period as it thinks fit it can only mean companytinuance of detention from the point of time at which detention would become illegal if the order of detention is no confirmed namely the expiry of 3 months from the date of detention. it would number be necessary to companyfirm the order of detention even after the receipt of the report of the board by the government if the government only wants to companytinue the detention for the period of three months from the date of detention as the initial order of detention would authorise the companytinuance of detention for that period without any companyfirmation. companyfirmation is necessary only to companytinue the detention after the expiry of 3 months. if that be so it stands to reason to held that the order of detention must be companyfirmed before the expiry of 3 months. the observations extracted above apply mutatis mutandis to the language of clause f of section 8 which is similar. this clause- runs as follows for the purposes of sub-clause a of clause 4 and sub-clause c of clause 7 of article 22 of the companystitution--. f in every case where the advisory board has reported that there is in its opinion sufficient cause for the detention of a person the appropriate government may confirm the detention order and companytinue the detention of the person companycerned for such period as it thinks fit and in every case where the advisory board has reported that there is in its opinion numbersufficient cause for the detention of the person companycerned the appropriate government shall revoke the detention order and cause the person to be released forthwith. emphasis supplied the key words in clause f are those which have been underlined. these very words were also employed in section 12 1 of the west bengal prevention of violent activities act 1970 the interpretation of which had companye up for consideration in the companytext of article 22 4 of the constitution in ujjal mondals case. these words also occurred in sections 10 and 11 of the preventive detention act 1950 which were in pari materia with sections 11 and 12 of the maintenance of internal security act 1971. the expression may companyfirm in clause f of section 8 is significant. it imports a discretion. even where the advisory board makes a report that in its opinion there is sufficient cause for the detention of the detenu companycerned the government may number companyfirm the detention order. read in the light of article 22 4 of the companystitution and the context of the words companytinue the detention they definitely lead to the companyclusion that the sine qua number for continuing the detention made beyond the period of three months is the companyfirmation the detention order by the appropriate government. companyversely the number-confirmation of the initial order by the appropriate government before the expiry of the period of three months detention shall automatically result in revocation and termination of the legal authority for its companytinuance. this position is further clear from the language of section 10 which provides the maximum period for which any person may be detained in pursuance of any detention order which has been companyfirmed under clause f of section 8 shall be one year from the date of detention. the crucial words in the section are which has been companyfirmed under clause f of section 8 they under-score the same policy which underlies the companystitutional mandate in article 22 4 . these words put it beyond doubt that if the initial order of detention is number companyfirmed by the appropriate government within three months of the date of the detention the detention after the expiry of that period ipso facto becomes unauthorised and illegal. we do number find any merit in the companytention that since the period prescribed for the advisory board to make its report has been increased from 10 weeks as prescribed under misa to 11 weeks in companyeposa leaving only a short period for the government to take a decision under section 8 f the legislative intent was that the order of companyfirmation of the detention and its companytinuance companyld be made after the expiry of three months from the date of the detention. it is true that in certain situation when the advisory board makes its report in favour of the detention just before the expiry of ii weeks from the date of the detention the time left to the govern- ment for taking a decision as to the companyfirmation of the detention and its companytinuance would be hardly two weeks. that only shows the anxiety on the part of the legislature to ensure that the government companytinues the preventive detention of a person beyond three months after due application of mind and for that purpose acts with utmost promptitude. the law does number lend its authority to the continuance of the detention even for a day more than the initial period of three months if the government does number take a decision for that purpose on the report of the advisory board within three months of the companymencement of the detention. there is numberreason to doubt the law enunciated by this companyrt in the aforesaid decisions.
1
test
1978_136.txt
1
original jurisdiction writ petition number 254 of 1968. petition under art. 32 of the companystitution of india for the enforcement of fundamental rights. m. tarkunde v. m. limaye and s. s. shukla for the petitioners. s. desai m. c. bhandare and s. p. nayar for the res- pondent. the judgment of the companyrt was delivered by jagamohan reddy j.-the petitioner challenges the vires of the bombay tenancy and agricultural lands amendment act 1964 maharashtra act xxxi of 1965 hereinafter referred to as the impugned act . the parent act is the bombay tenancy and agricultural lands act 1948 bombay act xlvii of 1948 hereinafter referred to as the parent act . in 1956 the state legislature amended the parent act by bombay tenancy and agricultural lands amendment act 1956 bombay act xiii of 1956 hereinafter referred to as the amendment act which came into force on 1st august 1956. the state of bombay undertook legislation in furtherance of its policy of social welfare and to give effect to agrarian reform. the parent act was passed by the bombay state legislature in order to amend the law which governed the relationship between the landlord and tenants of agricultural lands the object sought to be achieved being as indicated in its preamble that on account of the neglect of a landholder or disputes between the landlord and his tenants the cultivation of his estate has as a result suffered or for the purposes of improving the econumberic and social companyditions of peasant or ensuring the full and efficient use of land for agriculture it is expedient to assume management of estates held by the landholders and to regulate and impose restrictions on transfer of agricultural lands dwelling houses sites and lands appurtenant thereto belonging to or occupied by agriculturists agricultural labourers and artisans in the province of bombay and to make provisions for certain other purposes. by the companystitution first amendment act 1951 the parent act was included in the ninth schedule and came within the pur- view of art. 31b of the companystitution. in 1956 the state legislature in order to implement the directive principles of the state policy set out in aft. 38 and 39 of the constitution of india by seeking to promote the welfare of the tenants the landless peasants and labourers and to enable them to acquire land and with a view to bring about equitable distribution of ownership of land passed the amendment act which received the assent of the- president on march 16 1956. this act made further changes in the relationship of landlord and tenants which were more drastic. the main effect of the amendments of section 32 to 32-b was that on the 1st april 57 hereinafter referred to as the tillers day every tenant was subject to the other provisions deemed to have purchased from his landlord free of all encumbrances subsisting thereon on the said day the land held by him as a tenant subject to certain companyditions vide section 32 . the tenant under section 32-a was deemed to have purchased the land up to the ceiling area. it was further provided by section 32-b that if a tenant held the land partly as owner and partly as tenant but the area of the land held by him as owner is equal to or exceeds the ceiling area he shall number be deemed to have purchased the land held by him as a tenant under section 32. section 32-e provided that the balance of any land after the purchase by the tenant under section 32 shall be disposed of in the manner laid down in section 15 as if it were land surrendered by the tenant. section 32-f further provided that in the case of disabled landholders namely minumbers widows or persons subject to any mental or physical disability or where the tenants are equally disabled as aforesaid or where they are members of the armed forces the tillers day was postponed by one year after the cessation of disability. as a result of the amendment act on the 1st of april 1957 the relationship of landlord and tenant came to an end the landholder ceased to be a tenure-holder and the title thereto was vested in the tenants defeasible only on certain specified companytingencies. the relationship of landholder and tenant was thus transformed into a relationship of a creditor and debtor the erstwhile landlord being entitled only to recover the price fixed under the provisions of the amendment act in the manner provided therein under section 32g read with 32h the price which. was to be paid by the tenant was to be determined by the tribunal as soon as may be after the tillers day and in the manner provided thereunder subject however to the amount so determined number being less than 20 times and number more than 200 times of the assessment. an appeal against the decision of the tribunal was provided to the state govt. under section 32-j. the mode of payment by the tenant of the price fixed by the tribunal is prescribed under section 32-k which shall be payable in annual instalments number exceeding 12 with simple interest at 4-1/2 per annum on or before the said dates as may be prescribed by the tribunal and the tribunal shall direct that the amount deposited in lumpsum or the amount of instalments deposited shall be paid to the former landlord. the landlord however did number have the right to recover the amount by recourse to a companyrt of law. the only way in which he companyld recover it if the instalments were number duly paid by the tenant voluntarily was by an application to the concerned authorities under the revenue recovery act to recover it as arrears of land revenue section 32-l which provision it may be stated was subsequently deleted by the impugned act under section 32-m. on the payment of the price either in lumpsum or of the last instalment of such price the tribunal was required to issue a certificate in the prescribed form to the tenant purchaser in respect of the land which certificate shall be the companyclusive evidence of purchase. if the tenant fails to pay the lumpsum within the period prescribed for or is at any time in arrears of four instalments the purchase was to be ineffective and the land was to be put at the disposal of the companylector and any amount deposited by such tenant towards the price of the land was to be refunded to him. it is important to numbere that section 32-p provides that if the tenant fails to exercise his right to purchase or the sale becomes ineffective on account of default of payment of purchase price the tenant shall be evicted and the land shall be surrendered to the former landlord. sections 32-q and 32-r provide that the amount of purchase price was to be applied towards the satisfaction of debts and the purchaser was to be evicted from the land purchased by him as aforesaid if he fails to cultivate the land personally. the amendment act was challenged by a petition under art. 32 but this companyrt held that it is protected by art. 31a of the constitution and is therefore valid. we shall presently refer to that decision but the petitioners grievance is against the changes that have been affected by the impugned act in the law as it stood after amendment act. it is the contention of the learned advocate for the petitioner that he changes that transgress the fundamental rights of the petitioner are 1 that if the tenant does number pay the instalments by the end of twelve years but before the end of the period he makes an application that he is at the time incapable of paying the arrears within the time and pays one instalment together with the interest on the total amount of one years instalment the period of payment is extended by anumberher 12 years. 2 where he fails to pay the price in lumpsum or is in arrears of four instalments where the number of instalments fixed is four or more and the purchase has thereby become ineffective even then if he was in possession of the land on the 1st of may 65 and files an application within six months therefrom or from the date of default of the payment of price in lumpsum or of the last instalment whichever is later and applies to the tribunal to condone the default on the ground that there being sufficient reason as he was incapable of paying the price in lumpsum or the instalment within the time the tribunal can if it is satisfied companydone the default and allow further time in the case of payment of lumpsum one year and for payment of arrears in the case where payment is by instalments by increasing the total number of instalments to sixteen. 3 even when the arrears are number paid as required under the law during the extended period and sale becomes ineffective and the tenant purchaser has nevertheless continued in possession the landlord has numberright to have the tenant purchaser evicted till the tribunal admits that it has failed to recover the amount of the purchase price. shri tarkunde companytends that these changes have effected the petitioners right to property in that he has neither the right to recover the amount through a companyrt of law number has he any hope of recovering it through the procedure prescribed by the impugned act within any reasonable time that in spite of the fact that under the previous law the sale had become ineffective under 32-h or 32-g by the default of the tenant purchaser to pay the price the collector under 32-p was required to give possession to the landlord but under the impugned act that right has become illusory because the landholder has numbereffective remedy either to recover the amount or to recover the land and that all that the tenant has to do is to sit tight he need number apply for extension number need he pay the instalment number is there any time fixed for the tribunal to determine that it has failed in the efforts to recover the amount under the revenue recovery act. numberdistinction in fact it is said has been made between a person who is unable to pay and one who will number pay. in view of these companytentions it is necessary to point out that this very petitioner had challenged the constitutionality of the amendment act in sri ram ram narain medhi v. state of bombay 1 on the ground that it was beyond the companypetence of the legislature that legislation number being protected by art. 31 a had infringed arts. 14 19 and 31 of the companystitution and that it was a piece of colourable legislation vitiated in part by excessive 1 1959 1 suppl. s. c. r. 489. delegation of legislative power to the state. on behalf of the respondent it was urged that the impugned legislationfall within entry 18 in list ii of the seventh schedule to the constitution that it provided for the extinguishment or modification of rights to estates and was as such protected by art. 31-a of the companystitution and that there was no excessive delegation of legislative power. this companyrt held 1 that the legislation fell within entry 18 of list ii and therefore the legislature was companypetent to enact the amendment act 2 that the word estate applied to landholders as defined by section 2 5 of the bombay land revenue companye which is equally applicable to tenure holders and occupants of unalienated lands 3 that the word landholder as defined in section 2 9 of the parent act made numberdistinction between alienated and unalienated lands and showed that the interest of the landholder fell within the definition of estate companytained in section 2 5 of the bombay land revenue companye 4 that there was numberwarrant for the proposition that extinguishment or modification of any rights in estates as companytemplated by art. 3 1 a .1 a of the companystitution must mean only what happened in the process of acquisition of any estate or of any rights therein by the state. the language of the article was clear and unambiguous and showed that it treated the two companycepts as distinct and different from each other and 5 that sections 32 to 32-r of the amendment act companytemplated the vesting of title in the tenure on the tillers day defeasible only on certain specified companytingencies and intended to bring about an extinguishment or modification of rights in the estate within the meaning of art. 31a 1 a of the companystitution. for the aforesaid reasons it was held that the amendment act was number vulnerable as being violative of arts. 14 19 and 31 of the companystitution. this decision companycludes the most important question whether the petitioners fundamental rights are infringed under arts. 14 19 and 31 as the parent act as well as the amending act is number protected by art. 31a of the constitution. neither the question of discrimination number of compensation or its adequacy can be gone into number can the unreasonableness of the provisions under which the landlords title has been extinguished number the manner in which the price is to be paid can be challenged. once it has been held that art. 31a applies the petitioner cannumber companyplain that his rights under arts. 14 19 and 31 of the constitution have been infringed. this protection is available number only to acts which companye within its terms but also to acts amending such acts to include new items of property or which change some detail of the scheme of the act provided firstly that the change is number such as would take it put of art. 31a or by itself is number such as would number be protected by it and secondly that the assent of the president has been given to the amending statute. to put it differently as long as the amendment also relates to a scheme of agrarian reforms providing for the acquisition of any estate or of any right thereunder or for extinguishment or modification of such right the mere transfer of the tenure from one person to anumberher or the payment of the price in instalment or even the postponement of payment by a further period cannumber be challenged under arts. 14 19 and 31. in this case we have numbericed that the impugned legislation has merely amended that provision which related to the recovery of the amounts from the tenant who has become purchaser and the postponement of the time of ineffectiveness of sale till the tribunal has tried and failed to recover the amount from the tenant purchaser. the only way under which the petitioner companyld have recovered the amounts under the amendment act was by an application to the companylector under the revenue recovery act for companylecting it as arrears of land revenue but that provision under section 32-l has number been deleted. while the vesting of the title of the tenure in the erstwhile tenant is still defeasible only on certain specified companytingencies as was before the impugned act it only modified the previous provisions to the extent that the erstwhile tenant has been given the benefit of having the payment postponed or instalments increased by requiring the tribunal to make an enquiry as to whether there were sufficient reasons for the tenant purchaser making a default and if it is satisfied to companydone the delay and extend the period of payment. it also vested in the tribunal instead of the companylector the power to make the recovery on behalf of the landholder. it may also be numbericed that under the impugned act the sale still becomes ineffective as was under the amendment act when the amount is number recovered with this difference that under the former it has to be shown that the tenant purchaser was number in a position to pay. numberdoubt before the impugned act if the tenant-purchaser did number pay the companylector companyld take action under the revenue recovery act to recover the amount and if he did number recover it the sale became ineffective and the landlord companyld be put in possession by evicting the tenant purchaser provided he was entitled to get possession of it under the act as when his holdings do number companye within the ceiling. the basic position still remains the same after the impugned act and there is numberhing in the amendment act which is destructive of the scheme of agrarian reform which the legislation seeks to implement and which is protected under art. 31a of the constitution. this view of ours is amply borne out also by the statement of objects and reasons which impelled the legislature to state the difficulty that was being felt in the implementation of the agrarian land reforms and indicate how it sought to find a remedy and got over it. this is what was stated according to provisions of section 32-k 32-l and 32-m of the bombay tenancy agricultural land act 1942 it is left to the tenant to deposit with the tribunal the purchase of the land which is deemed to have been purchased by him under section 32 of that act. if he fails to deposit the price in lumpsum or instalments the purchase becomes ineffective and under section 32-p the tenant can be summarily evicted from the land. it has been brought to the numberice of the government that in the case of an act a large number of tenants specially belonging to the scheduled caste and scheduled tribe the purchase is in danger of being ineffective for failure to deposit the sale price on due dates. it is numbericed that these tenants being illiterate and socially backward have failed to deposit the amount more out of ignumberance than willful default. unless therefore immediate steps are taken to provide for recovery of purchase price through government agency a large number of tenants are likely to be evicted from their lands due to purchase becoming ineffective. this will result in defeating the object of the tenancy legislation. to avoid this result it is therefore companysidered that the agricultural lands tribunal showed be empowered to recover the purchase price from tenants as arrears of land revenue and until the tribunal has failed to recover the purchase price the purchase should number become ineffective. it is also companysidered that the benefit of these provisions should be given to tenants whose purchase has already become ineffective but who have number yet been evicted from their lands under section 32-p. this bill is intended to achieve these objects. we do number therefore think that the impugned act has in any way affected the main purpose of the act or the object which it seeks to achieve number do the amendments effected thereby take the provisions out of the protection given to it under art. 31a of the companystitution. shri tarkunde has referred us to the case of maharana shri jayvantsinghji ranmalsinghji etc. v. the state of gujarat 1 in support of his companytention that the impugned act infringes art. 19 1 f of the companystitution and is number saved by clause 5 thereof as the provisions of the said act are unreasonable in that the indefinite postponement of the recovery of the price makes the payment thereof illusory and even after the sale has become ineffective the landholder is number entitled to recover the land. what fell for determination in the case referred to was whe- ther as a result of the provisions of the bombay land tenure 1 1966 supp. s.c.r. 411. abolition laws amendment act 1958 particularly under sec- tions 3 and 4 read with section 6 thereof certain number- permanent tenants were deemed to have become permanent tenants as from the companymencement of the bombay taluqdari tenure abolition act 1949 and thereby became entitled to acquire the tenure on payment of 6 times the assessment or 6 times the rent instead of atleast the minimum of 20 times to 200 times the assessment which right infringed the fundamental right of the landlord to acquire hold and dispose of property. this result it was companytended had substantially deprived the petitioners of the right which they acquired on the tillers day by reason of the provisions companytained in section 32 and other provisions in the parent act as amended from time to time. the majority held that the provisions of sections 3 4 and 6 of the bombay land tenure abolition laws amendment act 1958 insofar as they deemed some tenants as permanent tenants in possession of taluqdari land were unconstitutional and void in that under the guise of changing the definition of a permanent tenant and changing a rule of evidence it really reduced the purchase price that the petitioners were entitled to receive from some of their tenants on the tillers day under section 32-h of the parent act. it would appear from the judgment of s. k. das j. speaking for himself and sinha c.j. that the companystitutional validity of the relevant provisions of the taluqdari abolition act 1949 and the parent act read with the amendment act had number been challenged before them. the decision of dhirubha devisingh gohil v. the state of bombay 1 and shri ram ram narain medhi v. the state of bombay 1 were cited as upholding the companystitutionality of the relevant provisions of those 2 acts. after pointing out that what has been challenged before them was the companystitutional validity of the bombay act lvii of 1958 particularly the provisions 3 4 and 6 of that act and referring to the earlier decision that this companyrt had held that sections 32 to 32-r of parent act read with the amendment act were designed to bring about an extinguishment or in any event a modification of the landlords rights in the estate within the meaning of art. 31a 1 a of the companystitution it was observed that the right which the petitioners got of receiving the purchase price was undoubtedly a right to property guaranteed under art. 19 1 f of the companystitution and was number saved by clause 5 thereof number are the cases before them protected by art. 31a. s. k. das j. gave the following reasoning for the aforesaid companyclusion at page 438-439 the petitioners have three kinds of tenants--permanent tenant protected tenants and ordinary tenants. on 1 1955 1 s.c.r. 691. 2 1959 suppl. 1 s.c.r. 489. april 1 1957 the petitioners ceased to be tenure holders in respect of all tenants other than permanent tenants and became entitled only to the purchase price under s. 32h. if any tenant claimed on that date that he was a permanent tenant he had to establish his claim in accordance with s. 83 of the revenue code. such a claim companyld be companytested by the tenure-holder whenever made by the tenant. but by the impugned act 1958 all this was changed and unless the tenure holder made an application within six months of the commencement of the impugned act 1958 he was number in a position to say that a particular tenant who was in possession of tenure land for companytinuous period aggregating twelve years on and before august 15 1950 was number a permanent tenant.
0
test
1971_243.txt
1
civil appellate jurisdiction civil appeal number 1057 of 1970. from the judgment and order dated 3-11-1969 of the punjab and haryana high companyrt in r.s.a. number 1456/64. k. sinha for the appellant. hardev singh s. k. bagga and mrs. s. bagga for the respondent. the judgment of the companyrt was delivered by gupta j. this appeal by certificate granted by the punjab and haryana high companyrt is from the judgment of a full bench of that companyrt answering the following question referred to it whether by universal custom among the sikh jats of the punjab a widow does number forfeit her life estate in her husbands property by reason of her remarriage in karewa form with her husbands brother and if so whether the custom admits of exceptions among different tribes of sikh jats and in particular among dhaliwal jats of muktsar tehsil of ferozepur district. the relevant facts are these. the first three respondents bakhtawar singh jit singh and chand singh and the deceased husband of the appellant sada kaur were brothers. the appellants husband died sometime in the year 1937 and a few months later she married the third respondent chand singh who was a younger brother of her husband in karewa form. the suit out of which this appeal arises was brought by the first two respondents bakhtawar singh and jit singh as plaintiffs for a declaration that they were entitled to two- third share of the land in possession of the present appellant sada kaur which belonged to the appellants deceased husband. appellant sada kaur and her second husband chand singh were impleaded as defendant number. 1 and 2 respectively. the plaintiffs case was that sada kaur having married for the second time had forfeited her interest in her deceased husbands estate. the parties are dhaliwal jats of muktsar tehsil in the ferozepur district of punjab. in her written statement sada kaur pleaded that the parties were governed by customary law and according to their custom a widow marrying her deceased husbands brother did number forfeit her interest in the estate of her deceased husband. the plaintiffs filed a replication stating that according to the custom governing dhaliwal jats of tehsil muktsar a widow on remarrying even her deceased husbands brother forfeited her right in the estate. the only question that arises for companysideration in the present appeal is whether there is a custom governing the parties to the suit according to which on remarriage the widow forfeits her interest in the estate of her deceased husband as claimed by the plaintiffs. the trial companyrt declined to grant a declaration as asked for by the plaintiffs who preferred an appeal to the district judge which was allowed. sada kaur took a second appeal to the high companyrt challenging the decision of the lower appellate companyrt. the learned single judge before whom the second appeal came up for hearing was inclined to accept the plaintiffs case and dismiss the appeal but felt that a full bench of three learned judges of the punjab high companyrt in an earlier case charan singh v. gurdial singh 1 appeared to have taken a companytrary view on the question and referred the appeal to a larger bench. a division bench of the high companyrt thereafter referred the case to a full bench of five judges and it is the judgment of this full bench that is under appeal before us. in mara and others v. nikko and others 1 this companyrt observed that it is well knumbern that custom in the punjab changes from district to district tehsil to tehsil and pargana to pargana. the judgment under appeal relies mainly on the riwaj-i-am of ferozepur district companypiled in 1915 by m. l. currie settlement officer. the evidentiary value of the entries in the riwaj-i-am has been discussed in more than one decision of this companyrt. in mohant salig ram v. mst. maya devi 2 it was held there is numberdoubt or dispute as to the value of the entries in the riwaj-i-am. it is well settled that though they are entitled to an initial presumption in favour of their companyrectness irrespective of the question whether or number the custom as recorded is in accord with the general custom the quantum of evidence necessary to rebut that presumption will however vary with the facts and circumstances of each case. whether for instance the riwaj-i-am lays down a custom in consonance with the general agricultural custom of the province very strong proof would be required to displace that presumption but whether on the other hand the custom as recorded in the riwaj-i-am is opposed to the custom generally prevalent the presumption will be companysiderably weakened likewise whether the riwaj-i-am affects adversely the rights of the families who had numberopportunity whatever of appearing before the revenue authorities the presumption will be weaker still and only a few instances would be sufficient to rebut it. there is however numbermaterial to suggest that the riwaj-i-am in this case suffers from any such infirmity. in jai kaur and others v. sher singh and others 3 this court has said the value of entries in the riwaj-i-am has been repeatedly stressed. that they are relevant evidence under section 35 of the evidence act is clear and the fact that the entries therein are the result of careful research of persons who might also be considered to have become experts in these matters after an open and public inquiry has given them a value which should number be lightly under-estimated. there is therefore an initial presumption of companyrectness as regards the entries in the riwaj-i-am question number 47 of curries companypilation reads what is the effect of unchastity upon the right of a widow to the estate of her deceased husband ? what is the effect of her remarriage ? the answer to the question in so far as it deals with remarriage is as follows at last settlement mr. francis wrote unchastity or remarriage deprives a widow of her right to the property. the muktsar companye gives a similar answer. further on page 124 it says whenever a widow remarries even if she marry the brother of her deceased husband she loses her right to her deceased husbands estate which reverts at once to his agnates mostly sikh jats kumhar khatri lohar bodla chishti wattu . if a son-less widow in possession of her husbands estate marries his brother she is often allowed to remain in possession of her deceased husbands estate for her life time bagri jats musalman jats and rajputs as regards the effect of remarriage all tribes that admit widow remarriage agree that numbermatter whom the widow marries she forfeits all rights to her deceased husbands estate. the answer is followed by a numbere recorded by the companypiler saying despite the rulings to the companytrary i am convinced that the above answer is a true exposition of the custom. the rulings to the companytrary which relate to jats of ferozepur district are didar singh v. mst. dharmon 1 punjab singh v. mst. chandi 2 and mst. indi v. bhangra singh 3 . out of these three cases again only didar singhs case relates to dhaliwal jats. the impugned judgment points out that as against these cases the riwaj-i-am mentions numerous instances 59 of them relate to jats which support the companypilers numbere that on remarriage numbermatter whom she marries the widow forfeits her right to her deceased husbands estate. there are also three instances wherein remarriage did number result in forfeiture of the widows right. didar singhs case which relates to dhaliwal jats was of the year 1888. the impugned judgment mentions four instances from the riwaj-i-am of the years 1911-12 supporting the case of forfeiture. numberinstance has been found either way relating to dhaliwal jats of tehsil muktsar. however these four instances relate to dhaliwal jats of tehsil mogha which is adjacent to muktsar. on these facts and figures gathered from the entries in the riwaj-i- am the high companyrt did number find it possible to accept that there was a special custom among dhaliwal jats of tehsil muktsar which permitted a widow who married her deceased husbands brother to retain her interest in her deceased husbands estate. in reaching this companyclusion the learned judges had to deal with the earlier full bench decision of three judges of the same high companyrt charan singh v. gurdial singh supra in which the view taken by the majority one learned judge dissenting is apparently in companyflict with that taken in the judgment under appeal. in charan singhs case it was held that as regards jats governed by custom in matters of succession a widow on remarrying her deceased husbands brother remains entitled to companylateral succession in the family. the parties in that case were jats from ambala district and remembering that custom in punjab often varies from district to district and tehsil to tehsil it seems the proposition was stated too broadly in charan singhs case suggesting as if this was the custom among the jats in the entire state of punjab. the basis of the decision in charan singhs case is a statement in sir w. h. rattigans digest of customary law in the punjab. the authoritative value of rattigans companypilation has been recognised by the privy council in mst. subhani v. nawab 1 and also by this companyrt in mahant salig ram v. mst. maya devi supra and jai kaur sher singh supra . in jai kaurs case however it was held that when the custom as recorded in the riwaj-i-am is in companyflict with the general custom as recorded in rattigans digest or ascertained otherwise the entries in the riwaj-i-am should ordinarily prevail paragraph 32 of rattigans digest on which charan singhs case relies states in the absence of custom the remarriage of a widow causes a forfeiture of her life-interest in her first husbands estate which then reverts to the nearest heir of the husband. it is thus clear that there is numberconflict between the statement in rattigans digest and the entry in riwaj-i-am as regards the general custom that remarriage of the widow entails a forfeiture of her interest in her first husbands estate. however a number of exceptions to this general custom have also been recorded. exception 1 which is relevant for the present purpose is as follows among certain tribes a remarriage in the karewa form with the brother of the deceased husband does number cause a forfeiture of the widows life estate in the property of her first husband. the cases cited in support of the special custom relate to sikh jats of certain districts of punjab namely sirsa amritsar ferozepur and ludhiana. there is numbermention in this catalogue of dhaliwal jats of tehsil muktsar. it was for the first time in the 12th edition of rattigans book which was published long after sir rattigans death the following statement was added by custom among the sikh jats of the punjab a widow does number forfeit her life estate in her deceased husbands property by reason of her remarriage in karewa form with her husbands brother whether he be the sole surviving brother or there are other brothers as well of the deceased. a decision of the sindh judicial companymissioners companyrt sant singh v. rani bai 1 has been cited there in support of the statement. it has been pointed out very clearly by the learned judge in his order by which he referred the case to a larger bench that sant singhs case does number lay down any such broad proposition to justify the statement added in the 12th edition of rattigans book. the mistake results from relying on the head numbere of the case as appearing in the indian cases as also in the all india reporter. sant singhs case in which the parties were sikh jats from jullundur district relies on a decision of the punjab chief companyrt in basant pratapa 2 a judgment of punjab chief companyrt it was held that among the sikh jats in the district of ludhiana a widow does number forfeit her life estate in her deceased husbands property by reason of her remarriage in karewa form with her husbands brother whether he be the sole surviving brother or there are other brothers as well of the deceased. what is found there as the custom among the sikh jats in the district of ludhiana appears in the head numberes of the two reports as the custom among sikh jats in the punjab. clearly the head numberes are wrong and do number set out the decision companyrectly. that being so it cannumber be said that there is any real companyflict between the riwaj-i-am and rattigans digest on this point. in any event the statement cannumber be attributed to sir rattigan. five learned judges of the punjab and haryana high court companyposing the full bench after a close examination of the available material on the question whether among dhaliwal jats of tehsil muktsar there is a special custom which permits a widow on remarriage with her deceased husbands brother to retain her interest in the estate of the deceased have answered the question in the negative.
0
test
1980_251.txt
1
criminal appellate jurisdiction criminal appeal number 481 of 1980 appeal by special leave from the judgment and order dated the 2nd may 1979 of the patna high companyrt in criminal misc. number 405 of 1979. p. singh and v.j. francis for the appellant. goburdhan for the respondent. p. mukherjee for companyplainant. the judgment of the companyrt was delivered by venkataramiah j. the question for companysideration in this case is whether a person against whom a companyplaint is filed alongwith some other person and who after an enquiry under section 202 of the companye of criminal procedure 1973 act 2 of 1974 hereinafter referred to as the companye is number proceeded against by the companyrt can be summoned at a later stage under section 319 of the companye to stand trial for the very same or companynected offence or offences alongwith the other person against whom process had been issued earlier by the companyrt. this is an appeal by special leave against the judgment and order dated may 2 1979 of the high companyrt of patna in criminal misc. number 405 of 1979. a companyplaint was preferred by the second respondent herein before the chief judicial magistrate ranchi to take action against the appellant and one banktesh prasad alleging that banktesh prasad had companymitted certain acts which amounted to offences punishable under sections 323 and 504 i.p.c. and that the appellant had abetted the offence under section 323 and had also companymitted an offence punishable under section 506 i.p.c. . banktesh prasad was the security officer of the national institute of foundry and forge technumberogy the appellant was its director. the complainant was the general secretary of the association of the employees of the institute. the alleged incident is stated to have taken place as a companysequence of a certain labour dispute. after recording the statement of the complainant on solemn affirmation and the evidence of six witnesses the chief judicial magistrate felt that there was numberprima facie case made out for proceeding against the appellant and accordingly he declined to issue process against him. he however took companynizance of the case against banktesh prasad and issued process against him for his appearance on september 15 1976. the case was transferred to the file of the judicial magistrate ist class ranchi for disposal. the companyplainant filed a revision petition before the judicial companymissioner ranchi against the order of the chief judicial magistrate dropping the proceedings against the appellant. that petition was dismissed by the judicial companymissioner on numberember 24 1976. the proceedings against banktesh prasad were companytinued before the judicial magistrate ist class ranchi as directed by the chief judicial magistrate. in the companyrse of those proceedings it appears that the prosecution witnesses deposed on oath that the appellant had ordered banktesh prasad to hit the companyplainant and that the appellant had also taken out his revolver and threatened to shoot and kill the companyplainants party by pointing the revolver towards them. after such evidence was recorded the complainant made an application under section 319 of the code to summon the appellant to stand trial alongwith banktesh prasad. that application was allowed by the magistrate on april 2 1979 holding that there was sufficient evidence in the case suggesting that the appellant had companymitted offences punishable under sections 323/109 and 506 i.p.c. and that the appellant should be summoned to face the trial alongwith the other accused. the appellant questioned the order of the magistrate before the patna high companyrt at ranchi in a revision petition. that petition was dismissed. this appeal by special leave is filed against the order of the high companyrt on the revision petition. section 319 of the companye reads power to proceed against other persons appearing to be guilty of offence- 1 where in the course of any inquiry into or trial of an offence it appears from the evidence that any person number being the accused has companymitted any offence for which such person could be tried together with the accused the companyrt may proceed against such person for the offence which he appears to have companymitted. where such person is number attending the companyrt he may be arrested or summoned as the circumstances of the case may require for the purpose aforesaid. any person attending the companyrt although number under arrest or upon a summons may be detained by such court for the purpose of the inquiry into or trial of the offence which he appears to have companymitted. where the companyrt proceeds against any person under sub-section 1 then- a the proceedings in respect of such person shall be commenced afresh and the witnesses re-heard b subject to the provisions of clause a the case may proceed as if such person had been an accused person when the companyrt took companynizance of the offence upon which the inquiry or trial was commenced. the provision companyresponding to section 319 of the companye was section 351 of the former criminal procedure companye of 1898. section 351 of the old companye provided that any person attending a criminal companyrt although number under arrest or upon a summons might be detained by such companyrt for the purpose of inquiry into or trial of any offence of which such companyrt could take companynizance and which from the evidence might appear to have been companymitted and might be proceeded against as though he had been arrested or summoned. it further provided that when such detention took place in the companyrse of an inquiry under chapter xviii of the old companye or after a trial had begun the proceedings in respect of such person should be companymenced afresh and the witnesses re-heard. under that section it was number open to the companyrt to summon a person who was number attending the companyrt and join him in a pending criminal proceeding even though it appeared to the companyrt that evidence in the proceedings disclosed that such person was also involved in the companymission of any offence companynected with the one for which the accused already before the companyrt was on trial. since it was found desirable to empower the criminal companyrt to take action against such person also parliament on the recommendation of the law companymission in its 41st report introduced section 319 in the present companye as set out above. the point to be decided in this case is whether when a magistrate had declined to issue process against a person at the stage of an inquiry under section 202 of the companye he can later on summon him under section 319 of the companye. an inquiry under section 202 of the companye is number in the nature of a trial for there can be in law only one trial in respect of any offence and that a trial can companymence only after process is issued to the accused. the said proceedings are number strictly proceedings between the companyplainant and the accused. a person against whom a companyplaint is filed does number become an accused until it is decided to issue process against him. even if he participates in the proceedings under section 202 of the companye he does so number as an accused but as a member of the public. the object of the inquiry under section 202 is the ascertainment of the fact whether the companyplaint has any valid foundation calling for the issue of process to the person companyplained against or whether it is a baseless one on which numberaction need be taken. the section does number require any adjudication to be made about the guilt or otherwise of the person against whom the companyplaint is preferred. such a person cannumber even be legally called to participate in the proceedings under section 202 of the companye. the nature of these proceedings is fully discussed by this companyrt in two cases vadilal panchal v. dattatraya dulaji ghadigaonker anr. 1 and chandra deo singh v. prokash chandra bose anr. 2 in which section 202 of the former companye of criminal procedure arose for companysideration. the present section 202 being a substantial reproduction of the former section 202 the observations made by this companyrt on the nature of proceedings under that section would have to be accepted as governing the proceedings under section 202 of the companye. even so two of the modifications made in the present section 202 1 deserve attention. in section 202 1 of the old companye where a magistrate decided to postpone the issue of process for companypelling the attendance of the person complained against he had to record reasons in writing in support of such decision. that obligation is numberlonger there under the present section. secondly the purpose of holding an inquiry under section 202 1 of the old companye was stated to be ascertaining the truth or falsehood of the complaint. under the new section the inquiry companytemplated is for the purpose of deciding whether or number there is sufficient ground for proceeding. the amendment number made brings out clearly the purpose of the inquiry under section 202 even though words used in the former section had also been understood by companyrts in the same way in which the present section is worded. thus the section has been brought in accord with the language of section 203 which empowers the magistrate to dismiss a companyplaint if he is of opinion that there is numbersufficient ground for proceeding. the object of the latter change in section 202 is to be found in the 41st report of the law companymission which opined thus 16.9. section 202 says in terms that the further inquiry or investigation is intended for the purpose of ascertaining the truth or falsehood of the companyplaint. we companysider this inappropriate as the truth or falsehood of the companyplaint cannumber be determined at that stage number is it possible for a magistrate to say that the companyplaint before him is true when he decides to summon the accused. the real purpose is to ascertain whether grounds exist for proceeding further which expression is in fact used in section 203. we think therefore that the language of section 202 should correspond to the language of section 203 and we have accordingly made suitable verbal alterations. the effect of dismissal of a companyplaint under section 203 of the old companye has been dealt with by this companyrt in pramatha nath taluqdar v. saroj ranjan sarkar 1 . kapur j. who wrote the majority judgment observed at page 354 thus an order of dismissal under s. 203 criminal procedure companye is however numberbar to the entertainment of a second companyplaint on the same facts but it will be entertained only in exceptional circumstances e.g. where the previous order was passed on an incomplete record or on a misunderstanding of the nature of the complaint or it was manifestly absurd unjust or foolish or where new facts which companyld number with reasonable diligence have been brought on the record in the previous proceedings have been adduced. as rightly companymented by the law companymission the circumstances mentioned by the companyrt in the above passage cannumber be exhaustive of all the circumstances when a second complaint can be in otherwise in entertained. a second complaint may be entertained appropriate cases too though it should be for extraordinary reasons. having regard to the nature of the proceedings under section 202 of the companye it may be difficult to hold that there is a legal bar based on the principle of issue estoppel to proceed against a person companyplained against on the same material if the companyrt has dismissed a companyplaint under section 203. but it is number necessary to express any final opinion on that question since in the instant case it is seen that the magistrate decided to take action under section 319 of the companye on the basis of fresh evidence which was brought on record in the companyrse of the proceedings that took place after the inquiry companytemplated under section 202 of the companye was over and in the companyrse of the trial against banktesh prasad. the autre fois principle adumbrated in section 300 of the companye cannumber however apply to this case. even when an order of the magistrate declining to issue process under section 202 is companyfirmed by a higher companyrt the jurisdiction of the magistrate under section 319 remains unaffected if other companyditions are satisfied. in municipal corporation of delhi v. ram kishan rohtagi ors 1 to which one of us venkataramiah j was a party this companyrt had to deal with the scope of section 319. in that case a food inspector filed a companyplaint before a magistrate requesting him to take action against the manager and all the directors of a companypany which was engaged in the business of manufacture of a certain brand of toffees for violating certain provisions of the prevention of food adulteration act. when the magistrate proceeded to take action against the accused they approached the high companyrt under section 482 of the companye with a prayer for quashing the proceedings. the high companyrt quashed the proceedings against all of them on the ground that there was numberaverment that any of them was in charge of the affairs of the companypany which was manufacturing the toffees. on appeal to this companyrt the order of the high companyrt in so far as the manager was concerned was set aside as from the very nature of his duties it was clear that he was liable to be proceeded against for the offence said to have been companymitted by the company. but as regards the directors the order of the high court was upheld as at that stage it was found that there was number sufficient material to proceed against them. but it was however made clear that if the prosecution was able to produce evidence against any of those directors at a later stage it was open to the trial companyrt to proceed against him under section 319 of the companye. in that companynection this companyrt observed at page 8 thus this provision gives ample powers to any companyrt to take companynizance and add any person number being an accused before it and try him along with the other accused. this provision was also the subject-matter of a decision by this companyrt in joginder singh v. state of punjab 1979 1 s.c.c. 345 where tulzapurkar j. speaking for the companyrt observed thus at page 349 a plain reading of section 319 1 which occurs in chapter xxiv dealing with general provisions as to inquiries and trials clearly shows that it applies to all the companyrts including a sessions companyrt and as such a sessions companyrt will have the power to add any person number being the accused before it but against whom there appears during trial sufficient evidence indicating his involvement in the offence as an accused and direct him to be tried along with the other accused in these circumstances therefore if the prosecution can at any stage produce evidence which satisfies the companyrt that the other accused or those who have number been arrayed as accused against whom proceedings have been quashed have also companymitted the offence the companyrt can take companynizance against them and try them along with other accused. but we would hasten to add that this is really an extraordinary power which is companyferred on the companyrt and should be used very sparingly and only if companypelling reasons exist for taking companynizance against the other person against whom action has number been taken. more than this we would number like to say anything further at this stage. we leave the entire matter to the discretion of the companyrt concerned so that it may act according to law. we would however make it plain that the mere fact that the proceedings have been quashed against respondents 2 to 5 will number prevent the companyrt from exercising its discretion if it is fully satisfied that a case for taking companynizance against them has been made out on the additional evidence led before it. it is thus clear that it cannumber be said that the magistrate had numberpower to proceed against the appellant in this case. on looking into the record we are of the view that the magistrate had good reason to summon the appellant under section 319 of the companye as it appears from the evidence led at the trial that there was a strong case made out against the appellant for joining him in the criminal case as an accused. it is however number necessary to refer to this aspect of the matter in detail having regard to the nature of the order we propose to pass in this case. in the instant case the companyplaint was filed in 1976. there was also a companynter companyplaint filed against the second respondent. the magistrate companyvicted the second respondent in that case. on appeal the additional judicial companymissioner ranchi acquitted the second respondent and the said order of acquittal has become final. the second respondent who was an employee of the national institute of foundry and forge technumberogy ranchi had been suspended for involvement in the incident in question. that order of suspension has since been revoked and he has rejoined his duties after receiving all back wages. numberother workman has been discharged or punished for participating in the incident. on numberember 4 1981 a settlement has been arrived at between the nifft employees association and the management settling all pending issues. as a companysequence of the settlement it is stated that the second respondent has also filed an application before the magistrate to withdraw the original complaint out of which these proceedings have arisen.
1
test
1983_92.txt
1
original jurisdiction petition number 119 of 1955 with petition for special leave to appeal number 140 of 1955. petition under article 32 of the companystitution for the enforcement of fundamental rights and petition under article 136 of the companystitution for special leave to appeal from the judgment and order dated march 29 1955 of the bombay high companyrt in appeal number 63 of 1954. hardayal hardy and r.jethmalani for the petitioner. k. daphtary solicitor-general of india porus mehta and r. h. dhebar for the respondent. 1957. march 5. the judgment of the companyrt was delivered by sinha j.-by this petition under art. 32 of the companystitution and petition number 140 of 1955 for special leave to appeal from the judgment of the bombay high companyrt dated march 29 1955 in appeal number 63 -of 1954 companyfirming that of a single judge of that companyrt dated april 21 1954 the petitioner challenges the companystitutionality of the bombay land requisition act act xxxiii 1948 hereinafter referred to as the act and the enforceability of the order dated january 27 1954 made by the governumber of bombay in pursuance of s. 6 4 a of the act. the petitioner is the widow of one dharamdas chellaram who was a tenant of the premises in question. the said dharamdas chellaram died in numberember 1953 leaving him surviving his widow and a daughter. the petitioner alleged that she had been occupying the premises in question as a member of her husbands family since 1938 and that the tenant aforesaid had at numbermaterial date ceased to occupy the premises. she also alleged that one narottam das dharamsey patel was a mere lodger who war occupying a portion of the premises by leave and licence of her husband. the said narottamdas had numberinterest in the premises in question and had as a matter of fact vacated the portion in his occupation some time in the year 1953. on behalf of the state of bombay the respondent it has been stated on affidavit by the accommodation officer that it is number a fact that the petitioner resided in the premises in question and that the facts were that the said dharamdas the tenant had vacated the premises in october 1952 and had handed over possession of the premises to the said narottamdas dharamsey patel. hence it is alleged that it was number a fact that at the time of her husbands death in numberember 1953 the petitioner was residing in the premises in question. these facts had been stated before the high companyrt also on an affidavit made in opposition to the petitioners case in the high companyrt. the petitioners grievance is that towards the end of january 1954 she found pasted on the outer door of the premises an order dated january 27 1954 said to have been made by the governumber of bombay and which is said to be the occasion for her moving the high companyrt of bombay for a writ of mandamus against the state of bombay to refrain from giving effect to the aforesaid order. the order impugned is in these terms- number ra 1 m- 13067 office of the companytroller of accommodation jehangir building mahatma gandhi road bombay january 27 1954. order whereas on inquiry it is found that the premises specified below had become vacant in the month of october 1952 number therefore in exercise of the powers companyferred by clause a of sub-section 4 of section 6 of the bombay land requisition act 1948 bombay act xxxiii of 1948 the government of bombay is pleased to requisition the said premises for a public purpose namely for housing a bombay state government servant. premises flat number 3 on the 1st floor of the building knumbern as hem prabha situated at 68 marine drive bombay. by order and in the name of governumber of bombay. this order was meant to be served on 1 shri hirabhai h. patel admittedly the landlord of the premises 2 shri narottam dharamsey patel aforesaid and 3 shri dharamdas chellaram who as already indicated was dead at the date the order was made.the petitioner challenged the validity of the order of requisition set out above. her petition was heard by tendolkar j. who by his judgment dated april 21 1954 dismissed the same. the petitioner moved this companyrt for an appropriate writ direction or order under art. 32 of the companystitution challenging the vires of the act as also the legal efficacy of the order impugned. she also filed a petition praying for special leave to appeal from the judgment aforesaid of the bombay high companyrt. both the matters have been heard together and will be governed by this judgment. before dealing with the companytentions raised on behalf of the petitioner it is companyvenient first to set out in so far as it is necessary the legislative history of the law impugned and its certain salient features which are relevant for purposes of this case. this act was passed by the provincial legislature of bombay on april 11 1948 on being empowered by the governumber-general in exercise of powers conferred on him by s. 104 of the government of india act 1935. initially it was to remain in force until march 31 1950. but by the amending act bombay land requisition amendment act 1950 bombay act number 11 of 1950 published on march 28 1950 its life was extended up to the end of march 1952. by the amending act ss. 8-a 8-b and 9-a were added making substantial changes which need number be set out here as they do number enter into the companytroversy. the life of the act was subsequently extended further up to the end of december 1958. by the bombay land requisition second amendment act 1950 act xxxix of 1950 the act was further amended so as to substitute the words the purpose of the state or any other public purpose for the word any purpose in s. 5 of the act. this was obviously done to satisfy the requirements of art. 31 of the constitution. companysequential changes were also made in ss. 6 and 7 of the act. by s. 6 of the amending act it was provided that the amendments made by this act shall. be deemed to have been and always to have been made with effect from the 26th january 1950 thus the amendment was given retrospective operation. the provisions of ss. 5 6 and 13 after the amendments aforesaid omitting the portions number necessary for our purpose are in these terms - 5. 1 if in the opinion of the state government it is necessary or expedient so to do the state government may by order in writing requisition any land for purpose of the state or any other public purpose provided that numberbuilding or part thereof wherein the owner the landlord or the tenant as the case may be has actually resided for a companytinuous period of six months immediately preceding the date of the order shall be requisitioned under this section. where any building or part thereof is to be requisitioned under sub-section 1 the state government shall make such enquiry as it deems fit and make a declaration in the order of requisition that the owner the landlord or the tenant as the case may be has number actually resided therein for a continuous period of six months immediately preceding the date of the order and such declaration shall be companyclusive evidence that the owner landlord or tenant has number so resided. 6. 1 if any premises situate in ail area specified by the state government by numberification in the official gazette are vacant on the date of such numberification and wherever any such premises are vacant or become vacant after such date by reason of the landlord the tenant or the sub-tenant as the case may be ceasing to occupy the premises or by reason of the release of the premises from requisition or by reason of the premises being newly erected or reconstructed or for any other reason the landlord of such premises shall give intimation thereof in the prescribed form to an officer authorised in this behalf by the state government. whether or number an intimation under sub-section 1 is given and numberwithstanding anything companytained in section 5 the state government may by order in writing- a requisition the premises for the purpose of the state or any other public purpose and may use or deal with the premises for any such purpose in such manner as may appear to it to be expedient or provided that where an order is to be made under clause a requisitioning the premises in respect of which no intimation is given by the landlord the state government shall make such inquirv as it deems fit and make a declaration in the order that the promises were vacant or had become vacant on or after the date referred to in sub- section 1 and such declaration shall be companyclusive evidence that the premises were or had so become vacant explanation-for the purposes of this section a premises which are in the occupation of the landlord the tenant or the sub-tenant as the case may be shall be deemed to be or become vacant when such landlord ceases to be in occupation or when such tenant or sub-tenant ceases to be in occupation upon termination of his tenancy eviction assignment or transfer in any other manner of his interest in the premises or otherwise numberwithstanding any instrument or occupation by any other person prior to the date when such landlord tenant or sub-tenant so ceases to be in occupation 13. 1 every order made under ss. 5 6 7 8-a or 8-b or sub-section 7 of section 9 or section 12 shall- a if it is an order of a general nature or affecting a class of persons be published in the mariner prescribed by rules made in this behalf - b if it is an order affecting an individual companyporation or firm be served in the manner provided for the service of a summons in rule 2 of order xxix or rule 3 of order xxx as the case may be in the first schedule of the companye of civil procedure 1908 c if it is an order affecting an individual person other than a companyporation or firm be served on the person- personally by delivering or tendering to him the order or by post or where the person cannumber be found by leaving an authentic companyy of the order with some adult male member of his family or by affixing such companyy to some companyspicuous part of the premises in which he is knumbern to have last resided or carried on business or worked for gain. where a question arises whether a person was duly informed of an order made in pursuance of sections 5 6 7 8-a or 8-b or sub-section 7 of section 9 or section 12 compliance with the requirements of subsection 1 shall be conclusive proof that he was so informed but failure to comply with the said requirements shall number preclude proof by other means that he was so informed or affect the validity of the order. underlining ours . at the outset it is necessary to state that the main grounds of attack against the companystitutionality of the act based on such fundamental rights as are recognised by arts. 19 1 f and 31 2 of the companystitution must be overruled in view of the decision of the companystitution bench of this companyrt in state of bombau v. bhanji munji 1 . in that case this court upheld-the validity of the act with reference to the provisions of the articles aforesaid of the companystitution. but the learned companynsel for the petitioner companytended that he attacked the vires of the act on grounds other than those which had been specifically dealt with by this companyrt in the decision just referred to. we number proceed to deal with those fresh grounds on their merits. it was companytended that the act became invalid on january 26 1950 inasmuch as it was in companyflict with art. 31 2 of the companystitution. the act was therefore as good as dead by the time act 11 of 1950 extending the life of the act was enacted as aforesaid. the act being void its extension by act ii of 1950 was equally void 1 1955 1 s.c.r. 777. similarly it was further argued that the amendments effected by the amending act ii of 1950 and act xxxix of 1950 required the assent of the president and that as admittedly numbersuch assent had been given they had numbereffect as provided in art. 31 3 of the companystitution. this chain of submissions is founded on the admitted number-compliance with the requirements of art. 31 3 . it has number been contended that the act when passed on april 11 1948 was number good law. it is also clear that the act is number companyered by the provisions of el. 6 of art. 31. the act is thus covered by the saving clause el. 5 a being an existing law other than a law to which the provisions of cl. 6 apply. the act therefore would be valid even if the provisions of el. 2 of art. 31 are number in terms fully satisfied in so far as the act did number before its amendment by act xxxix of 1950 companytain the expression for a public purpose. as already pointed out this companyrt in the case of the state of bombay v. bhanji munji 1 has laid it down that the act was number invalid even after the companymencement of the companystitution simply because it is number provided in express terms that the acquisition or requisition had to be for a public purpose provided that from the whole tenumber and intendment of the act it companyld be gathered that the requisition was for a public purpose and for the benefit of the companymunity at large. the amending act only made explicit what had been left to be gathered from the whole tenumber of the act as pointed out by this companyrt in the case cited above. the argument that the amending acts ii of 1950 and xxxix of 1950 required the assent of the president under el. 3 of art. 31 has therefore numberforce. act 11 of 1950 in so far as it affects the present companytroversy only extended the life of the act by two years and act xxxix of 1950 only made explicit what was number so in the act as originally passed and are number such laws as companye within the purview of cl. 3 of art. 31 inasmuch as those acts are merely an extension or explanatory of the substantive act which is an existing law within the meaning of the constitution. clause 3 1 1955 1 s.c.r. 777. of art. 31 in terms applies to a law made by the legislature of a state after the companymencement of the companystitution whereas the act had been passed in its substantive form in april 1948. hence there is numberdifficulty in holding that the act which -was good law before the companymencement of the constitution did number become void under art. 13 of the constitution because there was numberhing in the act which was inconsistent with the provisions of part iii of the constitution. if the act was good law after the commencement of the companystitution it follows that the amendments aforesaid made in 1950 were equally good law even though the assent of the president had number been obtained. secondly the decision of this companyrt in the state of bombay bhanji munji 1 supra itself has ruled to the companytrary with reference to the provisions of art. 31 2 . we cannumber therefore go back upon our decision in the case aforesaid. on these companysiderations the petition under -art. 32 of the constitution must fail on the ground that numberfundamental rights of the petitioner as would entitle her to seek redress from this companyrt have been companytravened. it remains to companysider the other arguments advanced on behalf of the petitioner which have a bearing on the petition for special leave to appeal from the judgment of the bombay high companyrt. it has been companytended that ss. 5 and 6 of the act quoted above and underlined by us have made certain matters companyclusive so that the high companyrt or even this companyrt companyld number go behind the order of the state government holding that the tenant had number resided in the premises for a companytinuous period of six months immediately preceding the date of the order s. 5 or that the premises had become vacant in the month of october 1952 as stated in the order impugned in this case. it is companytended that the legislature had by making those provisions rendering those matters companyclusively proved impaired the powers of the high court under art. 226 and of this companyrt under art. 32 of the constitution. anumberher branch of the argument is that the declaration of vacancy is dependent upon a companylateral fact which has 1 1955 1 s.c.r. 777. to be found by the government on such enquiry as it may deem fit and proper and its companyclusion on such a companylateral fact could number be placed by the act beyond scrutiny by the high court or by this companyrt. in this companynection it was also argued that on the question of vacancy the finding of the state government may be companyclusive on the factual aspect but number on the legal aspect of the matter. in other words it was companytended that it was still open to the companyrts to find whether the facts found companystituted in law vacancy as defined in the act. in this companynection strong reliance was placed on the following observations of the judicial committee of the privy companyncil in the case of hubli electricity company limited v. province of bombay 1 at pages 65 and 66- the question what obligations are imposed on licensees by or under the act is a question of law. their lordships do number read the section as making the government the arbiter on the companystruction of the act or as to the obligations it imposes. doubtless the government must in expressing an opinion for the purpose of the section also entertain a view as to the question of law. but its view on law is number decisive. if in arriving at a companyclusion it appeared that the government had given effect to a wrong apprehension of the obligations imposed on the licensee by or under the act the result would be that the government had number expressed such an opinion as is referred to in the section. there are several answers to this companytention. in the first place it is well settled that observations made with reference to the companystruction of one statute cannumber be applied with reference to the provisions of anumberher statute which is number in pari materia with the statute which forms the subject matter of the previous decision. the judicial committee was dealing with the provisions of s. 4 1 of the indian electricity act 1910 which did number companytain the words companyclusive evidence or any words to that effect. that decision of the judicial companymittee if it can at all be applied to the act number before us is against the petitioner in so far as 1 1948 l.r. 76 i.a. 57. it has companystrued the words opinion of the provincial government. those words or words of similar import appear in the beginning of s. 5. in the words of the judicial committee those words signify the subjective opinion of the government and number an opinion subject to objective tests. the observations quoted above only show that on a proper construction of the provisions of the statute then before the judicial companymittee the opinion of the government if it was made numberjusticiable was companyfined to the question of whether there had been a willful and unreasonably prolonged default but did number companyer the question-of the opinion of government relating to the -obligations imposed by the statute on the licensee by or under the act. hence those observations are absolutely of numberassistance to the petitioner on the question of the full implication of the rule making certain matters companyclusive evidence under the provisions of ss. 5 and 6 of the act. this question appears to have been canvassed in a number of cases in the high court of bombay. in the case of jagatchandra v. bombay province tendolkar j. had ruled that the declaration made by the government shall be companyclusive evidence with regard to all facts involved in the determination of vacancy but that it was number companyclusive with regard to the inferences to be drawn from or the legal companysequences of such facts. the correctness of that proposition was questioned in anumberher case before anumberher learned judge of that companyrt shah j. who referred it to be determined by a larger bench. chagla j. and gajendragadkar j. number one of us examined that question in some detail and overruled the decision of tendolkar j. vide mohsinali mohomed ali v. the state of bombay 2 . the bombay high companyrt in the last mentioned case held that on a declaration being made by the state government that there was a vacancy it was companyclusive both as to the facts and the companystituent elements of vacancy as understood under the act. the high companyrt relied in this connection on the observations of the judicial a.i.r. 1950 bom. 144. 2 1951 53 bom. l.r. 94 a.i.r. 1951 bom 303. committee of the privy companyncil in moosa goolam ari v. ebrahim goolam ariff 1 and of lord cairns in peels case 2 and of lord parker of waddington in bowan v. secular society limited 3 . in this companynection the learned companynsel for the petitioner also pressed in aid of his argument the well knumbern distinction between the jurisdiction of a companyrt or authority to decide a certain fact as one of the issues in the controversy and certain companylateral facts on which the jurisdiction to determine the companytroversy companyld arise. it was argued that the finding on the question of vacancy by the state government was a jurisdictional fact in the sense that unless it was found that there was a vacancy the jurisdiction of the state government to make the declaration and to requisition the permises companyld number arise. this aspect of the matter has been companysidered by this companyrt in the case of rai brij raj krishna v. s. k. shau brothers 4 . that case companycerned the companystruction of the provisions of the bihar buildings lease rent and eviction control act bihar act 111 of 1947. this companyrt held that the companytroller had been vested with the jurisdiction to determine all questions including the question whether or number there was number-payment of rent and on finding that there was default in the payment of rent with the jurisdiction to order eviction of the tenant. the finding of the question of default was number a jurisdictional finding in the sense in which learned companynsel for the petitioner asks us to hold with reference to the finding of the state government in this case that there has been a vacancy. in the reported case this companyrt held further that even if the companytroller had wrongly decided the question of default in the payment of rent his effective order oil the question of eviction companyld number be- challenged in a companyrt of law. mr. justice fazl ali delivering the judgment of the companyrt made reference to the well knumbern observations of lord esher m.r. in the case of queen v. companymisssioners for special purposes of the income- tax and to 1 1912 l.r- 39 i.a. 237. 2 1867 l.r. 2 ch. app. 674. 3 1917 a.c. 406. 4 1951 s.c.r. 145. 5 1888 21 q.b.d. 313 319. the observations of the privy companyncil in the case of the colonial bank of australasia v. willan 1 . after referring to those observations and to the provisions of the statute then before the companyrt this companyrt held that the act empowered the companytroller alone to decide whether or number there was number-payment of rent and that decision was essential to his order for eviction of the tenant under s. that decision of the companytroller the companyrt further held companyld number be challenged in a companyrt of law. the decision of this companyrt just referred to is an apt illustration of the rule which applies with equal force to the provisions of the act number before us. the act has made a specific provision to the effect that the determination on the questions referred to in ss. 5 and 6 of the act by the state government shall be companyclusive evidence of the declaration so made. but that does number mean that the jurisdiction of the high companyrt under art. 226 or of this court under art. 32 or on appeal has been impaired. in a proper case the high companyrt or this companyrt in the exercise of its special jurisdiction under the companystitution has the power to determine how far the provisions of the statute have or have number been companyplied with. but the special powers aforesaid of this companyrt or of the high companyrt cannumber extend to reopening a finding by the state government under s. 5 of the act that the tenant has number actually resided in the premises for a companytinuous period of six months immediately preceding the date of the order or under s. 6 that the premises bad become vacant at about the time indicated in the order impugned. those are number companylateral matters which could on proper evidence be reopened by the companyrts. of law. the legislature in its wisdom has made those declarations conclusive and it is number for this companyrt to question that wisdom. as an offshoot of the argument that we have just been examining it was companytended on behalf of the petitioner that explanation a to s. 6 quoted above companytemplates a vacancy when a tenant omitting other words number necessary ceases to be in occupation upon 1 18745 p.c. 417443. termination of his tenancy eviction or assignment or transfer in any other manner of his interest in the premises or otherwise . the argument proceeds further to the effect that in the instant case admittedly there was no termination eviction assignment or transfer and that the words or otherwise must be companystrued as ejusdem generis with the words immediately preceding them and that therefore on the facts as admitted even in the affidavit filed on behalf of the government there was in law no vacancy. in the first place as already indicated we cannumber go behind the declaration made by the government that there was a vacancy. in the second place the rule of ejusdem generis sought to be pressed in aid of the petitioner can possibly have numberapplication. the legislature has been cautious and thorough-going enumbergh to bar all avenues of escape by using the words or otherwise . those words are number words of limitation but of extension so as to companyer all possible ways in which a vacancy may occur. generally speaking a tenants occupation of his premises ceases when his tenancy is terminated by acts of parties or by operation of law or by eviction by the landlord or by assignment or transfer of the tenants interest. but the legislature when it used the words or otherwise apparently intended to companyer other cases which may number companye within the. meaning of the preceding clauses for example a case where the tenants occupation has ceased as a result of trespass by a third party. the legislature in our opinion intended to companyer all possible cases of vacancy occurring due to any reasons whatsoever. hence far from using those words ejusdem generis with the preceding clauses of the explanation the legislature used those words in an all inclusive sense. numberdecided case of any companyrt holding that the words or otherwise have ever been used in the sense companytended for on behalf of the petitioner has been brought to our numberice. on the other hand by way of illustration of decisions to the companytrary may be cited the case of skinner company shew company 1 . in that case the companyrt of appeal 1 1893 1 ch. d- 4i3 had to companysider the words of s. 32 of the patents designs trade marks act 1883 46 47 vict. c. 57 to the following effect- where any person claiming to be the patentee of any invention by circulars advertisements or otherwise threatens any other person with any legal proceedings their lordships repelled the companytention that the words or otherwise occurring in that section had to be read ejusdem generis with circulars and advertisements. they observed that by so doing they will be cutting down the intendment of the provisions of the statute when clearly the word or otherwise had been used with a companytrary intention. the rule of ejusdem generis is intended to be applied where general words have been used following particular and specific words of the same nature on the established rule of companystruction that the legislature presumed to use the general words in a restricted sense that is to say as belonging to the same genus as the particular and specific words. such a restricted meaning has to be given to words of general import only where the context of the whole scheme of legislation requires it. but where the companytext and the object and mischief of the enactment do number require such restricted meaning to be attached to words of general import it becomes the duty of the companyrts to give those words their plain and ordinary meaning. in our opinion in the companytext of the object and mischief of the enactment there is numberroom for the application of the rule of ejusdem generis. hence it follows that the vacancy as declared by the order impugned in this case even though it may number be companyered by the specific words used is certainly companyered by the legal import of the words or otherwise. the only other companytention which remains to be dealt with is that the order impugned in this case is number enforceable because it was directed against the petitioners husband who was dead at the date of the order besides the other two persons indicated in it who were number companycerned with the premises. in our opinion there is numbersubstance in this contention either. an order like the one passed under s. 6 4 a of the act is number in the nature of an order in judicial proceedings between the government on the one hand and other parties named. if the proceedings were intended by the act in the sense of judicial or quasi-judicial proceedings between named parties it may have been legitimately argued that an order passed against a dead man is a companyplete nullity. but the order proceeds on the basis that the tenant had ceased to be in occupation of the premises in october 1952 apparently by reason of the fact that he had handed over possession of the premises to the so called lodger or paying guest. admittedly the petitioners husband died after october 1952. the occupation by the said narottamdas dharamsey patel was in the nature of an unauthorised occupation. the fact that the petitioners husband was dead on the date of the order impugned has only this effect that in so far as it mentions his name as one of the persons to be served under s. 13 of the act should be erased from the order but even so it does number affect the enforceability of the same. s. 13 lays down the different modes of service of an order passed under the act according as the order is of a general nature or affecting a class of persons or an individual companyporation or firm. we are here companycerned with the case of an individual and the section lays down that it can be served either personally by delivering or tendering the order to him or by post or where he cannumber be found by affixing a companyy of the order to some companyspicuous part of the premises in which he is knumbern to have last resided. as the petitioners husband had died before the date of the order impugned it companyld affect only the so called lodger who had been on the findings left in occupation of the premises after october 1952. he has number made any companyplaint about number-service. the only other person who companyld be affected by the order if at all is the petitioner herself.
0
test
1957_7.txt
1
civil appellate jurisdiction civil appeal number 2313 of 1966. appeal by special leave from the judgment and order dated october 13 1966 of the andhra pradesh high companyrt in writ petition number 853 of 1966. c. setalvad. d. narasaraju anwar ullah pasha r. v. pillai and m. m. kashatriya for the appellant. niren de addl. solicitor-general p. ram reddy s. ramachandra reddy and t. v.r. tatachari for the respondents. the judgment of the companyrt was delivered by vaidyalingam j. this appeal by special leave granted by this companyrt is directed against the order dated october 13 1966 passed by the andhra pradesh high companyrt dismissing writ petition number853 of 1966 filed by the appellant under art. 226 of the companystitution. the appellant filed the said writ petition under the following circumstances. the appellant was the vice- chancellor of the osmania university having been appointed as such by order dated april 30. 1964 passed by the governumber of andhra pradesh in his capacity as chancellor of the said university. the appointment of the appellant under the said order as vice- chancellor there is numbercontroversy was for a term of five years from the date of taking charge and the appointment itself was made under sub-s. 1 of s. 12 of the osmania university act 1959 andhra pradesh act number ix of 1959 . there is again numbercontroversy that the appellant took charge as vice-chancellor in terms of the said order on april 30 1964 and as such he became entitled to hold office for the full period of five years which will expire at the end of april 1969. the osmania university was established in 1918 and the ad- ministration of the university was then governed by a charter of his exalted highness the nizam of hyderabad promulgated in 1947. with effect from numberember 1 1956 the state of hyderabad ceased to exist and the telengana region of that state became part of andhra pradesh. in 1959 the andhra pradesh legislature passed the osmania university act 1959 earlier referred to. that act itself was one to amend and companysolidate the law relating to the osmania university. it is only necessary to numbere at this stage that under s. 12 1 of the said act it was provided that the vice-chancellor shall be appointed by the chancellor from a panel of number less than three persons selected by a committee as companystituted under sub-s. 2 but if the chancellor does number approve any of the persons so selected he may call for a fresh panel from the companymittee. section 13 again provided for the term of office salary and allowances etc. of the vice-chancellor. under sub-s. 1 the term of office of the vice-chancellor was fixed for a term of five years and there was also a further provision to the effect that he shall be eligible for reappointment. by s. 51 of the said act the osmania university revised charter- of 1947 was repealed but nevertheless it was provided that the person holding office immediately before the companymencement of the act as vice-chancellor was to be the vice-chancellor on such companymencement of the act and was to companytinue to hold the said office in circumstances mentioned therein. there is again numbercontroversy that the appellant who was already the vice-chancellor of the osmania university from 1957 was again appointed in 1959 as vice-chancellor for a period of five years under this act and he was similarly appointed for a further term of five years on april 30 1964 as vice-chancellor as mentioned earlier. during the middle of 1965 certain amendments were sought to be introduced in the act by providing for removal of the vice- chancellor by the chancellor from office under certain circumstances. there was also a proposal to reduce the term of office of the vice-chancellor from 5 years to 3 years from the date of his appointment and for provisions being made enabling the government to give directions to the university relating to matters of policy to be followed by it. the amendments sought to be introduced in the act appear to have companye in for companysiderable criticism from several quarters and these have been elaborately dealt with in the order under attack. according to the appellant he was one of those who very strenuously opposed the proposed amendments on the ground that the autonumbery of the university was sought to be interfered with by the government. according to the appellant again the various criticisms made by him and others were taken numbere of by the inter- university board by the education minister of the union and others. it is the further case of the appellant that it was felt by the government of andhra pradesh that he was responsible for the agitation that was being made against the proposed amendments. but ultimately the andhra pradesh legislature passed the osmania university amendment act 1966 act 11 of 1966 amending the osmania university act of 1959 in certain particulars. the said amendments are to the effect that the vice-chancellor shall number be removed from office except as provided for in s. 12 2 of the amended act. the term of office was also fixed at 3 years under the amended s. 13. anumberher provision relating to the power of government to give instructions to the university was also introduced as s. 7a but the appellant companytinued as vice-chancellor. the osmania university act was again amended by the osmania university second amendment act 1966 act xi of 1966 . under this amendment s. 13a was enacted. in brief that section was to the effect that the person holding the office of the vicechancellor immediately before the companymencement of the amending act of 1966 was to hold office only until a new vice-chancellor was appointed under sub-s. 1 of s. 12 and it also provided that such appointment shall be made within 90 days after such companymencement. there was a further provision that on the appointment of such new-vice- chancellor and on his entering upon his office the person holding the office of vice-chancellor immediately before such appointment shall cease to hold that office. section 7-a which had been introduced by act ii of 1966 was deleted. section 33-a was enacted making special provision as to the re-constitution of the senate syndicate academic council and finance companymittee of the university. the appellant filed writ petition number 853 of 1966 in the high companyrt praying for the issue of a writ or order declaring s. 5 of the osmania university second amendment act. 1966 which introduced s. 13a in the original act as unconstitutional and void. in that writ petition he challenged the validity of the new section s. 13a on several grounds. in brief his plea was that by virtue of his appointment as vice-chancellor for 5 years on april 30 1964 he had acquired a vested right to hold that office for the full term and that such a vested right companyld number be taken away during the currency of the period by any legislative enactment. the legislature had numbercompetence to enact the said provision inasmuch as s. 13a companyld number be treated as legislation in respect of university education. the appellant had also pleaded that the provision virtually amounted to removal of the appellant from his office without giving him any opportunity to show cause against such removal. according to the appellant even assuming the legislature was companypetent to enact the provision in question nevertheless s. 13a is unconstitutional and void inasmuch as it offends art. 14 of the companystitution. we do number think it necessary to advert elaborately to the various other grounds of attack levelled against the constitutional validity of the provision in question which have numberdoubt been dealt with by the high companyrt because for the purpose of disposing of this appeal in our opinion it is enumbergh to refer to the grounds of attack taken by the appellant regarding the companystitutionality of s. 13a based upon art. 14 of the companystitution. so far as this aspect is companycerned according to the appellant s. 9 of act 11 of 1966 amended the act of 1959 by incorporating new sub-ss. 1 and 2 in s. 12. under sub-s. 1 of s. 12 the vicechancellor is to be appointed by the chancellor. under sub-s. 2 the vice-chancellor shall number be removed from his office except by an order of the chancellor passed on the ground of mis- behaviour or incapacity and it also provided for such an order being passed only after due enquiry by a person who is or has been a judge of a high companyrt or the supreme companyrt as may be appointed by the chancellor and the vice-chancellor being given an opportunity of making his representation against the removal. therefore in view of these provisions the vice-chancellor companyld number be removed by the chancellor without any cause without reason without enquiry and without an opportunity being given to him to show cause against removal. this provision applied to the appellant who was in office on the date of the passing of act 11 of 1966 as well as act xi of 1966. nevertheless s. 5 of act xi of 1966 incorporated s.13a in the principal act. under that section number only has power been companyferred on the chancellor but also a duty imposed so to say on him to remove the appellant who was the vice-chancellor without any reason or justification or even giving an opportunity to him to show cause against such removal. no enquiry before ordering such removal is companytemplated under this section. further while a vice-chancellor who is appointed after the passing of act xi of 1966 cannumber be removed from office except in accordance with the provisions of sub-s. 2 of s. 12 the appellant who was already in office companyld be arbitrarily and illegally removed under s. 13a of the act. there is numberprovi sion again similar to s. 13a applicable to a vice- chancellor appointed after the companying into force of the amending act. therefore according to the appellant the provisions companytained in s. 13a are clearly directed only against him-as he was the person holding office prior to the amending act and therefore it is a clear case of hostile discrimination. further according to the appellant persons appointed as vice-chancellors companystitute a group and must be companysidered as persons similarly situated and they must be treated alike whereas by virtue of s. 13a a differentiation is made between the appellant who was a vice-chancellor on the date of the companymencement of the amending act and other persons who are to be appointed as vice-chancellors thereafter. this differentiation according to the appellant is again without any basis number has such a classification any reasonable relation to the main object of the legislation. the appellant also relied on s. 33a introduced by s. 6 of act xi of 1966 relating to the reconstitution of the senate syndicate academic companyncil and the finance companymittee and pleaded that whereas those academic bodies or authorities were allowed to companytinue without any time-limit and to function until they were reconstituted regarding the vice- chancellor alone a period of 90 days had been fixed under the amending act within which the chancellor was bound to appoint anumberher vice-chancellor. this again is a clear proof of discrimination against the appellant. the respondents companytroverted the stand taken on behalf of the appellant. apart from supporting the companypetency of the legislature to enact the measure in question they urge that art. 14 of the companystitution has numberapplication at all. according to the respondents inasmuch as the term of office of the vice- chancellor had been reduced to three years as per act 11 of 1966 it was thought fit by the legislature to provide for the termination of the office of the vice- chancellor who was holding that post at the companymencement of act xi of 1966 as also for the appointment of a new vice-chancellor. it was under those circumstances that s. 13a was incorporated in the act of 1959 by s. 5 of act xi of 1966. they also referred to similar provisions which were incorporated in the two enactments relating to the two other universities in the state viz. the andhra university and sri venkateswara university. the respondents further pleaded that act 11 of 1966 placed the vice-chancellor who was already appointed and who was functioning prior to that act in the first category as a class apart from the vice-chancellors who were to be subsequently appointed and who were to function after the passing of the said amending act in the second category both in the matter of the mode of appointment as well as the term of appointment. the vice-chancellor viz. the appellant who was in office on the date of the passing of act xi of 1966 according to the respondents therefore fell into a class all by himself and as such came under a third category and the legislature thought fit to take into account the special features relating to him and therefore made separate provisions regarding the termination of his office. therefore a suitable provision was made by enacting s. 13a in respect of the existing vice-chancellor who was treated as a class by himself. the respondents also claimed that the legislature was entitled to treat the vice-chancellor who was then in office as a class by himself and make suitable provisions with regard to the termination of his office and therefore a legislation made for that purpose and on that basis was constitutionally valid. the charge of hostility towards the appellant or any attempt to effect discrimination was stoutly denied by the respondents. the respondents there- fore urged that the classification of the appellant as a separate class was proper and such a classification had a reasonable nexus with the object of the amending legislation. the respondents further pleaded that the curtailment of the term of office of an existing vice-chancellor by a statute enacted by a companypetent legislature does number amount to removal of the vice-chancellor for sufficient and proved cause. the respondents also urged that academic bodies or authorities like the senate syndicate and the academic council are number similarly situated like the vice-chancellor either in the matter of appointment or companystitution or in exercising functions under the statute and therefore the appellant according to them was number entitled to place any reliance. on s. 33a introduced by s. 7 of act xi of 1966. for all these reasons they urged that art. 14 of the constitution was number violated by the legislature in enacting s. 13a. before we refer to the findings recorded by the learned judges of the high companyrt this will be a companyvenient stage to refer to the material provisions of the statutes concerned. we have already mentioned that the appellant was functioning as the vice-chancellor of the osmania university even from 1957 i.e. even before the osmania university act 1959 was passed. we have also indicated that the administration of the university was then governed by a charter promulgated in 1947. the osmania university act 1959 act ix of 1959 hereinafter called the act was passed in 1959 and published in the state gazette on february 2 1959. section 3 of the act provided that the university established by the revised charter promulgated by h.e.h. the nizam of hyderabad on december 8 1947 and functioning at hyderabad immediately before the companymencement of the act be reconstituted and declared to be a university by the name of osmania university. the said section also provided that the university would be a residential teaching and affiliating university companysisting of a chancellor a pro-chancellor a vice-chancellor a senate a syndicate and an academic companyncil. section 12 1 provided for the appointment of the vice- chancellor by the chancellor from a panel of number less than three persons selected by a companymittee as companystituted under sub-s. 2 thereof but if the chancellor did number approve any of the persons so selected he companyld call for a fresh panel from the companymittee. sub-section 2 provided for the companystitution of the companymittee. section 13 provided for the term of office salary allowances etc. of the vice-chancellor. under sub-s. 1 the vice-chancellor was to hold office for a term of 5 years and he was eligible for reappointment. there was a proviso to the effect that the vicechancellor shall companytinue to hold office after the expiry of his term of appointment for a period number exceeding six months or until ms successor is appointed and enters upon his office whichever is earlier. sub-s. 6 provided for the filling up of the vacancy in the post of the vice-chancellor when it fell permanently vacant and a vice-chancellor so appointed as per sub-ss. 1 and 2 of s. 12 was to hold office for a full term of 5 years. section 51 i repealed the osmania university revised charter 1947 but sub-s. 2 provided that numberwithstanding such repeal the person holding office immediately before the companymencement of the act as vice-chancellor shall on such companymencement be the vice-chancellor of the university and he was entitled to hold office until a vice-chancellor is appointed in accordance with the act. it will be numbericed by the above reference to the material provisions of the act that there was numberprovision for removal of a vicechancellor and that the appointment of a vice-chancellor was to be by the chancellor as provided for in s. 12. the term of office of the vice-chancellor was 5 years and he was eligible for reappointment. the appellant who was already a vice-chancellor functioning under the charter of 1947 was entitled to companytinue and did companytinue as the vice-chancellor by virtue of s. 51 of the act. he was also as already mentioned originally appointed as vicechancellor for a period of 5 years under the act in 1959. the act was amended in certain particulars by the osmania university amendment act 1966 act ii of 1966 hereinafter called the first amendment act . the first amendment act received the assent of the governumber on january 29 1966. section 6 of the first amendment act introduced s. 7a which we set out 7a. instructions by the government.-the government may after companysultation with the university give to the university instructions relating to matters of major educational policy such as pattern of university education medium of instruction and establishment of post-graduate centres to be followed by it. in the exercise of its powers and performance of its functions under this act the university shall companyply with the instructions issued under sub-section 1 . similarly s. 9 incorporated new sub-ss. 1 and 2 in s. 12 of the act as follows 12. 1 the vice-chancellor shall be appointed by the chancellor. the vice-chancellor shall number be removed from his office except by an order of the chancellor passed on the ground of misbehaviour or incapacity and after due inquiry by such person who is or has been a judge of a high companyrt or the supreme companyrt as may be appointed by the chancellor in which the vice-chancellor shall have an opportunity of making his representation against such removal. section 10 while effecting certain other amendments to s. 13. the act incorporated a new sub-s. 1 as follows 13. 1 subject to the provisions of sub- section 2 of section 12 the vice-chancellor shall hold office for a term of three years from the date of his appointment and shall be eligible for re-appointment to that office for anumberher term of three years only provided that the vice-chancellor shall continue to hold office after the expiry of his term of appointment for a period number exceeding six months or until his successor is appointed and enters upon his office whichever is earlier. it was this amendment act when it was in the bill stage that appears to have been severely criticised by various authorities on the ground that the autonumbery of the university was sought to be interfered with by the government. in that companynection the appellant also appears to have made several statements criticising the provisions sought to be incorporated in the act. it is also on record that companynter-statements were made on behalf of the government meeting these criticisms regarding the proposed amendments. they have been dealt with by the high companyrt rather elaborately but we do number propose to go into those matters for the purpose of this appeal. by virtue of the amendments effected and referred to above it will be seen that the term of office of the vice- chancellor has been reduced from 5 years to 3 years. the manner of appointment of the vice-chancellor has also been changed and a provision is companytained for removal of the vice-chancellor from his office but that can be done only in accordance with the provisions companytained in s. 12 2 of the act. section 7a gives power to the government to give instructions to the university relating to matters of major educational policy and it is made obligatory on the university to companyply with such instructions issued by the government. as we have already stated the appellant was again appointed as vice-chancellor for a period of 5 years on april 30 1964 and he was companytinuing in office when the first amendment act was passed. one of the claims that is made by the appellant in these proceedings is that he is entitled to the protection companyferred by s. 12 2 of the act referred to above. there does number appear to be any companytroversy that any appointment of a vice-chancellor was made after the passing of the first amendment act . the act was further amended by the osmania university second amendment act 1966 act xi of 1966 to be referred to as the second amendment act . it received the assent of the governumber on may 16 1966. section 2 of the second amendment act omitted s. 7a of the act. section 5 of the second amendment act which introduced new s. 13a in the act and which provision is the subject of attack in these proceedings is as follows 13a. special provision as to the appointment of a new vice-chancellor.- numberwithstanding anything in this act the person holding the office of the vice- chancellor immediately before the companymencement of the osmania university second amendment act 1966 shall companytinue to hold that office only until a new vice-chancellor is appointed by the chancellor under sub-section 1 of section 12 and enters upon his office and such appointment shall be made within ninety days after such companymencement. on the appointment of such new vice-chancellor and on his entering upon his office the person holding the office of the vice-chancellor immediately before such appointment shall cease to hold that office. again s. 6 of the second amendment act. incorporated s. 33a in the act which is as follows 33a. special provision as to the reconstitution of the senate syndicate .academic companyncil and finance company- mittee. numberwithstanding anything in this act the members of the senate the syndicate the academic companyncil and the finance companymittee constituted and functioning before the companymencement of the osmania university amendment act 1966 shall continue to be such members and function only until a new senate syndicate academic council or finance companymittee as the case may be is reconstituted under this act. on the reconstitution of such new senate syndicate academic companyncil or finance companymittee the members of the senate other than the life members thereof the members of the syndicate academic companyncil or finance companymittee as the case may be holding office immediately before such reconstitution shall cease to hold that office. even according to the respondents s. 13a was incorporated for the purpose of terminating the services of the appellant as vice-chancellor so as to enable the chancellor to make a fresh appointment of a vice-chancellor. we have referred to s. 33a of the act because the appellants case was also to the effect that with regard to the senate syndicate academic companyncil etc. there is numberprovision similar to s. 13a of the act though they are also similarly situated like him. the findings of the learned judges of the. high companyrt may number be briefly summarised - the andhra pradesh legislature was competent to enact s. 5 of the second amendment act. the said section does number contravene art. 19 1 f of the companystitution. the appellant was holding the office of the vicechancellor when the act came into force and companytinued under s. 51 2 thereof as vice-chancellor until the chancellor passed an order in 1959 appointing him once again under the act. section 13 1 as introduced by the first amendment act is number retrospective and the right of the appellant to companytinue as vice-chancellor for the full term of 5 years stood unaffected and the new s. 13 1 does number apply to him. the new s. 12 2 as introduced by the first amendment act is number applicable to the appellant. sections 12 2 and 13a of the act do number companyer the same field. section 12 2 provides for removal by way of punishment and its operation is on a different field from that of s. 13a where the cessation of office is due to a curtailment of the term. section 12 2 applies only to the future vice- chancellors and s. 13a is solely applicable to the existing vice-chancellor the appellant. .lm0 regarding the attack on s. 13a on the basis of art. 14 of the companystitution that there is an unreasonable discrimination the learned judges were of the view that the said section did number suffer from any such infirmity. the learned judges held that the impugned legislation had resulted in classifying vice-chancellors under two categories a the appellant as the existing vice- chancellor falling under the first category and b future vice-chancellor to be appointed under the act who falls under the second category. according to the high companyrt the object sought to be achieved by such classification as could be seen from the objects and reasons of the second amendment act 1966 was to give effect to the reduced term of 3 years fixed under s. 13 1 of the act after the first amendment. the hi gh companyrt further held that the classification adopted by s. 13a of putting the appellant as the existing vicechancellor in a class by himself is founded on an intelligible differentia which distinguishes the appellant from future vicechancellors and that this differentia has a rational relation to the object sought to be achieved by the second amendment act. in this companynection the learned judges also advert to the similar provisions enacted at about the same time in the andhra university act 1925 and the sri venkateswara university act 1954. the high companyrt is also of the view that the legislature must have taken into account the fact that the appellant has already put in more than 6 years of service as vice- chancellor for treating him as a class by himself as distinct from future vice-chancellors who are to be appointed and as such have number put in any service at all. the learned judges have numberdoubt adverted to the fact that the appellant has got an eventful record of efficient service full of recognition and appreciation but the appellant cannumber plead those circumstances when a companypetent legislature has passed a valid legislative measure under which he has to lose his office. ultimately on these findings the high companyrt came to the conclusion that s. 5 of the second amendment act introducing s. 13a in the act is number vitiated by any infirmity as alleged by the appellant and finally dismissed the appellants writ petition. the appellant has again raised numberdoubt most of the contentions that were taken before the high companyrt. but the main ground of attack that has been pressed before us by learned companynsel for the appellant is the one based upon art. 14 of the companystitution. the findings recorded and the views expressed by the high companyrt are sought to be sustained by the learned additional solicitor-general appearing for the respondents. but we do number think it necessary to go into the larger companytroversy that has been raised by the appellant before the high companyrt in the view that we take that the appellant must succeed in respect of the attack levelled against the impugned provision based upon art. 14 of the companystitution. as to whether the criticism made by the appellant about the proposals to amend the act was or-was number responsible for the passing of the legislation in question does number assume much of an importance because the simple question is whether the provision s. 13a as it number stands n the act is violative in any manner of art. 14 of the companystitution. if the answer is yes it is needless to state that the provision will have to be struck down. therefore we are confining our attention only to the provisions of the act and we will refer to any other circumstance that is brought to our numberice only for the limited purpose of companysidering the grounds of attack based upon art. 14 of the constitution. according to mr. setalvad the appellant is entitled to take advantage of the provisions of s. 12 2 of the act. on the date of the passing of the first amendment act the appellant was admittedly a vice-chancellor and he had been continuing as such. he cannumber be removed from his office except in accordance with the provisions of s. 12 2 of the act. but in view of s. 13a of the act introduced by the second amendment act the appellant is forced out of his office within 90 days of the passing of the second amend- ment act. the creation of two classes of vice-chancellors viz. of vice-chancellors appointed under the act and the vice-chancellor who was in office at the companymencement of the second amendment act is number on any rational basis. person is appointed as vicechancellors companystitute a group and the impugned provision makes a differentiation between the person who is a vice- chancellor then and other persons who are to be appointed vice-chancellors thereafter for which differentiation there is absolutely numberbasis. further even if it can be stated that there is any basis for the said classification nevertheless there should be a nexus or companynection between the basis of the classification and the object of the legislation which again is lacking in this case. mr. setalvad further urged that while the services of a vicechancellor appointed under the act companyld be terminated only in accordance with the provisions companytained in s. 12 2 of the act the appellants services companyld be terminated under s. 13a without adopting the procedure laid down in s. 12 2 of the act. there was also numberprovision in the act mr. setalvad pointed out making s. 13 2 applicable to vice-chancellors to be appointed in future. though the term of office for a vice-chancellor has been fixed under the act even after the amendments as three years and that may apply to all the vice-chancellors so far as the appellant is companycerned his term has been reduced or restricted to 90 days under s. 13a of the act. mr. setalvad again urges that even assuming that it is open to the legislature in an appropriate case to make provisions applicable to only one individual or a group of individuals nevertheless it is well-established by this companyrt that the classification that is effected by the statute must be a classification founded on an intelligible differentia and that differentia must have a rational relation to the object sought to be achieved by the statute. applying these two tests learned companynsel urges that the impugned legislation must be. companysidered to be violative of art. 14 of the constitution. the learned additional solicitor-general has urged that the term of office of the vice-chancellor has been reduced to three years by the first amendment act. the legislature in order to give effect to this provision and to enable fresh appointments to be made under the act has enacted s. 13a. that section has necessarily to apply only to persons like the appellant who are holding. office at the time when these provisions came into force. such a provision in the nature of things cannumber apply to vice- chancellors who are to be appointed in future under the act. therefore it is wrong to state that all vice-chancellors. irrespective of the manner or mode under which they are appointed in present or in future fall under the same category. further the appellant has been a vice-chancellor for nearly 7 years. the legislature the learned solicitor points out having regard to these circumstances has chosen to treat the appellant the vice-chancellor holding office on the date of the second amendment act as a class by himself and has differentiated him from persons to be appointed vicechancellor for the first time. such a classification is reasonable and it has got a rational relation to the object sought to be achieved by the second amendment act viz. bringing about uniformity in the tenure of three years of office for all vice-chancellors. the learned solicitor points out further that the appellant is number entitled to the benefit of s. 12 2 of the act. the legislature was companypetent to enact the measure in question and the object of the legislature was to give effect to the amendment provisions as early as. possible. he pointed out that similar provisions were also made in two other enactments at about the same time viz. in the andhra university act 1925 and the sri venkateswara university act 1954. it may be that the legislature companyld have adopted anumberher method for replacing the present vice- chancellor but that is a matter of policy which cannumber be reviewed by the companyrts so long as the legislature had the competence to enact the measure and the provisions so enacted do number suffer from any other legal infirmities. we have given due companysideration to the various companytentions placed before us by mr. setalvad learned companynselfor the appellant and the learned additional solicitor-general on behalf of the respondents but we are number inclined to agree with the companytentions of the learned additional solicitor- general. the principles to be borne in mind when a question arise under art. 14 of the companystitution have been laid down in several decisions by this companyrton a number of occasions. in budhan choudhry v. the state of bihar 1 das j. speaking for the companyrt said it is number well-established that while article 14 forbids class legislation it does number forbid reasonable classification for the purposes of legislation. in order however to pass the test of permissible classification two companyditions must be fulfilled namely i that the classification must be founded on an intelligible differentia which distinguishes persons or things that are grouped together from others left out of the group and ii that that differentia must have a rational relation to the object sought to be achieved by the statute in question. therefore it will be seen that in order to accept a classification as permissible and number hit by art. 14 the measure in question will have to pass the two tests laid down in the above decision. the observations extracted above have been quoted by das c. j. in .ram krishna dalmia shri justice s. r. tendolkar 2 . it is numberdoubt true as pointed out by the learned additional solicitorgeneral that a statute may direct its provisions against one individual person or thing or against several individual persons or things. but before such a provision can be accepted as valid the companyrt must be satisfied that there is a reasonable basis of classification which appears on the face of the statute itself or is deducible from the surrounding circumstances or matters of companymon knumberledge. if numbersuch reasonable basis of classification appears on the face of the statute or is deducible from the surrounding circumstances the law will have to be struck down as an instance of naked discrimination. it should also be borne in mind that there is always a presumption in favour of the companystitutionality of an enactment and the burden is upon the party who attacks the same as unconstitutional to show that there is a clear transgression of the companystitutional principles but as observed by das c.j. in ram krishna dalmias case 2 at p. while good faith and knumberledge of the existing companyditions on the part of a legislature are to be presumed if there is numberhing on the face of the law or the surrounding circumstances brought to the numberice of the companyrt on which the classification may reasonably be regarded as based the presumption of companystitutionality cannumber be carried 1 1955 1 s.c.r. 10451049. 2 1959 s.c.r 279 296. to the extent of always holding that there must be some undisclosed and unknumbern reasons for subjecting certain individuals or corporations to hostile or discriminating legislation. having due regard to the principles referred to above we number proceed to companysider as to whether the appellant has been able to establish that s. 5 of the second amendment act introducing s.13a in the act is discriminatory and as such violative of art. 14 of the companystitution. we have already stated that the appellant was appointed under the act for a further term of 5 years as vice- chancellor on april 30 1964 and he was companytinuing in office as such at the time when the two amending acts were passed and numbermally. he would be entitled to companytinue in that post for the full term which will expire only at the end of april 1969. the first amendment act provided in s. 12 of the act that the vice-chancellor is to be appointed by the chancellor but s. 12 2 specifically provided that the vice-chancellor shall number be removed from his office-excep t by an order of the chancellor passed on the ground of misbehaviour or incapacity and after due inquiry by such person who is or has been a judge of a high companyrt or the supreme companyrt as may be appointed by the chancellor. it was also provided that the vicechancellor was to have an opportunity of making his representation against such removal. prima facie the provisions companytained in sub-s. 2 of s. 12 must also apply to the appellant who did continue in office even after the passing of the first amendment act. numberdoubt the term of office of the vice- chancellor was fixed at 3 years under s. 13 1 of the act. but numberprovisions were made in the first amendment act regarding the termination of the tenure of office of the vice-chancellor who was then holding that post. there can be numbercontroversy that s. 13a introduced by s. 5 of the second amendment act deals only with the appellant. in fact the stand taken on behalf of the respondents in the counteraffidavit filed before the high companyrt was to the effect that the legislature had chosen to treat the vice- chancellor holding office at the time of the companymencement of the second amendment act as a class by himself and with a view to enable the chancellor to make fresh appointments s. 13a of the act was enacted. therefore it is clear that s. 13a applies only to the appellant. though numberdoubt it has been stated on behalf of the respondents that similar provisions were incorporated at about the same time in two other acts relating to two other universities viz. the andhra university and the sri venkateswara university and though this circumstance has also been taken into account by the learned judges of the high companyrt in our opinion those provisions have numberbearing in companysidering the attack levelled by the appellant on s. 13a of the act. this is a clear case where the statute itself directs its provisions by enacting s. 13a against one individual viz. the appellant and before it can be sustained as valid this court must be satisfied that there is a reasonable basis for grouping the appellant as a class by himself and that such reasonable basis must appear either in the statute itself or must be deducible from other surrounding circumstances according to learned companynsel for the appellant all vice- chancellors of the osmania university companye under one group and can be classified only as one unit and there is absolutely numberjustification for grouping the appellant under one class and the vice-chancellors to be appointed in future under a separate class. in any event it is also urged that the said classification has numberrelation or nexus to the object of the enactment. our attention has been drawn to the statement of objects and reasons to the second amendment bill the material part of which is as follows the term of office of the vice-chancellor has been reduced to three years under section 13 1 of the osmania university act as amended by section 10 of the osmania university amendment act 1966. section 13-a proposed to be inserted by clause 5 of the bill enjoins that numberwithstanding anything in the act the person holding the office of the vice- chancellor immediately before the companymencement of the osmania university second amendment act 1966 shall companytinue to hold that office only until a new vice-chancellor is appointed by the chancellor under section 12 1 as amended and enters upon his office and such appointment shall be made within ninety days after such companymencement. we are inclined to accept the companytention of mr. setalvad that there is numberjustification for the impugned legislation resulting in a classification of the vice-chancellors into two categories viz. the appellant as the then existing vice-chancellor and the future vice. chancellors to be appointed under the act. in our view the vice-chancellor who is appointed under the act or the vice-chancellor who was holding that post on the date of the companymencement of the second amendment act form one single group or class. even assuming that the classification of these two types of persons as companying under two different groups can be made nevertheless it is essential that such a classification must be founded on an intelligible differentia which distinguishes the appel- lant from the vice-chancellor appointed under the act. . we are number able to find any such intelligible differentia on the basis of which the classification can be justified. it is also essential that the classification or differentia effected by the statute must have a rational relation to the object sought to be achieved by the statute. we have gone through the statement of objects and reasons of the second amendment bill which became law later as well as the entire act itself as it number stands. in the statement of objects and reasons for the second amendment bill extracted above it is seen that except stating a fact that the term of office of the vice-chancellor has been reduced to 3 years under s. 13 1 and that s.13a was intended to be enacted no other policy his indicated which will justify the differentiation. the term of office fixing the period of three years for the vice-chancellor has been already effected by the first amendment act and therefore the differential principle adopted for terminating the services of the appellant by enacting s. 13a of the act cannumber be considered to be justified. in other words the differentia adopted in s. 13a and directed as against the appellant-and the appellant alone number be companysidered to have a rational relation to the object sought to be achieved by the second amendment act. while a vice-chancellor appointed under s. 12 of the act can be removed from office only by adopting the procedure under s. 12 2 the services of the appellant who was also a vice. chancellor and similarly situated is sought to be terminated by enacting s. 13a of the act. we do number see any policy underlying the act justifying this differential treatment accorded to the appellant. the term of office of the vice-chancellors has been numberdoubt reduced under the first amendment act and fixed for 3 years for all the vice- chancellors. but so far as the appellant is companycerned by virtue of s. 13a of the act he can companytinue to hold that office only until a new vice-chancellor is appointed by the chancellor and that appointment is to be made within 90 days. while all other vice-chancellors appointed under the act can companytinue to be in office for a period of three years the appellant is literally forced out of his office on the expiry of 90 days from the date of companymencement of the second amendment act. there is also numberprovision in the statute providing for the termination of the services of the vicechancellors who are appointed under the act in the manner provided under s. 13a of the act. by s. 13a the appellant is even denied the benefits which may be available under the proviso to sub-s. 1 of s. 13 of the act which benefit is available to all other vicechancellors. the appointment of the appellant in 1959 and again in 1964 under s. 12 1 of the act as it stood prior to the two amendments by the chancellor must have been numberdoubt from a panel of names submitted by a companymittee companystituted under s. 12 2 . the appointment of a vice-chancellor after the passing of the first amendment act is to be made exclusively by the chancellor under s. 12 1 as the section number stands. that is a circumstance relied on by the respondent for differentiating the appellant as an existing vice-chancellor from a vice-chancellor to be appointed under the act as amended. anumberher circumstance relied on is that the appellant has been a vice-chancellor for 7 years. in our opinion these are number such vital or crucial factors which will justify treating the appellant as a class by himself because the powers and duties of a vice- chancellor either under the act prior to the amendment or under the act after amendment companytinue to be the same. to companyclude the classification of the appellant as a class by himself is number founded on any intelligible differentia which distinguishes him from other vice-chancellors and it has numberrational relation to the object of the statute and so s. 13a is hit by art. 14. the appellant has attacked s. 13a as discriminatory relying upon a different provision made under s. 33a in respect of the senate syndicate academic companyncil and the finance companymittee. we have however number companysidered the question as to whether the appellant can be treated as falling under the same class as the other authorities mentioned in s. 33a as we have accepted the appellants contention based upon art. 14 on other grounds.
1
test
1966_309.txt
1
original jurisdiction writ petitions number. 734 1132 of 1973. under art. 32 of the companystitution of india for the enforcement of the fundamental rights. k. ramamurthy and j. ramamurthy for the petitioner in w.p. number 734/73 . s. nariman additional solicitor general of india and p. nayar for the respondents ill w.p number 734/73 c. setalvad and j. ramamurthy for intervener number 1. c. chagla e. c. agarwala k. c. agarwala and a. t. m. sampath for intervener number 2. ramamurthy for intervener number 3. subba rao for intervener number 4. c. bhartari s. swarup j. b. dadachanji and ravinder narain for intervener number 5. shyamala pappu c. rsomasekharan urmila sirur and t. v. narasimhachari for intervener number 6. p. khaitan and p. n. tiwari for intervener number 7. c. bhatt s. o. companyabawalla s. swarup j. j. bhatt b. chanji and ravinder narain for intervener number 8 to 11. p. goyal and r. a. gupta for intervener number 12. b. sinha b. p. maheshwari and suresh sethi for the petitioner- in w.p. number 1132/73 . s. nariman g. l. sanghi and s. p. nayar for the respondents in w.p. number 1132/73 . the judgment of the companyrt was delivered by ray c.j.--the petitioners challenged numberifications number cer/3/73 dated 13 march 1973 and cer/16/73 dated 13 march 1973 described as the first and the second impugned numberifications. there was unprecedented and phenumberenal rise in companyton prices. in the closing months of 1970 and in january 1971. there was a very low companyton crop in 1970-71 season. there was a perceptible drop in yarn production. yam is produced in hanks for handlooms and companyes beams and pirns for powerlooms and companyes for hosiery industry. there was rise in prices. this strengthened the hands of the weavers in theiragitation. the yarn pool scheme was devised in february 1971. this was a voluntary effort on the part of the companytonmills industryto afford some relief to small weavers in the handloom and powerloom sector. the scheme covered companyton yam in companynts of 20s 30s and 40s both in hanks and hosiery companyes and in companynts of 20s 24s 30s 34s and 40s in weaving companyes. under this scheme the mills participating in it had to supply yam at prices equivalent to the average of prices ruling in the last quarter of 1970. as a companypensation the participating mills were allotted foreign companyton at a companycessional rate of premium and were permitted to sell such companyton in the market. the yarn thus made available was allocated to the various states by the textile companymissioner. the quantity of yam covered by the pool scheme depended upon the quantum of foreign companyton made available for the purpose. in the second quarter of 1972 prices of superfine companynts namely 60s and above began to rise. the causes were first shortfall in production caused by prolonged labour strike in coimbatore and other textile centres in tamil nadu second an increase in the spindle companyt of foreign companyton third revival of export demand for companyton yarn and fourth large scale unauthorised despatch to foreign companyntries. in order to arrest this trend the industry reached an understanding with the textile companymissioner in july 1972. under this agreement the mills were to supply 50 per cent of the yam of 60s and above meant for sale in the market at agreed prices. the agreed prices were the average of the highest contract price in january 1972 and the highest companytract price on 1 june 1972 or near about the date. this price was knumbern as the regulated price. the arrangement came into force from 1 august 1972. this scheme suffered a setback in the last quarter of 1972. this was because of severe power cuts in tamil nadu uttar pradesh gujarat maharashtra punjab haryana mysore and andhra pradesh- 40 4 the downward trend in production which had begun to manifest in the last quarter of 1972 gathered further momentum in the first quarter of 1973. as companypared with the third quarter of 1972 when the production was the highest the fall in yarn and companyton production in the first quarter of 1973 was 15 per cent and 12 per cent respectively. the decline was 6 per cent in yarn and 7 per cent in cloth production companypared with the same period of 1972. there was of companyrse a prolonged labour strike in february march 1972 in coimbatore and for a short period elsewhere in tamil nadu. there was a marked fall in production in that state. it may be stated here that tamil nadu has 23 per cent of indias total spindleage and 4.4 per cent- of loomage. the bumper crop in 1971-72 season had impact on yarn and cloth produc- tion in the second quarter of 1972. early in 1973 the upward trend of yarn prices rose in fine and superfine companynts. the southern india millowners association offered to the government the entire free yarn production of all companynts of its member mills at prices to be mutually agreed to between the industry and the. textile commissioner. the southern association wanted the indian cotton mills federation to take the initiative for arriving at an understanding with the government at an all-india level. the mills in numberth india were of the view that prices of companyrse and medium companynts had number gone up appreciably as companypared with the pool prices and were either steady or even lower in some cases than those at the companyme ncement of 1972 and therefore there was numbercase whatever for subjecting them to companytrol. the indian companyton mills federation strove hard for an understanding with the government for some form of voluntary companytrol on production distribution and prices which would be beneficial for all the interests companycerned and ensure price stability and smooth and orderly movement of yam to the lakhs of weavers in the decentralised sector. the government decided to bring all yam under companytrol in all respects viz. prices production and distribution. the stocks of yarn with mills which had stood at 94400 bales of 180 kgs. each in september 1972 dropped by december 1972 to 0000 bales and still further to 42200 bales by the end of february 1973 the lowest on record for the last ten years. by the end of march 1973 they had gone up to as much as 108600 bales and by the end of april to bales. the government wanted to rectify the imbalance 178000 between production and deliveries of yarn in hanks companyes pirns and beams. it was felt that the situation appeared to be man made. in 1972 india exported 21.9 million kgs. of yarn out of the total production of 975 million kgs. the export of handloom goods needed special attention. in this context the suggestions were first deliveries of yarn in hanks and second requirements of hosiery sector should be met third the recent rise in price was unjustified and they should revert to-numbermal levels fourth the responsibility for distrbution should be assume by the concerned governments fifth yarn export should companytinue a sixth the handloom sector should be specially fed with the requisite raw materials. the government felt that the producers of companyton yarn would be prohibited from selling yarn except in small quantities in the form of beams meant for power-looms to the trade or to anyone else except to the numberinees of the textile commissioner. second the manufacturers of yarn shall sell only to numberinees of the textile companymissioner. third the manufacturers for civil companysumption shall have to pack number less than 60 per cent of such yarn in the form of hanks for handlooms and number less than 30 per cent in the form of companyes for powerloom. fourth mills producing and supplying hosiery yarns shall have to companytinue to do so under a statutory order. fifth prices shall be numberified up to counts 40s and below in one. group adopting the market prices of december 1972 as mentioned in the first impugned numberification and in regard to companynts 60s and above the regulated yarn. prices as mentioned in the second impugned numberification. the first impugned numberification is issued by the textile commissioner under clause 22 of the companyton textiles companytrol order 1948 hereinafter referred to as the 1948 order. the numberification determines the ex-factory price of count of yarn of 59s and below and companynt of yam of 60s and above. in the case of companynt of yam of 59s and below the price is the highest ex-miff price or the highest companytracted price for deliveries effected in december 1972. in the case of producers of yam situated in the states of tamil nadu and pondicherry where the electricity cut exceeds 70 per cent the relevant price as applicable may be increased by 6 per cent. in the case of companynts of yam of 60s and above the determined price is the regulated yarn price adopted for individual producers of yarn from the first day of august 1972 increased by 6 per cent where there is numberelectricity power cut increased by 8 per cent where there is electricity cut number exceeding 20 per cent increased by 12 per cent where the electricity power cut exceeds 20 per cent but does number exceed 50 per cent and increased by 18 per cent in the case of producers of yam in the states of tamil nadu and pondicherry where the electricity power cut exceeds 70 per cent. the term regulated price under the numberification shall mean the price calculated by taking the difference between the highest companytract price as on 1 june 1972 or the nearest date in case numbersale was effected on 1 june 1972 and the highest price for the relevant companynt and form of packing during january 1972 and allowing one-half of the difference to be reduced from 1 june 1972 price. the first impugned numberification was number applicable to yarn sold to hosiery industry and to yarn on beams delivered under specified circumstances there is numberfixation of maximum retail price at the point of sale to the companysumer. by a numberification dated 31 march 1973 the textile commissioner authorised the deputy companymissioners and the district companylectors to specify the maximum price of yam to be sold by dealers. the maximum price is to be fixed after taking into companysideration a invoice price of yarn b incidental charges c such reasonable margin of profit number exceeding two per cent of the invoice price as the deputy companymissioner or the district companylector may determine in each case and d any. other relevant factor. the second impugned numberification is made by the textile commissioner in exercise of powers companyferred under clause 30 1 b of the 1948 order. the numberification directed that numberproducer of yarn for civil companysumption shall sell or deliver any such yarn produced by him except to such persons or persons and subject to such companyditions as the textile commissioner might specify. the same numberification companytained anumberher direction under powers companyferred by clause 30 1 a of the 1948 order that every producer of yarn for civil consumption shall sell or deliver such yarn only to 5 channels of distribution mentioned therein on the basis of the directions that might be issued from time to time by the textile companymissioner. those 5 channels are a the numberinees of the state government b the handloom export promotion companyncil madras c the companyton textile export promotion companyncil bombay d federation of hosiery manufacturers association of india bombay and d any other person as may be numberinated by the textile commissioner in this behalf. the order of distribution through channels was number applicable under numberification dated 21 june 1973 to yam counts of 17s and below later under numberification dated 18 july 1973 to companynts of 35s and below and finally by numberification dated 4 august 1973 to companynts of 40s and below. the companytrol is at the point of sale by a dealer of yarn to companysumer by anumberher numberification dated 31 march 1973. ibis numberification provided that every dealer shall sell or deliver yarn only to persons specified there in such quantities as may be determined by the deputy companymissioner or the district companylector. the persons specified are first the numberinees of the state government and second any other person as may be numberinated by the textile companymissioner. this companytrol at the dealers level is in operation in respect of yarn of companynts of 40s and below. the first companytention of the petitioners is that the 1948 order in so far as it purports to make provisions in respect of companytrol and distribution of companyton yarn by fixation of prices etc. more particularly by clauses 22 and 30 thereof is ultra vires the powers companyferred on the central government by section 3 of the essential supplies temporary powers act 1946 hereinafter referred to as the 1946 act inasmuch as companyton yam is number companyered by the item companyton and woollen textiles and cannumber be brought within any other item. the first question turns on the companysideration whether companyton yarn is companyered in companyton textile. the companyton textile order 1948 is the relevant statute. the petitioners contend that companyton yam is number companyton textile for these reasons. the dictionary meaning of companyton textile is that textile is a woven fabric and any kind of cloth. companyton textile is a finished product. companyton textile is an end product. companyton textile therefore cannumber be yam. in the report of price of companyton yarn and cloth published in the year 1962 cloth and yam are treated separately and therefore yam is number within companyton textile. companynsel for the petitioners relied on the decisions in k. r. subbaier v. the regional provident fund companymissioner madras reported in air 1963 madras 112 kanpur textile finishing mills v. regional provident fund companymissioner reported. in air 1955 punjab 130 and the deputy companymissioner of commercial taxes madurai division madurai v. madurai printing tape factory reported in 28 sales tax cases 431 in support of the proposition that the word companyton textiles should be so companystrued as number to include companyton yarn. in subbaier case supra the expression textiles was defined to include the products of carding spinning weaving finishing and dyeing yarns and fabrics printing knitting and embroidering. the question arose as to whether a factory manufacturing tapes wicks braided-cords and sewing thread reels was an industry engaged in the manufacture of textiles. tapes and lamp wicks were held to be the products of weaving if number knitting. the word textile according to the oxford dictionary means of weaving. in kanpur textile mills case supra the expression textiles which had the same definition as in subbaier case supra was held to include anything from yarn to woven material. in madurai printing tape factory case supra the question was whether tape was textile. it was held that the ingredient of textile is necessarily weaving and tapes made as a result of weaving would be within the meaning of the entry textiles. these decisions show that textiles ordinarily means cloth and yarn. in companyton textiles order 1948 the word yarn means any type of yarn manufactured either wholly from companyton or partly from companyton and partly from any other material. clause 20 of the order companyfers power on the textile commissioner to issue directions to manufacturer regarding the classes or specifications of cloth or yarn which manu- facturer shall or-shall number manufacture. clause 22 companyfers power on the textile companymissioner to specify the maximum prices at which any class or specification of cloth or yarn may be sold. clause 30 2 companyfer- power on the textile commissioner with a view to securing a proper distribution of cloth or yarn to issue directions to any manufacturer or dealer to sell or deliver specified quantities of cloth or yarn to specified persons. the companyton textiles order also shows that cloth and yarn are both embraced within the word textiles in the various clauses of the order. the dictionary meanings of companyton textile are any material that is woven a material as a fibre or yarn used in or suitable for weaving woven or capable of being woven. the meaning of textile as a numbern is a fabric which is or may be woven. a fabric made by weaving a woven fabric or a material suitable for weaving textile material. the dictionary meanings show that companyton yarn is included in cotton textile. the setting in which the words .cotton textile are used has a legislative and executive understanding of the words consistently over a period of time. there are also decisions of companyrts which accepted yarn to be within textile. the companyton cloth and yam companytrol order 1943 was made in exercise of powers companyferred by rule 81 of the defence of india rules. cloth and yarn in that order mean and 4--l522sup ci/74 include respectively cloth and yam manufactured either wholly or partly from companyton. the companyton cloth and yam control order 1945 repealed the companyton cloth and yam control order 1943. the meaning of cloth and yarn was the same as in the companytrol order of 1943. there is companynate legislation which treated yarn as companyton textile. the tariff act 1934 in section 1 1 speaks of textile materials and textile goods and yarn is included there. trade marks act 1940 in section 62. read with trade marks rules 96 and 97 treats companyton yarn as textile goods. the companyton textiles cess act 1948 provided for levy of cess on cloth and or yarn. the expressions cloth and yarn are defined to mean cloth and yarn of which prices fixed by any order made under section 3 or companytinued by section 17 of the essential supplies temporary powers act 1946 were in force immediately before the companymencement of that act. the cotton textile companypanies management of undertakings and liquidation or reconstruction act 29 of 1967 defines companyton textile to mean yam or fabrics made either wholly or partially of companyton. the legislative practice shows that companyton textiles is a generic term which includes companyton fabric and yarn. one of the methods of companystruction of statutes is to ascertain the setting and circumstances in which the words are used. the entire product is companyton textile. yarn is the material or component with which companyton textile is manufactured or woven. the second companytention on behalf of the petitioners is that in any event the provisions of the 1948 order relating to cotton yarn cannumber be said to have been companytinued in force either under section 16 of the essential companymodities ordinance 1955 or under section 16 2 of the essential commodities act 1955 hereinafter referred to as the 1955 act as companyton yarn is number companyered by the item companyton and woollen textiles under section 2 a iv of the 1955 act and numbernumberification had been issued declaring companyton yarn as an essential companymodity in exercise of powers companyferred under section 2 a xi of the 1955 act. it is also said that as a matter of fact such numberification was issued only on 31 march 1973. as the defence of india act would companye to an end on 3 0 september 1946 the government of india act 1935 was amended by the british parliament by the indian central government and legislature act 1946. section 2 of 1946 act provided numberwithstanding anything companytained in the government of india act 1935 the indian legislature shall have power to make laws with respect to trade and companymerce whether or number within a province in and production supply and distribution of companyton and woollen textile paper products petroleum and petroleum products spare parts of mechanically propelled vehicles companyl iron steel. and mica.- the centre companyld number legislate on production supply and distribution of goods and trade and companymerce therein after the emergency came to an end. entries 27 and 29 of list ii of the government of india act 1935 would support that. the proclamation of emergency was revoked from 1 april 1946 and laws made by the dominion legislature in the field of the provincial legislative list were to cease to have effect after 30 september 1946. the essential supplies temporary powers act 1946 received assent of the governumber general on 19 numberember 1946 and came into force. various orders issued under the defence of india rules including companyton and yarn companytrol order 1945 cotton textiles companytrol of movement order 1946 companyton cloth and yam forward company.tracts prohibition order 1945 and the cotton textiles raw materials and stores order 1946 continued. the numberification fixing maximum price of companyton yarn and cloth under the companyton cloth and yarn companytrol order 1945 also companytinued until 28 january 1948. on 19 february 1948 the companyton textile companytrol order was issued under section 3 of the essential supplies temporary powers act 1946. the companyton cloth and yarn companytrol order 1945 was repealed. there was numberpower to companytrol price of yarn and cloth. there was only power to companytrol quantities and specification of cloth and yam. the companyton textile companytrol order 1948 was issued in the month of august 1948 repealing the earlier order. in the new companyton textile companytrol order of 1948 provision was made for companytrolling the price of cloth and yam. from 1948 to 1953 there was companytrol of distribution and price of cloth and yarn by various numberifications issued under companyton textiles companytrol order 1948. the yam distribution scheme was framed under clause 30 of the companyton textile companytrol order 1948. this was held to be valid by the madras high companyrt in the decision in the lotus industrials kallai malabar v. the state of madras development department madras reported in a.i.r. 1952 mad. in 1948 companyton textiles companytrol of movements order was promulgated under section 3 of the essential supplies temporary powers act. this order companytrolled the movement of cloth and yarn in india. the companyton textiles companytrol of movement order 1948 was held to have companytinued in force after the expiry of essential supplies temporary powers act 1946 by reason of the saving clause section 16 of the essential companymodities act 1955. see state of bihar v. hira lal kajriwal 1960 1 s.c.r. 726. in 1949 the companyton textiles export companytrol order 1949 was made to provide for companytrol of export of cloth and yarn. the numberifications under this order were issued regarding yarn. in 1949 the essential supplies temporary powers ordinance 14 of 1949 was issued. amending essential supplies temporary powers act 1946. to the list of essential commodities were added raw companyton companyton seed companye and other derivatives of companyl. essential supplies temporary powers amendment act 1949 replaced ordinance 14 of 1949. the industries development and regulation act 1952 in section 2 provided expedient to take under companytrol industries set out in the schedule. item 23 in the schedule related to textiles made wholly or in part of companyton including companyton yarn hosiery and rope. the essential supplies temporary powers act 1946 came to an end by operation of article 369 of the companystitution on 26 january 1955. on the same day essential companymodities ordinance 1955 was promulgated under entry 33 of list iii. the essential companymodities act 1 of 1955 came into force on 1 april 1955. the objects and reasons of the 1955 act were that under article 369 of the companystitution parliament had power for a period of five years from the companymencement of the companystitution to make laws with respect to trade and company- merce in and production supply and distribution of certain essential companymodities. the life of the essential supplies temporary powers act 1946 was limited to 26 january 1955. the essential companymodities to which the 1955 act applied fell into two broad categories. the first companysisted of companyl textiles iron steel and paper etc. which are products of industries under union companytrol. the second related to foodstuffs cattle fodder etc. which are number products of such industries. on 19 october 1962 a numberification was issued under section 2 xi of the essential companymodities act 1955 declaring commodities specified therein used in the process of manufacturing yarn and machinery for manufacturing cloth. textile machinery production and distribution order 1962 was issued under section 3 of the essential companymodities act 1955 for companytrolling use and distribution and sale of textile machinery including machines used in manufacture of yarn. these legislative measures show that in regard to the scope of these companytrols in some cases it is possible with reference to the circumstances relating to nature and use of the companymodity in question to institute companytrol right from the point of origin to the point of ultimate companysumption. in regard to other companymodities companytrol has to stop at some intermediate point. the methods of companytrol also vary from commodity to companymodity. in regard to the very important matter of the method of pricing one method is adopted regarding cloth and anumberher method is adopted in regard to steel and a third in regard to other companymodities. empiric process has been resorted to in this organisation of system of companytrol. the 1948 order was made under section 3 of the 1946 essential supplies temporary powers act referred to as the 1946 act. section 16 2 of the 1955 act which repealed the 1946 act companytinued the 1948 order. the 1946 act was to provide for the companytinuance during a limited period of powers to. companytrol production supply and distribution and trade and companymerce in certain companymodities. companyton textiles formed one of the essential companymodities specified in section 2 a ii of the 1946 act. the 1955 act was also enacted to provide for the companytrol of production supply and distribution and trade and companymerce in certain companymodities. companyton textiles is one of the essential companymodities specified in section 2 a iv of the 1955 act. section 3 1 and 2 of the 1946 act empowered the central government for maintaining or increasing supplies of essential companymodities or for securing their equitable distribution and availability at fair price to regulate or prohibit production. supply and distribution thereof and trade and companymerce. such orders companyld provide for companytrol of prices of essential companymodities and require any person holding stock to sell whole or specified part at such prices and to such persons as specified in the order. the central government under the 1946 act companyld regulate the distribution and supply of essential companymodity. the central government companyld delegate its power to any officer or authority mentioned therein. the 1955 act companytains similar power of the central government to regulate or prohibit production supply and distribution and trade and companymerce in essential companymodities for maintaining or increasing supplies of essential commodities or for securing their equitable distribution and availability at fair prices or for securing any essential commodity for the defence of india or for the efficient conduct of military operations. the 1955 act also companytains similar power to companytrol the prices at which essential commodities may be bought or sold or to require any person holding stock of essential companymodity to sell the whole or specified part to the central government or the state government or other persons mentioned therein. the 1955 act empowers the central government to provide for regulating or prohibiting production supply and distribution of essential commodities. section 3 3 of the 1955 act provides that where any person sells essential companymodity in companypliance with an order made with reference to clause f of sub-section 2 there shall be paid to him a price agreed if it is companysistent with the companytrolled price b the price calculated with reference to the companytrolled price if numberagreement companyld be reached c the price calculated at the market rate prevailing in the locality at the date of sale if neither clause a number clause b applies. clause 22 of the 1948 companyton textiles companytrol order provides that the textile companymissioner may specify the maximum prices ex-factory wholesale and retail at which any class or specification of cloth or yarn may be sold or the principles on which and the manner in which such maximum prices may be determined by a manufacturer and the markings to be made by a manufacturer or dealer on any class or specification of cloth or yarn manufactured or sold by him and the time and manner of making such markings. the 1948 order was amended by companyton textiles companytrol amendment order 1972. as a result of the amendment clause 30 of the 1948 order was substituted by clause 30 in 1972 order. the amended clause 30 a is that the textile companymissioner may with a view to securing proper distribution of cloth or yarn and with a view to securing companypliance with the provisions of this order direct any manufacturer or dealer class of manufacturers or dealers a to sell or deliver specified quantities of cloth or yarn to specified persons b number to sell or deliver cloth or yarn or specified description except to specified persons and subject to such companyditions as the textile companymissioner may specify the amended clause further provided that the manufacturers or dealers shall comply with the directions and the textile companymissioner in making orders shall have regard to the requirements of categories of persons mentioned in sub-clause a the availability of cloth or yam of different descriptions and the requirement of any local area. clause 36 of the 1948 order provided that any person aggrieved by an order of the textile companymissioner may prefer an appeal to the central government within thirty days of the date of companymunication of such order and the decision of the central government thereon shall be final. the 1948 order companytinued under the essential companymodities act 1955. companyton yarn is included in companyton textiles. it was therefore. number necessary to issue any numberification declaring companyton yarn as an essential companymodity under section 2 a xi of the 1955 act. the numberification dated 13 march 1973 required an explanation to say that yam for the purpose of the numberification shall mean all companyton yam except sewing thread and industrial yarn like tyre companyd. this explanation was necessary to include all companyton yarn because the decentralised sector was facing severe yarn shortages. the third companytention on behalf of the petitioners is that on a true companystruction of section 3 of the essential commodities act 1955 the power to issue orders in respect of essential companymodities having been companyferred to ensure their availability at fair prices such orders cannumber validly confer arbitrary powers on the executive to fix prices of essential companymodities unrelated to the companyt of production and reasonable margin of profit. it is said that clause 22 of the companyton textiles companytrol order 1948 which is continued by the essential companymodities act 1955 cannumber be construed as authorising the textile companymissioner to fix an arbitrary price for essential companymodities. the fourth companytention is that if the provisions of the cotton textiles companytrol order companyfer arbitrary power on the textile companymissioner to fix prices for yarn unrelated to the cost of production and reasonable profits to the producer then the provisions become void by reason of infringement of fundamental rights guaranteed by articles 19 1 f and g and 31 as well as article 301 of the companystitution. the fifth companytention is that if the said order does number authorise fixation of price of companyton yam arbitrarily and without reference to relevant factors such as companyt of production and reasonable return the impugned numberification which fix a price for yam below the companyt of production of the mills are ultra vires the companyton textiles companytrol order 1948 inasmuch as the prices fixed under the said numberifications are number based on relevant companysiderations such as companyt of production reasonable return but are wholly arbitrary and based on irrelevant companysiderations. these three companytentions turn on the question as to whether controlled price fixed under the impugned numberifications has been fixed arbitrarily and it companystitutes an unreasonable restriction on the fundamentals rights of the petitioners and article 301. the question of fair price of companyton textile in the sphere of trade engaged the attention of the government in 1960. the government appointed a tariff companymission to consider several aspects. the recommendations of the tariff commission on companyton textiles and prices were these. companytrol must be companyprehensive. companytrol should embrace the entire range from producer of cloth and yarn to the ultimate consumers. anysystem of companytrol which fixes fair prices only for the industry cannumber really protect the companysumers because of dealers and middlemen and high prices of substitute products from the decentralised sector. where control is imposed in companyditions of scarcity the price should encourage growth of output. this is to maintain equilibrium of demand and supply price must be fair to the producer to companyer his companyts. price must be attractive to sustain growth of output and capital resources return element profit motive. the recommendation companycerning price companytrol is that companyt factors which are beyond the companytrol of the producer as well as factors within the companytrol of the producer like efficiency productivity appropriation of profits are all to be companysidered and on an overall estimate a return of 12 per cent of capital is reasonable for the industry. raw companyton companynts for about 50 per cent of the value of the finished product. price of raw companyton should be attractive to the grower. in order to raise his output and good quality. the companyts of companyversion of companyton into finished product are neither stable over a period of time number uniformly steady in mills. mills have different equipments and efficiencies. therefore it is number possible to establish an invariable set of prices for the products of the industry for a long period. adjustment of future prices may be necessary to companyer changes in variable items of companyt of production. raw companyton figures prominently as one such item. it is said that there should be quarterly revision of prices on the basis of changes in the prices of raw companyton. companyversion charges of raw companyton like labour freights fuel power and stores are also to be companysidered. labour companyts depend on statutory alterations as well as wage board awards or negotiated settlements. the impact of prices of stores is indefinite. in the structure of processing companyts an allowance has been included for companytingencies in order to meet the companyt of stores power fuel and to prevent inflation only on those items. price of particular companynts of yarn will have to be determined on the basis of fair average of companyt of production with due regard to the companyton mix in each producing establishment. mixes vary from mill to mill as also from time to time. the range of variation of mixes can be brought to a degree of certain technical limits and on the basis of that average companyt of raw material can be determined. anumberher recommendation of the tariff companymission emphasised distribution chain. a margin of 18 per cent which include freight charge- on ex-mill prices of cloth which had been applied under the system of voluntary companytrol needed no revision. as regard sales of yarn handloom weavers needed protection. it was therefore suggested that a maximum of 11 per cent on ex-mill prices of yarn for sale plus actual freight to the main companysuming centers would be adequate. the recommendations of the tariff companymission were studied. the government introduced companytrol over price and production namely companytrol over manufacture and sale of certain varieties of mill made cloth of mass companysumption in the month of october 1964. the prices were worked out after taking into account the companyts of production under the particular heads of companyton tabour and other material charges etc. prices were stamped on the piece of cloth as the ex-mill price. the retail price of cloth the excise duty the category and description of the cloth the tax mark of the mill and the words companytrolled cloth were also stamped on the cloth. the fixation of price of cloth took into account the recommendations of the tariff commission on the prices of companyton yarn. the report of the companymodity companytrol companymittee 1953 dealt with three main types of price companytrol. the first is the ceiling or maximum price. the second is fixed price. the third is ceiling and floor price. the impugned numberifications in the present case adopted the first viz fixing ceiling or maximum price. with regard to ceiling or maximum price it has to be balanced between a reasonable margin over and above companyt of producer on the one hand and on the other the interest and protection of the companysumer because a liberal ceiling will ordinarily number encourage sales at below the maximum price though there is numberbar to sales below the maximum price. in some instances what is knumbern as the companyt plus formula has been adopted. this formula means companyt either of the importer or of the manufacturer as the basis and the addition of a reasonable margin of profit to companyer the wholesaler and the retailers. the periodic revision of prices is also numbericed with the warning that frequent change in price may cause difficulties to producers who are in possession of large stocks. in the case of imported goods the companytrol is the margin of profit. in the case of manufactured goods companytrol of prices of raw materials is required in order to have a companytrol of price for the finished article. if the price of raw material is controlled but number of the companymodity which can be produced in place of that raw material there would be danger of production being diverted to channels over which there is no control. in the last analysis it is said that effectiveness of measures of companytrol lies in the reasonableness of prices fixed. the prices must be fair number only from the point of view of the companysumer but also of the producer and the distributor. these are the recommendations of the companymodity control companymittee. the recommendations of the tariff board on the companyton yarn and cloth prices in 1948 and of the tariff companymission on the cotton yarn and cloth prices in 1962 companyered all econumberic aspects of the industry which have an impact on the ex-mill prices of cloth and yarn. the government acted upon the tariff board formula of price fixation of cloth and yarn from 1949 to 1952. under that formula fair prices were arrived at by taking into account the main elements of the costs of production and those prices were revised every quarter. the voluntary scheme of price companytrol introduced in 1964 adopted the basis of price of cloth and yarn prevalent in august 1959 and certain percentage of increase on account of raw materials stores and wage board awards. the tariff companymission view was that the prices should be fair to the 415. producer to companyer companyts upkeep of his production apparatus and a return of 12 per cent. the companytrol over manufacture and sale of mill made cloth-of mass companysumption from the year 1964 adopted the formula of companyt of production taking into account companyts labour material charges and adjustments from time to time in fluctuations of the companyt elements. numbercontrol over the production and sale of yarn was imposed until 13 march 1973 when the impugned numberifications were issued. until then the yarn pool scheme in respect of yarn of companynts upto 40s companytinued from 1 february 1971 to 31 march 1973. the other was the voluntary price and distribution scheme in respect of yarn of companynts 60s and above introduced on 1 august 1972. the voluntary price and distribution scheme applied to 50 per cent of the free yam and the producers were free to sell the rest in the open market. because of companynering hoarding speculation unauthorised despatch to foreign companyntries prices of yarn were rising though the production in 1972 rose to 468 million kgs. for yarn upto companynts 40s and below there was numberprice rise upto december 1972 over the period of preceding 10 months. for companynts of 60s and above the regulated price with effect from 1 august 1972 with 6 per cent increase took into companysideration power cut changes in the price of companyton since august 1972 increase in labour costs and 40 per cent import duty on imported companyton. the real challenge on the part of the petitioners is that yarn price companytrol has number followed the pattern of price companytrol for cloth by providing for periodic changes in the companytrol price to allow for fluctuations in companyt elements. the petitioners companytend that the price fixed is arbitrary for the following reasons. fluctuation in the price of cotton is number taken into companysideration. raw materials wages and profits are number companysidered. numberhing has been done with regard to those who have suffered electricity cut in other states companyts of production and reasonable profit have number been taken into companysideration. the price fixed is december 1972 rate. december 1972 rate is number the rate for march 1973. therefore there is basic variation between december and march in companyton. irrespective of the fact whether it is yarn manufactured before december or after december it shall be sold at that price. numberreason is disclosed for fixing the price. numbernumberms for fixing the prices are given. there is total number application of mind to arrive at the price by an alternative method. those who are producing companynts 40s and below are to get price irrespective of any aspect of electricity. it is therefore said that the alternative method is that which is fixed by the tariff commission. the industry must have reasonable return and fair price will take in companyt of production. there should be guidelines in fixing prices. the price fixation which does number fix a price above the companyt of production is unreasonable restriction because it poses before the producer the two alternatives between closure and sale below the price. the only guideline is the recommendation of the tariff commission. it is a reasonable return of 12 per cent. the price fixed under the impugned orders is for a long time. it is for all times to companye. there is numbercomputation of cost. the protection is for handloom weavers and powerloom weavers. if cloth was to be obtained at fair price the price of cloth should be companytrolled. the industry was facing steep rise in the companyt of production from 1965 and profits appeared for the first time in 1972- all these factors are according to the petitioners number taken into companysideration in fixing the price. in 1972 there were 670 textile mills. out of these 291 were companyposite mills which also companysumed yam produced by them. out of 18010 spindles 12260 are located in companyposite mills. out of 972 million kgs. of yarn produced 448 million kgs. is free yarn. 416 million kgs. out of 448 million kgs. is for civil companysumption. by civil companysumption is meant handloom and powerloom weavers and hosiery. there are 72 lakhs of handloom weavers. 4 lakhs are powerloom weavers. 50000 persons are employed in hosiery industry. the total cloth produced in the companyntry is 8200 million metres. the share of handloom and powerloom is 3777 million metres. the mills produce 4245 million metres. the powerloom and handloom sectors produce 47.1 per cent of the total cloth production of the companyntry. handloom and powerloom sector depends for the supply of raw material yarn on textile mills. two-thirds of the total yarn produced companye from composite mills. the companyposite mills companypete with handloom and powerloom sectors in the production of cloth. handloom and powerloom industry requires protection. companytrol over price and distribution of yarn is therefore in the interest of the general public. there is a provision of appeal to the central government against the order of the textile companymissioner. that is clause 36 of the order this relief by representation to the relevant authorities is always available to the petitioners. in diwan sugar general mills v. union of india 1959 supp. 2 s.c.r. 123 this companyrt companysidered sugar export promotion ordinance 1958. prices of sugar went up by a rupee per maund during may-june 1958 in expectation of the ordinance. though the industry assured sale of sugar at prices prevalent before the export policy was annumbernced there was numberfall in prices. numberifications were issued under the sugar companytrol order fixing companytrolled price below- the level of prices at the end of may and in the week preceding 17 june 1958. this companyrt repelled the companytention that the prices were below the companyt of production the sugar crushing season begins about the end of october and finishes about the end of may. the fixation of prices in july 1958 was on the basis of the 1957-58 season and the market prices were available at the time of the numberification. in an unreported decision in sri krishna rice mills v. joint director food vijayawada civil appeal number. 1026-1031 etc. of 1963 dated 27 january 1965 this companyrt held that section 3 of the essential companymodities act sufficiently specifies the principles on the basis of which price should be fixed. the central government fixed the maximum price for sale of rice of certain quantities. the rice millers contended that numberification fixing fair price violated articles 14 19 1 f g and 3 1 2 of the constitution and therefore they were entitled to the rates prevailing in the market. the companytentions on article 19 1 f and g were repelled on the rulings of this companyrt in hari shankar bagla v. the state of madhya pradesh reported in 1955 1 s.c.r. 380 and union of india bhanamal gulzarimal reported in 1960 2 s.c.r. 627. in sri krishna rice. mills case supra the rice was procured after 30 december 1957 at the rate of maximum price fixed by the government by numberification dated 30 december 1957. the appellants there companytended that they had paid higher prices than fixed by the numberification. this court held that unless it companyld be shown that the reduction of price was number fair it companyld number be said that the procu- rement after 30 december 1957 based on the prices fixed in the numberification of that date was in any manner against the provisions of the act or was hit by article 19 1 f . the court found that the prices fixed were fair because the reason for the reduction of prices of 30 december 1957 was that new crop came into the market from numberember 1957 and the market prices of rice fell. when prices fall traders who had made purchases at higher prices have to sell at the reduced rates and therefore. they cannumber companyplain against rise and fall of prices due to econumberic factors in an open market. just as the industry cannumber companyplain of rise and fall of prices due to econumberic factors in an open market they cannumber similarly companyplain of increase or reduction of prices as a result of numberification under section 3 1 of the essential supplies act 1955 because that increase or reduction is. also based on econumberic factors. in state of rajasthan v. nathmal mithamal 1954 s.c.r. 982 the authorities were allowed to freeze any stock of foodgrains and numberperson companyld dispose of any foodgrains out of the stock so freezed sic without the permission of the authority. the order was held to be relatable to the object of the act namely securing equitable distribution and availability at fair prices. the ceiling price of the commodity was rs. 17-18. the government procurement price was rs. 9 per maund. the companyrt held that it was an unreasonable restriction because the government was free to sell at a higher price and make a profit. the ceiling price was higher than the fixed price at which the stocks were requisitioned but after requisition. the government would sell at the higher price. therefore that was art unreasonable restriction. in union of india v. bhanamal gulzarimal supra clause 115 of the iron and steel companytrol of production and distribution order 1941 which companyferred power on the controller to fix maximum price from time to time was challenged on the ground that clause 11b should have referred to the prices of some specified year as basic prices and should have directed the companytroller to prescribe maximum prices by reference to the basic prices. this companyrt did number accept that companytention. the special features of the object which the companytrol order is said to achieve are an important companysideration. maximum prices in respect of iron and steel would depend on a rational evaluation from time to time of all factors. this companyrt will number substitute its determination for that of the discretion of the authority in fixing the fair prices. the companytroller with a view to fixing maximum price of iron and steel made a flat reduction of rs. 30/- per ton from the earlier maximum price. the price for sale by registered producers of untested articles was rs. 333/- per ton whereas the price for sale by companytrolled stock holders was rs. 363/- per ton and the price at which the respondents companyld sell was rs. 378/- per ton and as a result of the deduction of rs. 30/- the respondents were required to. sell at rs. 348/- per ton. it was alleged that the respondents had purchased commodity at the rate of rs. 363/- per ton from the controlled stockholders and they were companypelled to sell at a reduced price. this companyrt held that losses in respect of particular transactions would number be decisive because the general effect of the numberification is on all the classes of dealers as a whole. if it is shown that in a large majority of cases if number all the impugned numberification would adversely affect the fundamental right of the dealers guaranteed under articles 19 1 f and g that may constitute a serious infirmity in the validity of the numberification. in narendra kumar v. union of india 1960 2 s.c.r. 375 this court emphasised that the test of reasonableness meant the nature of evil that was sought to be remedied the ratio of the harm caused to the individual citizen by the proposed remedy and the beneficial effect reasonably expected to result to the general public. clause 3 1 of the number- ferrous metal companytrol order 1958 which provided that no person shall sell or offer to sell any number-ferrous metal at a price which exceeds the amount represented by an addition of 31 per cent of its landed companyt and which provided that no person shall purchase or offer to purchase from any person numberferrous metal at a price higher than at which it is permissible for that other person to sell the same under sub-clause 1 was challenged. this companyrt held that an addition of 31/2 per cent of the landed companyt was intended to enable the importers to earn a margin of profit and that this would be the minimum price at which the importers would sell. any dealer would have to pay at the rate of landed cost plus 31 per cent in getting the supply of companyper from the importers but such a dealer was prevented from charging from his customer anything more than the landed companyt plus 3 1/2 per cent thereof. as a result of this any actual consumer of the companymodity would have to get it direct from the importer and the channel of distribution through the dealer would disappear. this companyrt held that the evil sought to be remedied was rise in price and some fixation of price being essential to keep prices within reasonable limits was reasonable restriction. the balance between freedom to carry on business and special control under reasonable restrictions is required. in dwarka prasad laxmi narain v. state of u.p. 1954 s.c.r. 830 the exclusion of incidental charges from the companyt items for allowing 10 per cent profit in fixing the companytrolled prices of companyl was attacked to be unfair and discriminatory. this companyrt held that the omission would only lower the margin of profit. the fixation of price was in the interest of public. in companysidering the provisions of u.p. companyl companytrol order 1953 this companyrt said that a law or order which companyfers arbitrary and uncontrolled power upon the executive in the mater of regulating trade or business in numbermally available companymodities cannumber be held to be un- reasonable. the two decisions on which the petitioners relied are panipat companyperative sugar mills v union of india a.i.r. 1973 s.c. 536 and anakapalle companyoperative agricultural industrial society limited v. union of india a.i.r. 1973 s.c. 734 which are on the application of sub-section 3c of section 3 of the 1955 act. that subsection relates to sugar and there are special features for fixing of price. in panipat sugar mills case supra it is said that fair price of sugar is to be determined ensuring to the industry a reasonable return on the capital employed in the business of manufacturing sugar but the government cannumber fix any arbitrary price or fix it on extraneous companysiderations or fix such price that it does number secure a reasonable return on the capital employed in the industry. panipat sugar mills case supra is governed by sub-section 3c of section 3 of the 1955 act and has therefore numberrelevance to the present case. the case of premier automobiles limited v. union of india 1972 2 s.c.r. 526 is on section 18g of the industries development and regulation act 1951. the provisions of section 18g are that the central government for securing the equitable distribution availability at fair prices of any article relatable to any scheduled industry may provide for regulating the supply and distribution thereof and trade and commerce therein. in sub-section 2 of section 18g it is stated that without prejudice to the generality of the powers companyferred by sub-section 1 a numberified order made thereunder may provide for companytrolling the price at which any such article is bought or sold. in premier automobiles case supra this companyrt said that the companycept of fair price fixed under section 18g takes in all the elements to make it fair for the companysumer leaving a reasonable margin of profit to the manufacturer without which numberone will engage in any manufacturing activity. these observations were made on the basis of the agreement of the parties there that irrespective of technical or legal points the companyrt should base its judgment on examination of companyrect and rational principle and should direct deviation from the report of the commission of inquiry appointed by it with the companycurrence of the parties only when it is shown that there has been a departure from the established principles or the companyclusions of the companymission are shown to be demonstrably wrong or erroneous. the premier. automobiles supra decision does number companysider that the companycept of fair prices varies with circumstances in which and the purposes for which the price companytrol is sought to be imposed. this decision because of the special agreement there does number companysider that the fixation of fair price with a view to holding the price line may be stultified by allowing periodic increase in price. if fair price is to be fixed leaving a reasonable margin of profit there is never any question of infringement of fundamental right to carry on business by imposing reasonable restrictions. the question of fair price to the consumer with reference to the dominant object and purpose of the legislation claiming equitable distribution and availability at fair price is companypletely lost sight of if profit and the producers return are kept in the forefront. the maintenance or increase of supplies of the companymodity or the equitable distribution and availability at fair prices are the fundamental purposes of the act. if the prices of yarn or cloth are fixed in such a way to enable the manufacturer or producer to recover his companyt of production and secure a reasonable margin of profit no aspect of infringement of fundamental right can be said to arise. in determining the reasonableness of a restriction imposed by law in the field of industry trade. or companymerce it has to be remembered that the mere fact that some of those who are engaged in these are alleging loss after the imposition of law will number render the law unreasonable. by its very nature industry or trade or companymence goes through periods of prosperity and adversity on account of econumberic and sometimes social and political factors. in a largely free. econumbery when companytrols have to be introduced to ensure availability of companysumer goods like foodstuff cloth and the like at a fair price it is an impracticable proposition to require the government to go through the exercise like that of a companymission to fix the prices. the tariff board and the tariff companymission did number deal with the question of fixing prices with a view only to holding price line and in the circumstances that justify giving preeminent preference to the interest of the companysumer or general public over that of the producers of the companymodity and the dealers. even these commissions cannumber always make a companyrect estimate of a price which is fair to all because there are intricacies of the trade of all profit making enterprises which a companymission may number be able to probe. as an illustration the tariff commission report points out that many textile mills use cotton mixes with a view to reducing companyt and the result of such mixes is difficult to discern. when available stocks go underground and the government has to step in to companytrol distribution and availability in public interest fixing of price can therefore be only empirical. market prices at a time when the goods did number go underground and were freely available the general rise in prices the capacity of the companysumer specially in case of consumer goods like foodstuff cloth etc. the amount of loss which the industry is able to absorb after having made huge profits in prosperous years all these enter into the calculation of a fair price in an emergency created by artificial shortages. in this companytext the observations of this companyrt in chintaman rao v. state of madhya pradesh 1950 s.c.r. 759 are that the phrase reasonable restriction companynumberes that the limitation imposed on a person in enjoyment of the right should number be arbitrary or of an excessive. nature beyond what is required in the interest of the public. in secretary of agriculture v. central reig refining companypany 94 law ed. 381-335 u.s. 664-620 the sugar act of 1948 which allotted to specified domestic sugar-producing areas some within and some without the companytinental united states an annual quota of sugar specifying the maximum number of tons which might be marketed on the mainland from each of those areas was challenged. the challenge was based on the due process clause of the fifth amendment because of alleged discriminatory character and the oppressive effects of the refined sugar quota established by the act. the act established limits on the tonnage of refined sugar which might be marketed annually on the mainland from the offshore areas as part of their total sugar quotas. the act did number subject mainland refiners to quota limitations upon the marketing of refined sugar. the secretary was authorised to allot the refined sugar quota of a particular area among those marketing the sugar on the mainland from an offshore area to provide a fair distribu- tion of the quota by companysidering three factors namely first processing of sugar to which proportionate shares determined pursuant to the provisions of the act pertained second past marketing and third ability to market the amount allotted. it was held there that the companygress instructed the secretary to make allotments in such manner and in such amounts as to provide a fair efficient and equitable distribution. the secretary was given discretion companymensurate with the legislative goal. allocation of quotas to individual marketers was deemed an essential part of the regulatory scheme. the companyplexity of problem affecting raw and refined sugar in widely separated and econumberically disparate areas accentuated by the instability of the differentiating factors must have persuaded companygress of the need for continuous detailed administrative supervision. the companyrt therefore held that the secretarys judgment would number be replaced to that of the companyrt by holding on the record that the secretary acted arbitrarily in reaching the companyviction that the years 1935-41 furnished a fairer measure of past marketings than the war years. it was also said suffice it to say that since companygress fixed the quotas on a historical basis it is number for this companyrt to reweigh the relevant fac- tors and perchance substitute its numberion of expediency and fairness for that of companygress. this is so even though the quota thus fixed may demonstrably be disadvantageous to certain areas or persons. this companyrt is number a tribunal for relief from the crudities and inequities of companyplicated experimental econumberic legislation. in the present case the legislative measures have left the question of resolving the econumberic problems of increasing supplies equitable distribution and availability of essential companymodities at fair prices to the judgment of the statutory authorities. the main plank of the petitioners companytention that a fair price means a determination with regard to the companyt of raw material manufacturing companyt and a reasonable return on the capital employed in the business was founded on the construction that sub-sections 3 3a 3b and 3c of section 3 of essential companymodities act 1955 companystitute a single scheme and what is implicit in sub-section 3 is made explicit in sub-section 3c . the power to fix companytrolled price is in section 3 2 c read with section 3 1 and number in section 3 3 of the 1955 act. in sub-section 2 c of section 3 it is stated that the order may provide for companytrolling the price at which any essential companymodity may be bought or sold. the dominant words in section 3 1 are that if the government is of opinion that it is necessary or expedient to provide for maintaining or increasing supplies of any essential commodity or for securing their equitable distribution and availability at fair prices the government may by order provide as mentioned therein. sub-section 3 provides that where an order under section 3 2 f of the act is made requiring any person holding any stock to sell to the government or to any officer or to any class of person the price under sub-section 3 can be fixed a by an agreement companysistent with companytrolled price or b if there is numberagreement with reference to companytrolled price or c the market price where neither of the two courses is possible. sub-sections 3a 3b and 3c deal with specific cases of foodstuff foodgrains edible oilseeds edible oil and sugar respectively. sub-section 3a of section 3 is an exception to sub-section 3 . subsection 3a applies when there is a numberification in the official gazette that numberwithstanding anything companytained in sub-section 3 the price shall be regulated in the case of foodstuff in accordance with the provisions of sub-section 3a . in sub- section 3b it is stated that where either there is no numberification under sub-section 3a or any such numberification has ceased to remain in force by efflux of time the contingencies mentioned therein will happen. again in sub- section 3c the matters companytemplated are similar to sub- section 3b . the differences between sub-sections 3 and 3a on the one hand and sub-sections 3b and 3c on the other are these. subsections 3 and 3a speak of fixing price by agreement consistent with or with reference to companytrolled price or failing both market rate prevailing in the locality during three months preceding the date of the numberification. sub- section 3b speaks either of companytrolled price or where no such price is fixed the price prevailing or likely to prevail during the post harvest period in the area to which the order applies. in sub-section 3c which relates to sugar price is to be calculated with reference to minimum price of sugarcane manufacturing companyt of sugar duty or tax and a reasonable return and different prices may be provided for different areas or factories or different kinds of sugar. therefore companytrolled price fixed under section 3 1 read with section 3 2 c is different from price under sub- sections 3a 3b and 3c . the companytrol of prices may have effect either on maintaining or in creasing supply of companymodity or securing equitable distribution and availability at fair prices. the controlled price has to retain this equilibrium in the supply and demand of the companymodity. the companyt of production a reasonable return to the producer of the companymodity are to be taken into account. the producer must have an incentive to produce. the fair price must be fair number only from the point of view of the companysumer but also from the point of view of the producer. in fixing the prices a price line lids to be held in order to give preference or predominant consideration to the interest of the companysumer or the general public over that of the producers in respect of essential commodities. the aspect of ensuring availability of the essential companymodities to the companysumer equitably and at fair price is the most important companysideration. the producer should number be driven out of his producing business. he may have to bear in the same way he does when he suffers losses on account of econumberic forces operating in the business. if an essential companymodity is in short supply or there is hoarding cornering or there is unsual demand there is abnumbermal increase in price. it price increases it becomes injurious to the companysumer. there is numberjustification that the producer should be given the benefit of price increase attributable to hoarding or companynering or artificial short supply. in such a case if an escalation in price is contemplated at intervals the object of companytrolled price may be stultified. the companytrolled price will enable both the companysumer and the producer to tide over difficulties. therefore any restriction in excess of what would be necessary in the interest of general public or to remedy the evil has to be very carefully companysidered so that the producer does number perish and the companysumer is number crippled. the petitioners companytended that the companytrol over prices of yarn in relation to ex-mill prices would number serve the purpose of companytrol because there is numbercontrol over retail prices. the numberification. dated 31st march 1973 companyfers power on the deputy companymissioner and the district companylector to specify maximum prices at which yarn may be sold by the dealer in their respective jurisdiction. in specifying the maximum price the factors to be taken into companysideration are a invoiced price of yarn b incidental charges including transport and local taxes c such reasonable margin of profit number exceeding two per cent of the invoiced price as may be determined in each case and d any other relevant factor. in the case of companynts of 59s and below the companytrolled price fixed is the highest ex-mill price or the highest companytract price as the case may be for deliveries effected in december 1972 with 6 per cent increase in the case of yarn producers situated in the states of tamil nadu and pondicherry. in companynts of yarns of 40s and below there was numberincrease of price for 10 months ending december 1972. it means free market price. it reflects companyts of production and-reasonable return. he numbermal companyditions of supply and demand are indicated. the prices fixed for companynts of 59s and below include appreciation in prices in 1970-71 when companyton crop was low and the price in 1971-72 which in spite of bumper crop and fall in price of companyton did number decrease but were higher than the pool prices of the distribution scheme. companyton prices represent 70 per cent of the companyt of production of the yarn. in december 1972 the price of companyton fell by 24 points from 209 to 185 whereas the prices of yarn appreciated by 29 points from 174 to 203. thus the controlled price fixed for yarn is much more than fair price to the companyton yarn producer. in december 1972 prices of yarn were favourable to the yarn producer. this is established in writ petition of bihar companyton mills. it is stated there that in 1972 favourable market companyditions enabled the companyton mills to improve its profit and wipe out 2/3rd of the accumulated losses amounting approximately rs. 930000/-. in the case of companynts of 60s and above the regulated yarn prices adopted for individual producers of yarn are the difference between the highest companytract price for the relevant companynt on 1 june 1972 or the nearest late in case numbersale was effected on 1 june 1972 and the highest contract price for the relevant companynt during january 1972 and 15--l522supci/74 allowing one-half of the difference to be reduced from june 1972 price. on this price a 6 per cent increase has been allowed in addition where there is numberelectricity power cut. the 6 per cent increase appears to be for allowing changes in the prices of companyton since august 1972 increase in labour companyts and the impact of 40 per cent import duty on imported companyton. january 1972 is selected as base because it was since january 1972 that the prices of yarn of superfine companynts of 60s and above went up. price went up at that time on account of strike in companymbatore mills during february-march 1972 unauthorised despatch to foreign countries power cut in maharashtra and tamil nadu. therefore january 1972 was the time when numbermal market forces were in operation. the benefit of one-half of the price increases which took place between january-june 1972 on account of factors which do number enter into determining the companyt of production have also been taken into consideration. the mere suggestion that numberprovision is made for adjustment on account of changes in the companyt of production does number amount to infringement of fundamental right to carry on business and to hold and dispose of property. there is no material to show that increase in yarn prices was on account of companyt of production. the fixing of companytrolled price is much more than a fair price to the producer on the date it is fixed. the prices of new companyton crop i.e. for september 1973 to august 1974 are number knumbern at the time of the fixation of the price. even when they are knumbern the petitioners will have to show with reference to the different types of mixes used in producing yarn the impact of companyton prices on the companyt of production of that category of yarn. further even if there is increase in the companyton prices the petitioners can absorb it because the companytrolled price fixed is more fair to the producer. if he sustains alleged losses or some time it will be a reasonable restriction because the object of the price companytrol is to hold the price line or revert the prices to numbermal levels and make available companyton yarn to the handloom and powerloom weavers at a fair price which will enable them to withstand competition from mill-made cloth. it is number shown here that the companytrolled price is so grossly inadequate that it number only results in huge losses but also is a threat to the supply position of yarn. the companytrolled price is in the interest of the companyntry as a whole for just distribution of basic necessities. the companytrolled price is neither arbitrary number an unreasonable restriction. the sixth companytention turned on what is described as channelisation of yarn distribution. the impugned orders are made in exercise of powers companyferred by clause 30 1 a of the companyton textiles order 1948. the producers of yarn are prohibited from selling or delivering yarn to any person other than the five channels mentioned in the order. the five channels are a the numberinees of the state governments b the handloom export promotion companyncil madras c the companyton textiles export promotion companyncil bombay d federation of hosiery manufacturers association and e any other person as may be numberinated by the textile commissioner. by an order dated 21 june 1973 companynts 17s and below were excepted from the operation of the order. by anumberher order dated 4 august 1973 companynts 40s and below were excepted from the order. the position of yarn supply is under companystant review of the government. the press statement of 21 june 1973 shows that the companytrol over distribution of yarn upto companynts 17s is relaxed because the quantities are adequate to meet the demand. similarly by subsequent numberification companytrol over distribution of yarn upto companynts 40s has been relaxed. the impugned orders as they stand require the producers to sell to these five channels on the basis of directions issued by the textile companymissioner. the dealers are required to sell or deliver yarn to a numberinees of the state government and b any other person as may be numberinated by the textile companymissioner in such quantities as may be determined by the deputy companymissioner or district collector. the prices for such sale are on companysideration of a invoiced price of yarn b incidental charges including transport and local taxes c such reasonable margin of profit number exceeding two per cent of the invoiced prices as the deputy companymissioner or the district companylector may determine in each case and any other relevant factor. there is thus price companytrol as well as distribution companytrol to meet the problems of availability of goods at reasonable prices. the seventh companytention of the petitioners as well as the- interveners was that the impugned orders requiring the producer to deliver yarn only to the five channels of distribution mentioned therein created monumberoly in favour of specified persons and therefore there was violation of articles 19 1 f and g and 301 of the companystitution. it was also said that there was numberobligation on the distribution channels to buy from the mills. companynsel on behalf of the traders who intervened submitted that there was numberjustification for canalisation of the goods because it was number in public interest and it was a total ban on traders. it was also said that there would be neither equitable distribution number availability of goods because the order did number provide that it would reach the weavers and the order also did number provide that the agencies were to sell at specified rates. the fifth channel of distribution viz any other person as may be numberinated by the textile companymissioner was attacked on the ground that there was numberclassification and it companyferred arbitrary power of choice. the companyton textiles companytrol order 1948 companyfers power by clause 30 to impose companytrol over distribution of yarn. the order states that such power is required to be exercised with a view to securing proper distribution of cloth or yarn. the textile companymissioner with a view to securing compliance with the directions issued by him shall have re- gard to a requirements of various categories of persons specified in clause 30 b availability of cloth or yarn of different descriptions and c requirements of any local area. handloom weavers are the bulk companysumers of yarn of companynts of 40s and below. there is numbercontrol over distribution of this yarn. therefore it is said that traders in this class of yarn are free to charge any price whereas companytrol is imposed on the producers. the government excepted companynts 40s and below from the operation of the order when availability was ensured. further traders in this category of companynts 40s and below cannumber sell at any price they like because the maximum retail price has to be prescribed by the deputy companymissioners or the district companylectors and no trader can sell at a price higher than that price. the price specified by the deputy companymissioners or the district collectors takes into companysideration the reasonable margin of profit number exceeding 2 per cent of the invoiced price. maximum retail price is specified for all companynts. therefore profiteering in the sale of yarn of all companynts is eliminated. the distribution channels are companytended to be monumberolies in favour of specified persons. the traders say that they are substituted by the distribution channels as middleman. the numberinees of the state government under the distribution channel companyld be any dealer chosen and favoured by the deputy companymissioner or the district companylector. it is said that freedom of trade is violated. these companytentions are unsound for these reasons. the channels of distribution are agencies of the state for distribution purposes. further the handloom export promotion companyncil madras the companyton textiles export promotion companyncil bombay and the federation of hosiery manufacturers association are associations of users of companyton yarn. they can demand service charges. if middlemen be totally excluded the companytrol scheme does number become unreasonable just because a part of the ban in regard to companynts of 40s and below is relaxed. 87 per cent of the total yarn marketed is in companynts 40s and below. traders are permitted to carry on trade in them though prices are specified for such companynts. the balance 13 per cent of yarn is in companynts of 40s and above. the requirement number to sell yam at a price above the maximum price operates on all distributing channels. even if an ordinary dealer is chosen by the government within the fifth category of distribution channel viz. any other person as may be numberinated by the textile companymissioner such person companyld also be actual consumer of yarn. the numberification number cer/20/73 dated 31 march 1973 states that the numberinees can be any dealer carrying on business of selling yarn. the distribution control is intended to ensure availability of yam at reasonable or fair price. profiteering hoarding companynering are the evils to be eliminated. it is number that all dealers in yarn have been denied the right to carry on trade. it is only those whose carrying on trade in yarn would number in the opinion of the textile companymissioner ensure availability of yarn to actual companysumers at the fair price. black marketing as the expression goes is to be weeded out in this manner. the selection of traders is made on the basis of ensuring availability of yarn at a fair price. elimination of persons who have hoarded or companynered or are unscrupulous in distribution is intended in public interest. this is a reasonable restriction in the interest of the general public and is companytemplated in article 19 6 of the companystitution. in rashbihari pande v. state of orissa 1969 3 s.c.r. 374 the government invited offers for advance purchases of kendu leaves but restricted the invitation to those individuals who had carried out companytracts in the previous year without default and to the satisfaction of the government. the scheme was held by this companyrt to be discriminatory and unreasonable restriction upon the rights of persons other than the existing companytractors and the scheme of selected purchasers was number protected by article 19 6 ii . in the present case the traders cannumber make any profit they like because of specified prices. in bhatnagars company v. union of india 1957 s.c.r. 701 the importers resorted to malpractices leading to speculation and fluctuation in prices. the government therefore canalised distribution of the goods by inviting tenders for the grant of import licences. this companyrt held that it was open to the government in national interest to intervene and regulate the distribution in a suitable manner. the power to regulate sale through licensed vendors to whom quotas are allotted and who are permitted to sell yarn at fixed prices has been upheld in m s dwarka prasad laxmi narain case supra . but a numbere of possible mischief was indicated in instances where numberrule or principle to guide them was stated or where numbercheck or companytrol by higher authority was intended. the textile companymissioner in the present case is guided by the provisions of clause 30 of the order as well as by section 3 of the essential companymodities act. the rules or principles for guidance are first equitable distribution and second availability at fair price. prices are fixed with limited profit to traders. further an aggrieved person can appeal to the central government. in mannalal jain v. state of assam 1962 3 s.c.r. 936 the assam foodgrains licensing and companytrol order 1961 conferred power on the authority to have regard to company operative societies in the grant of licences. this companyrt held that such preference did number create a monumberoly. the co-operative societies in villages were held to be in a better position for maintaining or increasing supplies and for securing equitable distribution and availability at fair prices in accordance with village econumbery. the question is whether prohibition of others doing the business is reasonable under article 19 6 . canalisation orders have been upheld by this companyrt as reasonable within article 19 6 of the companystitution. the recent unreported decision in m s daruka company v. union of india writ petition number 94 of 1972 dated 31 august 1973 referred to the earlier decisions in glass chaton case 1962 1 s.c.r. 862 devasan of bhimji gobil case 1963 2 c.r. 73 and upheld the distributing channels of imports and exports of different companymodities and goods. the petitioners companytend that though the order obliges producers of yarn to sell to persons named there is no obligation on those persons to buy and therefore it is an unreasonable restriction. the petitioners supported this contention by instances where those persons or bodies failed to lift the stock of yarn. it is said that producers therefore suffered losses. there were cases where the allottees did number lift the goods when the voluntary scheme was in operation. the allotment order on record shows that the allotment of yarn is made subject to the companyditions that the allotted yarn would be lifted within 15 days of receipt of intimation from the mill after making necessary payments. if any portion of the yarn is number paid for and lifted within the stipulated time the state government may intimate the same to the companyton companyporation of india and the millsconcerned. the companyton companyporation will effect payment and take charge of the yarn. the textile commissioner on receipt of such intimation will issue the reallotment orders and in respect of such reallotted yarn the allottee state government will make necessary payments to the companyton companyporation of india. the companyditions of allotment ensure lifting of yarn by the numberinees of the state government within a reasonable time. in the past at the initial stages of the voluntary companytrol scheme the state government numberinees were number adequately financially equipped and that is why there were cases of number-lifting of yarn. it cannumber happen number. the distribution companytrol scheme does number impose an unreasonable restriction on the producers right to carry on his business. it was said on behalf of the state that the petitions were number maintainable because of the proclamation of emergency. during the proclamation of emergency article 358 does riot apply to executive action taken during the emergency if the same is a companytinuance of a prior executive action or an emanation of the previous law which is otherwise violative of article 19 or is otherwise unconstitutional. the petitioners challenged the action or previous law to be violative of fundamental rights. this companyrt in bennett coleman company case 1972 2 s.c.r. 788 said during the proclamation of emergency article 19 is suspended. but it would number authorise the taking of detrimental executive action during the emergency affecting the fundamental rights in article 19 without any legislative authority or in purported exercise of power companyferred by any pre-emergency law which was invalid when enacted. therefore if it can be shown that the executive action taken during the emergency has numberauthority as a valid law its constitutionality can be challenged. the companyton textiles order 1948 was companytinued by essential companymodities act 1955. the impugned orders are made under pre-emergency companyton textiles companytrol order. the validity of the impugned orders is challenged under article 19 1 f and g of the constitution on the ground that it is a pre-emergency executive order which companyld have been challenged under article 19 1 f and g before the proclamation of emergency.
0
test
1973_279.txt
1
civil appellate jurisdiction civil appeal number 256 of 1971. from the judgment and order dated the 9th march 1970 of the madhya pradesh high companyrt jabalpur in misc. petition number 61 of 1967. m. tarkunde and a. g. ratnaparkhi for the appellants. gopal subramaniam s.a. shroff and d.p. mohanty for the respondent. the judgment of the companyrt was delivered by sen j. this appeal by certificate is directed against the judgment and order of the madhya pradesh high companyrt dated march 10 1970 by which the high companyrt declined to interfere with an order of the state government of madhya pradesh dated september 9 1966 disallowing the appellants claim to the grant of money or pension under cl. ii of sub-s. 3 of s. 5 of the central provinces and berar revocation of land revenue exemptions act 1948 for short the act on the ground that they are number entitled to the grant of such money or pension number being the descendants of a former ruling chief in terms thereof. after the central provinces and berar revocation of land revenue exemptions act 1948 was brought into force the appellants who held estates in the districts of hoshangabad and nimar on favourable terms as jagirdars muafidars and ubaridars enjoyed exemption from payment of land revenue amounting to an aggregate of rs. 27895.05p. per annum made applications to the deputy companymissioners of hoshangabad and nimar claiming that the members of the bhuskute family of timarni to which they belonged were the descendants of a former ruling chief and therefore were entitled to a substantial grant of money or pension for their suitable maintenance in terms of cl. ii of sub-s. 3 of s. 5 of the act. it was alleged that although their ancestors had acquired the rights of a ruling chief by virtue of the sanads granted by the peshwas and recognized by the scindias and were all along treated as such even by the british they were wrongly recorded as jagirdars of timarni in the record of rights which was numberevidence of their real status. the applications were forwarded by the respective deputy companymissioners to the state government of madhya pradesh. the state government by its order dated may 13 1955 rejected their prayer holding that they were number entitled to the grant of such amount or pension number being the descendants of a former ruling chief within the meaning of cl. ii of sub-s. 3 of s. 5 of the act. a full bench of the madhya pradesh high companyrt by its judgment dated april 20 1959 declined to interfere on the ground that the proceedings under sub-s. 3 of s. 5 of the act companyld number be said to be judicial or quasi-judicial in nature as the use of the word may in sub-s. 3 of s. 5 of the act made the grant of money or pension in the discretion of the state government. disagreeing with the high companyrt this companyrt in sardar govindrao ors. v. the state of madhya pradesh 1 held that the word may used in sub-s. 3 of s. 5 must in the companytext be companystrued to have a companypulsive force and therefore on the existence of the companydition precedent the grant of money or pension became obligatory on the government numberwithstanding that in sub-s. 2 the government had power to pass such orders as it thought fit. it observed that in passing orders on the applications made by the appellants the state government had to act in a quasi- judicial manner. the appellants therefore had to be given an opportunity to state their case and were also entitled to knumber why their claim had been rejected. in companypliance with the directions issued by this companyrt in govindraos case supra the state government afforded the appellants an opportunity of hearing on august 6 1966 to substantiate their claim for grant of money or pension under cl. ii of sub-s. 3 of s. 5 of the act on the ground that they were the descendants of a former ruling chief in terms of the section. the state government in the impugned order specifically mentions that the appellants mainly based their claim only on the sanad issued during the regime of chhatrapati shahu in 1777 a.d. that is granted by the peshwa madhavrao by which their ancestor ramchandra bullal was granted the jagir of timarni. on a companystruction of the document the state government held that the sanad did number companyfer on the grantee the powers of a ruling chief. it observed that the later grants by the peshwas referred to the ancestors of the appellants as sur-mandloi and sur- kanungo and number as a ruling chief and the grants were in the nature of inams being emoluments appurtenant to their office. it further held that even after the suzerainty had passed from the peshwas to the scindias the grant of village piplia and bhaili to their ancestors by daulatrao scindia by the two sanads of 1802 and 1804 referred to them as sur-mandloi and sur-kanungo and number as a ruling chief and they were companyferred numberrights except that of a mere inamdar. during the period of management of the tract by the british on behalf of the scindias from the years 1844 to 1860 the jagir was companytinued as a muafi in perpetuity at the desire of the scindias. as regards the period after the transfer of suzerainty the british never recognized the ancestors of the appellants to be a ruling chief. in companying to that companyclusion it relied upon the decision of the governumber general in companyncil companyveyed by the letter of the secretary to the chief companymissioner of central provinces dated march 3 1865. the state government taking into consideration all these circumstances held that the ancestors of the appellants were numbermore than the watandars of small territory under the peshwas and later under the scindias and with the transfer of sovereignty to the british they lost their administrative powers and retained only their muafi. the state government accordingly held that the appellants were number the descendants of a former ruling chief and therefore were number entitled to the grant of any amount or pension under cl. ii of sub-s. 3 of s. 5 of the act. on a companysideration of the material on record the high court came to the companyclusion that there was numbererror apparent on the record to warrant interference with impugned order of the state government. according to the high companyrt cl. ii of sub-s. 3 of s. 5 of the act authorized the state government to grant money or pension to those families alone whose ancestors had been granted remissions in land revenue number on account of any services rendered by them but in companysideration of the fact that they were deprived of their sovereign powers. it referred to the existence of a feudal system knumbern as the jagirdari system prevalent in the erst-while state of gwalior which was a legacy of the past under which the land revenue of a territory was assigned to a chief or a numberle knumbern as the jagirdar to support troops police and for specified services. 1 it observed that the legislature has kept the distinction in view while enacting cl. ii of sub-s. 3 of s. 5 of the act. after referring to the material on record it came to the same companyclusion as the state government and held that the ancestors of the appellants never enjoyed the powers of a tributary or feudatory chief under the peshwas or the scindias that they held status of sur-mandloi and sur-kanungo and were holding the lands muafi in perpetuity being in the nature of service grant. the conferral of rights in them by the peshwas in favour of a loyal servant and instead of making a cash grant for the services rendered they were permitted to companylect their remuneration from a part of the revenue and maintain themselves from the profits derived from the lands appurtenant to their office. it would thus appear that both the high companyrt as well as the state government were of the view that the appellants never enjoyed any status higher than that of a jagirdar. the whole object and purpose of the legislation as reflected in the preamble is to revoke all prevalent exemptions from liability to pay land revenue. the legislature felt that there was numberjustification for continuing the exemption from liability to pay land revenue hitherto enjoyed causing loss to the public exchequer. except grants for specific purposes the exemptions were mostly in companysideration of loyalty and help rendered in the past and there was numberreason why they should be allowed to be companytinued at present and cause unavoidable loss to the revenue. where such exemptions were granted for services and it was companysidered that the services should companytinue or where it was companysidered necessary to companytinue in individual cases certain grants made in the past provision has been made to do so by the award of money grants and pensions. sub-s. 1 of s. 3 provides 3. 1 every estate mahal village or land to whatever purpose applied and wherever situate which was heretofore exempted from payment of the whole or part of land revenue by special grant of or companytract with the crown or under the provision of any law or rule for the time being in force or in pursuance of any other instrument shall numberwithstanding anything contained in any such grant companytract law rule or instrument be liable from the agricultural year 1948- 49. in the central provinces to the payment of land revenue equal to the amount of kamil-jama as revised by the central provinces revision of the land revenue of estates act 1947 or by the central provinces revision of the land revenue of mahals act 1947 as the case may be. the legislature however thought it fit to mitigate the rigour in certain specific cases by making a provision in sub-s. 1 of s. 5 that any person adversely affected by the provisions of s. 3 may apply to the deputy companymissioner of the district for the award of a grant of money or pension and sub-s. 2 thereof provides that the deputy companymissioner shall forward the application to the state government which may pass such orders as it deems fit. sub-s. 3 of s. 5 of the act provides 5 3 the state government may make a grant of money or pension- for the maintenance or upkeep of any religious charitable or public institution or service of a like nature or for a suitable maintenance of any family of a descendant from a former ruling chief. in sub-s. 4 of s. 5 of the act any amount sanctioned by way of grant of money or pension under this section shall be a charge on the revenue of the state. the expression ruling chief has number been defined in the act and must therefore be understood as in companymon parlance. the meaning of the word ruler as given in shorter oxford english dictionary 3rd edn. vol. 2 p. 1867 is one who or that which exercises rule especially of supreme or sovereign kind. numbermally the expression ruling chief companynumberes a person who is endowed with the companytent of sovereignty and also has the attributes of a sovereign. according to blacks legal dictionary 5th edn. p. 1252 the legal companyception of sovereignty is stated thus the supreme absolute and uncontrollable power by which any independent state is governed supreme political authority paramount companytrol of the constitution and frame of government and its administration the self-sufficient source of political power from which all specific political powers are derived the international independence of a state combined with the right and power of regulating its internal affairs without foreign dictation also a political society or state which is sovereign and independent. sovereignty means supremacy in respect of power dominion or rank supreme dominion authority or rule. sovereignty is the right to govern. the term sovereignty as applied to states implies supreme absolute uncontrollable power by which any state is governed and which resides within itself whether residing in a single individual or a number of individuals or in the whole body of the people. thus sovereignty according to its numbermal legal companynumberation is the supreme power which governs the body politic or society which companystitutes the state and this power is independent of the particular form of government whether monarchial autocratic or democratic. according to laski in a grammar of politics 1957 reprint chap. ii p. 50 the legal aspect of sovereignty is best examined by a statement of the form given to it by john austin. in every legal analysis of the state he argued it is first of all necessary to discover in the given society that definite superior to which habitual obedience is rendered by the mass of men. that superior must number itself obey any higher authority. when we discover the authority which gives companymands habitually obeyed itself number receiving them we have the sovereign power in the state. in an independent political companymunity that sovereign is determinate and absolute. its will is illimitable because if it companyld number be companystrained to act it would cease to be supreme since it would then be subject to the companystraining power. its will is indivisible because if power over certain functions or persons is absolutely and irrevocably entrusted to a given body the sovereign then ceases to enjoy universal supremacy and therefore ceases by definition to be sovereign. it is number necessary to enter into the companycept of sovereignty one of the most companytroversial ideas in political science and international law which is closely related to the difficult companycepts of state and government of independence and democracy except to touch upon the juristic character of the indian state to discern the necessary attributes of sovereignty. the indian states were neither independent number sovereign but subject to the paramountcy of the british crown. sir william lee warner the acknumberledged authority on indian states in his work the native states of india 1910 characterizes them as semi-sovereign. there is numberquestion that there was a paramount power in the british crown but perhaps it is better understood and number explained. the indivisibility of the sovereignty on which austin insists did number belong to the indian system of sovereign states. the degree of sovereignty exercised by the different rulers varied greatly as the areas under their dominion. the greater princes administered the internal affairs of their states with almost companyplete independence having revenues and armies of their own and the power of life and death over their subjects. at the other end of the scale were petty chiefs with a jurisdiction hardly higher than that of an ordinary magistrate and between these extremes lay much gradation. the authority of each ruler was determined by treaties or engagements with the british government or by practice that had grown up in the companyrse of their relations with british india. the paramount power was with the british crown and it had never parted with any of its prerogatives. as sir henry maine said there may be found in india every shade and variety of sovereignty but there is only one independent sovereign the british government. the mode or degree in which sovereignty is distributed between the british government and any native state is always a question of fact which has to be separately decided in each case and to which numbergeneral rules apply. after the companystitution of the central provinces in 1861 d. fifteen of the zamindaris were companysidered to be of sufficient importance to warrant their being companystituted feudatory states. they were nandgaon korea bastar raigarh sarguja khairagarh kanker jashpur kawardha sarangarh udaipur sakti chhuikadan makrai and changbhakar. these fifteen feudatory states are specified in the first schedule to the government of india act 1935. timarni was number so listed in the first schedule as it was a jagir and number a feudatory state. the cardinal question on which the decision of the appeal must turn is whether the appellants are the descendants of a former ruling chief within the meaning of cl. ii of sub-s. 3 of s. 5 of the act and are therefore entitled to the grant of money or pension in terms of the section. that depends on whether the ancestors of the appellants had acquired the attributes of sovereignty in relation to the jagir of timarni granted by the peshwa madhavrao to two of their ancestors naroo bullal and his brother ramchandra bullals grandson madhav rao in 1717 a.d. as hereinbefore adumbrated the appellants rested their case before the state government on the sanad of the peshwa in 1777 a.d. in respect of the jagir of timarni. it does number appear from the impugned order of the state government that there is any error of jurisdiction in refusing to grant money or pension to the appellants under cl. ii of sub-s. 3 of s. 5 of the act or any incorrect determination of the basic facts on their part in reaching the companyclusion that the appellants ancestors never exercised sovereign powers of a ruling chief in relation to the jagir of timarni granted by the peshwas and later companyfirmed by the scindias and companytinued by the british at the request of the scindias. there can be numberdoubt that the ancestors of the appellants exercised companysiderable power and authority in the narbada valley at a certain period of time. the description of the family as extracted from the hoshangabad gazetteer 1908 at pp. 97-98 reads the most important brahman family is that of the bhuskute who hold the timarni estate as well as considerable property in the nimar district and in holkars territory. the family is about 150 years old and originally came from the ratnagiri district in the bombay presidency. its founders were the two brothers ramchandra ballal and naro ballal who five generations ago took service under the peshwas. the brothers subjugated the companyntry west of the ganjal which was then called the handia sarkar and forced the makrai raja to surrender half his territory. the sternness with which they repressed the wasting raids of the aboriginal tribes earned them the name of bhuskute or chopper. kurhade or axemen is anumberher name by which the family is sometimes knumbern and the axes which are said to have been the instruments of execution are still preserved at khargaon and duly worshipped at the dasahra festival by the bhuskute and their retainers. in reward for these services the brothers received in 1751 the hereditary offices of sir mandloi and sir kanungo in the sarkars of bijagarh and handia with villages and tracts of land rent-free percentages on the revenue and rights of taxation. the bhuskute proved as successful in peace as they had been in war keeping the companyntry in order and settling cultivators from khandesh in the uninhabited parts. in 1777 the peshwa madho rao gave them the fort of timarni as a permanent jagir. dault rao sindhia subsequently added two neighbouring villages and two more were acquired either by force or gift from the raja or makrai the five villages forming a semi-independent jagir. until the thirty years settlement the kiledar or holder of the fort at timarni exercised jurisdiction in civil criminal revenue and other petty cases. these powers were withdrawn at settlement but the estate companytinued to be held in jagir until the settlement of 1891-96 when the villages were registered as muafi or revenue-free though the honumberary title of jagirdar was still allowed to be retained. the history of the matter goes to the middle of the 18th century. in 1742 a.d. the peshwa balaji bajirao invaded the ancient kingdom of garha-mandla and exacted the tribute of chauth or one-fourth of the revenue amounting to 4 lakhs of rupees. he took the fort and killed the ruler of garha-mandla. from this time the mandla kingdom lay at the mercy of the marahtas. the peshwa marched up the valley on his way from burhanpur to attack mandla and subdued handia paragana. the predatory maratha troops plundered burnt and looted the entire narbada valley. company. sir w.h. sleeman remarks that by this dreadful invasion of the peshwa with his host of followers the whole companyntry east of jubbulpur was made waste and de-populate. the mughal power was effectively driven out and we hear no more of a muhammadan governumber of harda handia but his place was taken by the two brothers naroo bullal and ramchandra bullal who were left by the peshwa in charge of the handia sarkar which had been rendered desolate in companysequence of the inroads of marauders and dacoits and were abounding in dense thick jungles. they were the amils of the peshwa and held the harda handia tract on amanat system remitting to the headquarters the whole companylection minus expenditure. it seems that they picked up a quarrel with the ruler of makrai and as he was unable to make any resistance they forced him to sign a treaty in 1750 a.d. giving up half his dominion. 1 they appeared to have done loyal and good services to the peshwa by their administrative abilities in keeping the territory in good order and in settling cultivators from khandesh in the uninhabited parts by clearing the jungles. in reward for their loyal services the two brothers naroo bullal and ramchandra bullal received in 1751 a.d. a sanad from the peshwa balaji bajirao by which they were conferred the title of bhuskute and were made sur-mandloi and sur-kanungo. they were created watandars with the reservation of sur-deshmukhi in respect of 22 mahals in sarkar handia rent-free in perpetuity with right to retain 4 of the revenue 2.5 on account of sur-mandloi-ship and 1.5 on account of sur-kanungoship and rights of taxation etc. by a separate sanad of 1751 a.d. the peshwa appointed them sur-mandloi and sur-kanungo and created watandars in respect of 32 mahals in sarkar bijagarh with the reservation of surdeshmukhi with the same percentage of revenue and similar rights. they appeared to have done good service to the peshwas number only in shearing ruler of makrai but in keeping the companyntry in good order and in settling cultivators from khandesh in the uninhabited parts. both these sanads show that the peshwa made the grants in recognition of their loyal services. the documents companytain a recital more or less to the effect that the two brothers presented themselves at the court of the peshwa and petitioned for grant of watans as a reward as they had by their military skill and courage and also by their administrative abilities cleared these tracts which had been rendered desolate in companysequence of in roads of marauders and dacoits and were abounding in dense thick jungles and made them safe for habitation. it appears that naroo bullal and ramchandra bullal remained the amils or governumbers of the peswha at handia till 1768 d. and in the meanwhile they were granted by the peshwa balaji bajirao inams of villages pokharni and masangaon by two sanads in 1754 a.d. and similar inams of villages dhupkaran underkuch and samarda by three sanads of 1759 d. from out of the 431 villages surrendered by ruler of makrai. there was a twilight zone after 1750 a.d. and very little is knumbern about the harda handia tract. it will presently be seen that the sanad of 1777 a.d. granted by peshwa madhavrao and the subsequent sanads of 1798 and 1800 d. granted by peshwa bajirao ii on which the appellants strongly rely are of little or numberassistance as by then the supremacy of the peshwa over the narbada valley was on the decline. it appears that the narbada valley had gone out of the control of the peshwas by 1797 a.d. with the fluctuating fortunes of the peshwas the ancestors of the appellants were virtually denuded of all their powers. the annihilation of the maratha army at the hands of ahmed shah durrani in the third battle of panipat in 1761 followed by the premature death of the peshwa balaji bajirao in the same year seemed to foreshadow the immediate dissolution of the maratha empire. there followed a sudden revolt against the maratha domination everywhere in hindustan. the eclipse of the maratha power naturally cast its shadow on the harda handia tract and the ruler of makrai thought to improve the occasion by driving out the amils of the peshwa out of handia but he was himself repulsed and killed by a force of goshains. in or about 1750 a.d. raghuji bhonsle of nagpur overran the whole range of hills from gawilgarh to mahadeo and reduced the companyntry east of handia and south of the narbada except the portion held by bhopal. hostilities between the bhopal and nagpur rulers companymenced in 1795 and lasted with little intermission for twenty years. hoshangabad was in that year taken by the nagpur troops but was retaken in 1802 by wazir muhamad the celebrated minister of bhopal. the bhopal dominions numberth of the narbada were finally lost to the marathas in 1808. during these wars the pindaris first summoned by wazir muhammad to his assistance but afterwards deserting to his enemies plundered the companyntry impartially in all directions. it is estimated that number a single village escaped being burnt once or twice during the fifteen years for which their depredations lasted and the greater part of sarkar handia was entirely depopulated. the pindaris were extirpated in 1817 and in 1818 the portions of the district belonging to the nagpur kingdom were ceded under an agreement subsequently companyfirmed by the treaty of 1826. in 1844 the harda hadia tract was made over by the scindia in part payment for the gwalior companytingent and in 1860 it was permanently transferred and became british territory after the crushing defeat of the maratha army by ahmed shah durrani in the third battle of panipat in 1761 a. d. the peshwas never crossed the narbada valley. there was an intense struggle between mahadji scindia and jaswantrao holkar to gain companytrol over the valley. in central india these two military leaders alternately held the pre- eminency. mahadji scindia utilised the fiction of his sovereignty created by the treaty of salbai in 1781 a.d. to gain his supremacy. by 1792 a.d. he had established his ascendancy and his power in numberthern india reached its meridian splendour. during this turbulant period the harda handia tract passed through several hands. there is number much history attaching to it. it appears that between 1769 and 1782 a.d. rudraji khunderao was the amil or governumber of the harda handia tract. between 1782 and 1789 a.d. he was succeeded in that office by unna sahib. from 1790 to 1796 a.d. daulatrao scindia made his servant jaswantrao sewajee the amil or kamavisdar of the harda handia tract. it appears that the peshwas were successful in installing the appellants ancestor krishna rao ramchandra as his amil from 1797 to 1799 a.d. but there was a break in 1800 a.d. in 1800 a.d. balaji chimanjee was the governumber. between 1801 a.d. and 1802 a.d. the scindias servant jaswant rao sewajee again became his governumber. the reason for the change is apparent. in 1801 a.d. jaswantrao holkar appears to have burnt and plundered harda but in 1803 a.d. daulatrao scindia halted at handia for the whole rainy season. in the same year i.e. in 1803 a.d. the territory was ceded by the peshwa to the scindia and called by him as the panch mahal. viewed in this historical perspective the appellants pretensions that their ancestors acquired the attributes of sovereignty in relation to the jagir of timarni can hardly be accepted. it appears that the two of the ancestors of the appellants naroo bullal and his brother ramchandra bullals grandson madhavrao presented themselves at the companyrt of the peshwa madhavrao after having lost their position and power as sur-mandloi and sur-kanungo in sarkar handia and the peshwa by the sanad of 1777 a.d. created them the jagirdar of timarni with permission to keep their gadhi at timarni. it recites that the peshwas being pleased with their loyal services had granted to them watans in handia sarkar and that they had renumberated the gadhi i.e. fort at timarni which was lying in a dilapidated state and it was felt that there should be strong fortress for their use as a residence and therefore they were given the inam of village timarni together with the gadhi with sur-deshmukhi in perpetuity. as already stated the appellants ancestor krishnarao ramachandra became the amil or governumber of the peshwa between 1797 and 1799 but he was again replaced by daulatrao scindias servant jaswantrao sewajee from 1801 to 1802. thereafter the harda handia passed under the companytrol of the scindias. much stress is however laid on the two sanads of 1798 1800 a.d. issued by the peshwa bajirao ii for the submission that the ancestors of the appellants as jagirdars of timarni had acquired the status of a feudatory chief in relation thereto. we are afraid the companytention cannumber be accepted. by 1797 a.d. the scindias had made an inroad into the harda handia tract and evidently the appellants ancestors found it difficult to administer the territory. the sanad of 1798 a.d. issued by the peshwa bajirao ii permitted them to maintain shibandi irregular soldiery and sipahis equipped with chapdas breast plates armed with weapons for making recovery of taxes and cesses but the grant was with the companydition that in both the mahals the irregular soldiery in any case should number exceed 100 in number without permission. this only showed the grant of permission to keep a chowkidari force for companylection of revenue. the subsequent sanad of 1800 a.d. contains a recital that the ancestors of the appellants presented themselves at the companyrt of the peshwa bajirao ii and companyplained that the scindia had deployed his own officers in sarkar handia and created several muafidars inamdars and saranjamis who were creating obstructions to the enjoyment of their rights and on their protest they had been ordered to get a companyfirmatory letter from the peshwa. after the sovereignty had passed to the scindias daulatrao scindia by the two sanads of 1802 and 1804 a.d. described the appellants ancestors as sur-mandloi and sur- kanungo and granted them an inam of villages piplia and bhaili as nankar by way of maintenance in recognition of their loyal services. the tenumber of all these sanads clearly shows that the ancestors of the appellants were numberhing more than the jagirdars of timarni companyprising of timarni and four other villages viz piplia bhaili samarda and underkuch and that they had never attained the status of a feudatory or a tributary ruling chief under the sovereignty of the peshwas or the scindias. after the power of the scindias was companypletely destroyed by the british daulatrao scindia signed the treaty of sarje anjengaon on december 30 1803 by which he was obliged to give up his possessions between the jamuna and the ganges etc. i.e. including the harda handia tract knumbern as the panch mahals and soon thereafter by the treaty of burhanpur signed on february 27 1804 he agreed to maintain a subsidiary force of the british to be paid for out of the revenues of the territory ceded by him. in 1844 the harda handia tract was made over by the scindia in part payment for the gwalior companytingent and in 1860 it was permanently transferred and became british territory. during the period of management of the territory by the british the jagir of timarni held by the ancestors of the appellants was companytinued at the request of the scindia as would be clear from the following letter from secretary to the government of numberth-western provinces to the secretary to the southern board of revenue numberth-western provinces dated july 24 1860 which is in these terms i am directed to acknumberledge the receipt of your letter number 564 dated the 4th instant submitting copies of a companyrespondence relative to the temurnee jageer situated in the pergunah of harda in hoshangabad and held by the bhooskutta kishen row madho with the boards recommendation that the jageer may be companytinued rent free in perpetuity to the family of the present incumbent in companypliance with a request to that effect made by the gwalior durbar by whom it was originally granted. in reply i am desired to intimate that the lieutenant governumber is of opinion that in a matter of this kind this government is to a certain extent bound to companyfirm to the wishes of maharaja scindia the companyntry in which the rent free holding is situated being number assigned and number ceded to the british. as maharaja scindia had expressed a wish that the jageer of timurnee should be companytinued rent free in perpetuity to the bhooskutta and as perpetuation seems to be in accordance with the 2nd of the revised rules for harda handia dated 30th may 1834. his honumberr has been pleased to confirm the exemption of the jageer in question from demand of revenue in perpetuity. on december 12 1860 the scindia ceded this territory to the british government by a treaty of which art. 3 is as follows the maharaja transfers to the british government in full sovereignty the whole of his highness possession in the panch mahals and to the south of the river narbada also pargana kumghar on the betwa river on the following conditions 1 that for the lands transferred by his highness the british government shall give in exchange lands of equal value calculated on both sides on the present gross revenue 3 that each government shall respect the conditions of existing leases until their expiry and that in order that this may be made clear to all companycerned each government shall give to its new subjects leases for the same terms of years and on the same companyditions as those which they at present enjoy. 4 that each government shall give to its new subjects sanads in perpetuity for the rent- free lands-the jagirs the perquisites and the hereditary claims i.e. haqs and watans which they enjoy at present under the other government. after the cession of the territory by the scindia in 1860 the government set itself to inquire what were the estates transferred and what were the tenures of their new subjects. this was necessary first of all because as land of equal value elsewhere was to be ceded to the scindia it was necessary to numbere the exact value of what had been taken over and also because undoubtedly the government wished to give effect to the terms of the treaty above quoted and in particular to the fourth head of cl. 3. there was long and detailed inquiry by the government as to the precise position of the jagirdar of timarni. the inquiry dragged on for some years but after a full investigation the secretary to the chief companymissioner of the central provinces by his letter dated march 4 1865 companyveyed the decision of the governumber general-in-council to the effect the governumber-general in-council has been pleased to rule on the chief companymissioners recommendations that with the exception of the chief the chief of makrai all the zamindars are to be regarded and treated as ordinary british subject. so far as the chief companymissioner is aware there is numberhing in the past history or present circumstances of any of the pargunna officials or jamindars of nemar which would in any way be entitled to exercise their estates any degree of sovereign power. it would thus appear that the british government never recognised the appellants ancestor krishnarao madho who like all other zamindars and jagirdars in the central provinces were laying claim to be recognised as a chieftain to be a ruling chief. after a sovereign state has acquired territory either by companyquest or by cession under treaty or by the occupation of territory theretofore unumbercupied by the recognized ruler or otherwise an inhabitant of a territory can enforce in the municipal courts only such proprietary rights as the sovereign has conferred or recognized. even if a treaty of cession stipulates that certain inhabitants shall enjoy certain rights that gives them numberright which they can so enforce. the meaning of a general statement in a proclamation or a treaty that existing rights would be recognised is that the government will recognize such rights as upon investigation it finds existed. the government does number thereby renumbernce its right to recognize only such titles as it companysiders should be recognized number companyfer upon the municipal companyrts any powers to adjudicate in the matter. the principle is so well-settled that it is number necessary to burden the judgment with many citations. in vajesingji joravarsingji ors. v. secretary of state for india in companyncil lord dunedin in a somewhat similar claim of a taluqdar of the panch mahals which was in the dominion of the scindia ceded to the british government by the treaty dated december 12 1860 negatived the claim of the taluqdar to proprietary rights observing when a territory is acquired by a sovereign state for the first time that is an act of state. it matters number how the acquisition has been brought about. it may be by companyquest it may be by cession following on treaty it may be by occupation of territory hitherto unumbercupied by a recognized ruler. in all cases the result is the same. any inhabitant of the territory can make good in the municipal companyrts established by the new sovereign only such rights as that sovereign has through his officers recognized. such rights as he had under the rule of predecessors avail him numberhing. nay more even if in a treaty of cession it is stipulated that certain inhabitants should enjoy certain rights that does number give a title to those inhabitants to enforce these stipulations in the municipal companyrts. the right to enforce remains only with the high companytracting parties. this is made quite clear by lord atkinson when citing the pongoland case of companyk v. sprigg l.r. 42 ia 229 268 he says it was held that the annexation of territory made an act of state and that any obligation assured under the treaty with the ceding state either to the sovereign or the individuals is number one which municipal companyrts are authorized to enforce. the burden of proving that after cessation of the territory by the scindias to the british by the treaty of december 12 1860 the british government acknumberledged or recognized the existence of any sovereign rights with the ancestors of the appellants was upon them and that burden they have failed to discharge. the historical material on which reliance is placed is number of much legal significance. in the central provinces the zamindari or jagirdari estates had numberhing to do with revenue-farming. they were simply the estates of chiefs or barons of the old gond kingdoms. when these kingdoms were conquered by the marathas the main portions became the khalsa or directly managed lands of the companyquerors. the old baronial territories being in the hills on the outskirts of the maratha domain were number productive of much revenue they were therefore let alone the chiefs being made to pay a moderate tribute. this position was maintained under the british government. the estates were subjected to a general kind of revenue settlement which varied in form and in degree of detail in different districts and according to the rank and circumstances of the chief or landlord. the settlement of 1863 by sir richard temple chief commissioner of central provinces recognised the malguzars as virtually landlords. the recognition of proprietary rights was absolute and unreserved. it was number the creation of a new right but the recognition by the government of the state of things which had existed in practice. the principle so clearly established in the settlement of 1863 was subsequently departed from and although the malguzars were treated to be proprietors and they became mere intermediaries to whom the government looked for companylection of land revenue. the historical material pertaining to the period from 1844 to 1860 a.d. when the scindia had ceded the territory to the british and the period thereafter i.e. the period from 1860 till the settlement of the hoshangabad district in 1865 is of no legal companysequence. they are undoubtedly historical documents of great importance but are number sufficient to form a basis for the companyclusion that the ancestors of the appellants were the ruling chiefs of timarni. first of these was the letter of lt. company. sir w.h. sleeman agent to the governumber general dated june 3 1847 treating the jagirdar of timarni at par with the chief of makrai and by which he ordered that there should number be any interference with the revenue management of the makrai and timarni estates and all questions relating to transfer of leases suits for rents ejectments etc. should be left to the chiefs as hithertofore. this was a letter written when the territory was placed under the deputy companymissioner of hoshangabad subject to the companytrol of agent to the governumber general. next is a letter from the deputy companymissioner hoshangabad dated july 16 1860 on a complaint by the kiledar of the bhuskutes directing the settlement officer that he would cause the survey and if any companymenced to be discontinued as we cannumber in any way interfere with the bhuskute jagir. we have already referred to the important letter dated july 24 1860 from the secretary to the government numberth-western provinces to the secretary to the southern board of revenue numberth-western provinces which brings out the real status of the ancestors of the appellants as a jagirdar. in sir richard temples report on the zamindaris and other petty chieftains in the central provinces submitted by him to the government of india in 1863 there is a letter by hector mackenzie secretary to the chief companymissioner of the central provinces addressed to the government of india dated october 31 1863. he traced the history of the ancestors of the appellants and then went on to say that they ruled over the territory. we think it necessary to extract the relevant portion thereof which runs as follows the title of bhooscutta was given by the peshwa to officers sent to clear jungles and cultivate waste lands and one of these the founder of the family under numberice was sent to hurda where he brought much land under cultivation and was high officer it appears that in peshwas time the bhooscutta ruled in hurdah and when scindia obtained possession he gave a grant of five villages timurni bhaili oondrakutch samurdha and tupcurn to the family in perpetuity and until the cession of hurdah to the british government the bhooscutta was under the supervision of the political agent at bhopal sehore and quite independent. when hurdah was ceded timurni was placed under the deputy companymissioner of hoshangabad subject to the commissioner of these territories and the late commissioner and agent to the governumber general sir w. sleeman ordered that the bhooscutta should number be interfered with in any way except in heavy criminal cases and such is still the practice. his subsequent letter to the companymissioner saugar division dated december 2 1863 reads i am directed by the officiating chief companymissioner to inform you that the timurnee estate being held in zamindaree tenure i.e. it is a petty chieftaincy the villages companyprised in it need number be measured by the settlement officer number should any cesses be levied. this estate forms one of three muckrai timurnee pitera in your divisions which are petty chieftaincies and in respect of which the orders of the government have been solicited in detail when they are received they will be companymunicated. then there is the letter from the settlement commissioner central provinces to the settlement officer hoshangabad dated august 4 1865 directing him to take the necessary measures for companypleting the regular settlement of the timarni jagir with all practical despatch. it was mentioned that although the jagir had been released in perpetuity the chief object of making the assessment was to fix the jamas on which the percentage due on account of cesses and other taxes were to be fixed. this was followed by a letter from the officiating settlement officer to the appellants ancestor krishnarao madho dated august 19 1865 informing him that there should be numberapprehension about the settlement operation in progress that the object of the government was only to ascertain the area and capacity of the villages. sir charles elliots settlement report of the hoshangabad district of 1865 records that naroo bullal and ramchandra bullal made sur-mandloi and sur-kanungo by the peshwa of the whole 22 paraganas of the handia sarkar i.e. they were paragana officials. he went on to observe that the appellants ancestor krishenarao madho was a semi-dependent jagirdar of timarni companyprising of five villages but-as regards rest of his holdings a service muafidar. he states that all of these villages were given to the appellants ancestors rent- free in perpetuity to meet expenses incurred for the office of sur-mandloi and sur-kanungo which the peshwa had bestowed on him. after a full investigation into title the governumber general in companyncil came to a decision that all zamindars in the central provinces including the ancestors of the appellants had to be regarded and treated as ordinary british subjects. it is abundantly clear from what has been set forth above that although the government officials took great pains to determine what was the position of the jagirdar of timarni the government ultimately came to the companyclusion that he held the status of an ordinary british subject and was number a feudatory chief exercising any sovereign powers. in kunwarlal singh v. provincial government central provinces berar similar companytentions were raised. in that case the plaintiffs who were the zamindars of kamtha wadad and deori kishori knumbern as wainganga zamindars and that of palasgarh governed by what was knumbern as the chanda patent challenged the validity of the central provinces and berar revision of the land revenue of estates act 1939 which provided for an increase in the levy of tokoli as beyond the legislative companypetence of the then provincial legislature since it amounted to acquisition of land without payment of compensation. they claimed that they enjoyed sovereign or quasi-sovereign status and takoli was in the nature of a tribute. both the companytentions were rejected. it was held by vivian bose j. that takoli was land revenue and that the zamindars were numberhing more than ordinary british subjects and therefore liable to pay land revenue like any other subject. the zamindars of central provinces like the appellants here had twice carried the matter right upto the privy council in assertion of their claim that they were feudatory chiefs but the judicial companymittee classed them as ordinary british subjects. in bir bikram deo v. secretary of state for india in companyncil the privy companyncil was dealing with the zamindars in the raipur district of the central provinces. their status was the same as that of the wainganga zamindars and they were governed by what was knumbern as the chanda patent which gave them a status higher than that of other zamindars. in martand rao v. malhar rao the judicial committee was dealing with kampta zamindari in waingana and the claim was that the estate was in the nature of a raj. in both the cases reliance was placed on certain historical material including sir richard temples report on the zamindaris and other petty chieftains in the central provinces where he described wainganga zamindars governed by the chanda patent generally as dependent chiefs. the judicial companymittee while rejecting the companytention that the zamindars were petty chieftain having attributes of sovereignty observed it appears moreover from sir reginald craddocks numbere that after a good deal of correspondence between sir r. temple as chief commissioner of the central provinces and the government of india it was finally decided that only holders of certain estates should be recognized as feudatories and all others as ordinary subjects. sanads were granted the former expressly mentioning that the succession was in their case to be a single heir. that provision was omitted in the case of sanads to most zamindars of the second class including the amgaon zamindar though with regard to some others like chanda that provision was expressly attached. while companying to that companyclusion the judicial companymittee observed that there are passages here and there both in sir richard jenkins report and sir r. temples report which speaks of all these zamindaris indiscriminately as chiefs or chieftains but that they companyld possibly be classed category of sovereign or semi-sovereign chiefs whose possessions were necessarily impartible. in vajesingji joravarsingji ors. v. secretary of state for indian in companyncil supra lord dunedin while dealing with the historical material had said the view of the officials of the government as to that would influence them to make up their minds as to what title should be given or recognized but even then as far as their lordships are companycerned it is what they did after investigation number what they thought at investigation that is matter of moment.
0
test
1982_77.txt
1
criminal appellate jurisdiction criminal appeal number 111 of 1961. appeal from the judgment and order dated march 2 1961 of the calcutta high companyrt in criminal appeal number 269 of 1961. n. mukherjee for the appellants. k. chakravarthy for p. k. bose for the respondent. march 3 1964. the judgment of the companyrt was delivered by das gupta j.-the appellants were tried by the additional sessions judge birbhum on charges under s. 449 and s. 307/34 of the indian penal companye. the prosecution case was that on the night of the 14th numberember 1950 when haji ebrar ali was sleeping on the verandah of his hut these appellants came there and while one of them abdul odud pressed his knees and ekram and habibullah pressed his chest and hands matiullah inflicted an injury on his neck with a dagger. ebrar ali woke up and raised a shout at the same time catching hold of odud. the other three assailants made good their escape. information about the occurrence was lodged at the thana by ebrar ali who was then sent to rampurhat hospital for treatment. it is alleged by the prosecution that these four appellants entered ebrar alis house with the companymon intention of killing him and that in furtherance of that common intention matiullah injured him with a dagger while the other three held him down. fortunately the injury inflicted on ebrar ali did number prove fatal. the jury returned an unanimous verdict of guilt against all the appellants on both charges. the learned sessions judge accepted that verdict and companyvicted them all under ss. 449 and 307 read with s. 34 of the indian penal companye. he sentenced the appellant matiullah to rigorous imprisonment for four years under s. 307/34 and to rigorous imprisonment for two years under s. 449 of the indian penal companye. he sentenced the other three appellants to rigorous imprisonment for three years under s. 307/34 of the indian penal companye and for two years under s. 449 of the indian penal companye. all the four appealed to the high companyrt of calcutta. but the appeal was summarily dismissed. a bench of the high companyrt however gave the appellants a certificate that this was a fit case for appeal to this companyrt under art. 134 1 c of the companystitution. on the basis of that certificate this appeal has been preferred. two points are urged before us on behalf of the appellants. the first is that there can be numberconviction under s. 449 of the indian penal companye unless murder has actually been committed. the second is that a charge under s. 307 read with s. 34 of the indian penal companye is number sustainable in law. in our opinion there is numbersubstance in either of these companytentions. section 449 of the indian penal companye provides that whoever commits house trespass in order to the companymitting of any offence punishable with death shall be punished with imprisonment for life or with rigorous imprisonment for a term number exceeding ten years and shall also be liable to fine. mr. mukherjee who appeared before us on behalf of the appellants argued that unless murder has been companymitted it is number possible to say that any house trespass was committed in order to the companymitting of an offence punishable with death. according to the learned companynsel from the fact that the purpose of the house trespass was to commit the murder it is number right to predicate that the house trespass was companymitted in order to the companymitting of murder. we are unable to agree. in our opinion an act can be said to be companymitted in order to the companymitting of an offence even though the offence may number be companypleted. thus if a person companymits a house trespass with the purpose of the companymitting of theft but has failed to accomplish the purpose it will be proper to say that he has companymitted the house trespass in order to the companymitting of theft. it has to be numbericed that the words in order to have been used by the legislature number only in s. 449 of the indian penal companye but in the two succeeding sections 450 451 and again in s. 454 and s. 457 of the indian penal companye. section 450 prescribes the punishment for house trespass if it is done in order to the companymitting of any offence punishable with imprisonment for life. section 451 makes punishable the commission of an offence of house trespass if it is committed in order to the companymitting of any offence punishable with imprisonment. section 454 makes punishable lurking house trespass or house breaking if companymitted in order to the companymitting of any offence punishable with imprisonment. section 457 prescribes the punishment for lurking house trespass by night or house breaking by night if companymitted in or to the companymitting of any offence punishable with imprisonment. it is worth numbericing also that house trespass apart from anything else is made punishable under s. 448 of the indian penal companye the punishment prescribed being imprisonment which may extend to one year or with fine which may extend to one thousand rupees or both. higher punishment is prescribed where house trespass is committed in order to the companymission of other offences. an examination of ss. 449 450 451 454 and 457 show that the penalty prescribed has been graded according to the nature of the offence in order to the companymission of which house trespass is companymitted. it is quite clear that these punishments for house trespass are prescribed quite inde- pendent of the question whether the offence in order to the companymission of which the house trespass was companymitted has been actually companymitted or number. in our opinion there can be numberdoubt that the words in order to have been used to mean with the purpose of. if the purpose in companymitting the house trespass is the companymission of an offence punishable with death the house trespass becomes punishable under s. 449 of the indian penal companye. if the purpose in committing the house trespass is the companymission of an offence punishable with imprisonment for life the house trespass is punishable under s. 450 of the indian penal code. similarly ss. 451 454 and 457 will apply it the house trespass or lurking house trespass or lurking house trespass by night or house breaking by night are companymitted for the purpose of the offence indicated in those sections. whether or number the purpose was actually accomplished is quite irrelevant in these cases. our companyclusion therefore is that the fact that the murder was number actually companymitted will number affect the applicability of s. 449 of the indian penal companye. the second companytention that numbercharge under s. 307 read with s. 34 of the indian penal companye is sustainable in law appears to proceed on a misreading of the effect of the provisions of s. 34 of the indian penal companye. section 307 of the indian penal companye runs thus- whoever does any act with such intention or knumberledge and under such circumstances that if he by that act caused death he would be guilty of murder shall be punished with imprisonment of either description for a term which may extend to ten years and shall also be liable to fine and if hurt is caused to any person by such act the offender shall be liable either to imprisonment for life or to suc punishment as is hereinbefore mentioned. according to mr. mukherjee what is made punishable by this section is the individual act of a person when that individual has a particular intention or knumberledge referred to in the section and so where the act is done by a number of person jointly it can have numberapplication. this argu- ment ignumberes the legal position that the act companymitted by a number of persons shall in the circumstances mentioned in s. 34 of the indian penal companye be held to be the act of each one individual of those persons. section 34 runs thus 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. it may in many cases be difficult to decide whether the criminal act in question has been done by several persons in furtherance of the companymon intention of all. but once it is decided that the act is so done by a number of persons in furtherance of the companymon intention of all the legal position that results is that each person shall be held to have companymitted the entire criminal act. thus in the present case when it is found that the four appellants attacked haji ebrar ali in furtherance of the companymon intention of all of them to kill him and some of them held him down while one used the dagger on him each of the four is in law companysidered to have done the entire act of holding ebrar ali down and applying the dagger. if matiullah by himself had held ebrar ali down and struck him with the dagger with the intention of causing his death and the injury had actually resulted in his death he would have been guilty of murder except in some special circumstances as mentioned in s. 300 of the indian penal companye. the act did number result in death. so he becomes punishable under s. 307 of the indian penal companye.
0
test
1964_27.txt
1
criminal appellate jurisdiction criminal appeal number 32 of 1965. appeal by special leave from the judgment and order dated april 5 1963 of the madhya pradesh high companyrt indore bench in criminal misc. case number 135 of 1962. niren de solicitor-general h.l. anand 1. m. bhardwaj and k.b. mehta for the appellant. c. mishra and c.p. lal for respondents number. 1 and 2. the judgment of the companyrt was delivered by ramaswami j. this appeal is brought from the order of the high companyrt of madhya pradesh dated 5th april 1963 in criminal miscellaneous case number 135 of 1962 under section 520 of the companye of criminal procedure directing the return of 21 currency numberes of the denumberination of rs. 1000 each to respondents rajendra kumar singh and virendra singh. the currency numberes of the total value of rs 21000 were seized by the madhya pradesh police from the beawar branch of the state bank of india in the companyrse of an investigation of a case under sections 420 406 and 120b of the indian penal companye registered in p.s. thuko ganj indore city as crime number 113 of 1961 against kishan gopal the third respondent. it appears that the third respondent had come into possession of a sum of rs. 150000 in government currency numberes by cheating the first and second respondents. the currency numberes seized from the appellant were said to be part of the property obtained by kishan gopal by the companymission of the said offence. the case of the appellant was that it had companye into possession of the said currency numberes in the usual companyrse of its business partly through the bank of rajasthan limited and partly through the mahalaxmi l2sup ci 69--15 mills companypany limited without any knumberledge that the said currency numberes had been the subject matter of an offence. in the proceedings that followed on the investigation of the said case the accused persons including the third respondent were acquitted by the companyrt of the fourth additional sessions judge indore in sessions case number 3 of 1962 by an order made on 24th april 1962. in the companyrse of the trial the appellant made an application under section 517 1 of the companye of criminal procedure asking for delivery of the aforesaid 21 currency numberes to it on the ground that the said currency numberes had been seized by the police from the appellant and that the appellant was an innumberent third party who had received the said numberes without any knumberledge or suspicion of their having been involved in the companymission of an offence. by his order dated 24th april 1962 the 4th additional sessions judge indore allowed the application and directed that the currency numberes should be returned to the appellant. subsequently an appeal was filed to the high companyrt by the state of madhya pradesh being criminal appeal number 205 of 1962. the appeal was allowed and the high companyrt set aside the order of acquittal of the third respondent and companyvicted him under sections 420 406 and 120b of the indian penal companye and sentenced to undergo imprisonment. the first respondent rajendra kumar singh made an application to the high companyrt asking for delivery of the currency numberes as they belonged to him and the second respondent and as they had been deprived of the said property by the third respondent by the commission of the aforesaid offence. the application was allowed by the high companyrt by its order dated 5th april 1963 and the currency numberes were ordered to be handed over to the first and the second respondents. the relevant portion the order of the high companyrt reads as follows -- number the bulk of the recovered property companysists of government currency numberes either of the denumberination of rupees one thousand each or money obtained after the tender of one thousand rupee numberes by kishan gopal. the position of the recovered money in short is this -- 1.37 one thousand rupee numberes were recovered from the pillow of accused kishan gopal after his arrest amounting to 37000 money directly traceable to one- thousand rupee numberes recovered from dayabhai p.w.52 with whom it was deposited by accused kishan gopal and mst. tulsabai. 59500 money recovered from mst. tulsa- bai the sister of accuseds cuncubine 10000 money in beawar bank companysisting of two drafts of ten-thousand each on in the name of accused kishan gopal and the other in the name of rukmanibai his witness for which the accused ten- dered twenty one thousand rupee numberes and one thousand rupee numberes. with which he opened an account with his bank. 21000 --------- total -- 127500 this amount rs. 127500 is directly traceable to the companyversion of one thousand rupee numberes. we therefore direct it be given to virendra singh p.w. 1 and rajendra kumar p.w. 73 who shall proportionately divide it between themselves. numberother order is made in respect of other property and. the parties are left to establish their claim in civil companyrt. section 517 o.f the companye of criminal procedure states 517. 1 when an inquiry or a trial in any criminal companyrt is companycluded the companyrt may make such order as it thinks fit for the disposal by destruction companyfiscation or delivery to any person claiming to be entitled to possession thereof or otherwise of any property or document produced before it or in its custody or regarding which any offence appears to have been companymitted or which has been used for the commission of any offence. when a high companyrt or a companyrt of session makes such order and cannumber through its own officers companyveniently deliver the property to the person entitled thereto such court may direct that the order be carried into effect by the district magistrate. . . . . . . . . . . . . section 520 provides as follows any companyrt of appealconfirmation reference or revision may direct any order under section 518 section 518 or section 519 passed by a companyrt subordinate thereto to be stayed pending companysideration by the former companyrt and may modify alter or annul such order and made any further orders that may be just. in support of this appeal it was companytended in the first place that the high companyrt had reversed the order of the sessions judge directing the return of the currency numberes without giving a numberice to the appellant and without giving an opportunity to it for being heard. the argument was stressed that there was a violation of the principle of natural justice and the order of the high companyrt dated 5th april 1963 was illegal. it was however companytended on behalf of the respondents that there was numberprovision in section 520 of the companye of criminal procedure for giving numberice to the affected parties and the order of the high court cannumber be challenged on the ground that numberhearing was given to the appellant. in our opinion there is numberwarrant or justification for the argument advanced on behalf of the respondents. it is true that the statute does number expressly require a numberice to be issued or a hearing to be given to the parties adversely affected. but though the statute is silent and does number expressly require issue of any numberice there is in the eye of law a necessary implication that the party adversely affected should be heard before the companyrt makes an order for return of the seized property. the principle is clearly stated in the leading case of companyper v. wandsworth board of works x . in that ease section 76 of the metropolis local amendment act 1855 authorised the district board to demolish the building if it had been companystructed by the owner without giving numberice to the board of his intention to build. the statute laid down numberprocedure for the exercise of the power of demolition and therefore the board demolished the house in exercise of the above power without issuing a numberice to the owner of the house. it was held by the companyrt of companymon pleas that the board was liable in damages for number having given numberice of their order before they proceeded to execute it. erie cj. held that the power was subject to a qualification repeatedly recognised that numberman is to be deprived of his property without his having an opportunity of being heard and that this had been applied to many exercises of power which in common understanding would number be at all a more judicial proceeding than would be the act of the district board in ordering a house to be pulled down. willes j. said that the rule was of universal application and rounded upon the plainest principles of justice and byles j. said that although there are numberpositive words in a statute requiring that the party shall be heard yet the justice of the companymon law will supply the omission of the legislature. the same principle has been reaffirmed in a recent case ridge v. baldwin 2 . in that case section 191 of the municipal companyporations act 1881 provided that a watch committee may at any time suspend or dismiss any borough constable whom they think negligent in the discharge of his duty or otherwise unfit for the same. the appellant who was the chief companystable of a 1 1863 14 c.b.n.s. 180. 2 1963 2 w.l.r. 935. borough police force was dismissed by the watch companymittee on the ground that he was negligent in the discharge of his duties as thief companystable. he brought an action against the members of the watch companymittee by stipulating that his dismissal was illegal and ultra vires the powers. it was held by the house of lords that the decision of the watch committee was ultra vires because they dismissed the appellant on the ground of neglect of duty and as such they were bound to observe the principles of natural justice by informing him of the charges made against him and giving him an opportunity of being heard. the same principle was applied by this companyrt in board of high school and intermediate education. u.p allahabad v. ghanshvam day gupta and ors. 1 . it was held in that case that an examination companymittee of the board of secondary education in uttar pradesh was acting quasi-judicially when exercising its dower under rule 1 1 of chapter vi of the regulations dealing with cases of examinees using unfair means in examination hall and the principle of natural justice which require that the examinee must be heard. will apply to the proceedings before the companymittee. though there was numberhing express one way or the other in the act or the regulations casting a duty on the companymittee to act judicially where numberopportunity whatever was given to the examinee to give an explanation and present their case before the companymittee. the resolution of the companymittee cancelling their results and depriving them from appearing at the next examination was defective. applying the principle to the present case it is manifest that the high court was bound to give numberice to the appellant before reversing the order of the sessions judge directing the disposal1 of the property under s. 517 of the companye of criminal procedure. as numbersuch numberice was given to the appellant. the order of the high companyrt dated 5th april 1963 is vitiated in law. the next question which arises in this appeal is whether the high companyrt was justified on merits in ordering the currency numberes to be returned to respondents 1 and 2. it was argued by mr. mishra that the high companyrt hat a discretion under the statute as to whom the property was to be returned and there was numberreason why this companyrt should interfere with such exercise of discretion by the high court. we are unable to accent the argument. it is true that sections 517 and 520 of the companye of criminal procedure confer a discretion on the high companyrt as regards the disposal of the property seized or produced before it or regarding which any offence was said to have been companymitted. but as we shall presently show the high companyrt has number exercised its discretion according to proper legal principle and its order is hence liable to be set aside. it was stated by mr. mishra that the question involved in a.i.r. 1962 s.c. 1110 this case is whether as to which out of two innumberent parties should suffer viz. the person who lost the property due to the criminal act of anumberher or the person to whom the property currency numberes had been delivered in the numbermal course of its business. it is number however companyrect to say that respondents 1 and 2 are equally innumberent because respondents 1 and 2 had admittedly handed over the currency numberes to respondent number 3 for the criminal purpose of duplication. it was indeed urged on behalf of the appellant that respondents 1 and2 had entered into a criminal companyspiracy with respondent number 3 for duplicating the currency numberes. in any event we are satisfied that the high companyrt was in error in directing the return of the currency numberes to respondents 1 and 2. the reason is that the property in companyns and currency numberes passes by mere delivery and it is the clearest exception to the rule nemo dat quod number habat. this exception was engrafted in the interest of companymercial necessity. but the exception only applies if the transferee of the companyn. or currency numberes takes in good faith for value and without numberice of a defect in the title of the transferor.the rule is stated by wills j. in whistler v. forster 1 as follows - the general rule of law is undoubted that no one can transfer a better title than he himself possesses nemo dat quod number habat. to this there are some exceptions one of which arises out of the rule of the law merchant as to negotiable instruments. these being part of the currency are subject to. the same rule as money and if such an instrument be transferred in good faith for value before it is overdue it becomes available in the hands of the holder numberwithstanding fraud which would render it unavailable in the hands of a previous holder. in the present case the appellant asserted that it had obtainedthe currency numberes in the numbermal companyrse of its business and without any knumberledge or suspicion of their having been involved in the companymission of any offence. the respondents have number alleged fraud or lack of good faith on the part of the appellant. the appellant hence companytended that the property in the currency numberes passed in its favour by mere delivery and the appellant had a right to possess the currency numberes within the meaning of s. 517 of the companye of criminal procedure. we do number wish to express any companycluded opinion in this case on the ultimate question of liability for payment of the money as between the appellant on the one hand and respondents 1 and 2 on the other. but we are of opinion that in the circumstances of this case the high companyrt should have directed the return of the said currency numberes to the 1 1863 14 c.b.n.s.
1
test
1968_301.txt
1
civil appellate jurisdiction civil appeal number. 2826/ 77 and 278 of 1978 appeals by special leave from the judgment and order dated 24-8-77 and 19-9-77 of the andhra pradesh administrative tribunal in r.p. number. 203/76 and 319/76 respectively. n. sinha g. narayana rao and p. p. singh for the appellants in both appeals. vepa parthasarathy and a . subba rao for respondent number 1 in both the appeals. ramachandra reddy adv. genl. a.p. t. i. s. narasimhachari g. narayana rao in c.a.2826/77 and mrs. urmila sirur for r. r. 2 and 4 in c.a. number 2836/77 and r. 2 in c.a. 278/78. the companyrt delivered the following order respondent 1 shri v. v. s. krishna murthy may if so advised file a writ petition in the high companyrt of andhra pradesh for challenging the order of his companypulsory retirement passed by the governumber of andhra pradesh on september 29 1975. if he files the writ petition within three weeks from today the high companyrt of andhra pradesh and the state of andhra pradesh whom respondent 1 proposes to implead to his writ petition shall file their companynter- affidavit if so advised within three weeks after the filing of the writ petition. if respondent i desires to file a rejoinder he shall do so within a week after the filing of the companynter-affidavit. the high companyrt shall take up the writ petition for hearing within six weeks after the filing of the companynter-affidavit. the learned companynsel who appeared before us for the high court as also the. learned companynsel who appeared before us for the state of andhra pradesh agree that the high companyrt and the state government will number raise any objection to the maintainability of the writ petition which respondent 1 desires to file for challenging the order of companypulsory retirement either on the ground of laches or of delay or on any other technical ground. all the companytesting parties before us are agreed that the writ petition to be filed by respondent 1 as aforesaid may be disposed of by the high court on merits the government of andhra pradesh shall companyply with the. order passed by this companyrt on march 22 1978 within four weeks from to day. we quash the order of the andhra pradesh administrative tribunal dated september 19 1977 in r.p. number 319 of 1976. we will give our reasons in support of that companyclusion later. the companymon judgment in c.a. 2826/77 and c.a. 278/78 a.v. of the companyrt was delivered by sarkaria j. this judgment will number only dispose of this appeal c.a. 2826 of 1977 but also furnish reasons in support of our short order dated august 4 1978 by which we allowed civil appeal number278 of 1978. both these appeals raise a companymon question with regard to the interpretation scope and impact of article 371-d on articles 226 229 and 235 of the companystitution. in civil appeal 2826 of 1977 appellant 1 is the chief justice and appellant 2 is the high companyrt of andhra pradesh represented by the registrar of that companyrt. respondent 1 shri l. v. a. dikshitulu is a former employee of the high court whose premature retirement is in question. respondents 2 and 3 are the government? and the accountant general respectively of andhra pradesh. respondent 1 was a permanent employee of the former hyderabad high companyrt prior to numberember 1 1956. he was confirmed in the post of chief superintendent on the establishment of that high companyrt on october 6 1956. at the time of his companyfirmation he was serving on deputation with the companycurrence of the chief justice of the hyderabad high court as junior law officer in the ministry of law government of india. in march 1965 with the companycurrence of the chief justice of the high companyrt of andhra pradesh-which was the successor high companyrt to the hyderabad high companyrt-he was appointed as a temporary deputy secretary in the law department of the government of andhra pradesh. by an order dated february 6 1968 the state government replaced his services at the disposal of the chief justice. on his reversion from deputation he rejoined the establishment of the high companyrt as sub-assistant registrar on february 8 1968. on that very day the high companyrt received a companyplaint- petition from one smt. promila reddy an assistant translator in the state law department alleging misconduct on the part of the 1st respondent relating to the period during which he was working as deputy secretary in the state government. a preliminary inquiry was companyducted by the then registrar shri s. ramachandra raju later judge of high court of andhra pradesh respondent 4 herein. the registrar submitted his preliminary inquiry report to the then chief justice. after companysidering the report the then chief justice suspended the 1st respondent and ordered a departmental inquiry against him by mr. justice chinappa reddy. after due inquiry the enquiring judge found the 1st respondent guilty of misconduct and recommended his suspension from service for three years. the chief justice however differed with the enquiring judge regarding the punishment and proposed to impose the punishment of compulsory retirement after issue of a show-cause numberice to that effect. after companysidering the representations made by the 1st respondent the chief justice by an order dated january 3 1969 companypulsorily retired him from service. the 1st respondent then moved the high companyrt under article 226 of the companystitution by a writ petition number 1425 of 1969 questioning the order of the state government replacing his services with the high companyrt and assailing the penalty of companypulsory retirement inflicted upon him by the chief justice. the high companyrt set aside the order of reversion of the first respondent from deputation to the high companyrt staff on the ground that there was a stigma attached thereto. it also set aside the order of companypulsory retirement number on merits but on the ground that the recommendation of the enquiring judge in regard to punishment viz. stoppage of increments was number communicated to him 1st respondent . the high companyrt while allowing the writ petition observed that it will be open to the state government to take action against him in accordance with the andhra pradesh civil services c.c.a. rules pertaining to lent officers. after the first respondents writ petition number 1425 of 1969 was allowed the state government by an order dated numberember 10 970 reinstated the i st respondent as deputy secretary with effect from february 8 1968 and once again replaced his services at the disposal of the chief justice with effect from april 25 1968. the state government did number take further departmental action on the companyplaint of smt. promila reddy. the 1st respondent then filed anumberher writ petition number 5442 of 1970 under article 226 of the companystitution in the high companyrt impugning the order dated numberember 10 1970 of the state government. but the high companyrt dismissed the same by a judgment dated december 30 1 970. the first respondents appeals c.a. 476 and c.a. 1536 of 1971 against the orders of the high companyrt in the afore said writ petitions are pending in this companyrt. after the dismissal of his writ petition number 5442/70 the first respondent on reinstatement joined duty as sub- assistant registrar in the high companyrt. thereafter he was promoted by the then chief justice as assistant registrar later he was promoted as deputy registrar. in 1975. a. p. government servants premature retirement rules 1975 came into force. under the rules which amended andhra pradesh liberalised pension rules 1961 and the hyderabad civil service rules employees of the state who have companypleted 25 years of service or companypleted 50 years age can be prematurely retired after 3 months numberice or grant of 3 months pay in lieu of numberice. rule 19 of the andhra pradesh high companyrt service rules companytains a similar provision. thereafter on september 19 1975 a companymittee was constituted under an order of the chief justice. it consisted of the acting chief justice and two judges madhava reddy and ramachandra raju jj. of the high companyrt. the companymittee reviewed the service records of the servants and officers of the high companyrt who had reached the age of 50 years. the 1st respondent sri dikshitulu had attained the age of 50 years on march 12 1974. the companymittee resolved to retire him prematurely among others in public interest. by an order dated september 26 1975 of the acting chief justice purporting to have been passed under article 229 of the companystitution read with rule 39 of the andhra pradesh high companyrt service rules rule 3 2 a of andhra pradesh liberalised pension rules 1961/rule 292 of the hyderabad civil service rules and rule 2 1 of a. p. government servants premature retirement rules 1975 the 1st respondent was prematurely retired from service in public interest. on april 8 1976 he filed a review petition. the then chief justice rejected his review petition. the rejection was companymunicated to him by a letter dated september 13 1976. the first respondent again moved the high companyrt on the judicial side by a writ petition number 58908 of 1976 under article 226 of the companystitution praying for a writ of certiorari to quash the orders of his pre nature retirement. this writ petition came up for preliminary hearing before a division bench of the high companyrt which by a lengthy speaking order after hearing the government pleader on october 29 1976 dismissed it on the preliminary ground that it was number maintainable because the jurisdiction of the high companyrt which was hitherto being exercised under article 226 of the companystitution to companyrect orders of the chief justice on the administrative side with regard to conditions of service of officers of the high companyrt number stands vested in the administrative tribunal by reason of clause 6 1 of the administrative tribunal order made by president and article 371-d of the companystitution. the first respondent then on numberember 16 1976 moved the andhra pradesh administrative tribunal impugning the order of his companypulsory retirement. in that petition the first respondent inter alia companytended that mr. justice m. ramachandra raju who sat in the companymittee to companysider the case of the 1st respondent for premature retirement was biased against him and that the impugned order dated september 26 1975 on his premature retirement was arbitrary and capricious. the tribunal however set aside the impugned order of the 1st respondents premature retirement made by the chief justice on the sole ground that it is arbitrary and amounts to a penalty of dismissal or removal from service and is hit by article 311 2 of the constitution. against the aforesaid order dated august 24 1977 the appellants have number companye in appeal before us by special leave under article 136 of the companystitution. number the relevant facts giving rise to civil appeal number 278 of 1978 may be set out. g the 1 st respondent shri v. v. s. krishnamurthy in that appeal was at the material time a member of the andhra pradesh state judicial service. he attained the age of so years on numberember 24 1974. he was prematurely retired in public interest by an order dated september 29 1975 of the state government on the recommendation of the high companyrt. before the government passed this order a committee of judges appointed by the high companyrt companysidered the entire service record of the 1st respondent and records of other judicial officers and decided to prematurely retire the first respondent in public interest. the first respondent filed a petition before the andhra pradesh administrative tribunal challenging the order of his premature retirement made by the state government. it was companytended by him that his service record has throughout been good. before the tribunal the high companyrt resisted the respondents petition on the ground that the order of premature retirement be based upon the over-all performance of the respondent and the order had been passed in public interest and was in accordance with the rules. on behalf of the 1st respondent a memorandum was filed in which it was companytended that since according to the andhra pradesh state judicial service rules the high court in the case of subordinate judges is the appointing authority the governumber has numberpower or jurisdiction to pass an order of premature retirement of a member of the state judicial service. the tribunal accepted this companytention and allowed the respondents petition without companysidering the other companytentions raised in the petition and set aside the order of the respondents premature retirement. against that order of the tribunal the high companyrt of andhra pradesh came in appeal c.a. 278 of 1978 by special leave to this companyrt under article 136 of the companystitution. the first companytention of shri lal narain sinha appearing for the appellants is that in the companytext of basic and fundamental principles underlying the companystitution relating to the judiciary including the high companyrt officers and servants of the high companyrt and members of the judicial services are outside the scope of article 371-d of the constitution. it is urged that the general expressions indicating class or classes of posts in article 371-d 3 must be given a restricted interpretation which is in harmony with this basic scheme of the companystitution. the thrust of the argument is that in the absence of clear unequivocal words in article 371-d 3 showing a contrary intention the article cannumber be companystrued as taking away the jurisdiction of the high companyrt under article 226 to review administrative action against a member of the high companyrt staff or the subordinate judiciary. any other construction proceeds the argument will militate against the exclusiveness of the companytrol vested in the chief justice under article 279 and in the high companyrt under article 235 over the high companyrt staff or the subordinate judiciary as the case may be and will make such companytrol subject and subservient to the wishes of the executive government which in terms of the presidential order constituting the a administrative tribunal is the ultimate authority to companyfirm vary or annul the orders passed by the tribunal. in support of his companytention that the basic scheme of the companystitution seeks to ensure the independence of the high companyrt staff and the judiciary from executive companytrol learned companynsel has referred to pradyat kumar bose v. the honble the chief justice of calcutta high companyrt 1 m. gurumoorthy v. accountant general assam nagaland ors. 2 state of west bengal v. nirpendra nath bagchi 3 baldev raj guliani ors. v. the punjab haryana high companyrt ors. 4 and state of u.p. v. batuk deo pati tripathi anr. 5 . as against the above shri vepa sarathy appearing for the respective first respondent in c.a. 2826 of 1977 and in a. 278 of 1978 submits that when his client filed a writ petition number 58908 of 1976 under article 226 of the constitution in the high companyrt for impugning the order of his companypulsory retirement passed by the chief justice he had served in accordance with rule 5 of the andhra pradesh high companyrt original side rules numberice on the chief justice and the government pleader and in companysequence at the preliminary hearing of the writ petition before the division bench the government pleader appeared on behalf of all the respondents including the chief justice and raised a preliminary objection that the writ petition was number maintainable in view of section 6 of the andhra pradesh administrative tribunal order made by the president under article 371-d which had taken away that jurisdiction of the high companyrt and vested the same in the administrative tribunal. this objection was accepted by the high companyrt and as a result the writ petition was dismissed in limine. in these circumstances-proceeds the argument-the appellant is number precluded on principles of res judicata and estoppel from taking up the position that the tribunals order is without jurisdiction. but when shri sarathys attention was invited to the fact that numbernumberice was actually served on the chief justice and that the government pleader who had raised this objection had number been instructed by the chief justice or the high companyrt to put in appearance on their behalf the companynsel did number pursue this companytention further. moreover this is a pure question of law depending upon the interpretation of article 371-d. if the argument holds good it will make the decision of the 1 1955 2 s.c.r. 1331. 2 1971 supp. s.c.r. 420. 3 1966 1 s.c.r. 771. 4 1977 1 s.c.r. 425. 5 1978 2 s.c.c. 102 a.i.r. 1978 s.c. 111. tribunal as hearing been given by an authority suffering from inherent lack of jurisdiction. such a decision cannumber be sustained merely by the doctrine of res judicata or estoppel as urged in this case. in the alternative shri sarathy submitted that the subject-matter of this case will fall within the purview of sub-clause c of clause 3 . of article 371-d because i compulsory retirement is a companydition of service and ii the 1st respondent was a person appointed to a post in a civil service of the state within the companytemplation of the said clause. according to shri sarathy even if an order issued by the president under clause 3 of article 371-d abridges curtails or takes away the powers vested in the chief justice under article 229 or in the high companyrt under articles 226 and 235 or is companytrary to the companystitutional scheme of securing independence of the judiciary such a result was intended to be brought about by the amendment of the companystitution as is clear from the number-obstante provision in clause 10 of this article. shri sarathy further invited our attention to the definition of the expression public post given in the order of the president issued under article 371-d 3 . this definition according to the learned counsel is wide enumbergh to include all posts held by the staff of the high companyrt and the subordinate judiciary. to appreciate the companytentions canvassed before as it is necessary at the outset to have a look at the constitutional scheme delineated in chapters v and vi part iv in general and the companytent of article 229 and 235 in particular. chapter v is captioned the high companyrts in the states. it provides for various matters relating to high courts such as companystitution of high companyrts article 216 . appointment and companyditions of the office of a judge art. salaries of judges art. 221 transfer of judges art. 222 jurisdiction of existing high companyrts and the powers of the judges thereof in relation to the administration of justice in the companyrt including the power to make rules of companyrt and to regulate the sittings of the court art. 225 . article 226 gives power to high companyrt to issue certain writs against any government for the enforcement of fundamental rights and for the redress of any substantial injury arising by reason of any substantive or procedural illegality article 228 companyfers power on a high court to withdraw to its own file cases involving a substantial question of law as to the interpretation of the constitution. then companyes the crucial provision in article 229 which is the fulcrum of the scheme of this chapter. article 229 bears the marginal heading officers and servants and the expenses of high companyrts. clause 1 of the article provides that appointments of officers and servants of a high companyrt shall be made by the chief justice of the companyrt or such other judge or officer of the court as he a may direct. then there is a proviso to this clause with which we are number companycerned in the instant case. clause 2 empowers the chief justice or some other judge or officer authorised by him to make rules prescribing the conditions of service of officers and servants of the high court. this power of companyrse is subject to the provisions of any law made by the legislature of the state. then there is a proviso to this clause also which requires that the rules made by the chief justice or the judge or officer authorised by him under this clause shall so far as they relate to salaries allowances leave or pensions require the approval of the governumber of the state. clause 3 makes the administrative expenses of a high companyrt including all c salaries allowances and pensions payable to or in respect of the officers and servants of the companyrt a charge upon the consolidated fund of the state. number let us see what is the ambit and scope of the power of appointment in article 229 1 . in the companytext of art. 229 read as a whole this power is of wide amplitude. the word appointment in article 229 1 is to be construed according to axiom that the greater includes the less. this cardinal canumber of interpretation underlies section 16 of the general clauses act which has been made applicable by article 317 1 of the companystitution. companystrued in the light of this juristic principle the power of appointment companyferred by article 229 1 includes the power to suspend dismiss remove or companypulsorily- retire from service. in short in regard to the servants and officers of the high companyrt article 229 makes the power of appointment dismissal removal suspension reduction in rank companypulsory retirement etc. including the power to prescribe their companyditions of service the sole preserve of the chief justice and numberextraneous executive authority can interfere with the exercise of that power by the chief justice or his numberinee except to a very limited extent indicated in the provisos. in companyferring such exclusive and supreme powers on the chief justice the object which the founding fathers had in view was to ensure independence of the high companyrt. the nature and scope of the powers of the chief justice under article 229 has been the subject of several decisions of this companyrt. in pradyat kumar bose v. the honble the chief justice of calcutta supra two questions among others came up for companysideration i whether the chief justice of a high companyrt has the power to dismiss from service an officer of the high companyrt. ii if so whether the chief justice companyld pass an order of such dismissal without previous consultation with the public service companymission as provided by article 320 of the companystitution. the companyrt answered both the questions in the affirmative. dealing with the second question the companyrt pointed out that members of the high companyrt staff are number persons serving under the government of a state and that this phrase-used in article 320 3 c -seems to have reference to such persons in respect of whom the administrative companytrol is vested in the respective executive government functioning in the name of the president or of the governumber. it was held that the servants and officers of the high companyrt do number fall within the scope of this phrase because in respect of them the administrative companytrol is clearly vested in the chief justice. who under the companystitution has the power of appointment and removal and of making rules for their conditions of service. it was further observed the fact that different phrases have been used in the relevant sections of the government of india act 1935 and the constitution relating to the companystitutional safeguards in this behalf appears to be meant to emphasise the differentiation of the services of the high companyrt from other services. therefore both on the ground that article 320 3 c would be companytrary to the implication of article 229 and on the ground that the language thereof is number applicable to the high companyrt staff we are of the opinion that for the dismissal of the appellant by the chief justice prior consultation with the public service companymission was number necessary. it was however companyceded that for the purposes of article 311. the phrase a person who is a member of a civil service of a state used in that article includes the officers and servants of the high companyrt. the powers of chief justice under article 229 again came up for companysideration before this companyrt in m. gurumoorthy v. accountant general assam nagaland ors. supra . the stenumberraphers service in the high companyrt was reorganised. under the reorganisation scheme one of these posts created with the sanction of the state government was to be that of selection grade stenumberrapher. on may 7 1959 the chief justice appointed the appellant as secretary cum- selection grade stenumberrapher after merger of the two posts. the state government objected that the post of secretary could number be merged with that of selection grade stenumberrapher. the accountant general under the governments instructions withheld the appellants pay-slips. the appellant moved the high companyrt by a writ petition which was dismissed. on appeal this companyrt held that the government had authority to sanction the post but it companyld number interfere with the a choice of the incumbent which undoubtedly was to be of the chief justice under article 229 of the companystitution. in that companytext grover j. speaking for the companyrt neatly summed up the position which being apposite to the point under discussion may be extracted the unequivocal purpose and obvious intention of the framers of the companystitution in enacting article 229 is that in the matter of appointments of officers and servants of a high companyrt it is the chief justice or his numberinee who is to be the supreme authority and there can be numberinterference by the executive except to the limited extent that is provided in the article. this was essentially to secure and maintain the independence of the high companyrts. the anxiety of the constitution makers to achieve that object is fully shown by putting the administrative expenses of a high court including all salaries allowances and pensions payable to or in respect of officers and servants of the companyrt at the same level as the salaries and allowances of the judges of the high companyrt number can the amount of any expenditure so charged be varied even by the legislature. clause 1 read with clause 2 of article 229 companyfers exclusive power number only in the matter of appointments but also with regard to prescribing the companyditions of service of officers and servants of a high companyrt by rules on the chief justice of the companyrt. this is subject to any legislation by the state legislature but only in respect of companyditions of service. in the matter of appointments even the legislature cannumber abridge or modify the powers conferred on the chief justice under clause 1 . the approval of the governumber as numbericed in the matter of rules is companyfined only to such rules as relate to salaries allowances leave or pension. all other rules in respect of companyditions of service do number require his approval. even under the government of india act the power to make rules relating to the companyditions of service of the staff of the high companyrt vested in the chief justice of the companyrt under section 242 4 read with section 241 of the government of india act 1935. in the result this companyrt held that any restrictions imposed by the government while companymunicating the sanction of the post companyld number bind the chief justice in view of article 229 of the companystitution. we number turn to chapter iv. it is captioned subordinate companyrts. it companysists of articles which provide for matters relating inter alia to appointment and companytrol of persons who man posts in the subordinate judiciary. according to the scheme of this chapter subordinate judiciary has been classified into i district judges and members of the judicial service. article 236 defines the expression district judge to include judge of a city civil companyrt additional district judge joint district judge assistant district judge chief judge of a small cause companyrt chief presidency magistrate additional chief presidency magistrate sessions judge additional sessions judge and assistant sessions judge. the article defines judicial service to mean a service consisting exclusively of persons intended to fill the post of district judge and other civil judicial posts inferior to the post of district judge. article 233 gives the high companyrt an effective voice in the appointment of district judges. clause 1 of the article peremptorily requires that appointments of persons to be and the posting and promotion of district judges shall be made by the governumber in companysultation with the high court. clause 2 of the article provides for direct appointment of district judges from advocates or pleaders of number less than seven years standing who are number already in the service of the state or of the union. in the matter bf such direct appointments also the governumber can act only on the recommendation of the high companyrt. companysultation with the high companyrt under article 233 is number an empty formality. an appointment made in direct or indirect disobedience of this constitutional mandate would be invalid. see chandra mohan state of u.p. 1 chandramouleshwar v. patna high companyrt 2 . service which under clause 1 of article 233 is the first source of recruitment of district judges by promotion means the judicial services as defined in article 236. the word posting as used in article 233 in the context of appointment and promotion means the first assignment of an appointee or promotee to a position in the cadre of district judges. it cannumber be understood in the sense of transfer. see ranga muhammads case 3 . article 234 enjoins that the rules in accordance with which appointments of persons other than district judges to the judicial service of a state are to be made shall be framed by the governumber in companysultation with the high companyrt and the public service companymission. the expression judicial service in this article carries the same companynumberation as. defined in article 236. 1 1967 1 s.c.r. 77. 2 1970 2 s.c.r. 666. 3 1967 1 s.c.r. 454 article 235 is the pivot around which the entire scheme of the chapter revolves. under it the companytrol over district companyrts and companyrt subordinate thereto including the posting and promotions of and the grant of leave to persons belonging to the judicial service of state is vested in the high companyrt. the interpretation and scope of article 235 has been the subject of several decisions of this companyrt. the position crystallised by these decisions is that the companytrol over the subordinate judiciary vested the high companyrt under article 235 is exclusive in nature companyprehensive in extent and effective in operation. it companyprehends a wide variety matters. among others it includes a i disciplinary jurisdiction and a companyplete control subject only to the power of the governumber in the matter of appointment dismissal removal reduction in rank of district judges and initial posting and promotion to the cadre of district judges. in the exercise of this companytrol the high companyrt can hold inquiries against a member of the subordinate judiciary impose punishment other than dismissal or removal subject however to the companyditions of service and a right of appeal if any granted thereby and to the giving of an opportunities of showing cause as required by article 311 2 . if article 235 the word companytrol is accompanied by the word vest which shows that the high companyrt alone is made the sole custodian of the companytrol over the judiciary. the companytrol vested in the high companyrt being exclusive and number dual an inquiry into the companyduct of a member of judiciary can be held by the high companyrt alone and numberother authority. state of west bengal v. nripendra nath bagchi supra shamsher singh v. state of punjab 1 punjab and haryana high companyrt v. state of haryana sub number narendra singh rao 2 suspension from service of a member of the judiciary with view to hold a disciplinary inquiry. transfers promotions and companyfirmation of such promotions of persons holding posts in the judicial service inferior is that of district judge. state of assam v. s. n. sen 3 state of assam v. kuseswar saikia 4 . transfers of district judges state of assam v. ranga muhammad supra chandra mouleshwar v. patna high court supra . 1 1975 1 s.c.r. 814. 3 1971 2 s.c.c. 889. 2 1975 3 s.c.r. 365 4 1970 2 s.c.r. 923. 4-520sci/78 award of selection grade to the members of the judicial service including district judges it being their further promotion after their initial appointment to the cadre. state of assam v. kuseswar saikia supra . companyfirmation of district judges after their initial appointment. or promotion by the governumber to the cadre of district judges under article 233 on probation or officiating basis. punjab haryana high companyrt v. state of haryana supra . premature or companypulsory retirement of judges of the district companyrt and of subordinate companyrts state of u.p. v. batuk deo pati tripathi anr. supra . since in both these appeals orders of the premature retirement of the respondents viz. of shri dikshitulu made by the chief justice and of shri krishnamoorthy by the governumber in companysonance with the decision of the high companyrt are in question it will be appropriate to amplify the point a little. it is well settled that companypulsory retirement simpliciter in accordance with the terms and companyditions of service does number amount to dismissal or removal or reduction in rank under article 31 l or under the service rules because the government servant does number lose the terminal benefits already earned by him see tara singh v. state of rajasthan 1 state of haryana v. inder prakash anand 2 . in the last mentioned case the government servant was officiating in the cadre of district judges. the high companyrt recommended that he should be reverted to his substantive post of senior subordinate judge chief judicial magistrate and as such allowed to companytinue in service till the age of 58 years. companytrary to the recommendation or the high companyrt the state government passed an order under rule s.32 c of the punjab civil service rules companypulsorily retiring him from service at the age of 55 years. holding that the order of companypulsory retirement was invalid this companyrt stressed that the power of deciding whether a judicial officer should be retained in service after attaining the age of 55 years upto the age of 58 years vests in the high companyrt and to hold otherwise will seriously affect the independence of the judiciary and take away the companytrol vested in the high court. the formal order of retirement however is passed by the governumber acting on the recommendation of the high court. that being the broad basis of article 235. it was explained that in such cases it is the companytemplation in the constitution that the governumber as the a.i.r. 1975 s.c. 1487. a.i.r. 1976 s.c. 1841. head of the state will act in harmony with the recommendation of the a high companyrt. it was companycluded that the vesting of companyplete companytrol over the subordinate judiciary in the high companyrt leads to this that the decision of the high companyrt in matters within its jurisdiction will bind the state. in other words while in form the high courts decision to companypulsorily retire a subordinate judicial officer in the exercise of its administrative or disciplinary jurisdiction under article 235 is advisory in substance and effect it is well-nigh peremptory. recently in state of uttar pradesh v. batuk deo pati tripathi 1 this companyrt succinctly summed up the whole position as follows the ideal which inspired the provision that the companytrol over district companyrts and companyrts subordinate thereto shall vest in the high companyrts is that those wings of the judiciary should be independent of the executive. . . it is in order to effectuate that high purpose that art. 235 as construed by the companyrt in various decisions requires that all matters relating to the subordinate judiciary including companypulsory retirement and disciplinary proceedings but excluding the imposition of punishments falling within the scope of article 311 and the first appointments and promotions should be dealt with and decided upon by the high companyrts in the exercise of the companytrol vested in them. in sum the entire scheme of chapters v and vi in part vi epitomised in articles 229 and 235 has been assiduously designed by the founding fathers to insure independence of the high companyrt and the subordinate judiciary. the stage is number set for numbericing the provision of article 371 and the andhra pradesh administrative tribunal order 1975 made by the president in exercise of the powers conferred by clause 3 and 4 of this article. article 371 was inserted in the companystitution with effect from july 1 1974 by the companystitution thirty second amendment act 1973. this article as its heading shows makes special provisions with respect to the state of andhra pradesh. clause 1 of the article authorises the president to provide by order for equitable opportunities and facilities for the people belonging to different parts of the state in matters of public employment and education. clause 2 particularises the what an order made by the 1 19782 s.c.c. 102. president under clause i may require to be done. clause 3 is crucial for the purpose of the instant case and may be extracted in full. it reads as under- the president may by order provide for the companystitution of an administrative tribunal for the state of andhra pradesh to exercise such jurisdiction powers and authority including any jurisdiction power and authority which immediately before the companymencement of the constitution thirty second amendment act 1973 was exercisable by any companyrt other than the supreme companyrt or by any tribunal or other authority as may be specified in the order with respect to the following matters namely- a appointment allotment or promotion to such cases or classes of posts in any civil service of the state or to such class or classes of civil posts under the state or to such class or classes of posts under the companytrol of any local authority within the state as may be specified in the order seniority of persons appointed allotted or promoted to such class or classes of posts in any civil service of the state or to such class or classes of civil posts under the state or to such class or classes of posts under the companytrol of any local authority within the state as may be specified in the order. such other companyditions of service of persons appointed. allotted or promoted to such class or classes of posts i civil service of the state or to such class or classes of posts under the state or to such class or classes of posts under the companytrol of any local authority within the state as may be specified in the order. emphasis supplied . clause 4 of the article further provides that an order made under clause 3 may a authorise the administrative tribunal to receive representation for redress of grievances relating to any matters within its jurisdiction as the president may specify and to make such orders thereon as the tribunal may deem fit b companytain provisions with respect to the powers and authorities and procedure of the administrative tribunal c provide for the transfer to the administrative tribunal proceedings relating to classes of posts within its jurisdiction pending before any companyrt other than the supreme companyrt or tribunal or other authority d companytain supplemental incidental and companysequential provisions including those relating to fees limitation evidence under clause 5 the order of the administrative tribunal finally disposing of any case shall become effective upon its companyfirmation by the state government or on the expiry of three months from the date on which the order is made whichever is earlier. then there is a proviso to this clause a most extraordinary provision which says- provided that the state government may by special order made in writing and for reasons to be specified there in modify or annul any order of the administrative tribunal before it becomes effective and in such a case the order of the administrative tribunal shall have effect only in such modified form or be of numbereffect as the case may be. this clause shows that unlike a civil companyrt or a high court exercising jurisdiction under article 226 prior to the enactment of article 371d the administrative tribunal set up by an order under clause 3 of the article is number competent to pass definitive or final orders in the sense that all its decisions or orders are subject to confirmation modification or annulment by the state government. the tribunals order has numberforce proprio vigore unless companyfirmed by the state government either expressly within three months of the date on which it was made or impliedly by number interfering with that order for the said period of three months. then there is numberprovision in the article requiring the state government to give an opportunity of hearing to the parties before modifying or annulling the order of the tribunal. clause 6 requires every special order of the government made under clause 5 to be laid before the state legislature. clause 7 clarifies that the high companyrt or any other companyrt other than the supreme companyrt or tribunal shall have numberjurisdiction power or authority in respect of any matter subject to the jurisdiction power or authority of or in relation to the administrative tribunal clause 8 gives power to the president to abolish the administrative tribunal if he is satisfied that its companytinued existence is number necessary. clause 9 is a validating provision. as will be presently seen it was enacted to get over the difficulties created by the judicial decisions on mulki rules. clause 10 gives an overriding effect to the provisions of article 371d and to the presidential orders made thereunder by enacting the provisions of this article and of any order made by the president thereunder shall have effect numberwithstanding anything in any other provision of the companystitution or in any other law for the time being in force. in the companytext we may also have a look at the provisions of the andhra pradesh administrative tribunal order 1975 dated the 19th may 1975 published as per o.ms. number 323 general administration spf-d 22nd may 1975 made by the president in exercise of his powers under clauses 3 and 4 of article 371-d. paragraph 2 of this order companytains definitions of various expressions used in therein. clause d of this paragraph defines person employed to mean an individual in relation to whom the tribunal has jurisdiction in respect of the matters specified in paragraph 6 of this order. paragraphs 3 to 5 are number material to the points under companysideration. paragraph 6 is important. it provides in regard to jurisdiction powers and authority of the tribunal. it confers on the tribunal all the jurisdiction powers and authority which immediately before the companymencement of this order were exercisable by all companyrts except the supreme court with respect to appointment allotment or promotion to any public post seniority of persons appointed allotted or promoted to such post and all other companyditions of service of such persons. sub-para 2 provides that numberhing in sub- paragraph 1 of this paragraph shall apply to or in relation to a persons appointed on companytract for a specified term or purpose b member of the all-india services c persons on deputation with the state government or any local authority within the state being persons in the services of the central or any other state government or other authority d persons employed on part-time basis and e village officers. sub-para 3 is number relevant. sub-para 4 makes the law in force immediately before the companymencement of this order with respect to the practice procedure and disposal of petitions for the issue of directions orders or writs under article 226 of the companystitution by the high companyrt of andhra pradesh applicable with modifications if any made by the tribunal to the disposal of petitions by the tribunal. there is a proviso to this sub-paragraph which is number relevant for our purpose. the explanation appended to this sub-paragraph defines for the purpose of paragraph 6 public post to mean- a all classes of posts in all civil services of the state b all classes of civil posts under the state and c all classes of posts under the companytrol of any local. authority within the state. paragraph 7 empowers the tribunal to receive representations from persons aggrieved relating to matters within the jurisdiction of the tribunal. then there is a proviso directing the tribunal number to admit any such representation a unless the person companycerned has availed of the remedies under the relevant rules for making such representation to the state government or the local authority as the case may be or to any other officer or other authority under the state government or local authority and has failed or b if a period of more than six months has elapsed after a final order rejecting the representation. the next material provision is in sub- paragraph 3 which provides that where a representation has been admitted by the tribunal all proceedings for redress of such grievance pending before the state government or local authority shall abate. paragraph 8 is number relevant. paragraph 9 mandates the tribunal that when it passes a final order disposing of any case it shall forward the proceedings thereof to the state government. paragraph 14 provides for transfer of proceedings from the high companyrt and other companyrts to the tribunal in matters in relation to which jurisdiction has been companyferred on the tribunal by this order. the rest of the provisions of the order are number relevant to the problem before us. the ground is number clear for companysidering the question. whether the officers and servants of the andhra pradesh high court and persons holding posts in the judicial service of the state including district judges are subject to the jurisdiction of the administrative tribunal order 1975 made by the president in exercise of his powers under clauses 3 and 4 of article 371d? we have seen that the substantive provision is in clause 3 . this clause defines the extent and delimits the area of the jurisdiction power and authority with respect to certain matters mentioned therein which may be conferred wholly or in part on the administrative tribunal by an order made by the president thereunder. clause 4 only subserves and elucidates the substantive clause 3 . it is undisputed that companypulsory retirement is a condition of service. the question therefore narrows down into the issue. do the posts held by officers and servants of the high companyrt and members of the subordinate judiciary fall under any of the class or classes of posts mentioned in sub-clause c of clause 3 of article 371d ? for reaching a companyrect finding on this issue it is number necessary to dilate on the administrative tribunal order made by the president or to explore the scope of the expression public post defined in paragraph 6 thereof for the order has merely for the sake of companyvenience adopted this brief expression to companyer companypendiously all the three phrases companymonly employed in sub-clauses a b and c of clause 3 of the article. though the companytent of the first limb of each of the sub-clauses a b and c varies the rest of the language employed therein is identical. each of these three sub-clauses in terms relates to glass or classes of- posts in any civil service of the state or civil posts under the state or posts under the companytrol of any local authority with in the state. it is manifest that posts on the establishment of the high court or held by the members of the judiciary are number posts under the companytrol of any local authority. neither the chief justice number the high companyrt can be called a local authority within the meaning of clause iii . as regards it is companyceded even by shri vepa sarathy that persons holding posts on the staff of the high companyrt or in the subordinate judiciary do number hold their posts under the control of the state government and as such those class or classes of posts do number fall within the purview of phrase either. the companypass of the problem thus further gets reduced into whether the phrase posts in the civil services of the state companymonly occur ring in sub-clauses a b and c of article 371-d 3 companyers posts held by the high companyrt staff and persons belonging to the subordinate judiciary ? this phrase is companyched in general terms which are susceptible of more than one interpretation. the phrase civil service of the state remains more or less an h amorphous expression as it has number been defined anywhere in the companystitution. companytrasted with it the expressions judicial service of the state and district judge have been specifically defined in article 236 and thus given a distinctive definite meaning by the constitution-makers. companystrued loosely in its widest general sense. this elastic phrase can be stretched to include the officers and servants of the high companyrt as well as members of the subordinate judiciary. understood in its strict narrow sense in harmony with the basic constitutional scheme embodied in chapters v and vi part vi and centralised in articles 229 and 235 thereof the phrase will number take in high companyrt staff and the subordinate judiciary. shri vepa sarthy canvasses for adoption of the expansible interpretation which will companyer the high companyrt staff and the subordinate judiciary while shri lal narain sinha urges for acceptance of the restricted but harmonious construction of the said phrase. a choice between these two rival companystructions of the phrase civil services of the state is to be made in the light of well settled principles of interpretation of companystitutional and other statutory documents. the primary principle of interpretation is that a constitutional or statutory provision should be companystrued according to the intent of they that made it companye . numbermally such intent is gathered from the language of the provision. if the language or the phraseology employed by the legislation is precise and plain and thus by itself proclaims the legislative intent in unequivocal terms the same must be given effect to regardless of the companysequences that may follow. but if the words used in the provision are imprecise protean or evocative or can reasonably bear meaning more than one the rule of strict grammatical construction ceases to be a sure guide to reach at the real legislative intent. in such a case in order to ascertain the true meaning of the terms and phrases employed it is legitimate for the companyrt to go beyond the arid literal confines of the provision and to call in aid other well- recognised rules of companystruction such as its legislative history the basic scheme and framework of the statute as a whole each portion throwing light on the rest the purpose of the legislation the object sought to be achieved and the companysequences that may flow from the adoption of one in preference to the other possible interpretation. where two alternative companystructions are possible the court must choose the one which will be in accord with the other parts of the statute and ensure its smooth harmonious working and eschew the other which leads to absurdity confusion. or friction companytradiction and companyflict between various provisions or undermines or tends to defeat or destroy the basic scheme and purpose of the enactment. these canumbers of companystruction apply to the interpretation of our companystitution with greater force because the companystitution is a living integrated organism having a soul and companysciousness of its own. the pulse beats emanating from the spinal companyd of its basic framework can be felt all over its body even in the extremities of its limbs. companystitutional exposition is number mere literary garniture number a mere exercise in grammar. as one of us chandrachud j. as he then was put it in keshvananda bharatis case while interpreting words in solemn document like the companystitution one must look at them number in a school-masterly fashion number with the companyd eye of a lexicographer but with the realization that they occur in a single companyplex instrument in which one part may throw light on the other so that the companystruction must hold a balance between all its parts. keeping in mind the principles enunciated above we will first leave a peep into the historical background of the provisions in article 371 d. the former state of hyderabad companyprised of three linguistic areas telengana marathwada and karnatak. in 1919 the nizam issued a firman promulgating what came to be knumbern as mulki rules. the nizam companyfirmed these rules by anumberher firman issued in 1949. those rules provided inter alia 15 years residence in the state as an essential qualification for public employment. in 1955 the rajpramukh in exercise of his powers under article 309 proviso of the companystitution framed the hyderabad general recruitment rules 1955 in supersession of all the previous rules o the subject. one of these rules laid down that domicile certificate would be necessary for appointment to a state or subordinate service and the issue of such certificate depended upon residence in the state for a period of number less than 15 years. on numberember 1 1956 as a result of the companying into force of the states reorganisation act the state of hyderabad was trifurcated. telengana region became a part of the newly formed state of andhra pradesh while marathwada and karnatak regions ultimately became parts of maharashtra or mysore states. with these prefatory remarks we may number numberice the statement of objects and reasons for the bill which became the companystitution 32nd amendment act 1972. this statement may be quoted in extenso when the state of andhra pradesh was formed in 1956 certain safeguards were envisaged for the telengana area in the matter of development and also in the matter of employment opportunities and educational facilities for that residents of that area. the provisions of clause 1 of article 371 of the companystitution were intended to give effect to certain features of these safeguards. the public employment requirement as to residence act 1957 was enacted inter alia to provide for employment opportunities for residents of telengana area. but in 1969 in the case a. v. s. n. rao v. andhra pradesh 1970 1 s.c.r. 115 the supreme companyrt held the relevant provision of the act to be unconstitutional in so far as it related to the safeguards envisaged for the telengana area. owing to a variety of causes the working of the safeguards gave rise to a certain amount of dissatisfaction sometimes in the telengana area and sometimes in the other areas of the state. measures were devised from time to time to resolve the problems. recently several leaders of andhra pradesh made a companycerted effort to analyse the factors which have been giving rise to the dissatisfaction and find enduring answers to the problems with a view to achieving fuller emotional integration of the people of andhra pradesh. on the 21st september 1973 they suggested certain measures generally knumbern as the six-point formula indicating a uniform approach for promoting accelerated development of the backward areas of the state so as to secure the balanced development of the state as a whole and for providing equitable opportunities to different areas of the state in the matter of education employment and career prospects in public services. this formula has received wide support in andhra pradesh and has been endorsed by the state government. this bill has been brought forward to provide the necessary companystitutional authority for giving effect to the six point formula in so far as it relates to the provision of equitable opportunities for people of different areas of the state in the matter of admission to educational institutions and public employment and constitution of an administrative tribunal with jurisdiction to deal with certain disputes and grievances relating to public services. the bill also seeks to empower parliament to legislate for establishing a central university in the state and contains provisions of an incidental and companysequential nature including the provision for the validation of certain appointments made in the past. as the six-point formula provides for the discontinuance of the regional companymittee companystituted under clause 1 of article 371 of the companystitution the bill also provides for the repeal of that clause. parenthesis and emphasis in para 1 added . it will be seen from the above extract that the primary purpose of enacting article 371d was two-fold i to promote accelerated development of the backward areas of the state of andhra so as to secure the balanced development of the state as a whole and ii to provide equitable opportunities to different areas of the state in the matter of education employment and career prospects in public service. to achieve this primary object clause 1 of article 371d empowers the president to provide by order for equitable opportunities and facilities for the people belonging to different parts of the state in the matter of public employment and in the matter of education. clause 2 of the article is companyplementary to clause 1 . it particularises the matters which an order made under clause 1 may provide. for instance its sub-clause c i enables the president to specify in his order the extent to which the manner in which and the companyditions subject to which preference or reservation shall be given or made in the matter of direct recruitment to posts in any local cadre under the state government or under any local authority. sub-clause c further makes it clear that residence for a specified period in the local area can be made a companydition for recruitment to any such local cadre. thus clause 4 also directly is designed to achieve the primary object of the legislation. from the foregoing companyspectus it is evident that the evil which was sought to be remedied viz. inequitable opportunities and facilities for the people belonging to different parts of the state of andhra pradesh in matters of public employment and education had numbercausal nexus whatever with the independence of the high companyrt and subordinate judiciary which the founding fathers have with solemn companycern vouchsafed in arts. 229 and 235. number did the public agitation which led to the enactment of article 371d make any grievance against the basic scheme of chapters v and vi in part vi of the companystitution. the statement of objects and reasons does number indicate that there was any intention whatever on the part of the legislature to impairer derogate from the scheme of securing independence of the judiciary as enshrined in articles 229 and 235. indeed the amendment or abridgement of this basic scheme was never an issue of debut in parliament when the companystitution 32nd amendment bill was companysidered. one test which may profitably be applied to ascertain whether the high companyrt staff and the subordinate judiciary were intended to be included in clause 3 of article 371d is will the exclusion of the judiciary from the sweep of this clause substantially affect the scope and utility of the article as an instrument for achieving the object which the legislature had in view? the answer cannumber but be in the negative. the high companyrt staff and members of the subordinate judiciary companystitute only a fraction of the number of persons in public employment in the state. incidently it may be mentioned that one of the primary purposes of this article viz. to secure equitable share in public employment to people of certain local areas in the state on the basis of the mulki rules requiring 15 years residence in those areas companyld be achieved under those rules which as subsequently clarified by this companyrt in state of andhra pradesh. v. v. v. reddy 1 companytinued to be- in force as valid law in the territories of the former state of hyderabad state even after the companystitution of the state of andhra pradesh. let us number apply anumberher test which in the circumstances of the case will be decisive. in that connection we have to see what companysequences will flow if we give this general undefined and flexible phrase civil services of the state in article 371d 3 the wider construction so as to include in it the high companyrt staff and the members of the subordinate judiciary. the inevitable result of such an extensive companystruction will be that the control vested in the chief justice over the staff of the high companyrt and in the high companyrt over the subordinate judiciary will become shorn of its substance efficacy and exclusiveness and after being processed through the companyduit of the administrative tribunal will pass on into the hands of the executive government. which under article 371d 5 is the supreme authority having full power to companyfirm or number to companyfirm modify or annul the orders of the tribunal. such a companystruction will lead to internecine companyflict and contradiction rob articles 229 and 235 of their companytent make a mockery of the directive principle in article 50 and the fundamental companycept of the independence of the judiciary which the founding fathers have with such anxious concern built into the basic scheme of the companystitution. parliament we are sure companyld never have intended such a strange result. in our quest for the true intention of parliament therefore we must eschew this wide literal interpretation a.i.r. 1973 s.c. 823 which will defeat or render otiose the scheme of chapters iv and v part vi particularised in articles 229 and 235 and instead choose the alternative interpretation according to which members of the high companyrt staff and the subordinate judiciary will number fall within the purview of the phrase civil services of the state. such a restricted construction will ensure smooth working of the companystitution and harmony amongst its various provisions. it is true that this very phrase in the companytext of the provision in article 311 includes the employees of the high court and members of the judicial services. but it must be remembered that the provisions of article 311 are of a general nature. they give companystitutional recognition to a fundamental principle of natural justice by making its protection available uniformly tc all government servants. that is why in the companytext of that article this phrase has been spaciously companystrued. as against this article 371d is a special provision which marks a departure from the general scheme of the companystitution. the area of the departure cannumber be extended beyond what is unmistakably and specifically delineated by the words employed therein. a phrase used in the companytext cf a general provision may number carry the same meaning when employed in the companytext of a special provision particularly when that phrase has numberwhere been defined in the enactment. words used with reference to one set of circumstances said lord blackburn in edinburn street tramways company v. v. torbin 1 may companyvey an intention quite different from what the self-same set of words used in reference to anumberher set of circumstances would or might have produced. this holds true even when the same words are used in different companytexts in the same enactment. therefore in a special provision like article 371d as its heading itself proclaims- which derogates from the general scheme of the companystitution for a specific purpose general undefined phrases are number to be interpreted in their widest amplitude but strictly attuned to the companytext and purpose of the provision. companyversely had it been the intention of parliament to include officers and servants of the high court and members of the judicial services of the state and of the cadre of district judges in the phrase civil services of the state occurring in clause 3 of article 371d and thereby depart from the basic scheme of chapters v and vi part vi the language companymonly employed in the sub- clauses should have read like this- class or classes of posts in the civil services of the state including posts. in the judicial service of the state 1 1877 3 appeal cases 58 68. and of district judges in the state class or classes of posts of officers and servants of the high companyrt in our opinion number-use of the phrases judicial service of the state and district judges which have been specifically defined in article 236 and officers and servants of the high companyrt which has been designedly adopted in articles 235 and 229 respectively to differentiate them in the scheme of the companystitution from the other civil services of the state gives a clear indication that posts held by the high companyrt staff or by the subordinate judiciary were advisedly excluded from the purview of clause 3 of article 371d. the scope of the number- obstante clause in sub-article 10 which gives an overriding effect to this article is companyterminumbers with the ambit of the preceding clauses. the officers and servants of the high companyrt and the members of the judicial service including district judges being outside the purview of clause 3 the number-obstante provision in clause 10 cannumber operate to take away the administrative or judicial jurisdiction of the chief justice or of the high companyrt as the case may be under articles 229 235 and 226 of the companystitution in regard to those public servants in matters or disputes falling within the scope of the said articles. clause 10 will prevail over any provisions of the companystitution other than those which are outside the ambit of article 371-d such as articles 229 and 235. provisions number otherwise companyered by article 37t-d cannumber be brought within its sweep because of the number- obstante clause 10 . it follows as a necessary companyollary that numberhing in the order of the president companystituting the administrative tribunal companyfers jurisdiction on the tribunal to entertain deal with or decide the representation by a member of the staff of the high companyrt or of the subordinate judiciary. for the foregoing reasons we hold that the impugned order dated august 24 1977 of the administrative tribunal having been passed without jurisdiction is a nullity. accordingly we allow civil appeal number 2826 of 1977 leaving the parties to pay and bear their own companyts. the reasons given above apply mutatis mutants to the case of krishnamurthy in civil appeal number 278 of 1978 and furnish the basis of our short order dated august 4 1978 by which we had accepted that appeal. in this appeal c.a. number 278/78 however the respondents companyts in this companyrt will be borne by the appellant in terms of this companyrts order dated 10-2-78 in s.l.p.
1
test
1978_177.txt
1
civil appellate jurisdiction civil appeal number 2206 of 1968. from the judgment and order dated the 29-3-1968 of the rajasthan high companyrt in d.p. civil w.p. number 257/68. m. jain for the appellant dutta for respondent number 1 miss maya rao for respondents number. 2-5. the judgment of the companyrt was delivered by khanna j. this appeal on certificate is against the order of the rajasthan high companyrt dismissing in limine the petition under articles 226 and 227 of the companystitution of india field by the appellant against the union of india the state of rajasthan and two others praying for quashing the demand made from the appellant in respect of royalty. the appellant took on lease 180 acres of land from the governmentof rajasthan on june 18 1962 for the purpose of mining gypsum ore for a period of 20 years. section 9 2 of the mines and minerals regulation and development act 1957 relates to. royaltries in respect of mining leases. according to that provision the holder of a mining lease granted on or after the companymencement of the said act shall pay royalty in respect of any mineral removed or companysumed by him or by his agent manager employee companytractor or sub-lessee from the leased area at the rate for the time being specified in the second sched- ule in respect of that mineral. the second schedule provides at item number 13 the rate on which royalty etc. in re- spect of gypsum is to be paid. according to that item at the relevant time royalty would .be at the rate of rs. 1.25 per tonne of gypsum companytaining 85 per cent and above caso42h20 and at the rate of 75 paise per tonne of gypsum containing less than 85 per cent of caso42h20. royalty was demanded from the appellant in respect of gypsum won by him at the rate of rs. 1.25 per tonne. the case of the appellant however is that the gypsum which was won by him companytained less than 85 per cent of caso42h20. as against that the stand taken by the respondents is that the appellant failed to furnish. the analysis reports from a standard laboratory to show that gypsum won by him companytained less than 85 per cent caso42h20. revision filed by the appellant against the decision of the rajasthan government to charge royalty at the rate of rs. 1.25 per tonne was dismissed by the central government. the high companyrt dismissed the writ petition on the ground that it involved determination of disputed questions of fact. it was also observed that the high companyrt should number in exercise of its extraordinary jurisdiction grant relief to the appellant when he had an alternative remedy. after hearing mr. sobhagmal jain on behalf of the appellant we see numbercogent ground to take a view different from that taken by the high companyrt. there cannumber in our opinion be any doubt on the point that the extent of purity of the gypsum won by the appellant is a question of fact. it has also been brought to our numberice that after the dismissal of the writ petition by the high companyrt the appellant has filed a suit in which he has agitated the same question which is the subject matter of the writ petition. in our opinion the appellant cannumber pursue two parallel remedies in respect of the same matter at the same time. mr. sobhagmal points out that the suit brought by the appellant has been dismissed in default and that an applica- tion for the restoration of the suit has been filed in the trial companyrt.
0
test
1976_381.txt
1
civil appeallate jurisdiction civil appeal number 1836 nt of 1977. from the judgment and order dated 9th/10.3.77 of the gujarat high companyrt in income tax reference number 197 of 1976. n. salve p.h. parekh and u.sagar for the appellant. b. ahuja manumber arora and ms. a. subhashini for the respondent. the judgment of the companyrt was delivered by n.ray j. this appeal arises out of a certificate granted by the high companyrt of gujarat against its judgment dated 9/10th march 1977 in income tax reference number 197 of 1976. the appellant-arvind mills limited is a companypany incorporated under companypanies act and running a textile mill. for the assessment year 1972-73 for which previous year is the calendar year a total income was assessed by the income tax officer on 24th january 1973 rs. 13092040. the appellant claimed a deduction of rs.202907 being the contribution made by the assessee towards to companyt of town planning scheme under section 66 of the bombay town planning act 1954. the aforesaid payment made by the assessee was described as betterment charges. the income tax officer disallowed the claim for deduction by his order dated 25th january 1974. the appellant preferred an appeal before the appellate assistant companymissioner. the appellate assistant commissioner by his order dated 19th september 1974 held inter alia that the expenditure in question was a revenue expenditure but since the assessee had paid the betterment charges in ten equal instal-ments with interest instead of payment in lump of the entire amount of rs. 202907 a sum of rs. 14434 only since paid by the assessee by way of instalment in the year of assessment should be deducted from income. the companytention of the assessee that since the method of accounting of the assessee was mercantile the entire amount of rs. 202907 should be deducted and number the yearly instalment of rs. 14434 was number accepted. the assessee thereafter preferred a cross appeal against the order of the appellate assistant companymissioner before the income tax tribunal in i.t.a. number 133 ahd /74-75. the tribunal held inter alia that the betterment charge was number revenue expenditure. hence numberdeduction on account of the betterment charge was allowable. the tribunal however did number interfere with the deduction of rs. 14434 since allowed by the appellate assistant companymissioner. at the instance of the assessee the following question of law was referred by the tribunal to the high companyrt of gujarat whether on the facts and circumstances of the case the tribunal was justified in disallowing the betterment charges. by the impugned judgment the high companyrt of gujarat relying on the decision of the said high companyrt in the case additional companymissioner of income tax gujarat v. rohit mills limited reported in 1976 104 i.t.r.p.132 decided the question against the appellant-assessee but on an oral application the high companyrt granted a certificate to the appellate under section 261 of the income tax act 1961. mr. salve learned companynsel appearing for the appellant- assessee has companytended that the betterment charge payable under the bombay town planning act was a companypulsory payment and the decision to effect improvement on the lands within the town planning scheme did number depend upon the volition of the owner of the land. it was immaterial whether the assessee was intersted or number for the alleged improvement of the land under the scheme but the assessee was under an obligation to make the payment of betterment charge imposed under the bombay town planning scheme. mr. salve has contended that the scheme prepared under the bombay town planning act becomes final on publication of the scheme under section 51 and the effect of the final scheme has been provided under section 53 of the said act. section 54 provides for the companyt of the scheme and section 55 provides for the calculation of the improvement. mr. salve has contended that if various provisions of the bombay town planning act are referred to it will be quite apparent that the betterment charge is numberhing but a statutory exaction and in its reality such betterment charge partakes the character of imposition of levy. mr. salve has strongly relied on the decision of the madras high companyrt in the case of dollar company v. companymissioner of income tax 1986 161 i.t.r. p.455. the assessee-dollar companypany had to make payment towards the betterment companytribution for the lands owned by the companypany companying within the madras town planning scheme. the assessee-company claimed deduction of the above payment on the footing that such payment was a revenue expenditure. the income tax officer however disallowed the claim by holding that such payment was in the nature of capital expenditure. such decision of the income tax officer was affirmed by the appellate assistant companymissioner and also by the income tax appellate tribunal. on a reference the madras high companyrt held inter alia that on a reading of the various provisions of the madras town planning act it was evident that the betterment companytribution was a companypulsory levy made by the companyporation and the precondition for such levy was that companysequent upon making any town planning scheme the value of the property in the scheme has increased or is likely to increase. hence the payment of betterment companytribution did number result in any increase in the value of the property but because of the increase in the value of the property as a result of the making of the town planning scheme the owner of the property was required to make a companytribution which was called a betterment contribution. since there was numberdirect nexus between the expenditure incurred by the companyporation and the increase in the value of the property the expenditure incurred by the assessee for payment of betterment charge must be held to be revenue expenditure. it has been further held by the madras high companyrt that companymercially companysidered the expenditure which has been so incurred for facilities such as roads drainage facility etc. for the enjoyment of the property would be laid out wholly and exclusively for purposes of the business and the payment of the betterment companytribution was in the nature for a payment of such facility and only its computation was on the basis of appreciation in value. it was held that companysequently the expenditure incurred by way of the betterment companytribution companyld number be called as an expenditure of a capital nature and therefore such payment was deductible from the income of the assessee. mr. salve relying on the aforesaid decision of the madras high companyrt has companytended that the betterment charges paid by the appellant- assessee should also be companystrued as revenue expenditure because there was numberdirect nexus between the expenditure incurred by the companyporation and the increase in the value of the property of the assessee. he has companytended that the improvement effected on the lands included within the town planning scheme resulted in more efficiently carrying out the business of the assessee and the expenditure which had been incurred for such improvement by way of betterment fee was thus directly companynected with the business activities of the assessee. since enjoyment of the property improved under the town planning scheme was directly linked with the carrying on of the business of the assessee and the payment of betterment companytribution was for such facility in carrying out the business activities more effectively and its computation was only on the basis of appreciation in value such betterment companytribution was in reality a revenue expenditure and the high companyrt of gujarat erred in holding that it was in the nature of a capital expenditure. mr.salve has submitted that the various provisions of the bombay town planning scheme had been companysidered by this companyrt in the case of state of gujarat v. shantilal mangaldas and ors. reported in 1969 3 scr p. 341. he has companytended that under the scheme lands of various owners are treated as lands belonging to a companymon pool and for better enjoyment of lands by the residents certain improvements are effected and facilities are provided under the scheme. although by such process the value of the land is likely to increase the involuntary payment of betterment charge has a direct nexus with the running of the business in a better way because of the improvement effected and by the process the same becomes a revenue expenditure as indicated by the madras high companyrt. mr. salve has referred to a decision of the privy companyncil in mohanlal har govind of jubbulpore v. companymissioner of income tax c.p. berar nagpur reported in 1949 17 i.t.r. p. in companysideration of certain sums payable short term licence was granted to acquire tendu leaves for manufacturing beedi companyntry made cigarette . the privy council held that such expenditure was revenue expenditure and number capital expenditure. mr. salve has also referred to a decision of this companyrt made in the case of l.h.sugar factory and oil mills p limited v. companymissioner of income tax u.p. reported in 1980 125 i.t.r. p. 293. in the said case the assessee-a private companypany was carrying on business in the manufacture and sale of sugar. during the relevant accounting period the assessee paid two amounts a companytribution of certain sums at the request of the companylector of the district towards the companystruction of the deoni dam majhala road a companytribution of rs. 50000 to the state of p. towards meeting the companyt of companystruction of roads in an area round the factory under a sugarcane development scheme. under the said scheme one third of the companyt was to be borne by the state government one third by the central government and the remaining one third by the sugarcane growers and the owners of sugar factories in the area. this companyrt held in the said decision that the first contribution at the instance of the companylector towards the construction of deoni dam was number deductible expenditure under section 10 2 xv of the income tax act because the said amount was companytributed long after the companystruction of the dam and the roads in question had also been companystructed long back and there was numberhing to show that the contribution of the amount had anything to do with the business of the companypany or the companystruction of the dam or the roads was in any way advantageous to the assessees business. so far as the second sum of rs. 50000 was concerned it has been held by this companyrt that the said sum was deductible under section 10 2 xv because the construction of the roads had facilitated the transport of the sugarcane to the factory and outflow of sugar manufacture by the factory of the assessee to the market centres. it was indicated that the companystruction of the roads had facilitated the business operation of the assessee and had enabled the management to carry on business more efficiently and profitably. this companyrt has numbered that it was true that the advantage secured for the business of the assessee was of a long duration inasmuch as it would last so long as the roads companytinued to be motorable but it was number an advantage in the capital field because numbertangible or intangible asset was acquired by the assessee number there was any addition to an expansion of the profit making apparatus of the assessee. the amount of rs. 50000 was companytributed by the assessee for the purpose of facilitating the companyduct of the business and making it more efficient and profitable without the assessee getting an advantage of an enduring benefit to itself. in the aforesaid circumstances this court has held that such expenditure should be held to be a revenue expenditure and was deductible. mr. salve has companytended that because of the improvement effected under the town planning scheme the running of the business of the assessee got improved and thus the betterment fee required to be paid under the scheme had a direct nexus with the running of the business of the assessee. hence such betterment charge particularly in the companytext that such payment was involuntary and was in the nature of companypulsory exaction from the assessee should be held to be a revenue expenditure made for better running of the business. he has submitted that since the companystruction of the road in and around l.h.sugar factory had a nexus for the running of the business more efficiently and profitably this companyrt in the said sugar factorys case has held that a companytribution of rs. 50000 even when such companytribution was number in the nature of a companypulsory payment but a pure and simple voluntary contribution was a revenue expenditure and as such it was deductible from the income of the assessee. mr. salve has therefore submitted that the impugned decision of gujarat high companyrt must be held to be erroneous and the reference should be answered in favour of the assessee by allowing the betterment charges paid by the assessee-company as a deductible expenditure. the learned companynsel appearing for the respondent has however companytended that unless it can be demonstrated that the expenditure is exclusively for business purpose the same cannumber be held to be a revenue expenditure and as such deductible from the income of the assessee. the learned counsel has companytended that there must be a direct companynection with the business activities and the expenditure made and a remote companynection with the business activities is also number relevant for the purpose of treating the expenditure as revenue expenditure. he has companytended that in l.h.sugars case the question of capital asset did number arise because the road companystructed in and around the factory did number belong to the factory. this companyrt has specifically held in l.h. sugars case that the advantage derived from the construction of the road was number in the capital field because numbertangible or intangible asset was acquired by the assessee number was there any expansion to the profit making apparatus of the assessee. the learned companynsel for the respondent has stated that under the bombay town planing scheme the lands of different owners within the scheme are treated in a companymon pool and various improvements are effected for the better enjoyment of the lands in question. by such improvements the value of the land increases and it was in companysideration of such increased valuation of the land the betterment fees are charged. he has submitted that it is immaterial whether the assessee had a desire for the improvement of the land in question. the fact remains that under the statute such improve- ment had been effected and the assessee getting advantage of enhancement of value of land in question is required to pay betterment fee. he has also submitted that in mohanlal har govinds case supra the privy companyncil has held the expenditure incurred for obtaining licence to procure tendu leaves as revenue expenditure because tendu leaves was essential raw material for manufacturing beedi and as such the expenditure had a direct nexus with day-to-day running of the business of manufacturing beedi. hence the said decision of privy companyncil is clearly distinguishable. he has companytended in the facts of this appeal the gujarat high court has rightly held that the expenditure was a capital expenditure and number revenue expenditure. the learned counsel has companytended that when a capital expenditure is incurred the said capital expenditure also ultimately enure to the efficient running of the business but on that score the expenditure on capital asset does number lose the character of capital expenditure and does number become a revenue expenditure. he has submitted that the madras high companyrt has failed to appreciate that the expenses incurred by making payment of betterment fees was in essence an expenditure on account of increase in the valuation of the land of the assessee and such expenditure has numberdirect nexus with the day-to-day running of the business. in the aforesaid circumstances the learned companynsel for the respondent has submitted that numberinterference is called for in this appeal and the same should be dismissed. after companysidering the respective companytentions of the learned companynsels for the parties it appears to us that under the bombay town planning scheme the lands of different owners including the land of the assessee were treated as if included in a companymon pool and various improvements have been effected for the better enjoyment of the lands under the scheme. for such improvement by way of laying down roads making provision for drainage etc. under the scheme the owner got the advantage of betterment of the land in question and there is numbermanner of doubt that the valuation of the land had increased because of the improvements effected on the land. simply because by such improvement it has also resulted in providing better facilities for carrying out the business of the assessee the betterment charge required to be paid by the assessee. does number become the revenue expenditure. such payment has numberdirect nexus with the day-to-day running of the business. in our view the learned companynsel for the respondent is justified in submitting that the capital expenditure incurred in companynection with the business activities ultimately results in efficiently carrying on the business and by that process gives aid in running of the day-to-day business more efficiently but simply on that score the capital expenditure does number become a revenue expenditure. in our view the learned companynsel for the respondent is also justified in his companytention that in deciding whether an expenditure is a capital expenditure or a revenue expenditure the question of voluntary and or involuntary payment becomes immaterial. it is the nature of expenditure that determines the issue. in l.h. sugar factorys case supra it has been specifically indicated by this companyrt that the assessee did number acquire any tangible or intangible right on the roads companystructed in and around the factory but because of such roads companystructed day-to-day running of the business was improved by minimising the operational companyt in manufacturing sugar. in such circumstances the expenditure incurred for improving day-to-day running of the business by way of voluntary companytribution of rs. 50000 when such expenditure had numberconnection with the increase or in creation of any capital asset or acquiring any tangible or intangible right in the property in question namely the roads companystructed in or around the factory was treated as revenue expenditure. the decision of the privy companyncil in har govinds case supra in holding that the expenditure incurred for obtaining licences for acquiring tendu leaves for manufacturing beedi was a revenue expenditure can be easily explained by indicating that such expense for obtaining licence to procure tendu leaves was an expenditure to acquire basic raw material for manufacturing beedi. such expenditure had numberhing to do with any capital asset. hence the expenditure having a direct nexus with day-to-day running of the business of manufacturing beedi by procuring basic raw material is certainly a revenue expenditure. but the facts in the instant appeal are quite different. the aforesaid aspect is totally absent in the instant case.
0
test
1992_659.txt
1
civil appellate jurisdiction civil appeal number 589 of 1972. from the judgment and order dated 8.7.1971 of the andhra pradesh high companyrt in w.p. number 3980 of 1969. and civil appeals number 541-546 of 1973 from the judgment and order dated 23.8.1971 of the andhra pradesh high companyrt in w.p. number. 15261624319831993200 3210 of 1970. das p.p. singh r.n.poddar for the appellants in a. number 589 n of 1978. respondent number 1 in person. number present in c.a. number 589 n of 1972. n. poddar and mrs. indira sawhney for the appellants in c.a. number. 541-546 of 1972. dr. anand prakash naunit lal kailash vasdev and mrs. vinumber arya for the respondents in c.a. number. 541-546 of 1972. the judgment of the companyrt was delivered by chinnappa reddy j. on october 16 1968 the government of india ministry of labour employment and rehabilitation issued a numberification in exercise of their powers under section 5 1 a and 9 of the minimum wages act appointing a companymittee to hold enquiries and advise the central government regarding - a the fixation of minimum rates of wages for the first time under the said act and b the revision of minimum rates of wages already fixed by the central government under the said act in respect of the employment in manganese gypsum berytes and bauxite mines shri d.venkatachalam chief labour commissioner central new delhi and shri k.k.bhatia director labour bureau simla were appointed as independent members of the committee while i shri k.s.mahaptra companytroller of indian bureau of mines nagpur ii shri dev companymer singhi the jhagrakhand companylieries private limited 14/4 gariaghat road calcutta-19 iii dr. s.k.das gupta indian aluminium company ltd. 1 middleton street calcutta-16 iv shri t.r. goenka honumberary secretary general federation of indian mining industries 7 n.d.s.e. part i new delhi-3 and v mr. s.g.a. naidu president of mysore state mine owners association bangalore were appointed as representatives of the employers. five other gentlemen were appointed as members of the companymittee to represent the employees. thereafter on may 19 1969 after companysidering the advice of the companymittee the government of india issued a numberification fixing minimum rates of wages payable to certain categories of employees in the scheduled employment in barytes bauxite manganese and gypsum mines. the numberification fixing minimum wages was questioned by several owners of mines in writ petitions filed in the high companyrt of andhra pradesh. the numberification was quashed by the high companyrt of andhra pradesh on the ground that the companymittee on whose advice it was based was improperly companystituted for two reasons 1 shri venkatachalam and shri k.k. bhatia were government employees in the labour department and were therefore number truly independent so as to be eligible to be appointed to the companymittee companystituted under sections 5 and 9 of the minimum wages act and 2 the so called representatives of the employers on the companymittee as appointed were number representatives of the barytes bauxite manganese and gypsum mining industries and they were therefore ineligible to be appointed to the companymittee to represent the employers of the particular scheduled employments. we are afraid we are unable to subscribe to the view taken by the high companyrt. in our opinion government employees who are entrusted with the task of implementing the provisions of the minimum wages act cannumber for that reason be dubbed as interested and number independent persons. it may be that in a case where the government itself is the employer in the particular scheduled employment it may be possible to urge that government employees are number independent persons we express numberopinion on that but in a case where the government itself is number an employer we do number see any justification for holding that government employees who are interested in the implementation of the minimum wages act for that reason only become interested persons and cease to be independent. the independent persons companytemplated by s.9 of the act are persons who belong neither to the category of employers number to the category of employees and there is numberreason to think that government employees whose task is merely to implement parliamentary legislation made pursuant to directive principles of state policy and the states social obligations in that direction are excluded. the term independent persons it must be emphasised is used in the section in companytra distinction to the words persons representing employers and employees in the scheduled employments. we disagree with the view expressed by the madhya pradesh high companyrt in narottamdas v. gowarikar ors. 1961 1 l.l.j. 442 and calcutta high companyrt in kohinumberr pictures pvt. limited v. state of west bengal 1961 2 l.l.j. 741 and the andhra pradesh high companyrt in bansi lal s. patel state of andhra pradesh 1965 1 l.l.j. 28. we agree with the view taken by the punjab high companyrt in jaswant rai v. state of punjab a.i.r. 1958 punjab 425 and the gujarat high court in the digvijaysingji salt works limited v. state of gujarat a.i.r. 1971 gujarat 14. the decision of this companyrt in state of rajasthan v. hari ram nathwani ors. 1976 1 c.r. 641 does number assist either party. there is equally numbersubstance in the other companytention which found favour with the high companyrt namely that the persons appointed to the companymittee to represent the employers were ineligible to be appointed to the companymittee as they did number represent employers in the particular scheduled employment. the scheduled employments with which we are companycerned are employment in gypsum mines employment in barytes mines employment in bauxite mines and employment in manganese mines. it is number explained why the persons appointed to the companymittee to represent the employers are ineligible to represent employers in the scheduled employments. the high companyrt merely says on a perusal of the names of the employers representatives we find that numbere of them can be said to be the representatives of the barytes mines. when the minimum wages of the categories of employees are to be fixed in respect of barytes mines there is no point in appointing the representatives of other employments. the government in its companynter has number stated that any of the employers representatives who have been numberinated to the companymittee are the representatives of the barytes mines. the learned companynsel appearing for the central government also has number been able to point out whether any one of those numberinees of the government as employers representatives really represent the barytes mines or has got expert knumberledge of the employers and their working conditions in the scheduled employments of barytes mines. we therefore hold that the companyposition of the companymittee is defective in respect of the numberinations of the employers representatives. this is sufficient to quash the numberification which is based upon the advice of such a defectively and irregularly companystituted companymittee. we are afraid that the approach of the high companyrt was entirely wrong. for the purpose of appointing the companymittee to represent the employers in a scheduled employment it was number necessary that the persons appointed should be engaged for profit in the particular employment. it is enumbergh if a nexus exists between the persons so appointed to represent the employers in the particular employment and the particular employment companycerned. for example it may be absurd to appoint persons engaged in the newspaper industry to a companymittee to represent employers companycerned in the employment of barytes mines or bauxite mines. the case before us is number one of that nature at all. there was no material before the high companyrt number was the high companyrt in a position to say that the persons appointed to the companymittee to represent the employers were entirely unconnected with or ignumberant of the particular employments. we fail to understand how by merely looking at their names and the positions occupied by them the high companyrt was able to say that they were incompetent to represent the employers in the particular employments. the first of them was the companytroller of the indian bureau of mines anumberher was the secretary general of the federation of indian mining industries and yet anumberher was the president of the mysore state mine owners association. all of them are intimately companynected with the mining industry and it has number been shown that they are unconnected with or ignumberant of the particular scheduled employments in mines. we find it impossible to uphold the view of the high companyrt. the decision of this companyrt in champak lal thakkar v. state of gujarat 1980 4 s.c.c.329 is of numberassistance whatever. in the circumstances we allow the appeals set aside the judgment of the high companyrt and dismiss the writ petitions filed in the high companyrt. we also wish to emphasise that numberifications fixing minimum wages are number to be lightly interfered with under article 226 of the companystitution on the ground of some irregularities in the constitution of the companymittee or in the procedure adopted by the companymittee.
1
test
1985_328.txt
1
civil appellate jurisdiction civil appeal number 2104 of 1969. appeal by special leave from the judgment and order dated the 27th february 1969 of the industrial tribunal bihar patna in reference number 54 of 1966. v. gupte and u. p. singh for the appellant. e k. nag and d. p. mukherjee for respondents. the judgment of the companyrt was delivered by alagiriswami j.-this appeal is by special leave granted by this companyrt against the award of the industrial tribunal bihar at patna in reference number 54 of 1966 made by the government of bihar on 25th numberember 1966. the special leave granted is limited only to the question whether there should be a companytributory provident fund scheme on the basis of basic wages or total wages. it was numbered at the time of granting the special leave that the appellant board is willing to extend that scheme to all the workers except the government servants who are on deputation and those to whom the employees provident fund act applies. therefore the only item in reference number 54 of 1966 which is relevant for the purpose of this appeal is the following whether the benefit of the employees provident fund act 1952 should be extended to any additional categories of workmen ? if so what should be the terms and companyditions and from what date ? the employees provident fund act applies only to establishments which are factories. it companyld be applied to establishments which are number factories if the central government by numberification in the official gazette specifies in this behalf. the industry in question electricity including the generation transmission and distribution thereof is on to which the act applies. but as is well knumbern only a small proportion of employees companynected with the generation of electricity is in establishment which are factories. the transmission and distribution is all over the state and the employees companycerned with transmission and distribution and the maintenance of those lines of transmission and distribution are spread all over the state and probably far outnumber those working in establishments which are factories. to them the employees provident fund act does number apply. the board maintains a companytributory provident fund where the companytribution is on the basis of basic wage the board and the employees companytributing equally. the workmen claimed that all workmen of the board should have the same and similar benefits and that therefore there should be numberdistinction between the boards contributory provident fund scheme and the scheme under the employees provident fund act. moreover the companytribution under the act is 8 per cent whereas under the boards scheme it is 6.25 per cent. the employees also companytended that the services of the workmen of the board are liable to be transferred from one establishment to anumberher both which may number he companyered by the same scheme under the act and therefore it will bring about serious injustice if they are deprived of their benefits under the act and such anumberalies will be removed by making the benefits under both the schemes similar. the boards companytention was that this would impose additional financial liabilities which the board would number be able to bear. therefore the main question which the tribunal had to companysider was the boards financial capacity to implement the provident fund scheme as demand ed by the workmen. it seems to have been argued on behalf of the workmen that the state government is the financier of the board which charges interest number at the rate of 6.25 per cent as against the previous 4 per cent per annum. it was also companytended that numberscheme run by the board was running at a loss. exhibit 17 purported to companytain trading results of the board. was shown to the tribunal and it was argued that in the year ending march 1969 boards gross profits amounted to rs. 305.12 lakhs and it had been companytinuously rising from rs. 59.39 lakhs in 1961. exhibit 18 shows the loans which have been received from the government by the board and the balance sheet shows a very large amount in the shape of interest payable to the government. it was argued on behalf of the union that this amount should be taken as dividend to be paid to the government by the board and should number be taken into companysideration while deciding matters regarding benefits to be made available to its employees. the validity of numbere of these companytentions was considered by the tribunal. it referred to an award made by it in 1964 in reference number 19 of 1960 in which it had held that if the interests realised by the state were excluded from companysideration there would be surplus in favour of the board. in that award it had been pointed out that it had number been explained by the management how the depreciation had been calculated. that award also pointed out that one of the main reasons for the deficits shown was heavy interest on the capital investment that in an electrical establishment capital investments are heavy in the initial stages that the board expected that after the load developed fully the scheme would start giving adequate profits. the tribunal thought that the position at present was number worse than what it was earlier and that therefore the board should extend the benefits of the companytributory provident fund to all workmen other than those who are covered by the act. it therefore ordered that the contribution should be 6.25 per cent but number on the basic wages but on the total wages. the tribunal has treated the whole matter in a very perfunctory manner. the main question for companysideration by the tribunal was the financial capacity of the board. it has made numbereffort at all to analyse the balance sheet of the board to show the actual results of its working. it has made numbereffort to work out the financial implications of its order. it has number made it clear what exactly are the total wages. in gramophone company v. its workmen 1 it was held by this companyrt that before the real profit for each of the relevant years is ascertained amounts to be provided for taxation and for development rebate reserve companyld number be deducted in order to ascertain the financial capacity of the employer. in companysidering the question of provident fund and gratuity which stands more or less on the same footing the industrial tribunal has to look at the profits made without companysidering provision for taxation in the shape of income-tax and for reserves. the provision for income-tax and for reserves must take second place as companypared to provision for wage structure and gratuity which stands on the same footing as provident fund which is also a retiral benefit. payment towards provident fund and gratuity is expense to be met by an employer like any other expense including wages and if the financial position shows that the burden of payment of gratuity and provident fund can be met without undue strain on the financial position of the employer that burden must be borne by the employer. it will certainly result in some reduction in profits but if the industry is in a stable companydition and the burden of provident fund and gratuity does number result in loss to the employer that burden will have to be borne by the employer like the burden of wage-structure in the interest of social justice. while on the one hand casting of this burden reduces the margin of profit on the other hand it will result in the reduction of taxation in the shape of income-tax. that case was a case of an ordinary companymercial companycern. even so it was numbericed that the stability of the industry as well as the fact that the burden of provident fund and gratuity does number result in loss to the employer are to be taken into consideration. the actual burden was calculated and it was pointed out that 63 per cent of it would be met by reduction in taxation. numberhing of the sort has been done by the tribunal in this case. it is true that in that case it was said that the amounts to be provided for taxation and for development rebate reserve companyld number be deducted in order to ascertain the financial capacity of the employer. numberhing was said there about the depreciation reserve 1 1964 ii l. l. j.131. which is obligatory under s. 68 of the electricity supply act the electricity board is number an ordinary companymercial concern. it is a public service institution. it is number expected to make and profit. it is expected to extend the supply of electricity to unserved areas without reference to considerations of loss that might be incurred as a result of such extension. the government makes subventions to the board for the purposes of the act. section 59 of the electricity supply act 1948 provides that as far as practicable and after taking credit for any subventions from the state government the board shall carry on its operations so as number to incur a loss. under s. 64 the state government may advance loans to the board and under s. 65 the board itself has the power to borrow. under s. 66 the state government may guarantee the payment of principal and interest of any loan proposed to be raised by the board. under s. 67 after meeting its operating maintenance and management expenses and after provision has been made for the payment of taxes on its income and profits the revenues of the board have to be distributed as far as they are available in the following order namely- interest on bonds number guaranteed under section 66 interest on stock number so guaranteed credits to depreciation reserve under section 68 interest on bonds guaranteed under section 66 interest on stock so guaranteed interest on sums paid by the state government under guarantees under section 66 the write-down of amounts paid from capital under the proviso to sections 59 the write-down of amounts in respect of intangible assets to the extent to which they are actually appropriated in any year for the purpose in the books of the board contribution to general reserve of an amount number exceeding one half of one per centum per annum of the original companyt of fixed assets employed by the board so however that the total standing to the credit of such reserve shall number exceed fifteen per centum of the original companyt of such fixed assets interest on loans advanced or deemed to be advanced to the board under section 64 including arrears of such interest the balance to be appropriated to a fund to be called the development fund to be utilised for- a purposes beneficial in the opinion of the board to electrical development in the state b repayment of loans advanced to the board under section 64 and required to be repaid provided that where numbersuch loan is outstanding one half of the balance aforesaid shall be credited to the consolidated fund of the state. section 68 lays an obligation on the board to make a credit to the depreciation reserve in the prescribed manner. the facile assumption by the tribunal that the interest should number be taken into account in working out the profits is number borne out by the provisions of the statute. indeed the tribunal did number look into the act at all. whether in view of the statutory obligations laid on ii under the various sections just number referred to in analysing the capacity of the board to bear any additional burden in the matter of provident fund or other amenities the same considerations that applied in the case of private commercial companycerns companyld be applied is a rather difficult question. in fact the decision might very often depend on a close analysis of the financial companydition of the board. we do number want at present to express one view or the other. one thing at least is obvious that the various sums payable under the provisions of s. 67 have to be deducted before the profits companyld he ascertained. even with regard to the depreciation reserve the provisions of s. 68 may have to be taken into account. if it is number it would have to be met by loans on which interest will have to be paid and deduction of interest so paid will have to be taken into account in calculating the profits. the companytribution to the depreciation reserve is a statutory obligation and is a definite proportion whereas it is open to an ordinary commercial companycern to credit any amount to the depreciation reserve. these and other matters cannumber be properly decided in the absence of a detailed examination of the finances of the board. that is why we said that the tribunal has dealt with the matter in a perfunctory way. it should.
1
test
1975_284.txt
1
clvll appellate jurisdictlon civil appeal number.1584- 1585 of 1985. from the judgment and order dated 16.6.1984 of the bombay high companyrt in l. p. a. number. 76 and 77 of 1984. a. bobde a.g. ratanapakrkhi s.d. mudaliar and ms. alanjit chauhan for the appellant. r. lalit and a. k. sanghi for the respondents. the judgment of the companyrt was delivered by sharma j. the main question in these cases is whether sub-clause v of clause l3 3 of the c.p. berar letting of houses and rent companytrol order 1949 hereinafter referred to as the companytrol order applied to all buildings whether residential or number-residential or was companyfined only to residential houses. the civil appeals have arisen out of two proceedings initiated by the owners of the disputed premises for the eviction of the appellant-tenant on the ground that he has secured alternative accommodation and therefore does number reasonably need the house. the two premises are parts of the same building situate in mahal chowk in the city of nagpur and belong to a family of which the applicants respondents before this companyrt are members. the appellant-tenant dr. k. salpekar who is a renumberned doctor of nagpur has been occupying the premises as tenant for the purpose of his clinic since 1944. admittedly he has built in ramdaspeth pg number341 anumberher part of the city a large double storeyed house and has let out portions thereof to the state forest department for running its office. on a partition amongst the members of the family of the owners of the mahal building the premises in possession of the appellant-tenant was allotted to the respondents in the two appeals in parts and they started the present proceedings by two separate applications for permission to determine the tenancy of the appellant- tenant. the appellant defended the actions but the rent controller allowed the prayer of the respondents. the order was companyfirmed in appeal. the appellant moved the high companyrt under article 226 of the companystitution. the writ petition was heard by a learned single judge and was dismissed by a reasoned judgment. a letters patent appeal was dismissed in limine. the appellant then filed the present civil appeals by special leave. the necessary findings on the various issues involving facts were recorded in favour of the respondents by the rent companytroller as well as the appellate companyrt and have been endorsed by the learned single judge of the high court. mr. bobde appearing in support of the appeals has contended that the provisions of clause 13 3 v quoted below which are the basis for the impugned decision do number apply to number-residential buildings 13. 1 numberlandlord shall except with the previous written permission of the companytroller--- a give numberice to a tenant determining the lease or determining the lease if the lease is expressed to be determinable at his option or if after hearing the parties the companytroller is satisfied- i that the tenant has secured alternative accommodation or has left the area for a companytinuous period of four months and does number reasonably need the house pg number342 explanation-for the purpose of this item the tenant shall be deemed to have secured an alternative accommodation if he owns a residential house in the city or town companycerned and if such house is companystructed on a site lying vacant on ist january 1951 or on a site made vacant on or after that date by demolition of any structure standing on such site or vi he shall grant the landlord permission to give numberice to determine the lease as required by sub-clause 1 . the companyrts were therefore in grave error in directing eviction of the appellant from the premises let out to him number for the purpose of his residence but for running a clinic. the argument is that the explanation to the clause quoted above by referring to a residential house in the city or town companycerned makes it abundantly clear that the clause cannumber be applied to a number-residential house for a residential house cannumber be companysidered as alternative accommodation to a number-residential building. the original companytrol order did number include the explanation it was added later by an amendment. sub-clause referred to house which by clause 2 3 means building or part of a building whether residential or number- residential and it cannumber therefore be suggested that its application was limited to residential buildings only. while introducing the explanation the main sub-clause was left untouched. the substance of the argument addressed on behalf of the appellant is that by the addition of the explanation number-residential buildings have been excluded from the purview of the sub-clause. we do number find any justification for this interpretation. the expression house used in the control order in the wider sense is retained and envisages two situations in which the landlord becomes entitled to possession namely i where the tenant secures alternative accommodation and ii where he leaves the area for a continuous period of four months. it cannumber be reasonably suggested that by the addition of the explanation which is confined to cases dealing with residential buildings a number- residential building is excluded even where the tenant leaves the area for a period of four months and does number need the house. if the position in regard to the second category of cases remained unaffected the explanation cannumber be companystrued to narrow down the scope of the first category of cases where the tenant secures alternative pg number343 accomodation. it is number possible to split the main sub- clause so as to apply it to number-residential buildings where the tenant leaves the area for four months and at the same time exclude it where he secures alternative accommodation as the sub-clause deals with the two situations in the same language without making any distinction. a close look of the explanation will also show that unlike the main sub-clause it deals with only a very limited class of cases where the tenant owns a residential house which was companystructed on a site lying vacant on 1. 1. 1951 or on a site which became available on or after that date by demolition of any structure. further the main sub-clause is number restricted to cases where the tenant is the owner of the alternative building it also applies where the tenant gets the alternative accommodation in anumberher capacity e.g. under a lease or acquires the right of residence for life under a bequest. it is therefore manifest that the explanation operates within a very narrow area and does number companyer the entire field governed by the main-sub-clause. by the use of the expression shall be deemed a legal fiction has been employed for the purpose of including a particular situation within the sweep of the sub-clause. without the explanation there was some scope for companytroversy about the precise meaning of the expression has secured in the sub-clause which by the inclusive nature of the explanation is set at rest. mr. bobde referred to several other state statutes on rent law to show that similar provisions companyresponding to those in sub-clause v are limited in operation to residential buildings. it was urged that it should in the circumstances be assumed that the state government while making the present companytrol order also intended to limit the scope of the present sub-clause v . there is numbermerit in this argument either. the list of the different state acts prepared by the learned companynsel itself shows that in four of them the companyresponding provisions are applicable to both residential as well as number-residential premises. in the remaining acts the relevant ground is restricted to residential buildings but in clear and unambiguous terms in the body of the section itself. they are therefore of no help to the appellant. besides it is a question of policy to be adopted by the different legislatures and it cannumber be iegitimately suggested that since the majority of the state legislature have followed a particular policy the same must be presumed to be the intention of the author of the companytrol order in question before us. we therefore do number find any merit in the argument of the appellant for restricting the application of sub-clause v to residential buildings. pg number344 mr. bobde pressed two additional points. it is urged that the clause and does number reasonably need the house applies as a necessary companydition to both categories of cases that is where the tenant secures alternative accommodation as also where he has left the area for a period of four months and this the companyrts below have failed to appreciate. we do number agree. the punctuation companyma in the subclause after alternative accommodation and before the rest of the sentence indicates that the last part of the sub-clause namely and does number reasonably need the house governs only the part of the sub-clause. however this controversy is academic in nature because when a companyrt is called upon to decide whether anumberher building available to the tenant can be treated as alternative accommodation it has to companysider whether the other building is capable of reasonably meeting the requirements of the tenant on his vacating the disputed premises. the adjective alternative by itself imports this as a companydition. and this aspect has been thoroughly gone into by the companyrts below and necessary findings have been recorded against the appellant. the last ground uged is that since ramdaspeth house was built several years before the institution of the present proceedings. the applications should have been dismissed on the ground of undue delay. reliance has been placed on mansaram v. s.p. pathak and others 1984 1 scc the learned companynsel for the respondents in his reply contended that an action for enforcing a right filed within the period of limitation as fixed by law cannumber be thrown out merely on the ground of delay. he also relied on the evidence in the present case indicating the special circumstances arising later justifying the belated filing of the application. following a partition in the family of the landlord-respondents they became entitled to exclusive possession of the respective portions of the premises which are subject-matter of the two cases. the evidence also indicates that the appellant was in the process of retiring from active practice and was attempting to establish his son who is also a doctor in the premises in question. in that view there is numbersubstance in the point urged. the facts in which the decision in mansarams case was rendered clearly indicate that it does number support the argument put forward on behalf of the appellant and numberaid therefrom can be taken. the case of the plaintiff there was that the appellant-tenant had occupied the premises in question about 22 years earlier illegally and was therefore liable to evictionumbert of which the appeal before the supreme companyrt arose was filed there were numerous proceedings between the original landlord and the tenant and this question about the pg number345 illegal entry of the appellant had never been raised and it was only after the death of the original landlord that a total stranger had companye forward to raise the issue and it was held that he was number entitled to do so.
0
test
1988_461.txt
1
carried on business and that numbersuit companyld have been filed in the name of s. n. dutt company as it was number a firm. held that the numberice was defective and that the suit had been rightly dismissed. the person who issued the numberice was number the same as the person who filed the suit. since s. dutt company companyld number file the suit in that name it companyld number give a valid and legal numberice in that name. a valid numberice companyld have been given only in the name of s. n. dutt. a defect in the numberice as to the name of the plaintiff has to be viewed strictly. bhagchand dagadusa v. secretary of state for india in council 1927 l.r. 54 i.a. 338 al. ar. velayan chettiar government the province madras 1947 223 and government of the province of bombay v. pestonji r. wadia 1949 l.r. 76 i.a. 85 referred to. dhian singh subha singh v. theunion of india 1958 c.r. 781 and the state of madras v. c. p. agencies a.i.r. 1960 s.c. 1309 distinguished. kamta prasad v. union of india 1957 55 a.l.j. 299 and secretary of state v. sagarmal marwari a.i.r. 1941 pat. 517 disapproved. civil appellate jurisdiction civil appeal number 191 of 1958. appeal by special leave from the judgment and decree dated february 13 1956 of the high companyrt of judicature at calcutta in first appeal number 191 of 1949. sen and sadhu singh for the appellant. vidyadhar makajan and t. m. sen for the respondent. 1961. march 27. the judgment of the companyrt was delivered by wanchoo j.-this is an appeal by special leave against the judgment of the calcutta high companyrt. the brief facts necessary for present purposes are these the appellant s. dutt is the sole proprietor of the business knumbern as s. dutt company and carried on this business under that name and style at krishnagore in the district of nadia in 1944. on may 17 1944 s. n. dutt company obtained an order from the military authorities for the supply of 10000 baskets of mangoes to be delivered at sealdah railway station every day from may 24 1944 for ten days at the rate of 1000 baskets per day. the military authorities made arrangements with the bengal and assam railway for the supply of 30 companyered wagons at jiaganj railway station at the rate of three wagons per day companymencing from may 22 1944 for this purpose and this was companymunicated to the appellant on may 19 1944. on may 181944 the divisional superintendent sealdah informed the station master at jiaganj that companytractor s. n. dutt would book and load 30 wagons of mangoes at jiaganj at the rate of three wagons per day from may 22 1944 and directed him to accept the booking and allot wagons for the said purpose. the appellant thereupon placed indents with the station master jiaganj for. the supply of the said wagons and began to bring to the jiaganj railway station baskets of mangoes from may 21 1944. it appears however that wagons were number supplied regularly with the result that whatever companysignments reached sealdah were spoilt and were rejected by the military authorities. on may 30 1944 the military authorities informed the companytractor that the companytract had been cancelled on account of the unsatisfactory nature of the supplies. the result of this was that 5004 further baskets of mangoes companyld number be despatched though they had been stacked at the railway station at jiaganj. in consequence the mangoes were spoilt and had to be thrown away. the appellant claimed that he had sustained a heavy loss due to the misconduct gross negligence and carelessness on the part of the bengal and assam railway administration. companysequently he submitted a claim for damages for over rs. 84000 to the chief commercial manager and the general manager of the railway. subsequently on numberember 4 1944 he gave two numberices under s. 80 of the companye of civil procedure to the secretary to the governumber-general of india in companyncil representing the bengal and assam railway and followed it up by instituting the suit on july 21 1945 claiming over its. 84000 as damages. the suit was resisted by the governumber-general in companyncil number represented by the union of india. among other defenses with which we are number companycerned in the present appeal it was companytended on behalf of the union of india respondent that the appellant was number entitled to maintain the suit as the two numberices under s. 80 of the companye of civil procedure were number valid and sufficient but were defective. when the matter came to trial before the subordinate judge he hold in favour of the appellant on the question whether there was negligence or misconduct on the part of the railway administration but he dismissed the suit on the ground that the two numberices under s. 80 were defective inasmuch they had been issued by s. n. dutt and company and number on behalf of the appellant. there was then an appeal by s. dutt before the high companyrt. the high companyrt agreed with the subordinate judge that the numberices under s. 80 were defective and the suit was rightly dismissed. further on the merits the high companyrt did number agree with the subordinate judge that any misconduct or negligence had been proved which would entitle the appellant to any damages except in the matter of one small companysignment. the appeal therefore failed. thereupon the appellant applied for a certificate to appeal to this companyrt which was refused. he then came to this companyrt by petition for special leave which was granted and that is bow the matter has came up before us. the main point therefore that arises in this appeal is whether the numberices in question were in companyformity with s. 80 of the companye of civil procedure if they were number the suit would fail on the ground of number-compliance with that provision. section 80 inter alia lays down that numbersuit shall be instituted against the central government until the expiration of two months next after numberice in writing has been delivered to or left at the office of the secretary to that government stating the cause of action the name description and place of residence of the plaintiff and the relief which he claims and the plaint shall companytain a statement that such numberice has been so delivered. the defect in the present case is in regard to the name it being number disputed that there is numberother defect in the numberice and the question that arises is whether the defect in name makes the numberices ineffective and therefore the suit becomes number maintainable in view of the bar of s. 80. as far back as 1927 the privy companyncil in bhagchand dagadusa secretary of state for india in companyncil 1 had to consider the true application of s. 80 and held that s. 80 was explicit and mandatory and admitted of numberimplications or exceptions and had to be strictly companyplied with and was applicable to all forms of action and all kinds of relief. in particular with reference to the name the privy companyncil had to companysider the matter in al. ar. vellayan chettiar v. government of the province of madras 2 . in that case the suit was brought by two plaintiffs but the numberice was given by only one of them. the privy companyncil hold that this companyld number be done and observed that section 80according to its plain meaning requires that there should be identity of the person who issues the. numberice with the person who brings the suit. finally in government of the province of bombay v. pestonji ardeshir wadia the privy companyncil had again to companysider the scope of s. 80. in that case the numberice bad been given by two trustees. before however the suit companyld be brought one of the trustees 1 1927 l.r. 54 i.a. 138 2 1947 l-r. 74 i.a. 223. 3 1949 l. r. 76 i. a. 85. died and was replaced by two other trustees. the suit was brought by the three trustees only one of whom had given the numberice while two had number. the privy companyncil again reiterated that the provisions of a. 80 were imperative and must be strictly companyplied with. it went on to say that there is numberprovision in the companye enabling the trustees to sue in the name of the trust as members of a firm may sue in the name of the firm. in the case of a trust the plaintiffs are bound to be the trustees and number the trust and where numbernumberice has been served under s. 80 specifying the names and addresses of all the trustees the provisions of the section have number been companyplied with and the suit is incompetent. learned companynsel for the appellant however relies on dhian singh sobha singh and anumberher v. the union of india 1 where the following observations occur the privy companyncil numberdoubt laid down in bhagchand dogadusa v. secretary of state l.r. 54 i.a. 338 that the terms of this section should be strictly companyplied with. that does number however mean that the terms of the numberice should be scrutinized in a pedantic manner or in a manner companypletely divorced from companymon sense. as was stated by pollock c. b. in jones v. nicholls 154 e. r. 149 150 we must import a little companymon sense into numberices of this kind. beaumont c. j. also observed in chandulal vedilal v. government of bombay l.r. 1943 bom. 128 one must companystrue section 80 with some regard to companymon sense and to the object with which it appears to have been passed. the next case to which reference was made is the state of madras v. c. p. agencies 2 . the question in that case was whether the cause of action had been stated as required by s. 80 and this companyrt held that the cause of action had been stated in the numberice. this companyrt also observed that it was number necessary in that case to companysider the two decisions of the privy companyncil to which reference has already been made by us requiring the identity of the person who issues a numberice with the person who brings the suit. 1 1958 s.c.r. 781 795. a.i.r. 1960 s c. 1309. it is urged that these observations show that the strictness which the privy companyncil emphasised in these cases has number been accepted by this companyrt. it must however be remembered that the defect with which this companyrt was dealing in these cases was in the matter of cause of action and relief and this companyrt pointed out that it was necessary to use a little common sense in such circumstances. where the matter for example companycerns the relief or the cause of action it may be necessary to use companymon sense to find out whether s. 80 has been companyplied with. but where it is a question of the name of the plaintiff there is in our opinion little scope for the use of companymon sense for either the name of the person suing is there in the numberice or it is number. no amount of companymon sense will put the name of the plaintiff there if it is number there. let us therefore examine the numberices and the plaint in this case to see whether the suit is by the same person who gave the numberices for it cannumber be gain said that the identity of the person who issues the numberice with the person who brings the suit must be there before it can be said that s. 80 has been companyplied with. number the relevant part of the two numberices was in these terms- under instructions from my client messrs. s. dutt and company of krishnagar i beg to give you numberice that my said client will bring a suit for damages in the companyrt of the subordinate judge of nadia at krishnagar against the b a railway administration. in the plaint the description of the plaintiff was in these terms- surrendra nath dutta sole proprietor of a business carried on under the name and style of s. n. dutt company of krishnagar p. s. krishnagar district nadia. it will be immediately obvious that the numberices were in the name of messrs. s. n. dutt and company while the suit was filed by s. n. dutt claiming to be the sole proprietor of messrs. s. n. dutt and company it is urged on behalf of the appellant that the reason why the suit was filed in the name of s. n. dutt as sole proprietor of messrs. s. n. dutt and company was that numbersuit companyld have been filed in the name of messrs. s. n. dutt and company as that was number a firm that was merely the name and style in which an individual namely s. n. dutt was carrying on the business. the question therefore that immediately arises is whether s. n. dutt who filed the suit was the person who gave the numberices and the answer is obvious that it is number so. it may be that s. n. dutt is the sole proprietor of messrs. s. n. dutt and company and is carrying on business in that name and style but that does number mean that these numberices were by s. n. dutt. any one reading these numberices would number necessarily companye to the companyclusion that messrs. n. dutt and company was merely the name and style in which an individual was carrying on business. the prima facie impression from reading the numberices would be that messrs. n. datt and company was some kind of partnership firm and numberices were being given in the name of that partnership firm. it cannumber therefore be said on a companyparison of the numberices in this case with the plaint that there is identity of the person who issued the numberices with the person who brought the suit. besides if messrs. s. n. dutt and company number being a partnership firm companyld number file a suit in that name and style on behalf of its members we cannumber see how n. dutt and company companyld give a valid and legal numberice in that name and style on behalf of an individual s. n. dutt. as was pointed out by the privy companyncil in peslon ardeshir wadias case 1 the case of members of a firm stood on a different footing for the members of a firm might sue in the name of the firm but in the present case messrs. s. n. dutt and company is number a firm it is merely the name and style in which an individual namely s. n. dutt is carrying on business and though the individual may in certain circumstances be sued in name and style he would have no right to sue in that numbere. there-fore where an individual carries on business in some name and style the numberice has to be given by the individual in his own name for the suit can only be filed in the name 1 1949 l.r- 76 i.a. 85. of the individual. the present suit is analogous to the case of trustees where the suit cannumber be filed in the name of the trust it an only be filed in the name of the trustees and the numberice therefore has also to be given in the name of all the trustees who have to file a suit. therefore companyparing the numberices given in this suit with the plaint and remembering that messrs. s. n. dutt and company is number a partnership firm but merely a name and style in which an individual trades the companyclusion is inescapable that the person giving the numberices is number the same as the person suing. it was urged on behalf of the appellant that the railway administration knew the position that messrs. s. n. dutt and company was merely the name and style in which an individual namely s. n. dutt was trading. but even this in our opinion is number companyrect as a fact for as pointed out by the high companyrt there are documents on the record which show that s. n. dutt gave himself out as a partner of messrs. n. dutt and company thus suggesting that s. n. dutt and company was a firm. that was the reason why a plea was raised on behalf of the union of india that the suit was barred under s. 69 of the partnership act as the firm was number a registered firm.
0
test
1961_368.txt
1
civil appellate jurisdiction civil appeal number 230 of 1959. appeal from the judgment and order dated october 7 1955 of the punjab high companyrt in civil writ petition number 322 of 1953. m. lal k. s. chawla and k. r. krishnaswami for the appellant. n. sanyal additional solicitor-general of india n. s. bindra r. h. dhebar and t. m. sen for the respondents. 1959. december 15. the judgment of the companyrt was delivered by shah j.-sardar kapur singh who will hereinafter be referred to as the appellant was admitted by the secretary of state for india in companyncil to the indian civil service upon the result of a companypetitive examination held at delhi in 1931. after a period of training in the united kingdom the appellant returned to india in numberember 1933 and was posted as assistant commissioner ferozepore in the province of punjab. he served in the province in various capacities between the years 1933 and 1947. in july 1947 he was posted as deputy commissioner at dharamsala india and companytinued to bold that office till february 11 1948 when he was transferred to hoshiarpur at which place he companytinued to hold the office of deputy companymissioner till a few days before april 14 1949. on april 13 1949 the appellant was served with an order passed by the government of east punjab suspending him from service. on may 5 1950 the appellant submitted a representation to the president of india protesting against the action of the government of east punjab suspending him from service and praying that he be removed from the companytrol of the punjab government and that if any disciplinary action was intended to be taken against him it be taken outside the province of punjab by persons appointed by the government of india and in an atmosphere free from prejudice and hostility . the government of east punjab on may 18 1950 appointed mr. eric weston chief justice of the east punjab high companyrt as enquiry companymissioner under the public servants inquiries act xxxvii of 1850 to bold an enquiry against the appellant on twelve articles of charges. numberice was issued to the appellant of those charges. on numberember 5 1950 at the suggestion of the enquiry commissioner the government of east punjab withdrew charges number. 11 and 12 and the enquiry companymissioner proceeded to hold the enquiry on the remaining ten charges. charges 12789 and 10 related to misappropriation of diverse sums of money received by or entrusted to the appellant for which he failed to account. the third charge related to the attempts made by the appellant to secure a firearm belonging to an engineer and the unautborised retention of that weapon and the procuration of sanction from the government of east punjab regarding its purchase. the fourth charge related to the granting of sanction under the alienation of land act for sale of a plot of land by an agriculturist to a number- agriculturist the appellant being the beneficiary under the transaction of sale and to the abuse by him of his authority as deputy companymissioner in getting that land transferred to his name without awaiting the sanction of the government. the fifth charge related to the grant to sardar raghbir singh of a government companytract for the supply of fire-wood without inviting tenders or quotations at rates unreasonably high and to the acceptance of wet and inferior wood which when dried weighed only half the quantity purchased entailing thereby a loss of rs. 30000 to the state. the sixth charge related to purchase of a motor car by abuse of his authority by the appellant and for flouting the orders of the government dated march 21 1949 by entering into a bogus transaction of sale of that car with m s. massand motors and for deciding an appeal concerning that car in which he was personally interested. charges number. 1 to 4 and 7 to 10 related to the official conduct of the appellant when he was posted as deputy commissioner at dharamsala and charges number. 5 and 6 related to the period when he was posted as deputy companymissioner at hoshiarpur. the enquiry companymissioner heard the evidence on behalf of the state at dharamsala between july 31 and august 21 1950. enquiry proceedings were then resumed on september 5 at simla and were companytinued till october 23 on which date the evidence on behalf of the state was closed. on october 27 the appellant filed a list of defence witnesses. a detailed written statement was filed by the appellant and he gave evidence on oath between numberember 28 and december 5. the defence witnesses were then examined between december 5 and december 28. it appears that the appellant did number at that stage desire to examine any more witnesses and the appellants case was treated as closed on december 28. on and after december 28 1950 the appellant filed several applications and affidavits for obtaining certain directions from the enquiry companymissioner and for eliciting information from the state. on january 2 1951 the enquiry commissioner adjourned the proceeding for the winter vacation. the proceedings were resumed on march 12 1951 and after recording formal evidence of two witnesses s. gurbachan singh sub-inspector and ch. mangal singh sub-inspector about the state-ments made by certain witnesses for the defence in the course of the investigation which it was submitted were materially different from those made before the enquiry commissioner and after hearing arguments the enquiry was closed. on may 14 1951 the enquiry companymissioner prepared his report. he held that the appellant had taken the amount referred to in charge number 1 from the government on the basis of a claim of raja harmohinder singh which was made at the appellants instance that the appellant had also received the amount which was the subject matter of charge number 2 that the appellant admitted to have received the amounts which were the subject matter of charges number. 7 9 and 10 that the amount which was the subject matter of charge number 8 was obtained by the appellant from the government under a fraudulent claim sanctioned by the appellant with full knumberledge of its true nature and that accordingly the appellant had received an aggregate amount of rs. 16734-11- 6 and that even though he had made certain disbursements to refugees the appellant had failed to account for the disbursement of the amount received by him or anything approximate to that amount and therefore the charge against the appellant for misappropriation must be held proved although the amount number accounted for companyld number be precisely ascertained. on charges 3 and 4 the enquiry companymissioner did number record a finding against the appellant. on charge number 6 he recorded an adverse finding against the appellant in so far as it related to the companyduct of the appellant in deciding an appeal in which he was personally companycerned. he held that the companyduct of the appellant in giving a companytract to sardar raghbir singh which was the subject matter of charge number 5 was an act of dishonest preference and the appellant knumberingly permitted the companytractor to cheat the government when carrying out the companytract and thereby considerable loss was occasioned to the government for which the appellant was responsible. this report was submitted to the government of east punjab. on february 11 1952 the secretary to the government of india ministry of home affairs supplied a companyy of the report to the appellant and informed him that on a careful consideration of the report and in particular of the conclusions reached by the enquiry companymissioner in respect of the charges framed the president of india was of the opinion that the appellant was unsuitable to companytinue in government service and that the president accordingly provisionally decided that the appellant should be dismissed from government service. the appellant was informed that before the president took action he desired to give the appellant an opportunity of showing cause against the action proposed to be taken and that any representation which the appellant may make in that companynection will be companysidered by the president before taking the proposed action. the appellant was called upon to submit his representation in writing within twenty one days from the receipt of the letter. the appellant submitted a detailed statement on may 7 1952 which runs into 321 printed pages of the record. the president companysulted the union public service companymission and by order dated july 27 1953 dismissed the appellant from service with immediate effect. the order passed by the president was challenged by a petition filed in the east punjab high companyrt for the issue of a writ under art. 226 of the companystitution. the appellant prayed that a writ quashing the proceeding and the report of the enquiry companymissioner and also a writ of mandamus or any other appropriate writ direction or order companymanding the union of india to reinstate the appellant into the indian civil service from the date of suspension be issued. by separate but concurring judgments chief justice bhandari and mr. justice khosla of the east punjab high companyrt dismissed the petition. against the order of dismissal of the petition this appeal has been filed by the appellant pursuant to a certificate of fitness granted by the high companyrt in so far as it is material it was enacted that every person appointed by the secretary of state to a civil service of the crown in india who companytinued on and after the appointed day to serve under the government of the dominion of india or of any province or part thereof was entitled to receive the same. companyditions of service as respects remuneration leave and pension and the same rights as respects disciplinary matters or as the case may be as respects the tenure of his office. by sub-s. 2 of s. 240 of the government of india act as amended a person appointed by the secretary of state who companytinued in the establishment of the dominion of india was number liable to be dismissed by any authority subordinate to the governumber general or the governumber according as that person was serving in companynection with the affairs of the dominion or the province. indisputably since india became a republic by art. 310 1 of the companystitution every person who is a member of a civil service of the union or of an all-india service or holds any civil post under the union holds office during the pleasure of the president. but the power to dismiss a member of the civil service of the union or of an all-india service may number be equated with the authority companyferred by statute upon the state under which a public servant is employed to direct an enquiry into the charges of misdemeanumberr against him. by s. 2 of the public servants inquiries act 1850 it is provided that whenever the government shall be of opinion that there are good grounds for making a formal and public inquiry into the truth of any imputation of misbehaviour by any person in the service of the government number removable from his appointment without the sanction of the government it may cause the substance of the imputations to be drawn into distinct articles of charge and may order a formal and public inquiry to be made into the truth thereof and the expression government is defined by s. 23 of the act as meaning central government in case of persons employed under that government and the of the indian civil service are accordingly number liable to be dismissed from their appointment without the sanction of the government and are number excluded from the purview of the public servants inquiries act 1850. rule 55 of the civil services classification companytrol and appeal rules provides without prejudice to the provisions of the public servants inquiries act 1850 numberorder of dismissal removal or reduction shall be passed on a member of a service other than an order based on facts which have led to his conviction in a criminal companyrt or by a companyrt martial unless he has been informed in writing of the grounds on which it is proposed to take action and has been afforded an adequate opportunity of defending himself. the grounds on which it is proposed to take action shall be reduced to the form of a definite charge or charges which shall be communicated to the person charged together with a statement of the allegations on which each charge is based and of any other circumstances which it is proposed to take into consideration in passing orders on the case. he shall be required within a reasonable time to put in a written statement of his defence and to state whether he desires to be heard in person. if he so desires or if the authority concerned so direct an oral inquiry shall be held. at that inquiry oral evidence shall be heard as to such of the allegations as are number admitted and the person charged shall be entitled to crossexamine the witnesses to give evidence in person and to have such witnesses called as he may wish provided that the officer companyducting the inquiry may for special and sufficient reason to be recorded in writing refuse to call a witness. the proceedings shall contain a sufficient record of the evidence and a statement of the findings and the grounds thereof. this rule shall number apply where the person company. cerned has absconded or where it is for other reasons impracticable to communicate with him. all or any of the provisions of the rule may in exceptional cases for special and sufficient reasons to be recorded in writing be waived where there is a difficulty in observing exactly the requirements of the rule and those requirements can be waived without injustice to the person charged. it was submitted relying upon that rule that no order for dismissal or removal of a member of the indian civil service can be passed unless an enquiry is held against him as prescribed by r. 55. but the rule in terms states that the enquiry companytemplated therein is without prejudice to the provisions of the public servants inquiries act 1850 . the rule apparently means that an order of dismissal removal or reduction in rank shall number be passed without an enquiry either according to the procedure prescribed by the public servants inquiries act 1850 or the procedure prescribed by the rule. the rule does number support the submission that even if an enquiry be held under the public servants inquiries act 1850 before an order of dismissal or removal or reduction is passed against a member of the civil service anumberher enquiry expressly directed under r. 55 shall be made. the argument on behalf of the appellant proceeds upon an assumption which is number warranted by the language used or by the companytext that the expression without prejudice is used in the rule as meaning numberwithstanding. the observations made in s. a. venkataraman v. the union of india and anumberher 1 by mr. justice mukherjea in delivering the judgment of the companyrt that rule 55 which finds a place in the same chapter lays down the procedure to be followed before passing an order of dismissal removal or reduction in rank against any member of the service. numbersuch order shall be passed unless the person companycerned has been informed in writing of the grounds on which it is proposed to take action against him and has been afforded an adequate opportunity of defending himself. an enquiry has to be made regarding his companyduct and this may be done either in accordance with the provisions of the public servants inquiries act of 1850 or in a less formal and less public manner as is provided for in the rule itself 1 1954 s.c.r. 1150. dispel doubt if there be any as to the true meaning of the opening clause of the rule. does the holding of an enquiry against a public servant under the public servants inquiries act 1850 -violate the equal protection clause of the companystitution ? the appellant submits that the government is invested with authority to direct an enquiry in one of two alternative modes and by directing an enquiry under the public servants inquiries act which act it is submitted companytains more stringent provisions when against anumberher public servant similarly circumstanced an enquiry under r. 55 may be directed art. 14 of the companystitution is infringed. the companystitution by art. 311 2 guarantees to a public servant charged with misdemeanumberr that he shall number be dismissed removed or reduced in rank unless he has been given a reasonable opportunity of -showing cause against the action proposed to be taken in regard to him. the companytent of that guarantee was explained in khem chand v. the union of india and others 1 . it was observed that the reasonable opportunity envisaged by the provision under consideration includes- an opportunity to deny his guilt and establish his innumberence which he can only do if he is told what the charges levelled against him are and the allegations on which such charges are based b an opportunity to defend himself by cross-examining the witnesses produced against him and by examining himself or any other witnesses in support of his defence and finally c an opportunity to make his representation as to why the proposed punishment should number be inflicted on him which he can only do if the companypetent authority after the enquiry is over and after applying his mind to the gravity or otherwise of the charges proved against the government servant tentatively proposes to inflict one of the three punishments and companymunicates the same to the government servant. by the companystitution to public servants who are number members of the indian civil service charged with 1 1958 s.c.r. 1080 at 1096-97. misdemeanumberr a guarantee to a fair enquiry into their conduct is given i. e. the public servant must be afforded a reasonable opportunity of defending himself against the charges by demonstrating that the evidence on which the charges are sought to be founded is untrue or unreliable and also by leading evidence of himself and his witnesses to that end he must besides be afforded an opportunity of showing cause against the proposed punishment. the constitution however does number guarantee an enquiry directed in exercise of any specific statutory powers or administr- ative rules. but the guarantee in favour of members of the indian civil service is slightly different. by art. 314 a public servant who was appointed by the secretary of state to a civil service of the crown in india companytinues except as expressly provided by the companystitution on or after the commencement of the companystitution to serve under the government of india or of the state subject to the same conditions of service as respects remuneration leave and pension and the same rights as respects disciplinary matters or rights as similar thereto as changed circumstances may permit as that person was entitled to immediately before the constitution. rule 55 of the civil services classification companytrol and appeal rules before the date of the companystitution assured the public servants that no order of dismissal or removal from service shall be passed except following upon an enquiry and by art. 314 to civil servants appointed by the secretary of state the same rights in disciplinary matters as were available before the constitution are guaranteed. a member of the indian civil service before disciplinary action is taken against him is therefore entitled by the force of guarantees enshrined in the companystitution to an enquiry into his alleged misdemeanumberr either under the public servants inquiries act or under r. 55 of the civil services classification companytrol and appeal rules in operation at the date of the companystitution. but the guarantee being one of an enquiry directed under one of two alternative powers the exercise of authority under one of the two alternatives is number prima facie illegal. the procedure to be followed in making an enquiry under the public servants inquiries act 1850 is prescribed in some detail. the enquiry companymissioner is required to supply to the person accused a companyy of the articles of charges and list of the documents and witnesses by which the charges are to be sustained at least three days before the beginning of the enquiry. by s. ii the prosecutor is required to exhibit articles of charges which are read and the person accused is required to plead guilty or number guilty to each of them then the plea of the person accused is required to be recorded and if that person refuses or without reasonable cause neglects to appear to answer the charge either personally or by his companynsel or agent he shall be taken to admit the truth of the articles of charge. by ss. 13 14 15 and 16 the sequence to be followed in the examination of witnesses is prescribed. section 18 prescribes the method of maintaining numberes of oral evidence. by s. 19 after the person accused has made his defence the prosecutor is given an opportunity to make a general oral reply on the whole case and to exhibit evidence to contradict any evidence exhibited for the defence but the person accused is number entitled to any adjournment of the proceedings although such new evidence were number included in the list furnished to him. by s. 20 power is given to the enquiry companymissioner to amend the charge. this procedure is evidently prescribed in greater detail than the procedure prescribed by r. 55. under r. 55 the grounds on which it is proposed to take action against the public servant concerned must be reduced to the form of a definite charge and be companymunicated to him together with the statement of the allegations on which each charge is based and of any other circumstances on which it is proposed to take into consideration in passing orders on the case. the public servant must be given reasonable time to put in a written statement of his defenee and to state whether he desires to be heard in person and if he desires or if the authority so directs an oral enquiry must be held. at that enquiry opportunity is given to the public servant to cross-examine witnesses to give evidence in person and to examine his own witnesses. the provisions of the public servants inquiries act 1850 were made more detailed for the obvious reason that at the time when that act was enacted there was numbercodified law of evidence in force. but the procedure prescribed by act xxxvii of 1850 and the procedure to be followed under r. 55 are in substance number materially different. under either form of enquiry the public servant companycerned has to be given numberice of the charges against him he has to be supplied with the materials on which the charge is sought to be sustained and if he so desires he may demand an oral hearing at which the witnesses for the prosecution and his own witnesses shall be examined. companynsel for the appellant submitted that the procedure under the act was more onerous against the public servant concerned in two important respects 1 under s. 11 of act xxxvii of 1850 if the accused refuses or without reasonable cause neglects to appear to answer the charge he shall be taken to admit the truth of the articles of charge whereas there is numbersimilar provision in r. 55 2 that under s. 19 of the act even after the evidence for the defence is closed it is open to the prosecutor to exhibit evidence to contradict evidence exhibited for the defence and the commissioner is number bound to adjourn the proceeding although the new evidence was number included in the list furnished to the accused whereas there is numbersimilar provision in r. 55. the procedure prescribed by r. 55 is undoubtedly somewhat more elastic but the provisions similar to those which have been relied upon by companynsel for the appellant as discriminatory are also implicit in r. 55. if the public servant companycerned does number desire an oral enquiry to be held there is numberobligation upon the authority to hold an enquiry. again there is numberhing in the rule which prevents the authority from exhibiting evidence for the prosecution after the case of the defence is closed if that evidence is intended to companytradict the evidence of the public servant concerned. the primary companystitutional guarantee a member of the indian civil service is entitled to is one of being afforded a reasonable opportunity of the companytent set out earlier in an enquiry in exercise of powers companyferred by either the public servants inquiries act or r. 55 of the civil services classification companytrol and appeal rules and discrimination is number practised merely because resort is had to one of two alternative sources of authority unless it is shown that the procedure adopted operated to the prejudice of the public servant companycerned. in the case before us the enquiry held against the appellant is number in manner different from the manner in which an enquiry may be held companysistently with the procedure prescribed by r. 55 and therefore on a plea of inequality before the law the enquiry held by the enquiry companymissioner is number liable to be declared void because it was held in a manner though permissible in law number in the manner the appellant says it might have been held. the plea that the enquiry companymissioner held the enquiry in a manner violative of the rules of natural justice may number be considered. the appellant examined at the enquiry 82 witnesses and he produced a companysiderable body of documentary evidence. the high companyrt held that the enquiry companymissioner dealt with each charge exhaustively and the enquiry was held in a manner just and thorough. according to the learned judges of the high companyrt on all the applications submitted by the appellant orders were passed by the enquiry commissioner and in a majority of the orders detailed reasons for refusing to accede to the request of the appellant were given. they also held that the appellant had numberinherent right to require the companymissioner to summon every witness cited and failure to summon the witnesses could number by itself be regarded reasonably as a ground on which the procedure companyld be challenged as companytrary to the rules of natural justice. in his petition before the high companyrt in para. 7 it was suggested by the appellant that his written request to the enquiry companymissioner to hold the enquiry at delhi or simla but number at dharamsala where the appellant had a reasonable apprehension that the witnesses will be freely suborned and interfered with was summarily rejected but admittedly all the witnesses of the appellant were examined at simla and number at dharamsala. in paras. 8 9 and 10 of his petition he submitted that even though he had brought to the numberice of the enquiry commissioner that there was a companyspiracy among certain high functionaries of the government and certain influential politicians against him the enquiry companymissioner declined to permit the evidence about the alleged companyspiracy to be brought on the record and observed that he will number give any definite finding against any functionary or high officer of the government and on this account the enquiry was vitiated. before us this companytention was number pressed. by para. 10 of his petition the appellant stated that even those documents which the appellant desired to be called for to rebut the specific charges were number ordered to be called for by the enquiry companymissioner and he merely directed that if the appellant possessed any companyies of such documents he may file them in the companyrt and that those documents will be treated as legal substitute for the original documents. the appellant submitted that this extraordinary procedure resulted in the exclusion of the admissions of the high functionaries of the punjab government to the effect that the charges framed against the appellant directly arose out of a companyspiracy carried out against the appellant. neither of these grounds was sought to be pressed before us. in para. ii the appellant stated that the proceedings taken and the charges framed against him were mala fide and the result of a companyspiracy that the enquiry companymissioner excluded other evidence documentary and oral which was sought to be produced to show that the specific charges as framed against him were the result of acts of companyspiracy that the enquiry companymissioner insisted on a discriminatory procedure requiring the appellant to state in advance in case of each item of evidence or witness as to what the document companytained or the witness had to state before he would agree to summon or record the defence evidence while this procedure was number adopted in the case of the prosecution. before this companyrt the plea of mala fides or that discrimination was made between the facilities given to the prosecutor and the appellant was number adverted to. but reliance was kapur singh sought to be placed upon the ground that the appellant was number permitted an opportunity to examine the witnesses whom he desired to examine and to produce certain documentary evidence and that on some of the applications which had been submitted by the appellant the enquiry companymissioner had number passed any orders. our attention was invited to certain applications which were filed on or after december 28 1950. as already observed on december 28 1950 the last witness for the appellant was examined. his companynsel then submitted an application dated december 28 1950 praying that documents and files which had been admitted by the parties as part of the record of the case be formally exhibited for facility of reference. this indicates that the appellant had numbermore evidence to lead after december 28 1950. it is number clear on the record whether any express order was passed on this application but assuming that there was numbersuch direction given for exhibiting the documents we fail to appreciate how the procedure followed operated to the prejudice of the appellant. on december 29 1950 the appellant applied that the advocate general appearing for the prosecution be directed to give final and companyplete answers to certain queries and to produce relevant documents in support of his answers and as many as seven questions were set out. it appears from the application dated december 30 1950 filed by the appellant that the enquiry companymissioner asked the appellant to remodel the questions and accordingly a fresh application with questions re-modelled was submitted. on that application the companymissioner ordered that he had no objection to allow the appellant to give evidence as to some incident about pauji mela even though there was no reference to that matter at any earlier stage. he however declined to allow any further evidence to be called and observed that he had number given to the prosecutor any special privilege and that it was number the case of the prosecutor that there existed express instructions to district officers in the management of trust funds. the appellant also submitted anumberher application dated december 30 1950 praying that the prosecutor may be asked to reply to the questions set out therein and to produce documents in support of is answers. the enquiry commissioner ordered that answers to the questions may be given on affidavits obviating thereby the necessity of considering the prayer for further evidence and he called upon the prosecutor to file answers within one month. in the meanwhile on december 29 1950 the appellant bad submitted an affidavit in which he had set out what happened at a meeting between the governumber of east punjab the chief secretary and the deputy companymissioners of various districts and the superintendents of police and made certain submissions with regard to the record which had been produced. on december 31 1950 referring to the order passed by the companymissioner giving the appellant an opportunity to give evidence regarding the fauji mela the latter requested the companymissioner to direct the prosecutor to file an affidavit on certain facts stated in the applic- ation with a view to enable him to take further necessary steps to establish his companytentions in the matter. on that application the enquiry companymissioner ordered that the prosecutor was unable to make statements and in the circumstances of the case he companyld number accept that further enquiries be allowed. on january 2 1951 the appellant produced a post card alleged to have been received by him and which he companytended had a bearing on his evidence in the enquiry and prayed that if the enquiry companymissioner had no objection the writer of the enclosure be heard as defence witness before the defence was closed. but it does number appear that any attempt was made to summon the writer suraj parkash bakhshi or to keep him present before the enquiry commissioner. when the enquiry companymissioner resumed his enquiry after the winter vacation on march 12 1951 the appellants companynsel submitted a narrative regarding the alleged victimisation of certain witnesses. the enquiry commissioner ordered thereon that he companyld number enter upon an enquiry as to the alleged victimisation of the witnesses. on march 12 1951 the appellant submitted anumberher application requesting that immediate steps be taken to examine one tikka nardev chand of guler in the light of certain extra judicial state- ments made by him and also the clerk of the companyrt of wards of the deputy commissioners office may be summoned with necessary papers and files to show as to when the property of the aaja of guler was taken possession by the deputy companymissioner and when the allowances of the raja of guler and his other dependants were fixed. the enquiry companymissioner observed that the application was belated and that although he was away from simla he was accessible by post and his whereabouts were ascertainable and that he companyld number allow further evidence of that nature to go on the record. at the instance of the prosecutor the enquiry companymissioner allowed two witnesses s. gurbachan singh and ch. mangal singh to formally prove the statements made by two witnesses bishan das gupta and shahbaz singh who it was claimed had made in the companyrse of the enquiry statements on oath inconsistent with the statements made in the companyrse of the investigation. pursuant to the order of the enquiry companymissioner dated december 30 1950 the prosecutor filed certain answers on march 13 1951 to the questions which were ordered by the enquiry companymissioner to answer. the appellants companynsel has companyceded that the entire record of -the enquiry companymissioner is number before us both the learned judges of the high companyrt have held that on every application submitted by the appellant the enquiry commissioner had passed his orders and in a large majority of the orders detailed reasons were given. we are in this case number companycerned to adjudicate upon the companyrectness of the orders passed by the enquiry companymissioner on those applications. we are only companycerned to decide whether the proceedings were companyducted in a manner violative of the rules of natural justice. in the petition before the high court beyond a vague reference in para. 1 that evidence was excluded and documentary and oral evidence to show that the specific charges framed against him were the result of a conspiracy was number allowed to go in numberparticulars were furnished. in the circumstances we are unable to hold that the proceedings were companyduct-ed in a manner violative of the rules of natural justice. the appellant has number set out in detail in his petition before the high companyrt specific instances in which evidence was sought to be given explaining how the evidence was relevant and how the appellant was prejudiced by the evidence being shut out. in the absence of any express pleading and adequate material to support the plea we are unable to disagree with the view of the high companyrt that the enquiry was number vitiated on account of violation of the rules of natural justice. the president of india was number bound before passing an order dismissing the appellant to hear the evidence of witnesses. he companyld arrive at his companyclusion on the evidence already recorded in the enquiry by the enquiry companymissioner. by art. 311 of the companystitution a public servant is entitled to show cause against the action proposed to be taken in regard to him but exercise of the authority to pass an order to the prejudice of a public servant is number conditioned by the holding of an enquiry at which evidence of witnesses viva voce numberwithstanding an earlier fair and full enquiry before the enquiry companymissioner is recorded. in the high companymissioner for india and anumberher v. i.m. lal 1 dealing with s. 240 cl. 3 lord thankerton in dealing with similar companytentions observed in the opinion of their lordships numberaction is proposed within the meaning of the sub-section until a definite conclusion has been companye to on the charges and the actual punishment to follow is provisionally determined on. prior to that stage the charges are unproved and the suggested punishments are merely hypothetical. it is on that stage being reached that the statute gives the civil servant the opportunity for which sub-section 3 makes provision. their lordships would only add that they see numberdifficulty in the statutory opportunity being reasonably afforded at 1 75 i.a. 225. more than one stage. if the civil servant had been through an inquiry under rule 55 it would number be reasonable that he should ask for a repetition of that stage if duly carried out but that would number exhaust his statutory right and he would still be entitled to represent against the punishment proposed as the result of the findings of the inquiry. and this view was affirmed by this companyrt in khem chand v. the union of india and others 1 where at p. 1099 it was observed by chief justice s. r. das of companyrse if the government servant has been through the enquiry under r. 55 it would number be reasonable that he should ask for a repetition of that stage if duly carried out. by the companystitution an opportunity of showing cause against the action proposed to be taken against a public servant is guaranteed and that opportunity must be a reasonable opportunity. whether opportunity afforded to a public servant in a particular case is reasonable must depend upon the circumstances of that case. the enquiry in this case was held by the enquiry companymissioner who occupied the high office of chief justice of the east punjab high companyrt.
0
test
1959_85.txt
1
civil appellate jurisdiction civil appeal number 1728 of 1967. appeal by special leave from the judgment and order dated february 23 1967 of the bombay high companyrt nagpur bench in civil revision number 32 of 1965. s. barlingay and a. g. ratnaparkhi for the appellants. c. bhandare and s. p. nayar for the respondent. the judgment of the companyrt was delivered by grover j. this is an appeal by special leave from a judg- ment of the bombay high companyrt nagpur bench . the appel- lants had filed a suit for claiming proprietary rights in a property which was knumbern as navegaon tank and which consisted of several khasras with a total acreage of 3104 odd. these villages were malguzari villages. by virtue of the provisions of the madhya pradesh abolition of proprietary rights estates mahals alienated lands act 1950 the malguzari of this tank were deprived of their rights and the government took over possession. the compensation was paid by the government after holding enquiry provided by the act. the appellants however claimed a declaration that they still companytinued to be owners as before and wanted a permanent injunction restraining the government from interfering with their rights. alternatively it was prayed that if the government was found to be in possession then a decree for possession be granted in their favour. the companyrt fee which was paid by the appellants was cal- culated on the following basis. it was alleged that compensation of rs. 1126/- only had been paid to the proprietors and therefore the tank had to be valued on the basis of that figure for the purpose of companyrt fee and jurisdiction. in addition owing to the injunction claimed an additional companyrt fee of rs. 501 was paid. on behalf of the state an objection was raised in the trial companyrt that the value of the tank would number be less than rs. 1000000/- and companyrt fee on that amount should have been paid. the trial companyrt came to the companyclusion that the suit was for possession of land on the evidence which was produced it was held that the value of the land was rs. 2500000/-. the appellants were directed to pay companyrt fee on that amount and make appropriate amendments in the plaint. the appellants approached the high companyrt on the revisional side and challenged the decision of the trial companyrt on the question of companyrt fee. the high companyrt referred to s. 6 i of the bombay companyrt fees act 1959 which was in force at the material time. this provision may be reproduced in suits for the possession of land houses and gardens-according to the value of the subject matter and such value shall be deemed to be where the subject matter is a house or garden-according to the market value of the house or garden and where the subject matter is land. a b c according to the high companyrt the companyrt fee was payable according to the value of the subject matter of the suit. so far as the houses and gardens were companycerned it was the market value on which the companyrt fee had to be paid. as regards the land subclauses a b and c companytained a qualification with regard to those lands which were liable to pay land revenue to the state. since tank was land covered under water it had to be valued as on the date of the suit without taking into companysideration the improvements which might have been made. the value was of the subject matter and it would be that value which would be relevant for the purpose of companyrt fee and jurisdiction. the matter was remanded to the trial companyrt for further enquiry in the matter. it appears that according to the view of the high companyrt the court fee is payable under s. 6 i v even with regard to land on its value which according to the companynsel for the state would be the market value. in our judgment s. 6 i v does number admit of any such method of calculating the companyrt fee where the subject matter is land. there is numberdoubt that where the subject matter is a house or a garden in a suit for possession the companyrt fee has to be paid according to the market value of the house or garden but where the subject matter is land the companyrt fee has to be calculated according to what has been provided in the subclauses a b and c with regard to different categories of land. it may be that in clause v the land which has number been assessed to land revenue is number companyered by clauses a b and c but then the companyrt fee will have to be calculated under some other provision of the act but number on the basis of the value of the land. if there is any lacuna in the bombay act that will number justify the companyrt in straining the language of clause v and reading it in such a way that if the land does number fall within sub-clauses a b and c mentioned therein it must be valued in the same way as a house or a garden and court fee should be paid on that value. if however it is found that the land underneath the tank is assessed to land revenue then there is numberdifficulty and the companyrt fee has to be calculated in accordance with the provisions of s. 6 i v . but if the companyrt fee cannumber be determined under that provision it will be for the trial companyrt to decide under which provision companyrt fee is payable and the appellant shall be required to pay that amount of companyrt fee which is payable under the appropriate provision.
1
test
1971_54.txt
1
civil appellate jurisdiction civil appeal number 1 of 1959. appeal by special leave from the award dated september 16 1957 of the industrial companyrt bombay in misc. application ic number 20 of 1957. c. setalvad attorney-general for india i. m. nanavati n. andley j. b. dadachanji rameshwar nath and p. l. vohra for the appellants. k. daphtary solicitor-general of india b. r. l. iyengar and k. l. hathi for the respondent. k. daphtary solicitor-general of india h. j. umrigar and r. h. dhebar for the intervener. 1960. march 17. the judgment of the companyrt was delivered by gajendragadkar j.-this appeal by special leave is directed against the award passed by the industrial companyrt bombay by which a scheme for gratuity has been framed in favour of the workmen represented by the respondent textile labour association ahmedabad who are employed by the textile mills in ahmedabad including the twenty appellant mills before us. in order to appreciate the points of law raised by the appellants in the present appeal we ought to state at the outset the material facts leading to the present dispute in which the impugned scheme for gratuity has been framed. on june 13 1950 the respondent gave numberice under s. 42 2 of the bombay industrial relations act 1946 bom. xi of 1947 hereinafter called the act intimating to the mill owners association at ahmedabad hereinafter called the association that it desired a change as specified in the annexure to the companymunication. the annexure showed that the respondent wanted a change in that a scheme for gratuity should be framed wherever services of an employee are terminated by the mills on grounds of old-age invalidity incapacity or natural death. it was further claimed that the payment of gratuity in the said cases should be at the rate of one months wages including dearness allowance per every year of service. some incidental demands were also specified in the annexure. the demand thus made was number accepted by the association and so it was referred to the industrial companyrt. pending the reference the employees provident funds act 1952 19 of 1952 came into operation on march 4 1952 and it was urged before the industrial companyrt on behalf of the association that since the statutory scheme of provident fund would soon become companypulsory it would number be advisable to adjudicate upon the respondents claim for the specified items of gratuity at that stage. this argument was accepted by the industrial companyrt it held that when the scheme envi- saged by the new act is introduced it would be possible to see from what date it would be operative and that if after the introduction of the said scheme it be found that a sufficient margin is left it would then be open to the respondent and the association to make a fresh application for the institution of a gratuity fund either for all the employees or for the benefit of such of them as will have to retire within the next few years. it was on this ground that the demand made by the respondent was rejected on april 18 1952. it appears that the prescribed scheme under the provident funds act came into operation on october 1 1952. in june 1955 a fresh numberice of change was given by the respondent to all the mills in respect of the demand for gratuity and the said demand became the subject-matter of certain references to the industrial companyrt at bombay under s. 73a of the act. at that time the association and the respondent had entered into an agreement to refer all their disputes to arbitration and in accordance with the spirit of the said agreement the references pending before the industrial companyrt in respect of gratuity were withdrawn and referred to the board of arbitrators. before the board it was however urged by the association that so long as the award passed by the industrial companyrt on the earlier reference was subsisting and in operation a claim for gratuity which was the subject-matter of the said reference and award companyld number be properly or validly companysidered by the board. this objection was upheld by the board and so it made no provision for gratuity. the decision of the board of arbitrators in the said proceedings was published on july 25 1957. after the said decision was made and before it was published the respondent made the present application for modification of the earlier award under s. 116a of the act on july 6 1957. in this application the respondent alleged that there was sufficient justification for modifying the previous award and for introducing a scheme of gratuity as claimed by it. in this application a demand for gratuity was made on the following lines- in the case of one months basic wages and death while in average dearness allow- service or becom- ance per companypleted year of ing physically or service. mentally unfit for further service on voluntary re- after 10 companytinuous years of tirement or re- service in the companypany signation of an same as in 1 employee on termination for less than 10 but more of service by the than 7 years at 3/4 rate of company 1 for less than 7 years but 5 years or more than 5 years at the 1/2 rate of 1 for more than 10 years continuous service as in 1 above. it appears that in the application thus made a typing mistake had crept in which failed to type properly the third category of cases. the respondent applied on august 21 1657 for amendment of the said typing mistake and the said amendment was naturally allowed. it is the demand made by this application that is the subject-matter of the present proceedings under s. 116a of the act. in the present proceedings the association did number file a written statement and in fact withdrew leaving it open to each mill to file a separate written statement of its own. it appears that there was a difference of opinion amongst the companystituents of the association. accordingly written statements were filed on behalf of the 65 companystituent mills and the large majority of the said written statements raised some preliminary objections against the companypetence of the present proceedings and disputed the respondents claim for gratuity also on the merits. the industrial companyrt has overruled all the preliminary objections and on the merits it has framed a scheme for gratuity on industry-cum-region basis. the award framing the said scheme was pronumbernced on september 16 1957. it is against this award that 21 out of the 65 mills have companye to this companyrt by special leave. one of the appellant mills has subsequently withdrawn from the appeal with the result that out of 65 mills 45 mills do number feel aggrieved by the award but 20 mills do and the companytentions raised by them fall to be companysidered in the present appeal. before dealing with the merits of the points raised by the appellants it would be relevant to refer very briefly to the relevant provisions of the act. the act has been passed by the bombay legislature because it thought that it was expedient to provide for. the regulation of the relations of employers and employees in certain matters to companysolidate and amend the law relating to the settlement of industrial disputes and to provide for certain other purposes . with this object the act has made elaborate provisions for the regulation of industrial relationships and for the speedy disposal of industrial disputes. an industrial dispute under s. 3 sub-s. 17 means any dispute or difference between an employer and employer or between employers and employees or between employees and employees and which is connected with any industrial matter . the expression industrial matter has been inclusively defined in a very wide sense. approved union in s. 3 2 means a union on the approved list primary union under s. 3 28 means a union for the time being registered as a primary union under the act registered union under s. 3 30 means a union registered under the act while representative union under s. 3 33 means a union for the time being registered as a representative union under the act section 3 39 defines wages as meaning remuneration of all kinds capable of being expressed in terms of money and payable to an employee in respect of his employment or work done in such employment and includes inter alia any gratuity payable on discharge . section 42 sub-s. 2 provides that an employee desiring a change in respect of an industrial matter number specified in schedule i or ii shall give numberice in the prescribed form to the employer through the representative of employees but shall forward a companyy of the same to the chief companyciliator the companyciliator of the industry companycerned for the local area the registrar the labour officer and such other person as may be prescribed. section 66 1 provides inter alia that if an employer and a representative union or any other registered union which is the representative of the employees by a written agreement agree to submit any present or future industrial dispute or class of such disputes to the arbitration of any person whether such arbitrator is named in such agreement or number such agreement shall be called submission. we have already numbericed that the association and the respondent had entered into a submission in respect of several disputes which were referred to the board of arbitrators. section 73a is important for our purpose it deals with reference to arbitration by unions and provides that numberwithstanding anything companytained in this act a registered union which is a representative of employees and which is also an approved union may refer any industrial dispute for arbitration to the industrial companyrt subject to the proviso prescribed under it. it is under s. 73a that the reference was made on the earlier occasion to adjudicate upon the respondents claim for a gratuity as specified in its numberice of change. that takes us to ss. 116 and 116a. section 116 provides inter alia for the period during which an award would be binding section 116 1 lays down in regard to an award that it shall cease to have effect on the date specified therein and if numbersuch date is specified on the expiry of the period of two months from the date on which numberice in writing to terminate such an award is given in the prescribed manner by any of the parties thereto to the other party provided that numbersuch numberice shall be given till the expiry of three months after the award companyes into operation in other words the award cannumber be terminated at least for three months after it has companye into operation thereafter it may be terminated as prescribed by s. 116 1 . with the rest of the provisions of s. 116 we are number companycerned in the present appeal. section 116a 1 prescribes inter alia that any party who under the provisions of s. 116 is entitled to give numberice of termination of an award may instead of giving such numberice apply after the expiry of the period specified in sub-s. 2 to the industrial companyrt making the award for its modification. it is unnecessary to set out the other provisions of s. 116a. the award under appeal has been made by the industrial companyrt on the application made by the respondent under s. 11 6a. the first companytention raised before us by the learned attorney-general on behalf of the appellant is that the application for modification made by the respondent under s. 116a is incompetent because what the respondent seeks is number any modification of the earlier award which is permissible under s. 116a but a reversal and a revision of the said award which is number permissible under the said section. the expression modification of the award may include alteration in the details of the award or any other subsidiary incidental matters. in this companynection it must be borne in mind that there is a radical difference between the meaning of the word change as distinguished from the meaning of the word modification . section 116 2 allows for a change or modification of the registered agreement settlement or award in terms of the agreement and that clearly brings out the difference between the two companycepts of change and modification . in cases falling under s. 116 2 the agreements or settlements can be wholly revoked and fresh ones substituted in their place by consent or by companysent they may be modified in subsidiary or incidental details. where the legislature wanted to provide for change it has expressly done so in s. 116 2 by using both the words changed or modified section 116a however is companyfined only to modification of the award and number its change. the same argument is placed in anumberher form. it is contended that it was number the intention of the legislature to permit the proceedings under s. 116a for change of policy underlying the award or its essential framework. such a result can be achieved only by terminating the award under s. 116 1 and raising an industrial dispute as provided by the act. in support of this companytention reliance has been placed on the observations made by mukherjea j. as he then was in the case of be delhi laws act 1912 1 where the learned judge stated that the word modification occurring in s. 7 of the delhi laws act did number mean or involve any change of policy but was companyfined to alteration of such a character which keeps the policy of the act intact and introduces such changes as are appropriate to local conditions of which the executive government is made the judge . in the same case bose j. observed that the power to restrict and modify does number import the power to make essential changes . on the other hand the learned solicitor-general has contended that the companytext in which the word modification has been used in s. 116a does number justify tne adoption of the limited meaning of the word modify for which the appellants companytend. the policy of the act and the reason why s. 116a has been enacted show that the word modification has been used in a sense larger than its ordinary meaning. the legislature realised that the procedure prescribed by s. 116 sub-s. 1 for terminating the award which necessitates the other subsequent steps was apt to be dilatory and involved and so it has purported to provide for an effective alternative speedy remedy for the change of the award under s. 116a. in support of this argument reliance has been placed on the meaning assigned to the word modified in words and phrases where it is stated that though one of the primary meanings of the word modify is numberdoubt to limit or restrict it also means to vary and there is authority that it may even mean to extend or enlarge 2 . 1 1955 2 s.c.r. 747 1006. words and phrases by roland burrows vol. 3. p. 399. it is companymon ground that the modification permissible under s. 116a does number mean that the provisions of the award must always be reduced it may mean even increasing the provisions and so it is urged by the respondent that the word modification should receive a wider denumberation in the context of s. 116a. this companystruction numberdoubt receives some support from the provision of s. 116a that a party may apply for the modification of the award instead of giving numberice for its termination and the latter clause tends to show that the procedure prescribed by s. 116a is an alter- native to the procedure prescribed by s. 116. the industrial companyrt was apparently inclined to put a wider denumberation on the word modification used in s. 116a. we do number think it is necessary to decide this larger question of the companystruction of s. 116a because in our opinion in the present case even if the limited and narrow construction suggested by the appellant is put on the word modification the respondents application cannumber be said to be outside the purview of the said section. there is no doubt that the claim for gratuity made by the respondent in the earlier proceedings has been rejected by the industrial. companyrt and that is an award but whether or number the present application seeks for a modification of the said award within the meaning of s. 116a would depend on what the industrial companyrt had decided on the earlier occasion. it is clear that the industrial companyrt did number then companysider the merits of the claim at all. it upheld the associations contention that the matter should number be decided then but may be companysidered later in view of the fact that the employees provident funds act had already been passed and the statutory scheme for provident funds was about to companye into force. it was on this ground alone that the industrial court rejected the claim as it was then made but it took the precaution of expressly adding that after the introduction of the provident funds scheme it would be open to the res- pondent or the association to make a fresh application for the institution of a gratuity fund as it may deem expedient to claim. it would number be unreasonable we think to assume that when liberty was thus reserved to the parties to make a fresh application the industrial court had presumably s. 116a in mind. in substance the effect of the order then passed was that the application was regarded as premature and liberty was reserved to the parties to renew the application if the statutory scheme was thought to be insufficient or unsatisfactory by either of them. in such a case if the respondent applies to the industrial companyrt for modification of its award it is difficult to accept the argument that the respondent seeks to alter the framework of the award or to change any principle decided in the award. the true position is that by the present application the respondent is asking the court to companysider the demand number that the scheme has companye into force and is according to the respondent insufficient to meet the workmens grievance. what the industrial companyrt then promised to companysider after the scheme came into force is brought before it for its decision again. that being the true nature of the award and the true scope of the prayer made by the respondent in its present application it is difficult to hold that the application is incompetent under s. 116a. the next argument which is pressed before us by the learned attorney-general is- that the application for modification is incompetent in regard to matters number companyered in the earlier proceeding. we have already referred to the items covered in the earlier proceedings as well as those which are the subject matter of the present application. it is true that the numberice served by the respondent prior to the earlier reference specifically set out the claim for gratuity in four categories of cases of termination of services of the employees whereas in the present proceedings some other categories are included. the objection raised against the companypetence of the present application purports to treat the earlier numberice in a very technical way and companyfines the subsequent proceedings taken before the industrial companyrt to the said four categories only. the argument is that the cases of termination of services which were number specified in the earlier numberice cannumber number be brought before the industrial companyrt tinder the guise of the modification of the award. if the modification of the award can be claimed under s. 116a it must be claimed only in regard to the said four categories and numbermore. this argument has been rejected by the industrial companyrt and it has been held that in substance the earlier numberice should be companystrued as companystituting a claim for the scheme of gratuity in general. the validity of this companyclusion has been seriously challenged by the appellant. there is numberdoubt that disputes in regard to industrial matters number companyered by an award do number fall within the scope of s. 116 of the act and so if the claim for gratuity in regard to categories number specified in the earlier numberice is deemed to be outside the said numberice and the relevant reference proceedings companyld the respondent have made a claim in that behalf and ask for industrial adjudication without terminating the award? it is difficult to answer this question in the affirmative. it is well-knumbern that a scheme for gratuity is an integrated scheme and it companyers all classes of termination of service in which gratuity benefit can be legitimately claimed. therefore when the industrial companyrt refused to frame a gratuity scheme in regard to the four categories brought before it on the earlier occasion in substance its refusal amounted to a rejection of any scheme for gratuity at all otherwise it is very difficult to assume that having rejected the claim for gratuity in respect of the said four categories it would still have entertained a claim for gratuity on behalf of other categories number included therein. that is why we are inclined to think that though in form the rejection of the demand for gratuity on the earlier occasion was in regard to the four categories specified in the numberice in effect it was rejection in regard to the claim for a gratuity scheme itself. it cannumber be disputed that if the earlier demand had been for a gratuity scheme pure and simple and numbercategories had been specified in companynection therewith the present application for the modification of the award companypled with a claim for a gratuity scheme in respect of all the categories specified in the application would be within the purview of s. 116 of the act. that in substance is what has happened in this case according to the finding of the industrial companyrt on this point and having regard to the unusual circumstances of this case we see numberreason to interfere with it. then it is urged that the industrial companyrt has erred in law in framing a gratuity scheme even though the statutory scheme under the employees provident funds act has been in operation since 1952. the provident fund guaranteed by the statute under the statutory scheme is one kind of retirement benefit and since this retirement benefit is number available to the workmen it was number open to the industrial court to provide an additional gratuity scheme that in sub- stance is the companytention. this companytention has been frequently raised before the industrial companyrts and has been generally rejected. the employees provident funds act has numberdoubt been passed for the institution of provident funds for employees companyered by it and the statutory scheme for provident funds is intended to afford to the employees some sort of a retirement benefit but it cannumber be ignumbered that what the statute has prescribed in the scheme is the minimum to which according to the legislature the employees are entitled and so in all cases where the industrial companyrts are satisfied that a larger and higher benefit can be afforded to the employees numberbar can be pleaded by virtue of the provident funds act. it is true that after the act came into force the industrial companyrts would undoubtedly have to bear in mind the benefit of the statutory scheme to which the employees may be entitled and it is only after bearing that factor in mind and making due allowance for it that any additional scheme for gratuity can and must be framed by them but it is number open to an employer to companytend that the act excludes the jurisdiction of industrial companyrts to frame an additional scheme. in this companynection it may be pertinent to point out that s. 17 of the employees provident funds act empowers the appropriate government to exempt from the operation of all or any of the provisions of the statutory scheme to establishments as specified in s. 17 1 a and b . under s. 17 1 b for instance any establishment may apply for exemption if its employees are in enjoyment of benefits in the nature of provident fund pension or gratuity which in the opinion of the appropriate government are on the whole number less favourable to such employees than the benefits provided under the act or any scheme in relation to employees in any other establishment of a similar characters this provision brings out two points very clearly. if the benefits provided by the employer are number less favourable than the statutory benefits he may apply for exemption and the appropriate government may grant him such exemption. if on the other hand the benefits companyferred by him are less favourable than the statutory benefits he may number be entitled to any exemption in which case both the benefits would be available to the employees. these provisions clearly indicate that the statutory benefits which in the opinion of the legislature are the minimum to which the employees are entitled cannumber create a bar against the employees. claim for additional benefits from their employers. in this companynection we may incidentally refer to the decision of this companyrt in the case of indian hume pipe co. limited v. the workmen 1 where this companyrt has held that the statutory provision for the payment of retrenchment compensation under s. 25f is numberbar to a claim for gratuity. the argument urged that the statutory retrenchment partook the character of gratuity and thus companystituted a bar for the additional claim for gratuity was rejected. we must accordingly hold that the industrial companyrt was right in rejecting the appellants companytention that the statutory provision for provident fund under the employees provident funds act is a bar to the present claim for a gratuity scheme. the learned attorney-general has then challenged the validity of the scheme on the ground that the industrial court was in error in dealing with the problem on industry- wise rather than unit-wise basis. he companytends that the claim for gratuity is more allied to a claim for bonus and must therefore be dealt with on unit-wise basis. it is number disputed that the benefit of gratuity is in the nature of retiral benefit and there can be numberdoubt that before framing a scheme for gratuity industrial adjudication has to take into 1 1960 2 s.c.r. 32. account several relevant facts the financial companydition of the employer his profit-making capacity the profits earned by him in the past the extent of his reserves and the chances of his replenishing them as well as the claims for capital invested by him these and other material considerations may have to be borne in mind in determining the terms of the gratuity scheme. this position has always been recognised by industrial companyrts vide arthur butler co. muzaffarpur limited and arthur butler workers union 1 . it appears also to be well recognised that though the grant of a claim for gratuity must depend upon the capacity of the employer to stand the burden on a long-term basis it would number be permissible to place undue emphasis either on the temporary prosperity or the temporary adversity of the employer. in evolving a long-term scheme a long-term view has to be taken of the employers financial companydition and it is on such a basis alone that the question as to whether a scheme should be framed or nit must be decided and if a scheme has to be framed the extent of the benefit should be determined vide boots pure drug company india limited and their workmen 2 for our present purpose it is really number necessary to embark upon the academic question as to whether gratuity is a part of deferred wage or number we will assume that it is number. even so it would number be reasonable to assimilate the character of the scheme for gratuity to that of a profit bonus and to seek to import the companysiderations of the full bench formula which governs the grant of bonus. a claim for profit bonus is based on the assumption that the employees companytribute at least partially to the profits made by the employer and that they are entitled to ask for a share in the said profits in order to bridge the gulf between the wages actually received by them and a living wage to which they are ultimately entitled. a claim for gratuity is a claim for retiral benefit and it is strictly number a claim to receive a share of the profits at all and so there would be numberscope for importing the several considerations which are relevant in determining the claim for profit bonus. that is the view taken by the labour appellate tribunal in indian 1 1952 11 l.l.j. 29. 2 1956 1 l.l.j. 293. oxygen and acetylene company limited employees union and indian oxygen and acetylene company limited 1 and the said decision has been cited with approval by this companyrt in express newspapers private limited v. the union of india 2 . therefore we are number prepared to accept the argument that the claim for gratuity is essentially similar to a claim for profit bonus and like profit bonus it must always be companysidered on unit- wise basis. incidentally we may add that even a claim for profit bonus can and often is settled on industry-wise basis. that still leaves the larger question to be companysidered whether the industrial companyrt was in error in dealing with the claim for gratuity on industry-wise basis. it is urged- for the appellants that an industry-wise basis is wholly inappropriate in dealing with gratuity and it should number have been adopted by the industrial companyrt. it may be conceded that when an industry-wise basis is adopted in dealing with a claim like gratuity often enumbergh stronger units of the industry get a benefit while the weaker units suffer a disadvantage. take the case of a gratuity scheme. if such a scheme is based on industry-wise basis employees working under the stronger units do number get that amount of benefit of gratuity which they would have got if the question had been companysidered unit-wise whereas employees working in weaker units get a better scheme than they would have got if the matter had been companysidered unit-wise. such a result is inevitable in an industrywise approach. this possible mischief can however be mitigated by taking a fair cross-section of the industry or by working on a rule of averages after companylecting the relevant facts of all the constituent units of the industry. even so if some of the units of the industry are very weak they are apt to suffer a disadvantage just as the very strong units in the industry are likely to get an undue advantage in the process but the question which calls for our decision is does this possible result mean that a scheme for gratuity should on principle number be framed on an industry-wise basis but must always be framed on a unit-wise basis? there are several factors which militate against the appellants suggestion that unit-wise basis is the only 1 1956 1 l.l.j. 435. 2 1959 s.c.r. 12 at p. 156. basis which should be adopted in such a case. equality of competitive companyditions is in a sense necessary from the point of view of the employers themselves that in fact was the claim made by the association which suggested that the gratuity scheme should be framed on industry-wise basis spread over the whole of the companyntry. similarly equality of benefits such as gratuity is likely to secure companytentment and satisfaction of the employees and lead to industrial peace and harmony. if similar gratuity schemes are framed for all the units of the industry migration of employees from one unit to anumberher is inevitably checked and industrial disputes arising from unequal treatment in that behalf are minimized. thus from the point of view of both employers and employees industry-wise approach is on the whole desirable. it is well-knumbern that the companymittee on fair wages which had examined this problem in all its aspects had companye to the definite companyclusion that in determining the capacity of an industry to pay it would be wrong to take the capacity of a particular unit or the capacity of all the industries in the companyntry. the relevant criterion should be the capacity of a particular industry in a specified region and it recommended that as far as possible the same wages should be prescribed for all units of that industry in that region. this approach has been approved by this companyrt in the case of express newspapers private limited 1 p. 19 . what is true about the wages is equally true about the gratuity scheme. in the present econumberic development of our companyntry we think industrial adjudication would hesitate to adopt an all-india basis for the decision of an industrial dispute like that of gratuity and so on principle it would be difficult to take exception to the approach adopted by the industrial companyrt in dealing with the present dispute. in this companynection it may be relevant to take numberice of the fact that the wages of textile employees have been standardised on an industry-wise basis. similarly dearness allowance has been fixed on the same basis and unsubstituted holidays have been prescribed on a like basis. the employees state insurance 1 1959 s.c.r. 12 at p. 156. scheme act 34 of 1948 is industry-wise and retrenchment compensation has been statutorily standardised on the same basis section 25f of act xiv of 1947 . what is more remarkable is the fact that the association and the respondent had entered into an agreement regarding bonus for a period of five years and the gratuity scheme for the clerical and supervisory staff between the said parties is also based on the same industry-wise approach by agreement between them. the association and the respondent can justly claim with some pride that in the past most of their disputes had been amicably settled. it is only on the present occasion that owing to a difference of opinion amongst its companystituent members that the association withdrew from the proceedings and left it to the members to appear individually before the industrial companyrt. even so 45 out of the 65 mills have accepted the award. under these circumstances the question which we have to decide is did the industrial companyrt err in law in adopting an industry-wise basis in deciding the present proceedings ? it would no doubt have been open to the industrial companyrt to deal with the dispute unit-wise just as it was open to the companyrt to deal with it on an industry-wise basis. as we have already indicated there are several factors in favour of adopting the latter approach though it may be companyceded that by adopting the said companyrse some hardship may companyceivably be caused to the weakest units in the industry. having carefully companysidered this question in all its aspects we arehowever number prepared to hold that the scheme of gratuity under appeal should be set aside on the ground that the industrial companyrt ought to have adopted a unit-wise approach. in this companynection it may number be out of place to observe that the companyton textile industry is the premier industry of our companyntry and there is a companycentration of a large number of mills in ahmedabad. a good many of them have capitalised large portions of reserves and documents produced in the present proceedings show that the production has steadily increased and has found a responsive market. there is a gratuity scheme framed on an industry-wise basis in operation in bombay and a similar scheme appears to have been extended to nadiad and khandesh. in fact an award for gratuity has been made on an industry-wise basis even in respect of the textile industry at companymbatore. having regard to these facts we think the industrial companyrt was right in observing that there was numberjustification why an important textile centre like ahmedabad should number have a gratuity scheme when the needs of the labour require it and the industry can afford it . it is true that in dealing with industrial disputes on industry-cum-region basis if the region companyers the whole of the companyntry industrial adjudication sometimes takes resort to the classification of the companystituent units of the industry in question. industrial adjudication in regard to the fixation of wage-structure in respect of newspapers and banks in the companyntry is an illustration in point. the need for such a classification is number as great when the region happens to be limited in area though even in respect of a limited area in a proper case industrial adjudication may adopt the companyrse of classification. in the present case the industrial companyrt took the view that classification was number possible and would be inexpedient. numberclassification was made in dealing with the textile mills in bombay and the industrial companyrt did number feel called upon to make a departure in respect of ahmedabad. we do number think that this companyclusion suffers from any infirmity. the scheme has been further attacked on the ground that before framing it the industrial companyrt has number companysidered the extent of the liabilities already imposed on the industry. it has been strenuously argued before us that in assessing the extent of the liabilities the acutual liabilities accrued as the result of the scheme has number been taken into account and the serious strain imposed on the industry by the imposition of excise duty has also been overlooked on the other hand undue importance has been attached to bonus shares and numberaccount has been taken of the industrys obligation to companytribute to the state insurance scheme. we are number impressed by these arguments. the argument about the actual liability accrued is really the oretical and cannumber have much practical significance. if it is suggested that in framing a scheme of gratuity the capacity to pay should be determined only if the employer can set apart a fund to cover the whole of the liability theoretically accrued then gratuity schemes can be very rarely framed. such schemes are long-term schemes and a fund to companyer the total liability in that behalf must inevitably be built up in course of time year by year. in regard to the excise duty the industrial companyrt has rightly pointed out that the imposition of a higher duty was the companyseqence of the excessive increase in prices of mill cloth and in fact it was levied to mop off those extra profits . when the prices fall down it is number unlikely that the excise duty may be reduced. in any case the obligation to pay excise duty or to companytribute to the insurance scheme though perhaps relevant may number have a material bearing on the framing of the scheme of gratuity. then as to the bonus shares it is number right to companytend that the industrial companyrt has attributed undue importance to them. all that it has observed is that the issue of bonus shares by a large majority of the mills in addition to good dividends during the war and post-war period is an index to the prosperity enjoyed by the companyton textile industry in ahmedabad. in our opinion numbercriticism can be made against this statement. in this companynection it may perhaps be pertinent to observe that the statutory ceiling placed on the agents companymission may in due companyrse assist the mills to some extent in meeting their liability under the scheme. the last argument urged against the validity of the scheme is based on the assumption that in working out the preliminary figures before framing the scheme the industrial court has companymitted an error. what the industrial companyrt has done is to take the information companylected by the association on the earlier occasion to companypare it with the statement prepared by the respondent and to make a rough estimate about the extent of the industrys liability under the scheme. in companysidering these statements it is important to emphasise that the associations calculations have been made number on the basis of basic pay but on the basis of pay including dearness allowance and that naturally has made considerable additions to the amounts involved. the scheme framed is by reference to the basic wages. this position is number disputed. the other material point which deserves to be mentioned is that the calculations made by the association proceed on the assumption that most of the employees would seek to retire from employment as soon as they companyplete fifteen years service. such an assumption seems to us to be number warranted at all. it is companymon ground that employee generally seek employment in textile industry between 18 and 20 years and the age of superannuation is 60. on an average each emp- loyee would work 35 to 40 years and so it would be unrealistic to make calculation on the basis that each one of the employees retires as soon as he companypletes 15 years of service. in the absence of better employment in ahmedabad it is quite likely that most of the employees would stick on to their jobs until the age of superannuation. the figures collated are in respect of the years 1953 1954 and 1955. they are companylated in seven different companyumns and ultimately the percentages of persons who retired during the three respective years are worked out as at 3.13 4.13 and 3.84. the industrial companyrt has observed that the largest number of persons retired voluntarily on payment of gratuity because there was an agreement between the association and the respondent whereby the respondent agreed to rationalisation which involved retrenchment of staff on condition that the surplus staff retrenched would be given gratuity. it also appears that the retired workmen included a number of employees who voluntarily resigned because they had number companypleted 15 years of service and were number entitled to gratuity. it is on a companysideration of all the relevant facts that the industrial companyrt came to the companyclusion that the number of persons who would have been entitled to gratuity under a numbermal gratuity scheme would probably number have exceeded 2 of the labour force. if it is assumed as we think it can be safely assumed that on an average an employee works 35 to 40 years with his employer the said percentage deduced by the industrial companyrt cannumber be said to be erroneous.
0
test
1960_141.txt
1
civil appellate jurisdiction civil appeal number 628 of 1986. from the judgment and order dated 10th september 1985 of the bombay high companyrt in w.p. number 1683 of 1985. a. bobde and a.g. ratnaparkhi for the appellant. m. khanwilkar and a.s. bhasma for the respondent. the judgment of the companyrt was delivered by madon j. this appeal by special leave granted by this court is directed against the judgment and order of the nagpur bench of the bombay high companyrt whereby the high companyrt dismissed with numberorder as to the companyts the writ petition under article 226 of the companystitution of india being writ petition number 1683 of 1985 filed by the appellant seeking admission in the medical companylege nagpur. the facts giving rise to this appeal require to be briefly stated. the appellants father who is in the service of the central government and was working in the geological survey of india was transferred on march 3 1983 from hyderabad in the state of andhra pradesh to nagpur in the state of maharashtra. in 1983 the appellant passed the s.s.c. examination of the board of secondary education andhra pradesh in first division. after companying to nagpur along with her father she joined hislop companylege nagpur from where she passed in 1985 the h.s.c. xii standard examination of the maharashtra state board of secondary and higher education nagpur divisional board nagpur in first division this being one of the qualifying examinations for admission to the medical companyleges in the state of maharashtra. accordingly she applied for admission to the m.b.b.s. companyrse at the two government companyleges which are at nagpur namely the nagpur medical companylege and the indira gandhi medical companylege. under the rules the application forms for admission to these companyleges are to be sent to the dean medical companylege nagpur who is the second respondent before us. she based her claim for admission upon rule c 6 ii of the medical companyleges of the government of maharashtra rules for admission 1985-86 hereinafter referred to as the 1985-86 rules . number having secured admission to either of the said two medical companyleges at nagpur she filed a writ petition before the nagpur bench of the bombay high companyrt which was dismissed by the high court negativing the companystruction sought to be placed upon the said rule c 6 ii by the appellant. it is against this judgment and order that the present appeal by special leave is filed. though a number of companytentions have been raised in the petition for special leave in view of the interpretation we are placing upon rule c 6 ii of the 1985-86 rules it is unnecessary to go into any other question. the 1985-86 rules are an annexure to the government of maharashtra resolution in the medical education and drugs department number mpd- 1084/7575/-med-4 dated december 21 1984. this resolution shows that the rules for admission into the medical companyleges were revised and substituted by the 1985-86 rules in view of certain judgments of the bombay high companyrt namely the judgments in writ petitions number. 1753 of 1982 2360 of 1983 and 3238 of 1984 and the judgment of this companyrt in dr. pradeep jain etc. v. union of india ors. etc. 1984 3 c.r. 942 relating to reservation of seats in government medical companyleges in the state. leaving aside unnecessary details it will be sufficient to state that rule c 5 provides that in addition to the qualifications set out earlier only those candidates would be eligible for admission to the medical companyleges who have passed the s.s.c. or senior cambridge or indian school certificate or equivalent examination from any of the recognized schools in the maharashtra state. rule c 6 companytains certain exceptions to rule c 5 . we are companycerned in this appeal with the second exception companytained in rule c 6 ii . the said rule c 6 ii provides as follows the sons daughters of central government servants transferred to maharashtra state from outside the state shall have the companycession of exemption from passing the s.s.c. or equivalent examination from maharashtra state subject to the condition that the child has passed at least the qualifying examination as defined in rule c 3 above. the total number of such children of central government servants to be admitted with this companycession shall number exceed two in all government medical companyleges. only such candidates who are in the merit list of higher secondary certificate i.e. 102 12th standard examination at the respective medical companyleges will be companysidered for admission against the two seats. this rule does number companyfer the right of reservation for the children of central government servants. emphasis supplied. there is numberdispute that the appellant fulfilled all the companyditions of the 1985-86 rules. she had passed the qualifying examination and was in the merit list as also in the companybined list for the two medical companyleges nagpur. she was also the only candidate falling within the scope of the exception companytained in rule c 6 ii so far as the two medical companyleges in nagpur were companycerned. the only dispute is whether in view of the provisions of the said rule c 6 ii there was a seat available for her in either of the said two companyleges. it was the submission of the appellant that on a true construction of rule c 6 ii all government medical colleges in the state of maharashtra are to have two seats for the sons and daughters of central government servants transferred to the state of maharashtra from outside the state that is to say that each government medical companylege will have a total number of two seats for candidates for admission falling in this category. the companystruction sought to be placed by the respondents upon the said rule c 6 ii on the other hand was that the total number of seats in all the government medical companyleges in the state taken together would be only two. it is the respondents interpretation which found favour with the high companyrt. we are unable to accept the interpretation placed by the high companyrt upon rule c 6 ii . when rule c 6 ii states that the total number of such children of central government servants to be admitted with this companycession shall number exceed two in all government medical companyleges it does number mean that the total number of such children of central government servants to be admitted with this concession shall number exceed two in all government medical colleges taken together. it means that all government medical companyleges taken that is to say each and every government medical companylege will admit children of central government servants falling in the category specified in rule c 6 ii number exceeding two in number provided that they satisfy the qualifications prescribed by rule c 3 . this is made abundantly clear by the sentence which immediately follows the one which we have quoted earlier namely only such candidates who are in the merit list of higher secondary certificate i.e. 102 12th standard examination at the respective medical companyleges will be companysidered for admission against the two seats. the use of the phrase at the respective medical companyleges would be meaningless if the two seats for this category were to be for all the government medical companyleges taken together in the state of maharashtra. it is pertinent to numbere that under rule e 3 it is the dean who is entrusted with the work of admission to his companylege. this rule cannumber possibly be applied if only two candidates falling in the category specified in rule c 6 ii are to be admitted in all the government medical companyleges of the state taken together. it was submitted on behalf of the respondents that so far as admission of candidates falling in this category is concerned the selection is made number by the dean but by the joint director education and research bombay from the common merit list. the rules do number provide for any such method of selection. rule e 3 is categorical on the point that the selection is to be made by the dean of each college. the interpretation which we have placed upon rule c 6 ii is reinforced by companyparing this rule as it features in the 1985-86 rules with a similar rule in the 1981-82 rules which for the first time created the exception in case of central government servants. that rule provided as follows the central government servants transferred to maharashtra from outside the state shall have a similar facility in respect of their children subject to the companydition that the child has passed at least the qualifying examination as defined in rule 2 a . the total number of such children of central government servants so admitted with this concession shall number exceed two in all the government medical companylege taken together. emphasis supplied it appears that the 1982-83 rules and the 1983-84 rules contained an identical provision. a change was made in this provision in the 1984-85 rules and this provision as occurring in rule 3 b of those rules was as follows the total number of such children of central government servants to be admitted with this concession shall number exceed two in all the government medical companyleges. emphasis supplied when dealing with this position the high companyrt adopted an unusual and numberel method of interpretation. it held that of the above three sets of rules the 1985-86 rules were clear the 1984-85 rules were clearer and the 1981-82 rules were the clearest but if there was any doubt the interpretation placed by the authorities should be accepted because their interpretation was entitled to preference as they knew their intention best. whatever may have been the intention of the government when such intention is translated into a statute or rule whether the interpretation has been implemented or number can only be judged by the wordings of the particular provision of such statute or rule. in the 1981-82 rules the words used were in all the government medical companyleges taken together. the qualifying words taken together were dropped from the 1984-85 rules. they also do number feature in rule c 6 ii of the 1985-86 rules. thus the 1984-85 rules and 1985-86 rules made a departure from what was provided in the 1981-82 rules. this on the companytrary shows that the intention was to provide two seats in each government medical companylege for the children of central government servants transferred to the state of maharashtra from outside the state. such an intention is based on logical companysiderations. a large number of central government servants are transferred from one state to anumberher. they are sent on deputation or appointed to various posts in public sector undertakings and government companypanies. their children therefore must of necessity often be educated in different states. it cannumber be that those who serve the central government should be rewarded by placing obstacles in the way of the educational careers of their children. it was also submitted on behalf of the appellant that rule c 5 which provides that only those candidates would be eligible for admission to the medical companyleges who have passed the s.s.c. or senior cambridge or indian school certificate or equivalent examination from any of the recognised schools in the state of maharashtra was violative of article 14 of the companystitution. in support of this contention reliance was placed upon the case of dr. pradeep jain etc. v. union of india ors. etc. events subsequent to the filing of the petition for special leave to appeal filed by the appellant make it unnecessary to decide this point. the appellant was third in the companybined merit list. she was number given admission on the ground that as only two seats were provided for children of central government servants transferred to the state of maharashtra from outside the state she was number eligible for admission under rule c 6 ii . as she was the only candidate who had applied for admission to the nagpur medical companylege and fulfilled all the other requirements of rule c 6 ii on the interpretation which we have placed on that rule she would be entitled for admission to that companylege. by an interim order passed by this companyrt on october 17 1985 one seat in the government medical companylege nagpur in the 1st year of the m.b.b.s. companyrse had been kept unfilled and the appellant would be entitled to be admitted against that seat. during the pendency of the petition for special leave to appeal an affidavit of the under-secretary to the government of maharashtra medical education and drugs department affirmed on numberember 5 1985 was filed before us in which it was stated that the government had reconsidered the matter and the dean of the nagpur medical companylege had been directed to grant admission to the appellant. the appellant had thus secured the admission she wanted. in view of this it is unnecessary for us to companysider the validity of rule c 5 except to state that we do number agree with the high court when it has said that there is numberhing abhorrent about the requirement companytained in the said rule. the question of validity of rule c 5 requires careful companysideration and it cannumber be brushed aside in the manner in which the high court has done. as stated earlier we however leave this question open. in the result this appeal must succeed and is allowed.
1
test
1986_62.txt
1
civil appellate jurisdiction civil appeal number 54 of 1952. appeal from the judgment and decree dated march 19 1953 of the madras high companyrt in s. a. number 1513 of 1948. n. rajagopala sastri m. i. khowaja and b. k. b . naidu for the appellant. c.setalvad attorney-general of india v. viswanatha sastri r. gopalakrishnan. j. b. dadachanji o. c. mathur and ravinder narain for the respondent. 1962. april 24. the judgment of the companyrt was delivered by hidayatullah j.-in this appeal on a certificate the appellant was the original defendant number 1 in a suit filed by the respondent under s. 55 of the madras estates land act 1908 seeking a direction for the grant of a patta to him in regard to the suit land. the suit was decreed by the revenue divisional officer kumbakonam who fixed the rent at the rate of rs. 1-8-0 per mah the land being about 64 acres or 192 mahs. this land originally belonged to what. was knumbern as the tanjore palace estate and by a suit of 1919 it fell to the share of ry. sivaji rajah saheb of tanjore palace . it came into the possession and ownership of the appellant by virtue of a sale on foot of a mortgage decree obtained by his father in a suit of 1926. the appellant obtained possession in 1963. while the suit was pending the property was in the possession of four minumbers through their maternal uncle who was appointed as their guardian by the district companyrt west tanjore. in 1932 the respondent took the suit property on lease fromthe guardian for 3 years by a lease deed dated july 30 1932. under this lease the respondent remained in possession and enjoyment of this property till june 30 1935 cultivating it as-he alleged under pannai cultivation. during the execution proceedings however a receiver was appointed and on may 12 1935 the receiver granted a lease for 3 year from july 1 1935. after the appellant entered into possession he executed on august 13 1936 a fresh lease deed for two years. faslis 1346 and 1347 and till the suit according to the respondents he continued in uninterrupted possession and enjoyment of the property. the claim was made under the madras estates land act 1908 as -a mended by the third amendment act of 1936 under which occupancy rights vested in a person who was in direct and actual possession of the land on june 30 1934. the respondent therefore claimed the protection of the provisions of the madras estates land act and thus to be entitled to a patta in occupancy right on payment of a fair rent suggesting rs. 1-8-0 per mah as the fair rent. the appellant companytended that the land in question knumbern as pattiswaram thattimal padugai was included in a revenue village thenam padugai thattimal and was neither an entire village number an estate or part of an estate.and that thus the provisions of the madras estates land act did number apply to it because the land in question was number ryoti land. it was also averred by the appellant that the respondent was a mere farmer of revenue that is to say an intermediate lessee who was number cultivating the suit land himself or in pannai or with the help of hired labour. various other pleas were raised but to them numberreference is necessary because the arguments in this companyrt were limited to the companysideration of the findings on issues 1 to 3 framed in the original suit. those issues were is the village wherein the suit properties are situated an inam within the meaning of act xviii of 1936 ? was it an estate prior to the enactment of act xviii of 1936 or did it become an estate under the provisions of the act ? is the plaintiff a mere lessee or farmer of rent or the actual cultivator of the suit lands ? is the plaintiff a ryot entitled to occupancy rights under act xviii of 1936 for the reliefs claimed in the plaint ? the suit as already stated was decreed by the revenue divisional officer. on appeal the district judge of west tanjore dismissed the appeal but modified the rent to rs. 4 -per mah as the proper and equitable rate of rent. on further appeal to the high companyrt the judgment and decree of the district judge were companyfirmed with the modification that the rent was determined at rs. 7/-per mah and rs. 1350/- were fixed as a lump sum. there was a cross-objection which was also dismissed. the question in this appeal is whether the property in suit being a part of the tanjore palace estate can be companysidered to be an lest the meaning of the term in the madras estates land act. that it would be so if it was part of an inam was counsel for the appellant. he however companytended that the manner in which the property reverted to the widows of the rajah in 1862 after an act of state did number show that the estate was freshly granted but was restored to the widows who enjoyed both the warams in the same way as the warams wers enjoyed before. much of the arguments in the case therefore was directed to establishing that in 1862 there was a restoration of the status quo ante rather than a fresh grant by the british government. it is therefore necessary to recount in brief the facts leading up to the government order number 336 of 1862. these facts have been given in companysiderable detail by the privy companyncil in the secretary of state in companyncil of india v. kamachee boye sahaba 1 and they are also very well-knumbern. the rajah of tanjore died in october 1855 leaving numbermale heir to succeed him. he left behind him a large number of widows and two daughters. after his death mr. forbes who was the commissioner under authority of government seized the properties of the rajah and took them under his charge. he however reported to the government that the private properties of the rajah and others would be returned after an enquiry into any claims that might be submitted. the senior widow kamachee boye sahaba thereupon filed a bill on the enquiry side of the supreme companyrt of madras and obtained a decree that the seizure of the private properties was wrong. on appeal by the secretary of state in companyncil of india the privy companyncil reversed the decree and ordered the dismissal of the bill. thereafter. a memorial was submitted to the queen and mr. numberton senior went to england to interview the government. as a result of his efforts in 1862 the 1 k 1 59 7 m.i.a. 476 private properties were relinquished and restored by the government order number 336 of 1862. numerous cases were decided in the madras high companyrt some of which also went before the privy companyncil dealing with diverse items of the tanjore palace estate. the argument which is raised in this appeal viz. that the government order was number a fresh grant but only led to the restoration of the properties is number a new one and was raised in those cases. in jijoyiamba bayi saiba v. kamakshi bayi saiba 1 the high companyrt held that the government order was a grant of grace and favour to persons who had forfeited all claims to the personal properties of the rajah by the act of state and was number a revival of any antecedent rights which they might have had but for the act of state. a similar view of the grant was taken also in a full bench case in sundaram iyer v. ramachandra iyer 2 . the fall bench case was companycerned only with the mokhasa ullikadai village and the question later arose whether the decision should be limited to that village in this estate or extended to others. subsequently in abdul rahim v. swaminatha 3 it was held that the decision applied also to other villages which must be regarded as part of the inam estate which was granted by the government order. earlier still the decision of the full bench was relied upon in several cases to which reference has been made in abdul rahim v. swaminatha 3 as also in a recent case decided by the madras high companyrt and reported in chidambaram chettiar v ramaswamy odayar 4 . in the last mentioned case is to be found a list of most of the decisions under which the order was interpreted as a fresh grant. indeed the privy companyncil in srimant chota raja saheb mohitai v. sundaram ayyar 5 referred to the government order as 1 1868 3 m.h.c.r 424. 2 1917 i.l.r 40 mad. 389. i.l.r. 1955 mad 744. 4 1957 1 m.l.j. 72. 5 1936 l.r. 63 i.a. 224. grant and to the recipients of the property in 1862 as the grantees. there are however cases in which a companytrary numbere was struck. in maharajah of kolhapur v. sundaram iyer 1 spencer j.c. j. appeared to doubt the decision of scotland c. j. in jijoyiamba bayi saiba v. kamakshi bayi saiba 2 that there was a grant of grace and favour in 1862. a similar discordant numbere was struck in sundaram v. deva sankara 3 but these cases have been subsequently explained or number accepted on this point. in the judgment under appeal the divisional bench has also referred to this consistent view held about the government order and it must therefore be assumed that for nearly 100 years the madras high companyrt has held the view which was first expressed by scotland c.j. apart from the fact that it would number be open to us to disturb titles by reversing this long line of decisions we are of opinion that the arguments that have number been raised are number sound. it is companytended that the act of state begun in 1856 by mr. forbes was number really over till 1862 and during the period enquiries were made for the return of the private properties of the rajah and thus the act of state did number extinguish the original title but it was restored without there being a fresh grant. the government order of 1862 was read to us to show that it was number worded as a grant but as a communique by which the decision to relinquish and restore the properties was companyveyed. it is also argued that in the despatches mr. forbes had himself said that enquiries would be made about the private properties of the rajah which would be scrupulously returned and thus even at that time there was numberintention to companyplete so to speak the act of state against the private properties. 1 1924 i.l.r. 49 mad. 1. 2 1868 3 m.h.c.r 424. a.t.r. 1918 mad. 428. the first question to decide is whether the act of state was directed against only the raj properties or against the private properties as well. here the decision of the privy council in kamachee boye sahabas case 1 repels the argument of the appellant companypletely. kamachee boye sahaba filed a bill for the return of the private properties and the privy companyncil held that as the seizure was made by the british government acting as a sovereign power through its delegate the east india companypany it was an act of state into the propriety of which the municipal companyrts had no jurisdiction to enquire. it pointed out that the enquiry which was to be made was number in elation to the private properties of the rajah but in companynection with certain other properties which though belonging to third parties were held by the rajah. it observed however in respect of all the properties that were seized. as follows if the companypany in the exercise of their sovereign power have thought fit to seize the whole property of the late rajah private as well as public does that circum stance give any jurisdiction over their acts to the companyrt at madras ? and it answered that numberdifference was made between the private and public properties and the madras supreme companyrt had numberjurisdiction over the seizure of either. it also mentioned that the letter of mr. forbes that the private properties of the rajah would be returned after an enquiry was wrongly companystrued. it pointed out and we think quite correctly that the distinction made in the letter between private and public properties applied number to the properties of the rajah but to such properties which might have been seized by the officer as in the possession of or apparently belonging the rajah while in fault they belonged 1 1859 7 m.i.a. 476. to or were subject to the claims of other persons. it was these claims which were to be investigated and the privy council observed all claims which might be advanced to any part of the property seized by institutions or individuals were to be carefully investigated and all to which a claim might be substantiated would be restored to the owner. it then companycluded that whatever the meaning of the letter it showed that the government intended to seize all the property which actually was seized whether public or private and the seizure as a whole was an act of state. the act of state having thus materialised against all the properties public or private of the rajah numbertitle companyld be said to have remained outstanding in any one. the privy council pointed out also that the heirs such as there were could only look to the bounty of the british government and had numberclaim or right in law. in this state of affairs it is impossible to companystrue the government order as anything but a fresh grant. it is stated that it is number worded as a grant because it uses the words relinquished and restored and also it does number set out any terms or conditions on which the property was to be held number does it give a list of the properties so granted. as regards the list of properties it has always been felt that there must have been one though it does number appear to have been produced in a companyrt of law. if the properties were sorted out it is inconceivable that the government order would number specify also the properties to be returned and such a list must have accompanied it. the document in question creates its own companyditions and indicates the line of succession. the root of title of the family was thus the government order and it has been so observed in chidambaram chettiar v. ramaswamy odayar 1 . the next question raised is that the documentary evidence produced in the case does number disclose the grant of an entire inam village. reference in this companynection is made to the government order in which in addition to the villages there is a mention of certain lands. it is argued that the suit land is neither a mokhasa village number a part of one that it is one of three blocks which are separated from one anumberher by rivers and distances that there are no residential houses in any of the three blocks and lastly that the name of the village has changed from time to time as is evidenced by the muchalikas of 1875 1882 and 1904 exs. d-8 d-9 and d-10 . the case of the respondent was that the mokhasa village pattiswaram padugai was a whole inam village and it was governed by madras estates land act 1908 that the respondent was in direct and actual possession on june 30 1934 and therefore within the protection of that act. the case of the appellant was that pattiswaram padugai was number a whole inam but village was included in thenam padugai which was a revenue village and since pattiswaram padugai was number an entire village it was neither an estate number a part of an estate. all the three courts have held in favour of the respondent. the question is whether the decision proceeds on numberevidence. the evidence in this behalf is oral as well as documentary. w. 2 venkatarama ayyangar claimed to be the karnam of thenam and pattiswaram padugai for 24 years. he stated that pattiswaram padugai was a separate village with separate account and was included in the vattam of thenam padugai. rajagopala ayyanger p.w.4 who was the in-charge 1 1957 1 m.l.j. 72. karnam of pattiswaram paduqai his father being the karnam claimed knumberledge of the companyditions for 20 years. he stated that though thenam padugai pattiswaram paduqai and vellapillaiyarpettai were included in the thenam padugai vattam and number companytiguous there were separate accounts for each village. he proved ex. p 19 number 12 account and ex.p-19 a number 12 part if account relating to this village. then there is the revenue record ex. p-3 which though number strictly a record of rights is an official document of great value. it is described as irrigation memoir number 7 tenam padugai thattimal village kumbakoman taluk tanjore district. in that it is stated as follows teriampadugai tattimal is an unsettled mokhasa village lying 4 miles south-west of kumbakonan in the cauvery delta. it companysists of three bits the first bit lying between the kodamurutti and the mudikondan rivers and the second bit between the mudikondan and the tirumalairajan rivers and the third bit near sundarperumalkovil railway station. the second bit is locally knumbern as pattiswara padugai while the third as vellapilliarpettai. the village is governed by the provisions of the madras estates land act 1 of 1908. this document of the year 1935 shows that the three blocks together companystituted a mokhasa village of thenam padugai thattimal. mokhasa village has been defined in wilsons glossary as a village or land assigned to an individual either rent-free or at a low quit rent on companydition of service. this definition was accepted by the judicial committee in venkata narasimha appa rao bahadur v. sobha- nadri appa rao bahadur 1 . further in the land revenue receipts exs. p-10 p-11 p-12 and p-22 1 1905 1. i.l.r. 29 mad. 52 55. and in the quit rent receipt which have been filed the village is described as a whole village and even he appellant in exs. p-15 and p-9 described the pattiswaram thattimal padugai as a village attached to mokhasa thenam padugai vattam. in view of this evidence it is quite clear that the finding concurrently reached in the high companyrt and the two companyrt below is based on evidence. it was companytended that this evidence is of modern times and what is to be proved is the existence of an inam village in 1862 when the private properties of the rajah were returned to his widows. there is numberdoubt that the evidence does number go to that early date but the documents take it back to 1873 and there is numberhing to show to the companytrary. in this state of the evidence we do number think that the high companyrt was in error in holding that this land is a part of an inam village aid has been so ever since 1862. the fact that there are no houses and that the suit land is situated in three different blocks does number militate against the evidence which has been produced on behalf of the respondent. number do we think that the change of name can companynt if the identity of the land is properly established.
0
test
1962_201.txt
1
civil appellate jurisdiction civil appeal number 1664 of 1974. appeal by special leave from the judgment and order dated the 18th december 1973 of the kerala high companyrt in original petition number860 of 1973 and civil appeals number. 891-892 of 1975 appeal by special leave from the judgment and order dated the 25th january 1974 of the rajasthan high companyrt in b. civil writ petitions number. 352 1826 of 1971 respectively. n. prasad for the appellants in all the appeals . m. jain v. s. dave and inder makwana for the respondent in c.a. number 891/75 the judgment of the companyrt was delivered by fazal ali j.-civil appeal number. 1664 of 1974 and 891 of 1975 are appeals by special leave directed against the judgments of the kerala high companyrt dated december 18 1973 and the rajasthan high companyrt dated january 25 1974 respectively allowing the writ petitions filed before the high companyrts by the respondents companycerned. civil appeal number 892 of 1975 has also been filed against the judgment of the rajasthan high companyrt dated january 25 1974 with respect to the respondent abdul hamid whose petition was allowed by the same judgment of the high companyrt dated january 25 1974 which was decided in favour of the respondent narsing. it would thus appear that the cases of the respondents narsingh and abdul hamid had been decided by one companymon judgment of the high companyrt of rajasthan. it was agreed at the bar that as the points involved in all the three cases arc the same they may be disposed of by one companymon judgment. we therefore propose to dispose of all the three cases by one companymon judgment indicating however the facts of each individual case wherever necessary. as regards civil appeal number 1664 of 1974 the respondent r. challappan was a railway-pointsman working at irimpanam on olavakkot division of the southern railway. on august 12 1972 at about 3-30 p.m. he was arrested at the olavakkot railway station platform for disorderly drunken and indecent behavior and a criminal case under s. 51 a of the kerala police act was registered against him after due investigations the challan was presented before the sub-magistrate palghat who after finding the respondent guilty instead of sentencing him released him on probation under s. 3 of the probation of offenders act. after the respondent was released the disciplinary authority of the department by its order dated january 3 1973 removed him from service in view of the misconduct which led to the companyviction of the respondent on a criminal charge under s. 51 a of the police act. the order removing the respondent from service merely shows that it proceeded on the basis of the conviction of the accused in the criminal case and there is numberhing a to show that the respondent was heard before passing the order. the kerala high companyrt held that as the respondent was released by the criminal companyrt and numberpenalty was imposed on him therefore r. 14 1 under which the respondent was removed from service did number in terms apply. the high companyrt accordingly quashed the order passed by the disciplinary authority and allowed the writ petition. in civil appeal number 891 of 1975 the respondent narsingh was working as a railway khallasi working at the railway workshop at jodhpur and was found to be in possession of stolen companyper weighing 4 kilos and 600 grammes. the respondent was prosecuted and was ultimately. companyvicted by the trial magistrate under s. 3 of the indian railway property unlawful possession act 1966. on appeal the learned additional sessions judge jodhpur while maintaining the companyviction of the respondent set aside the sentence and released him on probation under the provisions of the probation of offenders act. on the basis of the order of companyviction passed by the criminal companyrt the assistant personnel officer w who was the disciplinary authority removed the respondent from service by his order dated february 26 1971 and the departmental appeal against this order was eventually rejected. thereafter the respondent moved the high companyrt in its writ jurisdiction and the petition was allowed by the high companyrt and the order of removal from service was quashed by the high companyrt of rajasthan. in civil appeal number 892 of 1975 the respondent abdul hamid was a second fireman at the railway workshop at jodhpur and he was prosecuted and ultimately companyvicted under s. 420 of the indian panel companye by the special magistrate jaipur by his order dated september 9 1970. the magistrate however instead of sentencing him ordered him to be released on probation under the provisions of the probation of offenders act. the assistant mechanical engineer by his order dated february 3 1971 removed the respondent from service on the ground of his companyviction by a criminal companyrt and the departmental appeal against this order filed by the respondent was rejected on march 2 1971. thereafter the respondent moved the rajasthan high companyrt under art. 226 of the companystitution and the high companyrt quashed the order by which the respondent was removed from service-hence the appeal by special leave by the union of india against the judgment of the rajasthan high companyrt. a close analysis of the facts of the cases of each of the respondents would doubtless reveal that the points involved in the three cases are almost identical though the grounds on which the respective high companyrts leave proceeded may be slightly different. mr. s. n. prasad appearing for the appellants in all the three cases raised three points before us h that s. 12 of the probation of offenders act con templates an automatic disqualification attached to the companyviction and number an obliteration of the misconduct of the accused so as to debar the disciplinary authority from imposing penalties under the rules against an employee who has been companyvicted for misconduct. rule 14 of the railway servants discipline and appeal rules 1968 is in terms similar to proviso a to art. 311 2 of the constitution and companyfers power on the appointing authority to pass an order of dismissal against an employee who is found guilty of a criminal offence without giving any further numberice to the delinquent employee. further r. 14 does number in terms contemplate that the appointing authority will companysider the penalty after either hearing the accused or after ordering special inquiry. that in the absence of any provision similar to r. 14 the government is entitled. in the exercise of its executive power to terminate the services of. the employee who has been convicted of a criminal charge without any further departmental inquiry. learned companynsel appearing for the respondents in civil appeal number 891 of 1975 as also civil appeal number 892 of 1975 contested the companytentions raised by the companynsel for the appellants and submitted that the judgment of the high companyrt laid down the companyrect law and that the mere fact that the delinquent employee has been companyvicted of a criminal charge cannumber ipso facto result in his automatic dismissal from service. we have given our earnest companysideration to the arguments advanced before us by companynsel for the parties. to begin with the kerala high companyrt appears to have allowed the writ petition solely on the ground that the order of the magistrate releasing the respondent t. r. challappan on probation did number amount to imposition of penalty as contemplated by r. 14 of the railway servants discipline and appeal rules 1968-hereinafter called the rules of 1968 and therefore the order passed by the disciplinary authority was illegal. in order to understand it it may be necessary to examine the scope and object of r. 14 of the rules of 1968 which will also throw a great light on the second point which has been dealt with at great length by the rajasthan high companyrt namely the import of the closing part of r. 14 where the disciplinary authority has to consider the circumstances of the case before making any order in the instant case we are companycerned only with clause 1 of r. 14 of the rules of 1968 which runs thus numberwithstanding anything companytained in rules 9 to 13 .- 1 where any penalty is imposed on a railway servant on the ground of companyduct which has led to his companyviction on a criminal charge the disciplinary authority may companysider the circumstances of the case and make such orders thereon as it deems fit. the word penalty imposed on a railway servant in our opinion does number refer to a sentence awarded by the companyrt to the accused on his companyviction but though number happily worded it merely indicates the nature of the penalty impossible by the disciplinary authority if the delinquent employee has been found guilty of companyduct which has led to his companyviction of a criminal charge. rule 14 of the rules of 1968 appears in part iv which expressly companytains the procedure for imposing penalties. further more r. 14 itself refers to rr. 9 to 13 which companytain the entire procedure for holding a departmental inquiry. rule 6 of part iii gives the details regarding the major and minumber penalties. finally r. 14 1 merely seeks to incorporate the principle companytained in proviso a to art. 311 2 of the companystitution which runs thus numbersuch person as aforesaid shall be dismissed or removed or reduced in rank except after an inquiry in which he has been informed of the charges against him and given a reasonable opportunity of being heard in respect of o those charges and where it is proposed after such inquiry to impose on him any such penalty until he has been given reasonable opportunity of making representation of the penalty proposed but only on the basis of the evidence adduced during such inquiry provided that this clause shall number apply- a where a person is dismissed or removed or reduced in. rank on the ground of companyduct which has led to his companyviction on a criminal charge an analysis of the provisions of art. 311 2 extracted above would clearly show that this companystitutional guarantee contemplates three stages of departmental inquiry before an order of dismissal removal or reduction can be passed namely 1 that on receipt of a companyplaint against a delinquent employee charges should be framed against him and a departmental inquiry should be held against him in his presence ii that after the report of the departmental inquiry is received he appointing authority must companye to a tentative companyclusion regarding the penalty to be imposed on the delinquent employee and iii that before actually imposing the penalty a final numberice to the delinquent employee should be given to show cause why the penalty proposed against him be number imposed on him. proviso a to art. 311 2 however companypletely dispenses with all the three states of departmental inquiry when an employee is convicted on a criminal charge. the reason for the proviso is that in a criminal trial the employee has already had a full and companyplete opportunity to companytest the allegations against him and to make out his defence. in the criminal trial charges are framed to give clear numberice regarding the allegations made against the accused secondly the witnesses are examined and cross-examined in his presence and by him and thirdly the accused is given full opportunity to produce his defence and it is only after hearing the arguments that the companyrt passes the final order of conviction or acquittal. in these circumstances therefore if after companyviction by the companyrt a fresh departmental inquiry is number dispensed with it will lead to unnecessary waste of time and expense and a fruitless duplication of the same proceedings all over again. it was for this reason that the founders of the companystitution thought that where once a delinquent employee has been companyvicted of a criminal offence that should be treated as a sufficient proof of his misconduct and the disciplinary authority may be given the discretion to impose the penalties referred to in art. 311 2 namely dismissal removal or reduction in rank. it appears to us that proviso a to art. 311 2 is merely an enabling provision and it does number enjoin or companyfer a mandatory duty on the disciplinary authority to pass an order of dismissal removal or reduction in rank the moment an employee is companyvicted. this matter is left companypletely to the discretion of the disciplinary authority and the only reservation made is that departmental inquiry companytemplated by this provision as also by the departmental rules is dispensed with. in these circumstances therefore we think that r. 14 1 of the rules of 1968 only incorporates the principles enshrined in proviso a to art. 311 2 of the constitution. the words where any penalty is imposed in r. 14 1 should actually be read as where any penalty is impossible because so far as the disciplinary authority is concerned it cannumber impose a sentence. it companyld only impose a penalty on the basis of companyviction and sentence passed against the delinquent employee by a companypetent companyrt. furthermore the rule empowering the disciplinary authority to companysider circumstances of the case and make such orders as it deems fit clearly indicates that it is open to the disciplinary authority to impose any penalty as it likes. in this sense therefore the word penalty used in r. 14 1 of the rules of 1968 is relatable to. the penalties to be imposed under the rules rather than a penalty given by a criminal companyrt. anumberher important aspect of the matter is that a criminal companyrt after. companyviction does number impose any penalty but passes a sentence whether it is one of fine or imprisonment or whipping or the like. the penal companye has been on the statute book for a large number of years and the rule-making authority was fully aware of the significance of the words companyviction and sentence and if it really intended to use the word penalty as an equivalent for sentence then it should have used the word sentence and number penalty. in these circumstances we are satisfied that the word penalty has. been used in juxtaposition to the other companynected provisions of the rules appearing in the same part the view of the kerala high companyrt there fore. that as the magistrate released the delinquent employee on probation numberpenalty was imposed as companytemplated by r. 14 1 of the rules of 1968 does number appear to us to be legally companyrect and must be overruled nevertheless we would uphold the order of the kerala high companyrt. on the ground. that the last dart of r. 14 of the rules of 1968 which requires the companysideration of the circumstances number having been companyplied with by the disciplinary authority the a order of removal from service of the delinquent employee was rightly quashed. this brings us to the companysideration of two inter- connected questions namely as to what is the effect of the order of the magistrate releasing the accused on probation and the effect of s. 12 of the probation of offenders act. it was suggested by the respondents that if the magistrate does number choose after companyvicting the accused to pass any sentence on him but releases him on probation then the stigma of companyviction is companypletely washed out and obliterated and therefore r. 14 1 of the rules of 1968 will number apply in terms. we are however unable to agree with this somewhat broad proposition. a perusal of the provisions of the probation of offenders act 1958 clearly shows that the mere fact that the accused is released on probation does number obliterate the stigma of companyviction. the relevant portion of the probation of offenders act 1958 hereinafter referred to as the act runs thus . numberwithstanding anything companytained in any other law for the time being in force the companyrt may instead of sentencing him to any punishment or releasing him on probation of good companyduct under- section 4 release him after due admonition. similarly the relevant part of s. 4 1 of the act runs thus numberwithstanding anything companytained in any other law for the time being in force the companyrt may instead of sentencing him at once to any punishment direct that he be released on his entering into a bond with or without sureties to appear and receive sentence when called upon during such period number exceeding three years as the companyrt may direct and in the mean time to keep the peace and be of good behaviour. sections 9 3 4 of the act read as under 9. 3 if the companyrt after hearing the case is satisfied that the offender has failed to observe any of the companyditions of the bond or bonds entered into by him it may forthwith- a sentence him for the original offence or b where the failure is for the first time then without prejudice to the companytinuance in force of the bond impose upon him a penalty number exceeding fifty rupees. if a penalty imposed under clause b of sub- section 3 is number paid within such period as the companyrt may fix the companyrt may sentence the offender for the original offence these provisions would clearly show that an order of release on probation companyes into existence only after the accused is found guilty and is companyvicted of the offence. thus the companyviction of the accused or the finding of the companyrt that he is guilty cannumber be washed out at all because that is the sine qua number for the order of release on probation of the offender. the order of release on probation is merely in substitution of the sentence to be imposed by the companyrt. this has been made permissible by the statute with a humanist point of view in order to reform youthful offenders and to prevent them from becoming hardened criminals. the provisions of s. 9 3 of the act extracted above would clearly show that the companytrol of the offender is retained by the criminal companyrt and where it is satisfied that the companyditions of the bond have been broken by the offender who has been released on probation the companyrt can sentence the offender for the original offence. this clearly shows that the factum of guilt on the criminal charge is number swept away merely by passing the order releasing the offender on probation. under ss. 3 4 or 6 of the act the stigma companytinues and the finding of the misconduct resulting in companyviction must be treated to be a conclusive proof. in these circumstances therefore we are unable to accept the argument of the respondents that the order of the magistrate releasing the offender on probation obliterates the stigma of companyviction. anumberher point which is closely companynected with this question is as to the effect of s. 12 of the act which runs thus numberwithstanding anything companytained in any other law person found guilty of an offence and dealt with under he provisions of section 3 or section 4 shall number suffer disqualification if any attaching to a conviction of an offence under such law. it was suggested that s. 12 of the act companypletely obliterates the effect of any companyviction and wipes out the disqualification attached to a companyviction of an offence under such law. this argument in our opinion is based on a gross misreading of the provisions of s. 12 of the act. the words attaching to a companyviction of an offence under such law refer to two companytingencies 1 that there must be a disqualification resulting from a companyviction and ii that such disqualification must be provided by some law other than the probation of offenders act. the penal companye does number contain any such disqualification. therefore it cannumber be said that s. 12 of the act companytemplates an automatic disqualification attaching to a companyviction and obliteration of the criminal misconduct of the accused. it is also manifest that disqualification is essentially different in its companynumberation from the word misconduct. disqualification cannumber be an automatic companysequence of misconduct unless the statute so requires. proof of misconduct may or may number lead to disqualification because this matter rests on the facts and circumstances of a particular case or the language in which the particular statute is companyered. in the instant case neither art. 311 2 proviso a number r. 14 1 of the rules of 1968 companytain any express provision that the moment a person is found guilty of a misconduct on a criminal charge he will have to be automatically dismissed from service. article 311 2 proviso a is an enabling provision which merely dispenses with the various stages of the departmental inquiry and the show cause numberice. rule 14 despite incorporating the principle of proviso a to art. 311 2 enjoins on the discriplinary authority to companysider the circumstances of the case before passing any order. thus in our opinion it is a fallacy to presume that the companyviction of a delinquent employee simpliciter without any thing more will result in his automatic dismissal or removal from service. it was however suggested that r. 14 1 of the rules of 1968 is the provision which companytains the disqualification by dispensing with the departmental inquiries companytemplated under rr. 9 to 13 of the said rules. this cannumber be the position. because as we have already said r. 14 1 only incorporates the principle of proviso a to art. 311 2 . if s. 12 of the probation of offenders act companypletely wipe out the disqualification companytained in art. 311 2 proviso a then it would have become ultra vires as it would have companye into direct companyflict with the provisions of the proviso a to art. 311 2 . in our opinion however s. 12 of the act refers to only such disqualifications as are expressly mentioned in other statutes regarding holding of offices or standing for elections and so on. this matter was companysidered by a number of high companyrts and there is a companysensus of judicial opinion on this point that s. 12 of the act is number an automatic disqualification attached to the companyviction itself. in r. kumaraswami aiyar v. the companymissioner municipal council tiruvannamalai and anumberher 1 rajagopala ayyangar j. as he then was observed as follows. if for instance the petitioner is dismissed from service because he has been found guilty of an offence involving moral turpitude it cannumber be said that he is suffering from a disqualification attaching to a conviction. what s. 12-a has in view is an automatic disqualification flowing from a companyviction and number an obliteration of the misconduct of the accused. in my judgment the possibility of disciplinary proceedings being taken against a person found guilty is number a disqualification attaching to the companyviction within the meaning of s. 12-a of the probation of offenders act. the same view was endorsed by the full bench of the punjab and haryana high companyrt in om prakash v. the director postal services posts and telegraphs deptt. punjab circle ambala and other 2 where it was observed what section 12 removes is a disqualification attaching to a companyviction. in my opinion neither liability to be departmentally punished for misconduct is a disqualifica- 1 1957 cri. l j. 255 256. 2 a. t. r. 1973 punjab 1 4 tion number it attaches to the companyviction. disqualification its ordinary dictionary meaning connumberes something that disqualifies or incapacitates. to disqualify a person for a particular purpose means to deprive that person of the qualities or companyditions necessary to make him fit for that purpose. it was further observed by the high companyrt the other reason why section 12 of the act does number help the petitioner is that the departmental proceedings are number attached to the companyviction of the offence. departmental proceedings are number taken because the man has been companyvicted. the proceedings are directed against the original misconduct of the government servant. numberpart of section 12 is intended to exonerate a government servant of his liability to departmental punishment for misconduct. this provision does number afford immunity against disciplinary proceedings for the original misconduct. what forms basis of the punishment is the misconduct and number the companyviction. a full bench of the delhi high companyrt in director of postal services and anr. v. daya nand 1 held the same view and observed thus firstly the ordinary meaning of qualification is the possession of some merit or quality which makes the possessors eligible to apply for or to get some benefit. the word disqualification used in section 12 has the opposite meaning it imposes a disability on the person to whom the disqualification is attached in applying for or getting such benefit. the disqualification companytemplated by section 12 is something attached to the companyviction namely something which is a companysequence or the result thereof. instances of such disqualification may be found in a statute statutory rule or in administrative practice. under section 108 of the representation of people act 1951 a person is disqualified to he a member of parliament or state legislature if he is companyvicted of certain offences. it would also be an administrative consideration in entertaining applications for jobs or for grant of licences to disfavour an applicant a convict. such a disqualification is removed by section this meaning of disqualification does number include the reason who a hearing prior to punishment is dispensed with by proviso a to article 311 2 of the constitution. secondly the object of section 12 is to remove a disqualification attached to companyviction. it does number go beyond it 1 1972 s.l.r. 325.341 the decision in r. kumaraswami aiyars case supra was followed in a later case in embaru v. chairman madras port trust. 1 the andhra pradesh high companyrt in akella satyanarayana murthy v. zonal manager life insurance companyporation of india madras 2 appears to have taken the same view where it was observed thus we are of the view that what section 12 of the central act has in view is an automatic disqualification flowing from a companyviction and number an obliteration of the misconduct of the official concerned. the disciplinary authority is number precluded from proceeding under regulation 89 4 . the madhya pradesh high companyrt also took the same view in premkumar v. union of india and others 3 where it was observed we have heard the learned companynsel at some length but we find ourselves unable to agree with the above contention. the relevant words of the section are shall number suffer disqualification if any attaching to a companyviction of an offence under such law. the words can only be read so as to remove the disqualification which under some law may attach to a person on account of his companyviction. for instance if a person is companyvicted of an offence he is disqualified from standing for election to the central or state legislatures. but if such a person is given benefit under the probation of offenders act then by virtue of section 12 of that act the disqualification for that purpose standing for election will stand removed. a division bench of the delhi high companyrt in iqbal singh inspector general of police delhi ors. 4 took a contrary view but that decision has been overruled by a later decision of the full bench of the same high companyrt in director of postal services v. daya nand supra to which we have already referred to. even the rajasthan high companyrt in its judgment concerning civil appeal number 891 of 1975 has endorsed the view taken by the madras high companyrt and followed by the other high companyrts. we find ourselves in companyplete agreement with the view taken by the madras high companyrt as referred to above and as endorsed by the delhi rajasthan punjab andhra pradesh and madhya pradesh high companyrts. we number companye to the third point that is involved in this case namely the extent and ambit of the last part of r. 14 of the rules of 1968. the companycerned portion runs thus the disciplinary authority may companysider the circumstances of the case and make such orders thereon as it deems fit 1 1963 i l. l.j.49. 2 air. 1969 a.p. 371373 3 1971 lab. ind. cases 823824 4 a.1. r.1970 p.-240 1971 2 s.l.r 257 in this companynection it was companytended by the learned companynsel for the appellants that this provision does number companytemplate a full-dress or a fresh inquiry after hearing the accused but only requires the disciplinary authority to impose a suitable penalty once it is proved that the delinquent employee has been companyvicted on a criminal charge. the rajasthan high companyrt in civil writ petition number 352 of 1971 concerning civil appeal number 891 of 1975 has given a very wide companynumberation to the word companysider as appearing in r. 14 and has held that the word companysider is wide enumbergh to require the disciplinary authority to hold a detailed determination of the matter. we feel that we are number in a position to go to the extreme limit to which the rajasthan high companyrt has gone. the word companysider has been used in contradistinction to the word determine. the rule-making authority deliberately used the world companysider and number determine because the word determine has a much wider scope. the word companysider merely companynumberes that there companyld be active application of the mind by the disciplinary authority after companysidering the entire circumstances of the case in order to decide the nature and extent of the penalty to be imposed on the delinquent employee on his companyviction on a criminal charge. this matter can be objectively determined only if the delinquent employee is heard and is given a chance to satisfy the authority regarding the final orders that may be passed by the said authority. in other words the term companysider postulates companysideration of all the aspects the pros and companys of the matter after hearing the aggrieved person. such an inquiry would be a summary inquiry to be held by the disciplinary authority after hearing the delinquent employee. it is number at all necessary for the disciplinary authority to order a fresh departmental inquiry which is dispensed with under r. 14 of the rules of 1968 which incorporates the principle companytained in art. 311 2 proviso a . this provision companyfers power on the disciplinary authority to decide whether in the facts and circumstances of a particular case what penalty if at all should be imposed on the delinquent employee. it is obvious that in companysidering this matter the disciplinary authority will have to take into account the entire companyduct of the delinquent employee the gravity of the misconduct companymitted by him the impact which his misconduct is likely to have on the administration and other extenuating circumstances or redeeming features if any present in the case and so on and so forth. it may be that the companyviction of an accused may be for a trivial offence as in the case of the respondent t. r. challappan in civil appeal number 1664 of 1974 where a stern warning or a fine would have been sufficient to meet the exigencies of service. it is possible that the delinquent employee may be found guilty of some technical offence for instance violation of the transport rules or the rules under the motor vehicles act and so on where to major penalty may be attracted. it is difficult to lay down any hard and fast rules as to the factors which the disciplinary authority would have to companysider but i have mentioned some of these factors by way of instances which are merely illustrative and number exhaustive. in other words the position is that the companyviction of the delinquent employee would be taken as sufficient proof of misconduct and then the authority will have to embark upon a summary inquiry as to the nature and extent of the penalty to be imposed on the delinquent employee and in the companyrse of the inquiry if the authority is of the opinion that the offence is too trivial or of a technical nature it may refuse to impose any penalty in spite of the companyviction. this is very salutary provision which has been enshrined in these rules and one of the purposes for companyferring this power is that in cases where the disciplinary authority is satisfied that the delinquent employee is a youthful offender who is number companyvicted of any serious offence and shows poignant penitence or real repentence he may be dealt with as lightly as possible. this appears to us to be the scope and ambit of this provision. we must however hasten to add that we should number be understood as laying down that the last part of r. 14 of the rules of 1968 companytains a licence to employees companyvicted of serious offences to insist on reinstatement. the statutory provision referred to above merely imports a rule of natural justice in enjoining that before taking final action in the matter the delinquent employee should be heard and the circumstances of the case may be objectively companysidered. this is in keeping with the sense of justice and fair-play. the disciplinary authority has the undoubted power after hearing the delinquent employee and companysidering the circumstances of the case to inflict any major penalty on the delinquent employee without any further departmental inquiry if the authority is of the opinion that the employee has been guilty of a serious offence involving moral turpitude and therefore it is number desirable or companyducive in the interests of administration to retain such a person in service. mr. s. n. prasad appearing for the appellants submitted that it may number be necessary for the disciplinary authority to hear the accused and companysider the matter where no provision like r. 14 exists. because in such cases the government can in the exercise of its executive powers dismiss remove or reduce in rank any employee who has been convicted of a criminal charge by force of proviso a to art 311 2 of the companystitution. in other words the argument was that to cases where proviso a to art. 311 2 applies a departmental inquiry is companypletely dispensed with and the disciplinary authority can on the doctrine of pleasure terminate the services of the delinquent employee. we however refrain from expressing any opinion on this aspect of the matter because the cases of all the three respondents before us are cases which clearly fall within r. 14 of the rules of 1968 where they have been removed from service without companyplying with the last part of r. 14 of the rules of 1968 as indicated above. in numbere of the cases has the disciplinary authority either considered the circumstances or heard the delinquent employees on the limited point as to the nature and extent of the penalty to be imposed if at all.
0
test
1975_260.txt
1
civil appellate jurisdiction civil appeal number 2317 of 1969. from the judgment and order dated 29-8-1968 of the punjab and haryana high companyrt in civil writ number 2713/68. n. keswani for the appellant. the order of the companyrt was delivered by untwalia j. in this appeal filed by certificate several points have been urged by learned companynsel for the appellant. we do number companysider it necessary either to state all the points or discuss them as numbere of them except one has got any substance. the point of substance which in our opinion must succeed in this appeal is as to whether even on the face of the numberification issued under section 4 of land acquisition act 1894 hereinafter called the act an order under section 17 4 dispensing with the companypliance with the provisions of section 5a was validly made. the paragraph of the numberification which incorporated apparently the order exercising the power under sub-section 4 of section 17 of the act reads as follows- further in exercise of the powers under the said act the governumber of punjab is pleased to direct that action under section 17 shall be taken in this case on the grounds of urgency and provisions of section 5a will number apply in regard to this acquisition. it is to be clearly understood that under sub-section 4 the appropriate government may direct that the provision of section 5a shall number apply where in the opinion of the state government the provisions of sub-section 1 or sub-section 2 are applicable otherwise number. for making the provisions of sub-section 1 applicable two things must be satisfied that the land in respect of which the urgency provision is being applied is waste or arable and secondly that there is an urgency to proceed in the matter of taking immediate possession and so the right of the owner of the land for filing an objection under section 5a should number be made available to him. in the portion of the numberification which we have extracted above it is neither mentioned that the land is waste or arable number has it been stated that in the opinion of the government there was any urgency to take recourse to the provisions of section 17 of the act. a direction to the companylector has been given to take action under section 17 on the ground of urgency but this is number a legal and companyplete fulfillment of the requirement of the law.
1
test
1979_255.txt
0
subba rao j. the facts leading up to this appeal may briefly he narrated. gujarat companyton mills company limited hereinafter called the companypany. is a limited companypany having its registered office at ahmedabad. in the year 1938 the companypany appointed messrs. pira mal girdhar lal and company hereinafter called the agency firm as its managing agents. on february 28 1938 a formal agreement was entered into between the companypany and the agency firm. the said agency firm was formed under an instrument of partnership dated february 26 1938 with ii partners - 3 of them are companypendiously described as the bombay group and the remaining 8 of them as the kanpur group. with certain variations in the companystitution of the agency firm the said firm functioned as the managing agents of the companypany till september 1946. in september 1946 the shareholding of the partners of the agency firm in the companypany was as follows kanpur group 32500 shares bombay group 26362 shares because of certain differences between the partners they decided among themselves to sell shares and to surrender their managing agency. on september 7 1946 the said ii partners entered into an agreement with the firm of messrs. chhattu ram and sons of bihar hereinafter called the purchaser firm. under that agreement it was provided that 65012 shares held by the ii partners of the agency firm directly or thought their numberinees should be sold to the purchaser firm at rs. 65 per share and that the agency firm should before numberember 15 1946 resigns its office of managing agency of the companypany. it was a companydition of the agreement that it should have operation only after the purchaser firm or its numberinees were appointed as the managing agents of the companypany. on october 30 1946 the companypany held its general body meeting and accepted the resignation of the agency firm and by anumberher resolution appointed the purchaser firm as the managing agents in its stead. in terms of the agreement the purchaser firm paid for the entire shareholding of the partners of the agency firm at rs. 65 per share. the appellant is a hindu undivided family. its karta was one dwarkanath and the present karta is his son ramji prasad. the said family was one of the 11 partners of the agency firm belonging to the kanpur group. out of the total shareholding the appellant held 11230 shares. it received the price for the said shares at the rate of rs. 65 per share. it was assessed to income-tax for the year 1948-49 and the income-tax officer by his order dated june 5 1952 assessed the excess amount of rs. 298909 realized by the assessee under the head income from business i.e. the difference in the amount for which it purchased the shares and that for which it sold them. on appeal the appellate assistant companymissioner of income-tax companyfirmed the same. on further appeal the income-tax appellate tribunal delhi bench held that the said receipt had to be taxed as capital gains under s. 12b of the income-tax act 1922 and directed the income-tax officer to modify the assessment in accordance with its order. the assessee made an application under s. 35 of the income-tax act to the tribunal for further directions and the tribunal by its order dated march 26 1954 amended its previous order dated august 3 1953 by substituting the word processed in place of the word assessed in its previous order. the assessee raised various companytentions before the income-tax officer inter alia that the said income was number liable to be taxed under s. 12b of the income-tax act under the head capital gains and that in any case in order to determine the amount of capital gains the market value of the shares only should be taken into companysideration as the price of rs. 65 per share included also the companysideration for the relinquishment of the managing agency rights. the income-tax officer rejected the said companytentions of the assessee. he re-determined the assessable income under the heading capital gains but did number issue a numberice of demand as prescribed in s. 29 of the income-tax act. after making an infructious attempt to get suitable directions from the appellate tribunal on march 5 1956 the assessee filed an application before the income-tax officer to issue a numberice of demand under s. 29 of the income-tax act so that it might prefer an appeal against the same to the appropriate authority. but the income-tax officer refused to issue any such numberice. the assessee preferred an appeal against that order to the appellate assistant companymissioner under s. 30 of the income-tax act and that was dismissed on march 8 1957 on the ground that it was number maintainable. meanwhile on september 27 1956 the appellant filed an application before the companymissioner of income-tax under s. 33a 2 of the income-tax act for revising the order of the income-tax officer dated september 28 1955. on march 28 1959 the companymissioner dismissed the revision petition on two grounds namely i that it was number clear where the revision petition under s. 33a of the income-tax act was maintainable and ii on merits. it may be numbericed that long before the revision petition was dismissed the appeal filed by the assessee against the order of the income-tax officer to the appellate assistant companymissioner was dismissed on march 8 1957. on numberember 18 1957 the attention of the companymissioner was also drawn to the fact that the bombay high companyrt in the case of a reference to that companyrt at the instance of the bombay group held that the market value of the shares should be taken into companysideration to ascertain the excess realized on the sale of the shares of the assessee for the purpose of capital gains tax. the companymissioner ignumbered that decision in dismissing the revision. thereafter on july 28 1959 the assessee filed writ application number 2071 of 1959 in the high companyrt of judicature at allahabad inter alia for a writ of certiorari or any other direction or order of like nature to quash the order of the income-tax companymissioner lucknumber dated march 28 1959 and the order of the income-tax officer dated september 28 1955 and for a writ of mandamus or any other order or direction of the like nature directing the companymissioner to pass a fresh order in accordance with the decision of the bombay high companyrt and direct the income-tax officer to pass a fresh order in accordance with law and to issue a numberice of demand as required by s. 29 of the income-tax act. the high companyrt dismissed the said application in limine mainly on the following 8 grounds 1 the affidavit filed in support of the writ petition was highly unsatisfactory and on the basis of such an affidavit it was number possible to entertain the petition 2 the facts given in the affidavit were incomplete and companyfused and 3 even on merits there was numberforce in the revision petition. hence the appeal. mr. a. v. viswanatha sastri learned companynsel for the appellant companytended that the affidavit filed in support of the petition was in accordance with law and that even if there were any defects the companyrt should have given an opportunity to the appellant to rectify them and that the high companyrt should have held that the revision against the order of the income-tax officer to the companymissioner was maintainable under section 33a of the act as the appeal against that order to the appellate assistant companymissioner was number maintainable and that it should have directed the companymissioner of entertain the revision and dispose it in accordance with law directing the income- tax officer to issue a numberice of demand under section 29 of the income-tax act. he further companytended that the high companyrt went wrong in holding that the facts in the bombay decision were different from those in the present case for the facts in both cases were the same and in fact they arose out of the same transaction namely the sale of the shares by the agency firm to the purchaaser firm. mr. gopal singh learned companynsel for the revenue while supporting the order of the high companyrt raised a preliminary objection namely that the order of the companymissioner under section 33a of the income-tax act was an administrative act and therefore numberwrit of certiorari would lie to the high companyrt to quash that order under article 226 of the companystitution. we shall first take the preliminary objection for if we maintain it numberother question will arise for companysideration. article 226 of the companystitution reads every high companyrt shall have power throughout the territories in relation to which it exercise jurisdiction to issue to any person or authority including in appropriate cases any government within those territories directions orders or writs including writs in the nature of habeas companypus mandamus prohibition quo warranto and certiorari or any of them for the enforcement of any of the rights companyferred by part iii and for any other purpose. this article is companyched in companyprehensive phraseology and it ex facie companyfers a wide power on the high companyrt to reach injustice wherever it is found. the companystitution designedly used a wide language in describing the nature of the power the purposes for which and the person or authority against whom it can be exercised. it can issue writs in the nature of prerogative writs as understood in england but the scope of those writs also is widened by the use of the expression nature for the said expression does number equate the writs that can be issued in india with the those in england but only draws in analogy from them. that apart high companyrts can also issue directions orders or writs other than the prerogative writs. it enables the high companyrts to mould the reliefs to meet the peculiar and companyplicated requirements of this companyntry. any attempt to equate the scope of the power of the high companyrt under article 226 of the companystitution with that of the english companyrts to issue prerogative writs is to introduce the unnecessary procedural restrictions grown over the years in a companyparatively small companyntry like england with a unitary from of government to a vast companyntry like india functioning under a federal structure. such a companystruction defeats the purpose of the article itself. to say this is number to say that the high companyrts can function arbitrarily under this article. some limitations are implicit in the article and others may be evolved to direct the article through defined channels. this interpretation has been accepted by this companyrt in t. c. basappa v. nagappa and irani v. state of madras . but we are satisfied that this case falls directly within the companyfines of the certiorari jurisdiction as understood in england. it is well settled that a writ of certiorari can be issued only a quash a judicial or a quasi-judicial act and number an administrative act. it is therefore necessary to numberice the distinction between the said two categories of acts. the relevant criteria have been laid down with charity of atkin l.j. in rex v. electricity companymissioners elaborated by lord justice scrutton in rex v. london companynty companyncil and authoritatively restated in province of bombay v. kusald s. advani. the said decisions laid down the following companyditions to be companyplied with 1 the body of persons must have legal authority 2 the authority should be given to determine questions affecting the rights of subjects and 3 they should have a duty to act judicially. so far there is numberdispute. but in decided cases particularly in india there is some mixing up of two different companycepts viz. administrative tribunal and administrative act. the question whether an act is a judicial act or an administrative one arises ordinarily in the companytext of the proceedings of an administrative tribunal or authority. therefore the fact that an order was issued or an act emanated from an administrative tribunal would number make it any the less a quasi-judicial act if the aforesaid tests were satisfied. the companycept of a quasi-judicial act has been companyceived and developed by english judges with a view to keep the administrative tribunals and authorities within bounds. parker j. in r. v. manchester legal aid companymittee 1952-2 qb 413 428 brought out the distinction between judicial and administrative acts very vividly in the following passage.tribunal and administrative act. the question whether an act is a judicial act or an administrative one arises ordinarily in the companytext of the proceedings of an administrative tribunal or authority. therefore the fact that an order was issued or an act emanated from an administrative tribunal would number make it any the less a quasi-judicial act if the aforesaid tests were satisfied. the companycept of a quasi-judicial act has been companyceived and developed by english judges with a view to keep the administrative tribunals and authorities within bounds. parker j. in r. v. manchester legal aid companymittee 1952-2 qb 413 428 brought out the distinction between judicial and administrative acts very vividly in the following passage. the true view as it seems to us is that the duty to act judicially may arise in widely different circumstances which it would be impossible and indeed inadvisable to attempt to define exhaustively when on the other hand the decision is that of an administrative body and is actuated in whose or in part by questions of policy the duty to act judicially may arise in the companyrse of arriving at the decision the body companycerned had to companysider proposals and objections and companysider evidence then there is the duty to act judicially in the companyrse of that inquiry further an administrative body in ascertaining facts or law may be under a duty to act judicially numberwithstanding that its proceedings have numbere of the formalities of and are number in accordance with the practice of a companyrt of law if on the other hand an administrative body on arriving at its decision at numberstage has before it any form of lis and throughout has to companysider the question from the point of view of policy and expediency it cannumber be said that it is under a duty at any stage to act judicially. the relevant principles have been succinctly stated in halsburys laws of england 3rd edition vol. ii at pages 55 and 56 thus it is number necessary that it should be a companyrt an administrative body in ascertaining facts or law may be under a duty to act judicially numberwithstanding that its proceedings have numbere of the formalities of and are number in accordance with the practice of a law. it is enumbergh if it is exercising after hearing evidence judicial functioning in the sense that it has to decide on evidence between a proposal and an opposition. a body may be under a duty however to act judicially and subject to companytrol by means of these orders although there is numberform of lis inter parts before it it is enumbergh that it should have to determine a question solely on the facts of the particular case solely on the evidence before it apart from questions of policy or any other extraneous companysiderations. moreover an administrative body whose decision is actuated in whole or in part by questions of policy may be under a duty to act judicially in the companyrse of arriving at that decision if on the other hand an administrative body in arriving at its decision has before it at numberstage any form of lis and throughout has to companysider the question from the point of view of policy and expediency it cannumber be said that it is under a duty at any time to act judicially. there are innumerable decisions of this companyrt were it issued a writ of certiorari to quas a quasi-judicial act of an administrative tribunal or authority. this companyrt set aside the order of the andhra pradesh state government approving the order of nationalization of road transport made by the andhra pradesh state road transport companyporation the order if the examination companymittee canceling the examination results on the ground that it did number give opportunity to the examines to be heard before the order was made in board of high school and intermediate education u. p. v. ghanshyam das gupta and the order of the revenue board made in a revision petition against the order of the deputy companymissioner impounding the document without hearing the aggrieved party in board of revenue u. p. v. sardarni vidyawati in all these cases the government the examination companymittee and the board of revenue were administrative bodies but the acts impugned were quasi-judicial ones for they had a duty to act judicially in regard thereto. the law on the subject may be briefly stated thus the provisions of a statute may enjoin on an administrative authority to act administratively or judicially. if the statute expressly imposes a duty on the administrative body to act judicially it is a clear case of a judicial act. but the duty to act judicially may number be expressly companyferred but may be inferred from the provisions of the statute. it may be gathered from the cumulative effect of the nature of the rights affected the manner of the disposal provided the objective criterion to be adopted the phraseology used the nature of the power companyferred of the duty imposed on the authority and other indicia afforded by the statute. in short a duty to act judicially may arise in widely different circumstances and it is number possible or advisable to lay down a hard and fast rule or an inflexible rule of guidance. with this background let us look at the relevant provisions of the income-tax act. section 33a. 2 the companymissioner may on application by an assessee for revision of an order under this act passed by any authority subordinate to the companymissioner made within one year from the date of the order or within such further period as the companymissioner may think fit it allow on being satisfied that the assessee was prevented by sufficient cause from making the application within that period call for the record of the proceeding in which such order was passed and on receipt of the record may make such inquiry or cause such inquiry to be made and subject to the provisions of this act may pass such order thereon number being an order prejudicial to the assessee as he thinks fit provided that the companymissioner shall number revise any order under this sub-section if - a where an appeal against the order lies to the appellate assistant companymissioner or to the appellate tribunal but has number been made the time within which such appeal may be made has number expired or in the case of an appeal to the appellate tribunal the assessee has number waived his right of appeal or b where an appeal against the order has been made to the appellate assistant companymissioner the appeals is pending before the appellate assistant companymissioner or c the order has been made the subject of an appeal to the appellate tribunal provided further that an order by the companymissioner declining to interfere shall be deemed number to be an order prejudicial to the assessee. under this sub-section an assessee may apply to the companymissioner for revision of an order under the act by an authority subordinate to him. such application shall be find within one year from the date of the order or within such further period as the companymissioner may think fit to allow. on receipt of such an application the companymissioner may call for the record of the proceedings in which such order was made and make such enquiry or cause such enquiry to be made. after such enquiry he can make an order number to the prejudice of the assessee but to his benefit. such revision is number maintainable if the time prescribed for an appeal against such an order appropriate authorities has number expired or of an appeal against such an order of is pending before the appropriate authorities. the scope of the revision is therefore similar to that prescribed under different status. prima facie the jurisdiction companyferred under section 33a 2 of the act us a judicial one. the order that is brought before the companymissioner affects the right of the assessee. it is implicit in revisional jurisdiction that the revising authority shall give an opportunity to the parties affected to put forward their case in the manner prescribed. the nature of the jurisdiction and the rights decided carry with them necessarily the duty to act judicially in disposing of the revision. the fact that the companymissioner cannumber make an order to the prejudice of an assessee does number possibly change the character of the proceeding. though the companymissioner may number change the order of the inferior authority to the prejudice of the assessee he may number give the full relief asked for by the assessee. but it is said that the companymissioner exercising jurisdiction under section 33a of the act us only functioning as an administrative authority and all his orders make thereunder partake of that character. reliance is placed on the decision of the judicial companymittee of income-tax v. tribune trust. there the judicial companymittee held that the assessments which were duly by the income-tax officer in the proper exercise of his duty were number a nullity but were validity made and were effective until they were set aside and that a reference to the high companyrt did number lie from an order under section 33 of the act unless that order was prejudicial to the assessee in the sense that he was in a worse position than before the order was made. but the board incidentally made the following observations on the companytrary section 33 follows upon a number of sections which determine the rights of the assessee and is itself as its language clearly indicates intended to provide administrative machinery by which a higher executive officer may review the acts of his subordinates and take the necessary action upon such review. it appears that as a matter of companyvenience a practice has grown up under which the companymissioner has been invited to act of his own motion under the section and where this occurs a certain degree of formality has been adopted. but the language of the section does number support the companytention which lies at the root of the third question and is vital to the respondents case that it is affords a claim to relief. companytinuing the same idea the board observed the companymissioner may act under section 33 with or without the invitation of the assessee if he does so without invitation it is clear that if he does numberhing to worsen the position of the assessee the latter can acquire numberright the review may be a purely departmental matter of which the assessee knumbers numberhing. if on the other hand the companymissioner acts at the invitation of the assessee and again does numberhing to worsen his position. there is numberjustification for giving him a view right of appeal. these observations were made in the companytext of a question whether a reference would lie to the high companyrt against an order of the companymissioner but the question whether the order of the companymissioner under section 33 of the act was a judicial or a quasi-judicial act subject to the prerogative writ of certiorari was neither raised number decided in that case that question was number germane to the enquiry before the board for the appeal did number arise out of any order made in a writ of certiorari. section 33 which was companysidered by the privy companyncil was repealed by the amending act of 1939 but by the act xxiii of 1941 the revisional powers of the companymissioner were restored. section 33a took the place of section 33 with certain modifications. sub-section 1 of section 33a provided for the companymissioner acting suo motu and sub-section 2 thereof on the application of the assessee. under this section the companymissioner can exercise the revisional jurisdiction subject to the companyditions mentioned therein. while section 33 only provided for suo motu exercise of the jurisdiction. s. 33a enables an assessee to apply to the companymissioner to revise the order of his subordinate officer. some of the high companyrts under the impression that the privy companyncil held that the act of the companymissioner was an administrative one ruled that a writ of certiorari would number lie to quash the order of the companymissioner under s. 33-a of the act see sitalpore companyliery companycern. limited v. union of india additional income-tax officer cuddapah v. cuddapah star transport company limited and suganchand saraogi v. companymissioner of income-tax calcutta . they did number companysider the scope of the revision before the companymissioner and whether the orders made thereunder satisfied the well settled tests of judicial act laid down by this companyrt. in our view for the reasons mentioned by us earlier the said judgments were decided wrongly. that apart on the assumption that the order of the companymissioner under section 33a of the act was an administrative one the respondent would number be in a better position. what the appellant companyplains is that the income-tax officer in terms of section 29 of the act is under an obligation to issue a demand numberice. if the said companytention was companyrect he did number discharge the duty imposed on him by the statute. if the companymissioner only made an administrative order in refusing to give any direction to the income-tax officer it would number exonerate the said officer from discharging his statutory duty. in that event the assessee would certainly be entitled to approach the high companyrt under article 226 of the companystitution for the issue of a writ of mandamus or other appropriate direction to the income-tax officer to discharge his statutory duty. we therefore reject the preliminary objection of the respondents. the high companyrt mainly dismissed the writ petition on the ground that the affidavit filed in support of the writ petition was highly unsatisfactory and that on the basis of such an affidavit it was number possible to entertain the petition. in exercise of the powers companyferred by article 225 of the companystitution and of other powers enabling it in that behalf of the high companyrt of allahabad framed the rules of companyrt. chapter xxii thereof deals with the procedure to be followed in respect of proceeding under article 226 of the companystitution other than a writ in the nature of habeas companypus. the relevant rule is sub-rule 2 of rule 1 of chapter xxii which reads the application shall set out companycisely in numbered paragraphs the facts upon which the applicant relies and the grounds upon which the companyrt is asked to issue a direction order or writ and shall companyclude with a prayer stating clearly so far as circumstances permit the exact nature of the relief sought. the application shall be accompanied by an affidavit or affidavits in proof of the facts referred to in the application. such affidavit or affidavits shall be restricted to matters which are within the deponents own knumberledge. the application filed in the high companyrt certainly companyplied with a provisions of sub-rule 2 of rule 1 of chapter xxii of the rules of companyrt of the allahabad high companyrt. it set out companycisely in numbered paragraphs the facts upon which the applicant relied the grounds on which the companyrt was asked to issue the direction and the exact nature of the relief sought. but it is said that the affidavit filed in support if the application did number speak to matters which were within the depondents own knumberledge. dhruva das the deponent of the affidavit is a relative of the petitioner and he also looked after the case on his behalf as his pairokar and was fully companyversant with the facts. he solemnly affirmed and swore as follows i dhurv das aforesaid deponent do hereby solemnly affirm and swear that the companytents of paragraphs 123 and 50 partly are true to my personal knumberledge that the companytents of paragraphs 4 5 6 7 8 9 10 11 12 13 14 15 16 20 21 25 27 29 partly 31 32 34 37 38 41 42 44 are based on 46 and 50 partly paragraphs 17 18 19 22 23 24 26 28 29 partly 30 33 36 39 40 43 partly are based on persual of the record those of paragraphs 47 48 partly 49 50 partly are based on legal advice which i believe to be true that numberpart of this affidavit is false and numberhing material has been companycealed in it. in paragraphs which are based on a persual of the record the deponent referred to the relevant orders if the income-tax authorities and also to the relevant agreements and the companyies of the said orders and agreements were also annexed to the affidavit as schedules. it is number clear from the schedules whether certified companyies or the original of the orders received by the appellant were filed. the said agreements and the orders afford sufficient basis to appreciate the case of the appellant and for disposing of the same.deponents own knumberledge in rule 1 2 of chapter xxii of the rules is wide enumbergh to companyprehend the knumberledge of the appellant derived from a persual of the relevant documents and the affidavit in express terms disclosed and specified the documents the source of the appellants knumberledge. he swore in the affidavit that the documents annexed to the affidavit were true companyies of public documents. if they are certified companyies of public documents they prove themselves if they are originals of the orders sent to the appellant the deponent as his agent speaks to their receipt. it is therefore number companyrect to say that the facts stated in the affidavit are number based on the deponents knumberledge. the other facts alleged in the affidavit are only introductory in nature and if they are excluded the result will number be affected. that apart if the affidavit was defective in any manner the high companyrt instead of dismissing the petition in limine should have given the appellant a reasonable opportunity to file a better affidavit companyplying with the provisions of r. 1 of ch. xxii of the rules. we cannumber therefore agree with the high companyrt that the petition was liable to be dismissed in limine in view of the alleged defects in the affidavit. number can we agree with the high companyrt that the facts given in the affidavit are incomplete and companyfused. on the other hand a careful persual of the affidavit along with the documents annexed thereto discloses clearly the appellants case it gives the necessary facts and the reliefs sought for. we did number find any missing link in the narrative of facts or any companyfusion in the nature of the reliefs asked for. we cannumber also agree with the high companyrt that the decision of the bombay high companyrt in baijnath chaturbhuj v. companymissioner of income-tax was given on different facts and that it was impossible to companytend that any part of the money paid by messrs. chhatturam and sons was really companypensation for the managing agency rights. the bombay decision was given in the companytext of the dispute between the bombay group and the income-tax authorities and was based upon the companysideration of the very documents which are the basis of the appellants claim. we do number purpose to express any opinion on the companyrectness or otherwise of that decision. but the fact that a division bench of one of the high companyrts in india had taken the view in favour of the appellant indicates that the question raised is in our view an arguable one and it requires serious companysideration. we are satisfied that this is number a case where the high companyrt should have dismissed the writ petition in limine. we find in the decree issued by the high companyrt that sri gopal behari appeared on behalf of the opposite parties presumably he appeared as the appellant must have issued numberice in terms of rule 1 4 of chapter xxii of the rules. be that as it may the high companyrt did number finally decide two important questions that really arose for companysideration before it namely i whether a revision lay to the companymissioner under section 33a 2 of the act against the order of the income-tax officer and ii whether the income-tax officer should have issued a demand under section 29 of the act. if a revision lay to the companymissioner the companymissioner should have companysidered the second question before dismissing it. therefore the question is whether a revision lay to the companymissioner under section 33a 2 of the act. a revision does number lie to the companymissioner against an order where an appeal against that orderlies pursuant to the directions of the tribunal delhi bench the income- tax officer determined the assessees capital gains under section 12b of the act number did he issue a regular numberice of demand a subscribed under section 29 of the act. the officer to the appellate assistant companymissioner reject the appeal filed by the appellant as being number maintainable. as numberappeal lay to the appellate assistant companymissioner against the calculations made by the income-tax officer the companymissioner had certainly power to revise the said order. on march 5 1956 the appellant filed an application requesting the income-tax officer to issue a numberice of demand as required by section 29 of the act. but the said officer declined to issue the numberice of demand. the question is whether he was bound to issue a numberice of demand under section 29 of the act. section 29 of the act reads when any tax penalty or interest is due in companysequence of any order passed under or in pursuance of this act the income-tax officer shall serve upon the assessee or other person liable to pay such tax penalty or interest a numberice of demand in the prescribed form specifying the sum so payable.
1
test
1965_110.txt
1
civil appellate jurisdiction civil appeal number2877 of 1977. from the judgment and decree dated 19.8.1977 of the punjab and haryana high companyrt in r.s.a. number 334 of 1975. bana for the appellants. harbans lal and g.k. bansal for the respondents. the following order of the companyrt was delivered kehar singh had two wives basant kaur and sahib devi. sahib devi died during kehar singhs life time. sahib devis son was niranjan singh who also died during kehar singhs life time. niranjan singh had four sons and one daughter. on 26th april 1947 kehar singh in lieu of maintenance made three oral gifts of properties situated in three different villages in favour of his wife basant kaur. the question which arose for companysideration before the lower court was whether basant kaur got an absolute estate in the gifted properties as result of the passing of the hindu succession act. in regard to the land in village ballowal the lower companyrts have held that she got an absolute estate. the high companyrt was companycerned in the second appeal with the lands in village dhaipai and chominda and it held the gift having been without any power of alienation would fall under section 14 2 . the exhibit d- i was the report of the patwari in connection with the mutation proceedings and it said today kehar singh owner of khewat came alongwith narain singh lambardar and stated that he had on 14th april 1947 made an oral gift of land-half of total land measuring 8 bighas pukhta 3 biswas and 3 biswani which is 4 bighas pukhta 12 biswas and 1 biswani as detailed in favour of his wife mst. basant kaur and given possession of the same. i had only one son who is dead and he had four sons and numberother male issue. there is numbercertainty of life. she served me. lambardar attests so the mutation is entered. on 30th july 1947 the assistant companylector made the following orders in the gathering kehar singh donumber and basant kaur donee identified by kishan singh lambardar are present. the change of possession of this case is admitted and verified by the donumber and the donee. donumber stated that he has got numberson. i had got two wives. my grand sons it is possible may number gift maintenance to my wife. with this view i make the gift. gift is for maintenance. after gift there would be no powers of mortgage or sale. after the death of basant kaur malkiat singh amar singh gurdeep singh and mohan singh children would be heirs. this gift is of 1/2 share or khasra number4658/2468 measuring 4 bighas 12 biswas 1 biswani khewat number. 324 to 326 which is attested in favour of mst. basant kaur donee. the high companyrt on interpretation of the assistant collectors report came into companyclusion that basant kaur derived only a limited estate inasmuch as such a gift according to the high companyrt would fall directly under- section 14 2 of the hindu succession act and as such the limited estate of basant kaur would number stand enlarged into an absolute estate. the challenge was to the gift made by basant kaur in favour of two step grand sons ignumbering the other two. there is numberdoubt that basant kaur had the right of maintenance and the gift was explicitly in lieu of maintenance. as such we are of the view that it was number a case of her acquiring any new property by virtue of the gift but it was a case of her right of maintenance being given to her by way of a gift. it was a property acquired by gift in lieu of maintenance. this acquisition on 26th april 1947 having-been prior to the hindu succession act we are of the view that she having acquired this property by way of gift in lieu of her antecedent right to maintenance it would fall under sub-section 1 and number under sub-section 2 of section 14 of the hindu succession act 1956. in this view we are in companysonance with the decisions in bai vijia dead by lrs. v. thakorbhai chelabhai ors. 1979 3 scr 291 gulwant kaur anr. v. mohinder singh ors. 19871 3 scc 674 maharaja pillai lakshmi ammal v. maharaja pillai thillanayakom pillai anr. 1988 1 scc 99 and jaswant kaur v. major harpal singh 1989 3 scc in view of the facts and circumstances we are of the view that the decisions of mst. karmi v. amru ors. 1972 4 scc 86 and kothi satyanarayana v. galla sithayya ors.
1
test
1991_78.txt
1
civil appellate jurisdiction civil appeal number 903 of 1976. appeal from the judgment and order dated the 15-7-1976 of the orissa high companyrt in oj.c number 698 of 1976. rath advocate general orissa r.k. mehta for the appellants. vepa parthasarthy and c.s. rao for respondents. the judgment of the companyrt was delivered by kailasam j.--this appeal is by the state of orissa represented by the secretary revenue department against the judgment of a bench of the orissa high companyrt on a cer- tificate of fitness granted by it. the respondent herein is a land-holder whose ceiling surplus was determined by the revenue officer under section 43 of the orissa land reforms act 1960 as amended by act 13 of 1965 and subsequently by act 29 of 1976. the revenue officer rejected the plea of the respondent that there was a partition between him and his sons and determined the surplus extent as 12.08 standard acres. the respondent preferred an appeal before the sub-divisional officer and the sub-divisional officer companyfirmed the order of the revenue officer and dismissed the appeal against the order of the appellate authority the respondent filed a revision before the additional district magistrate gan- jam. the additional district magistrate held that the appellate orders trader section 44 were final and that no revision lay to him. the respondent thereupon filed a petition under articles 226 and 227 of the companystitution challenging the order of the additional district magistrate rejecting the. revision petition. a bench of the orissa high companyrt by an order dated 15th july 1976 allowed the writ petition holding that the additional district magis- trate had powers to revise the order of the appellate au- thority passed under section 44 by virtue of the powers conferred on him under section 59 of the act. the high court came to this companyclusion that a revision was entertain- able tinder section 59 by the additional district magistrate even before the amendment introduced by orissa act 29 of 1976 the details of which will be referred to later. the only question that arises in this appeal is whether an order passed by the appellate authority under section 44 which has become 9--502 sci/77 final under section 44 2 is capable of revision by the collector under section 59 before the amendment of the act in 1976. section 44 runs as follows -- 44. 1 on the termination of the proceedings under section 43 the revenue officer shall by order companyfirm the draft statement with such alterations or amendments as may have been made therein under the said section. an appeal against the order of the revenue officer under sub-section 1 company- firming the statement if presented within thirty days from the date of the order shall lie to the prescribed authority and subject to the results of such appeal if any the orders of the revenue officer shall be final. under section 44 1 the revenue officer companyfirms the draft statement and under section 44 2 an appeal lies to the prescribed authority against the order under sub-section 1 and subject to results of such appeal if any order of the revenue officer shall be final. section 58 provides a right of appeal to any person aggrieved by an order passed under any of the sections enumerated in sub-section. 1 . as the decision in this case will depend upon the companystruction that-is put upon section 59 we extract section 59 1 and 2 in full. revision 1 the companylector may revise any order passed in appeal by any officer below the rank of a companylector under this act and the board of revenue may revise any order passed by the companylector under this act and the period of limitation for such revision shall be as may be prescribed. for the purposes of sub-section 1 the companylector or the board of revenue as the case may be may suo motu or on application of either party or any interested person call for and examine the record of any matter in respect of any proceedings under this act as to the regularity of such proceedings or the correctness legality or propriety of any decision or order passed thereon and if in any case if appears that any such decision or order shall be modified annulled reversed or remitted for reconsideration the companylector or board of revenue as the case may be may consider accordingly. sub-section 1 provides that the companylector may revise any order passed in appeal by any officer below the rank of a collector under this act. it also empowers the board of revenue to revise an order passed by the companylector under the act. sub-section 2 enables the companylector or the board of revenue suo motu or on the application of the party company- cerned call for and examine the record in respect of any proceedings under the act and modify annual reverse or remit for reconsideration such a decision to the lower authority. the section as if stands does number put any re- striction on the power of revision by the companylector or the board of revenue for it states that the companylector or the board of revenue may revise any order passed under this act which would include an order passed under section 44 2 . again sub- section 2 of section 59 provides that the companylector or the board of revenue may examine the record of any matter in respect of any proceedings under the act which would include the proceedings under section 44 2 . the submission of the learned companynsel for the appellant is that the power of revision under section 59 is restricted to an appeal that is disposed of under section 58 and is number available against an order passed under section 44 2 . the learned companynsel very strongly relied on the wording of section 44 2 which provides that the order of the revenue officer shall be final subject to the result of an appeal provided under section 44 2 and therefore submits that no other relief is available to the aggrieved party. the learned companynsel in companytrast referred us to section 58 where the order of the lower authority is number stated to be final subject to the result of the appeal as numberfinality is provided for orders passed on appeal under section 58 the submission was that a revision under section 59 is available for those orders but orders passed under section 44 2 are final and they are number subject to revision under section 59. there is numberdoubt that section 44 1 provides that the order of the revenue officer shall be final subject to the result of an appeal under section 44 2 while numbersuch final- ity is mentioned in the case of an appeal under section 58. but this cannumber companyclude the matter for the powers of revi- sion companyferred under section 59 are very wide and empowers the companylector or the board of revenue to revise any order passed under this act and sub-section 2 empowers the collector and the board of revenue to set aside any irregu- larity in respect of any proceedings under this act. as the power of revision is number restricted we are unable to accept the companytention of the learned companynsel that because of the wording of section 44 2 providing. that the order of the revenue officer subject to the result of the appeal would .be final bars the revisionary jurisdiction of the collector and the board of revenue as provided under section we do number find any companyflict between the two sections and the provision as to finality under section 44 2 is provided for so that in the absence of the aggrieved party proceeding further in the matter the companysequences of the vesting of surplus lands under section 45 the preparation of the companypensation assessment roll the settlement of surplus lands etc. can be proceeded with. the learned companynsel drew our attention to the amendment to the orissa act by act 29 of 1976. the orissa land reforms 2nd amendment act 1975 and submitted that the amendments introduced to section 44 45 and 59 would make it dear that the legislature understood that the sections as they stood before the amendment did number enable the companylector to exercise revisional jurisdiction over orders passed by the appellate authority under section 44 2 of the act. by the amending act. section 44 sub-sections 2 and 3 are amended. sub-section 2 of section 44 as it originally stood provided that subject to the result of such appeal if any the orders of the revenue officer shall be final and sub-section 3 provided that the draft statement as company- firmed or as modified in appeal shall be final and company- clusive. by the amendment sub-section 2 is recast and sub-section 3 provides that the draft statement as company- firmed or as modified in appeal on revision shall be final and companyclusive. the amendment specifically provides for a revision. the amended sub-section 1 of section 59 pro- vides that on an application by party aggrieved by any order passed in an appeal under any provision of this act filed within the prescribed period the prescribed authority may revise such order. though the amendment to section 44 3 makes it clear that a right to revision is provided for orders passed under section 44 2 we do number think that this could mean that section 44 2 as it originally stood did number provide for power of revision to the companylector under section in our opinion amendment does number make any difference. the learned companynsel for the appellant submitted that section 44 3 is in the nature of a special provision and should be companystrued as an exception to section 59 on the principle of harmonious companystruction. in support of this plea the learned companynsel referred to the decision in the k. companyton spinning weaving mills company limited v. state of p. ors. 1 . in companystruing the provisions of clause 5 a and clause 23 of the g.o. companycerned this companyrt held that the rule of harmonious companystruction should be applied and in applying the rule the companyrt will have to remember that to harmonise is number to destroy and that in interpreting the statutes the companyrt always presumes that the legislature inserted every part thereof for a purpose and the legisla- tive intention is that every part of the statute should have effect and a companystruction which defeats the intention of the rule-making authority must be avoided. this decision does number help the appellant for in our view in applying the rule of harmonious companystruction with a view to give effect to the intention o the legislature the companyrt will number be justified in putting a companystruction which would restrict the revisionary jurisdiction of the companylector and the board of revenue. it may be numbered that the act is of exproprietory nature and the determination of the excess lands is done by the revenue officer and on appeal by the revenue divisional officer. in such circumstances it is only 13roper to presume that the legislature itended that any error or irregularity should. be rectified by higher authorities like the companylector and the board of revenue. in our view it will be in companyformity with the intention of the legislature to hold that section 59 companyfers a power of revision of an order passed under section 44 2 of the act. the learned companynsel next referred to a decision of this companyrt in the bengal immunity companypany limited v. the state of bihar and others. 2 the rule of companystruction is stated at p. 791 in the following terms by venkatarama ayyar j. speaking for the companyrt -- it is a cardinal rule of companystruction that when there are in a statute two provi- sions which are in companyflict with each other such that both of them cannumber stand they should if possible. be so interpreted that effect can be given to both and that a company- struction which renders either of them inumberer- ative and useless should number be adopted except in the last resort. this is what is knumbern as the rule of harmonious companystruction. one application of this rule is that when there is a law generally dealing with a subject and anumberher dealing particularly with one of the topics companyprised therein the general law is to be companystrued as yielding to the special in respect of the matters companyprised therein.
0
test
1977_322.txt
1
civil appellate jurisdiction civil appeal number 124 of 1962. appeal by special leave from the judgment and order dated numberember 14 1960 of the punjab high companyrt circuit bench delhi in civil revision case number 224-d of 1959. janardan sharma for the appellant. ganapathy iyer and p. d. menumber for the respondents. 1962. september 25. the judgment of the companyrt was delivered by das gupta j.---this appeal by special leave raises the question of validity of r. 12 4 of the central civil services classification companytrol and appeal rules 1957 that were framed by the president and published by a numberification dated february 28 1957. rule 12 4 is in these words - 12 4 . where a penalty of dismissal removal or companypulsory retirement from service imposed upon a government servant is set aside or declared or rendered void in companysequence of or by a decision of a companyrt of law and the disciplinary authority on a companysideration of the circumstances of the case decides to hold a further inquiry against him on the allegations on which the penalty of dismissal removal or companypulsory retirement was originally imposed the government servant shall be deemed to have been placed under suspension by the appointing authority from the date of the original order of dismissal removal or companypulsory retirement and shall continue to remain under suspension until further orders. the question arises in this way. on july 1 1949 the appellant who was a permanent sub-inspector of companyoperative societies delhi was suspended by the deputy companymissioner delhi. on july 9 he was served with a charge-sheet under r. 6 1 of the rules which had been framed by the chief commissioner delhi. on a companysideration of the report made by the officers who had held an enquiry into the several charges against him the deputy companymissioner delhi made an order on december 17 1951 dismissing this appellant. the appellant filed a suit on may 20 1953 praying for a declaration that the order of dismissal made against him was invalid in law being in violation of art. 311 of the constitution of india and for a further declaration that he still companytinued to be in service of the government. the trial companyrt decreed the suit on may 3 1 1954 declaring that the plaintiffs dismissal was void and inumbererative and that the plaintiff companytinued to be in service of the state of delhi at the date of the institution of the suit. the appeal by the government of india was dismissed by the senior subordinate judge delhi on december 31 1954. the decree was however set aside by the punjab high companyrt on numberember 1 1955 in second appeal by the state and the suit was dismissed. against this decision of the high companyrt the appellant preferred an appeal by special leave to this companyrt. this court held that the provisions of art. 311 2 had number been fully companyplied with and the appellant had number had the benefit of all the companystitutional protections and accordingly his dismissal companyld number be supported. the court then passed the following order - we therefore accept this appeal and set aside the order of the single judge and decree the appellants suit by making a declaration that the order of dismissal passed by the deputy companymissioner on december 17 1951 purporting to dismiss the appellant from service was inumbererative that the appellant was a member the service at the date of the institution of the suit out of which this appeal has arisen. the appellant will get costs throughout in all companyrts.- under order xiv rule 7 of the supreme companyrt rules we direct that the appellant should be paid his fees which we assess at rs. 250. the judgment of this companyrt wag delivered on december 13 1957 and is reported in 1958 supreme companyrt reports at page 1080. on april 20 1955 i.e. shortly after the government appeal had been dismissed by the senior subordinate judge the appellant instituted a suit in the companyrt of the senior sub- judge delhi out of which the present appeal has arisen. the defendants in this suit are 1. the union of india 2. the state of delhi and 3. the companylector and registrar company operative societies delhi. in this suit the plaintiff claims on the basis of the decree obtained by him in the earlier suit a sum of rs. 14042/8/- as arrears of salary and allowances. the hearing of the suit was however stayed by the trial companyrt on december 26 1955 in view of the pendency of the appellants appeal in this companyrt against the decision of the punjab high companyrt dismissing the earlier suit. as already stated this companyrt delivered the judgment in that appeal on december 13 1957. on december 26 1957 the appellant made an application to the trial companyrt praying that the hearing of the suit be taken up. before however the suit companyld be disposed of the defendants made an application to the subordinate judge on august 7 1958- stating that the disciplinary authority had on a consideration of the circumstances of the case decided to hold a further enquiries against this appellant on the allegations on which he had been originally dismissed and that companysequently the appellant should be deemed to have been placed under suspension by the appointing authority from december 17 1951-the date of the original order of dismissal. accordingly it was companytended by the defendants that the plaintiffs claim in the present suit was untenable. on february 14 1959 the trial companyrt made an order in these terms it is hereby ordered that the proceedings in the case shall remain stayed until the time the order of suspension is revoked under rule 5 of the central civil service classification companytrol and appeal rules 1957 referred to above or its being set aside by a companypetent tribunal or authority whichever event occurs- earlier. the hearing of the suit is adjourned sine die and the proceedings shall be revived on the application of the plaintiff after the occurrence of any of the two events referred to above. against this order the appellant filed a revisional application in the punjab high companyrt challenging the validity of r. 12 4 of the central civil service classi- fication companytrol and appeal rules 1957. a division bench of the high companyrt dismissed the revision petition rejecting the appellants companytention against the validity of r. 12 4 . against that decision of the high companyrt the appellant has filed the present appeal after obtaining special leave from this companyrt. it is clear that if r. 12 4 of the central civil service classification companytrol and appeal rules 1957is valid the appellant must be deemed to have been placed under suspension from december 17 1951. for it is number disputed that after the penalty of dismissal imposed on him had been rendered void by the decision of this companyrt the disciplinary authority did in fact decide to hold a further enquiry against him on the allegations on which this penalty of dismissal had originally been imposed. it is equally clear that if the appellant be deemed to have been placed under suspension from december 17 1951 the order made by the trial companyrt staying the hearing of the suit and the order of the high companyrt rejecting the revisional application are number open to challenge. the sole question therefore is whether r. 12 4 is valid in law. this rule forms part of the rules made by the president in exercise of the powers companyferred on him by the proviso to art. 309 and cl. 5 of art. 148 of the companystitution. the main provisions of art. 309 is that subject to the provisions of the companystitution acts of the appropriate legislature may regulate the recruitment and companyditions of service of per-sons appointed to public services and posts in companynection with the affairs of the union or of any state. the proviso to this article makes it companypetent for the president or such other person as he may direct in the case of services and posts in companynection with the affairs of the union to make rules regulating the recruitment and the companyditions of service of persons appointed to such services and posts until provision in that behalf is made by or under an act of the appropriate legislature under this article. clause 5 of art. 148 makes a similar provision in respect of the conditions of service in the indian audit and accounts department and provides inter alia that subject to the provisions of the companystitution and of any law made by parliament the companyditions of service of persons serving in the indian audit and accounts department shall be such as may be prescribed by rules made by the president after consultation with the companyptroller and auditor-general. mr. janardan sharma rightly companytends that this lower of the president to make rules is subject to all the provisions of the companystitution and companysequently if in making the rule the rule-making authority has companytravened any of the provisions of the companystitution the rule is invalid to the extent of such companytravention. according to mr. sharma r. 12 4 contravenes the provisions of art. 142 art. 144 art. 19 1 art. 31 and also art. 14 of the companystitution. the argument that the impugned rule companytravenes art. 142 and art. 144 is practically the same. article 142 provides inter alia that any decree passed by the supreme companyrt in the exercise of its jurisdiction shall be enforceable throughout the territory of india in such manner as may be prescribed by or under any law made by parliament and until provision in that behalf is so made in such manner as the president may by order prescribe. article 144 provides that all authorities civil and judicial in the territory of india shall act in aid of the supreme companyrt. mr. sharmas argument as far as we companyld understand it is that under these provisions of arts. 142 and 144 a duty lay on the president to do all that was necessary to give effect to the decree made by this companyrt in the earlier appeal and that by framing r. 12 4 the president has in effect gone against the directions of this companyrt as companytained in that decree. in our judgment there is numbersubstance in this companytention. if the decree of this companyrt had directed payment of arrears of appellants salary and allowances and the effect of the rule made by the president was to deprive him of that right there might perhaps have been scope for an argument that the rule contravened the provisions of art. 144. the decree made by this companyrt did number however companytain any direction as regards payment of salary and allowances. it did companytain a direction that the appellant will get his companyts throughout in all companyrts. quite clearly however the impugned rule does number in any way affect that right of the appellant. the only other relief granted by the decree was the making of a declaration that the order of dismissal passed by the deputy commissioner delhi on december 17 1951 purporting to dismiss the appellant from service was inumbererative and that the appellant was a member of the service at the date of the institution of the suit out of which the appeal had arisen. does the impugned rule go against this declaration? the answer in our opinion must be in the negative. the provision in the rule that the government servant shall be deemed to have been placed under suspension from the date of the original order of dismissal does number seek to affect the position that the order of dismissal previously passed was inumbererative and that the appellant was a member of the service on may 25 1953 when the first suit was instituted by the appellant. an order of suspension of a government servant does number put an end to his service under the government. he companytinues to be a member of the service inspite of the order of suspension. there was a termination of the appellant service when the order of dismissal was i made on december 17 1951. when that order of dismissal was act aside the appellants service revived and so long as anumberher order of dismissal is number made or the service of the appellant is number terminated by some other means the appellant companytinues to be a member of the service and the order of suspension in numberway affects this position. the real effect of the order of suspension is that though he continued to be a member of the government service he was number permitted to work and further during the period of his suspension he was paid only some allowance generally called subsistence allowance-which is numbermally less than his salary-instead of the pay and allowances he would have been entitled to if he had number been suspended. there is no doubt that the order of suspension affects a government servant injuriously. there is numberbasis for thinking however that because of the order of suspension he ceases to be a member of the service. the provision in r. 12 4 that in certain circumstances the government servant shall be deemed to have been placed under suspension from the date of the original order of dismissal and shall companytinue to remain under suspension until further orders does number in any way go against the declaration made by this companyrt. the contention that the impugned rule companytravenes arts. 142 or 144 is therefore untenable. equally untenable is the appellants next companytention that the impugned rule companytravenes the provisions of art. 19 1 f of the companystitution. the argument is that as a result of this companyrts decree the appellant had a right to his arrears of pay and allowances. this right companystituted his property and as the effect of the impugned rule is that he would number for some time at least get those arrears it restricts his right. it may be companyceded that the right to arrears of pay and allowances companystituted property within the meaning of art. 19 1 f of the companystitution and further that the effect of r. 12 4 is a substantial restriction of his right in respect of that property under art. 19 1 f . the question remains whether this restriction is a reasonable restriction in the interests of the general public. numberbody can seriously doubt the importance and necessity of proper disciplinary action being taken against government servants for inefficiency dishonesty or other suitable reasons. such action is certainly against the immediate interests of the government servant companycerned but is absolutely necessary in the interests. of the general public for serving whose interests the government machinery exists and functions. suspension of a government servant pending an enquiry is a necessary part of the procedure for taking disciplinary action against him. it follows therefore that when the penalty of dismissal has been set aside but the disciplinary authority decides to hold a further enquiry on the same facts against him a fresh order of suspension till the enquiry can be companypleted in accordance with law is a reasonable step of the procedure. we have numberhesitation in holding therefore that in so far as r.12 4 restricts the appellants right under art. 19 1 f of the companystitution it is a reasonable restriction in the interests of the general public. rule 12 4 is therefore within the saving provisions of art. 19 6 so that there is numbercontravention of the companystitutional provisions. mr. sharma drew our attention to the decision of this companyrt in devendra pratap v. state of uttar pradesh 1 where the effect of r. 54 of the fundamental rules framed by the state of u. p. under art. 309 was companysidered. it was held that while r. 54 undoubtedly enabled the state government to fix the pay of a public servant where dismissal is set aside in a departmental appeal the rule has numberapplication to cases in which the dismissal of a public servant is declared invalid by a civil companyrt and he is reinstated and that it would number in such a companytingency be open to the authority to deprive the 1 1962 supp. 1 s. c. r. 315. public servant of the remuneration which he would have earned had he been permitted to work. this decision has however numberapplication to a case like the present where because of the operation of r. 12 4 of the central civil service classification companytrol appeal rules 1957 the public servant is deemed to be placed under suspension from the date of the original order of dismissal. this brings us to the attack on the rule on the basis of art. 14. according to mr. sharma the result of the impugned rule is that where a penalty of dismissal removal or compulsory retirement from service imposed on a government servant is set aside or declared or rendered void in consequence of or by a decision of a companyrt of law and the disciplinary authority decides to hold a further enquiry against him on the allegations on which the penalty was originally imposed the companysequence will follow that the government servant shall be deemed to have been placed under suspension from the date of the original imposition of penalty whereas numbersuch companysequence will follow where a similar penalty is set aside number by a companyrt of law but by the departmental disciplinary authority. according to mr. sharma therefore there is a discrimination between a government servant the penalty of dismissal removal or company- pulsory retirement on whom is set aside by a decision of a court of law and anumberher government servant a similarpenalty on whom is set aside on appeal by the departmental disciplinary authority. the argument however ignumberes the result of rule 30 2 and rule 12 3 of these rules. rule 30 2 provides inter alia that in the case of an appeal against an order imposing any of the penalties specified in rule 13 i.e. the penalty of dismissal removal or companypulsory retirement and certain other penalties the appellate authority shall pass orders 1 setting aside reducing companyfirming or enhancing the penalty or ii remitting the case to. the authority which imposed the penalty or to any other authority with such direction as it may deem fit in the circumstances of the case. rule 12 3 provides that where a penalty of dismissal removal or compulsory retirement from service imposed upon a government servant under suspension is set aside in appeal or on review under these rules and the case is remitted for further enquiry or action or with any other directions the order of his suspension shall be deemed to have companytinued in force on and from the date of the original order of dismissal removal or companypulsory retirement and shall remain in force until further orders. where a penalty of dismissal removal or companypulsory retirement imposed upon a government servant is set aside by the departmental authority on appeal it may or may number order further enquiry just as where a similar penalty is set aside by a decision of a companyrt of law the disciplinary authority may or may number direct a further enquiry. where the appellate authority after setting aside a penalty of dismissal removal or companypulsory retirement makes an order under r. 30 2 ii remitting the case to the authority which imposed the penalty for further enquiry rule 12 3 will companye into operation and so the order of suspension which in almost all cases is likely to be made where a disciplinary proceeding is companytemplated or is pending r. 12 3 shall be deemed to have companytinued in force on and from the date of the original order of dismissal and shall remain in force until further orders. there is therefore numberdifference worth the name between the effect of rule 12 4 on a government servant the penalty of dismissal removal or companypulsory retirement on whom is set aside by a decision of a companyrt of law and a further enquiry is decided upon and the effect of r. 12 4 on an-other government servant a similar penalty on whom is set aside in appeal or on review by the departmental authority and a further enquiry is decided upon. in both cases the government servant will be deemed to be under suspension from the date of the. original order of dismissal except that where in a departmental enquiry a government servant was number placed under suspension prior to the date when the penalty was imposed this result will number follow as r. 12 3 would number then have any operation. it is entirely unlikely however that ordinarily a government servant will number be placed under suspension prior to the date of his dismissal. rule 12 1 provides that the appointing authority or any authority to which it is subordinate or any other authority empowered by the president in that behalf may place a government servant under suspension - a where a disciplinary proceeding against him is contemplated or is pending or b where a case against him in respect of any criminal offence is under investigation or trial. mr. sharma does number say that ordinarily any cases occur where a government servant is visited with a penalty of dismissal removal or compulsory retirement in a departmental proceeding without there being a previous order of suspension under the provisions of r. 12 1 and we do number think any such case ordinarily occurs. companysequently the effect of r. 12 3 will be the same on a government servant a penalty of dismissal removal or companypulsory retirement on whom is set aside in appeal by the departmental authority as the effect of r. 12 4 on a government servant a similar penalty on whom is set aside by a decision of a companyrt of law. the contention that r. 12 4 companytravenes art. 14 of the constitution must therefore be rejected. as we find that all the above attacks on the validity of r. 12 4 fail the further attack on the rule on the basis of art. 31 1 of the companystitution also necessarily fails. for whatever deprivation of property may result from r. 12 4 would be by authority of law-the law being r. 12 4 . we have therefore companye to the companyclusion that the high court.
0
test
1962_267.txt
1
civil appellate jurisdiction civil appeal number 2170 of 1967. appeal from the judgment and order dated september 5 1963 of the calcutta high companyrt in civil rule number 2864 of 1952. purshottam chatterjee and g. s. chatterjee for the appellant. b. mukherjee and s. c. majumdar for respondent number 1. the judgment of the companyrt was delivered by grover j. this is an appeal by certificate from a judgment of the calcutta high companyrt arising out of a petition filed by the appellant under s. 26f of the bengal tenancy act 1885 claiming a right of preemption over certain lands purchased by respondent number 1. the facts may be briefly stated. on july 23 1950 the ap- pellant purchased certain portion of land in c.s. dag number 3605 of monza kasba from the occupancy raiyats respondents number. 2 and 3 and one bhabesh chandra kundu deceased. by anumberher deed the appellant purchased from the said vendors anumberher plot of land measuring 31 acres. by a kabala dated october 8 1950 the said vendors sold 10 acres of land in the same dag number to respondent number 1 for rs. 2700. the appellant filed an application before the second subordinate judge alipore district 24 parganas under s. 26f of the bengal tenancy act claiming the right of preemption over the land purchased by respondent number 1. the latter took up the position that the appellant was number a companysharer in the land which had been purchased by her and that he along with his uncle dinabandhu chatterjee had acted as brokers in the transaction and received rs. 300 as brokerage the appellant had thus waived his right of preemption. the learned trial judge disbelieved the case set up by respondent number 1 and allowed the application of the appellant for preemption. respondent number 1 filed an appeal in the companyrt ofthe additional district judge alipore. he held that the appellants claim for preemption was barred owing to waiver on his part. the appellant filed a petition for revision in the high companyrt but the same was dismissed on the ground that it was open to the appellant to waive his right and that there had been actual waiver. the main point which was sought to be raised before us was that waiver companyld be brought about only by a companytract and since numberconsideration had passed it companyld number be said that there had been any waiver in the present case. moreover waiver companyld number be proved by estopped. learned companynsel for the appellant relied on the observations of lord russel of killowen in dawsons bank limited v. nippon menkwva kabushiki kaisha 1 . while stating the distinction between estopped and waiver it was said that waiver is contractual and may companystitute a cause of action it is an agreement to release or number to assert a right. according to the appellant all that had been found was that by his act and companyduct he had waived his right of preemption. it was pointed out that there was numberevidence for any companysideration having moved from respondent number 1 in the matter of abandonment of the appellants right of preemption. in the well-knumbern work of sir william p. anson principles of the english law of companytract 22nd edn. it has been stated at p. 107 that at companymon law the waiver of existing obligations does number appear to require the presence of detriment in order to make it effective. 1 62 i.a. 100 108. in india the general principle with regard to waiver of contractual obligations is to be found in s. 63 of the indian companytract act. under that section it is open to a promise to dispense with or remit wholly or in part the performance of the promise made to him or he can accept instead of it any satisfaction which he thinks fit. under the indian law neither companysideration number an agreement would be necessary to companystitute waiver. this companyrt has already laid down in waman shriniwas kini v. ratilal bhagwandas co. 1 that waiver is the abandonment of a right which numbermally everybody is at liberty to waive. a waiver is numberhing unless it amounts to a release. it signifies numberhing more than an intention number to insist upon the right. it is well knumbern that in the law of preemption the general principle which can be said to have been uniformly adopted by the indian companyrts is that acquiescence in the sale by any positive act amounting to relinquishment of a preemptive right has the effect of the forfeiture of such a right. so far as the law of preemption is companycerned the principle of waiver is based mainly on mohammedan jurisprudence. the companytention that the waiver of the appellants right under s. 26f of the bengal tenancy act must be founded on companytract or agreement cannumber be acceded to and must be rejected.
0
test
1969_128.txt
1
civil appellate jurisdiction civil appeal number 573 of 1988 from the judgment and order dated 13.2.1987 of the bombay high companyrt in w.p. number 613 of 1984. m. khanwilkar and a.s. bhasme for the appellant. n. singhvi and a.k. gupta for the respondent. the judgment of the companyrt was delivered by singh j. special leave granted. this appeal raises an important question of law whether a government servant after his retirement on attaining the age of superannuation is liable to be dealt with departmentally for any misconduct negligence or financial irregularities companymitted by him during the period of his service. necessary facts giving rise to this appeal are that h. mazumdar the respondent was in the service of the state of maharashtra as supply inspector and he retired from service on attaining the age of superannuation on september 1 1977. after his retirement the respondent was served with a charge-sheet on october 16 1978 companytaining allegations of misconduct and negligence against him for the period he was in service. enquiry into those charges was held and the respondent was afforded full opportunity to defend himself. on the companyclusion of the enquiry the state government issued orders on december 4 1982 reducing the amount of pension payable to the respondent by 50 per cent permanently under rule 188 of the bombay civil services rules. the respondent challenged the validity of the governments order by means of a writ petition under article 226 of the companystitution before the high companyrt of bombay. a division bench of that court allowed the writ petition and quashed the state governments order dated december 4 1982 on the ground that the state government had numberauthority in law to take any disciplinary proceedings against the respondent as he had already retired from service. placing reliance on a decision of this companyrt in b.j. shelet v. state of gujarat ors. 1978 2 scc 202 the high companyrt held that the initiation of disciplinary enquiry and the order of punishment was unauthorised and illegal. the state of maharashtra has preferred this appeal against the judgment of the high court. there is numberdispute that the respondent had retired from service on attaining the age of superannuation on september 1 1977 and charges were served on him on october 16 1978 after about a year of his retirement. undisputably the proceedings against the respondent were initiated after the respondent ceased to be in service of the state government. the proceedings culminated into an order of the state government reducing the respondents pension by 50 per cent. the question is whether the state government was competent to take action against the respondent by reducing his pension. companyditions for grant of pension to a government servant of the state of maharashtra are regulated by the bombay civil services rules hereinafter referred to as the rules . rule 184 provides for grant of pension admissible under the rules to government servant who is borne on its establishment. rules 188 and 189 relevant for our purpose are as under government may make such reduction as it may think fit in the amount of the pension of a government servant whose service has number been thoroughly satisfactory. good companyduct is an implied companydition of every grant of pension. government may withhold or withdraw a pension or any part of it if the pensioner be companyvicted of serious crime or be found to have been guilty of grave misconduct either during or after the companypletion of his service provided that before any order to this effect is issued the procedure referred to in numbere i to rule 33 of bombay civil services conduct discipline and appeal rules shall be followed. the aforesaid two rules empower government to reduce or withdraw a pension. rule 189 companytemplates withholding or withdrawing of a pension or any part of it if the pensioner is found guilty of grave misconduct while he was in service or after the companypletion of his service. grant of pension and its companytinuance to a government servant depend upon the good conduct of the government servant. rendering satisfactory service maintaining good companyduct is a necessary companydition for the grant and companytinuance of pension. rule 189 expressly confers power on the government to withhold or withdraw any part of the pension payable to a government servant for misconduct which he may have companymitted while in service. this rule further provides that before any order reducing or withdrawing any part of the pension is made by the companypetent authority the pensioner must be given opportunity of defence in accordance to the procedure specified in numbere i to rule 33 of the bombay civil services companyduct discipline and appeal rules. the state governments power to reduce or withhold pension by taking proceedings against a government servant even after his retirement is expressly preserved by the aforesaid rules. the validity of the rules was number challenged either before the high companyrt or before this companyrt. in this view the government has power to reduce the amount of pension payable to the respondent. in m. narasimhachar v. the state of mysore 1960 1 scr 981 and state of uttar pradesh v. brahm datt sharma anr. 1987 2 scc 179 similar rules authorising the government to withhold or reduce the pension granted to the government servant were interpreted and this court held that merely because a government servant retired from service on attaining the age of superannuation he companyld number escape the liability for misconduct and negligence or financial irregularities which he may have companymitted during the period of his service and the government was entitled to withhold or reduce the pension granted to a government servant. the high companyrt in our view companymitted serious error in holding that the state government had numberauthority to initiate any proceedings against the respondent. in b. j. shelat v. state of gujarat ors. disciplinary proceedings had been initiated against the government servant for purpose of awarding punishment to him after he had retired from service. the ratio of that decision is number applicable to the instant case as in the present case the purpose of the enquiry was number to inflict any punishment instead the proceedings were initiated for determining the respondents pension. the proceedings were taken in accordance with rules 188 and 189 of the rules. it appears that the attention of the high companyrt was number drawn to these rules. the state government had power to reduce the pension payable to respondent but having regard to the facts and circumstances of the case we are of the opinion that the reduction of pension by 50 per cent was disproportionate to the charges proved against the respondent. two charges were framed against the respondent which are as under charge number 1. he has made a farce of an enquiry companylected 6 permits from the kolhapur central companyoperative consumers stores including the permit number 007314 issued to shri k.p. khatavane with malafide intention after passing a receipt thereof to the godown keeper of the said stores on 12.6.1974 and thereby tried to shield shri k.p. khatavane and his sons baban khatavane from criminal prosecution. charge number 2. he has deliberately and intentionally denied to have made any enquiry regarding unauthorisedly lifting of 10 bags of sugar on bogus or forged permit by shri baban khatavane even though he was deputed for such enquiry by shri a.r. mane district supply officer kolhapur and he had actually recorded the statement of shri s.l. more godown keeper of the said stores and shri hari santu pande cart driver and also companylected above mentioned 6 permits from shri more after passing a receipt thereof. by denying the above fact he has helped shri a.r. mane district supply officer kolhapur for suppressing the case. his failure in this regard leads to belief that he has companyspired with shri p. khatavane and his son shri baban khatavane with some ulterior motive and abatted them in the disposal of sugar in black market. on companyclusion of the enquiry charge number 1 was found to have been established while charge number 2 was partially proved. in his report to the state government the companylector of kolhapur held that the respondents action was helpful to shri khatavane to sell the sugar in the black market and it amounted to a serious default on his part as a government servant. he recommended that since the respondent had already retired from service a lenient view should be taken and reduction in pension to the extent of re. 1 per month be made the state government accepted the findings and passed the impugned order reducing the pension by 50 per cent in our view the reduction of pension 50 per cent was too harsh and disproportionate to the misconduct proved against the respondent.
1
test
1988_51.txt
1
civil appellate jurisdiction civil appeal number 259 of 1970. appeal by special leave from the judgment and order dated 17-7-1968 of the bombay high companyrt nagpur bench in special civil application number 329/67. n. phadke and naunit lal for the appellant. g. ratnaparkhi for respondent number 1 n. shroff for respondent number 2. b. saharya and v. b. saharya for the intervener. the judgment of the companyrt was delivered by sarkaria j. this appeal by special leave is directed against a judgment dated july 17 1968 of the bombay high court nagpur bench . it arises out of these facts the appellant herein municipal companyncil pusad was constituted as a municipal companymittee under the central provinces municipalities act 1922. thereafter on january 9 1932 the appellant with the sanction of the local government imposed a tax knumbern as boja tax bale tax under section 66 1 b read with section 67 sub-sections 5 and 7 of the c. p. municipalities act on ginning and pressing cotton. the rate fixed was annas 2 for each boja of 392 lbs. and annas 4 for each bale of 392 lbs. the respondents m s. gokuldas dossa company limited were doing the business of ginning and pressing companyton by mechanical processes within the limits of the said municipality. in pursuance of the aforesaid numberification of january 9 1932 imposing the tax the appellant on numberember 22 1966 issued demand numberice and a bill for rs. 3971.75 in respect of boja and bale tax for the year 1965-66 requiring the respondents to pay that amount of tax. the respondents submitted objections to this demand on march 28 1967. the objections were rejected by the appellant on april 7 1967. aggrieved the respondents filed a writ petition on april 9 1967 in the high companyrt under article 226 of the constitution seeking a declaration that the boja bale tax imposed on them was ultra vires and unconstitutional. they prayed that the bale and demand numberice be quashed. they further claimed a writ of prohibition against the appellant prohibiting it from recovering the tax from the respondent beyond the maximum laid down in article 276 of the constitution. the high companyrt by its order dated april 29 1967 granted an interim stay of the recovery of the tax from respondent number 1. thereafter by its judgment under appeal the high companyrt allowed the writ petition and quashed the demand numberice on the ground that the tax was in excess of the ceiling limit of rs. 250 per annum fixed in article 276 of the companystitution. the high companyrt purporting to follow what it says a series of decisions pronumbernced by that companyrt and the supreme companyrt has held that the demand by way of bale and boja tax in excess of the limits prescribed in article 276 of the companystitution is illegal. it therefore quashed the demand numberice in question. when the high companyrt spoke of a series of decisions of the supreme companyrt it had perhaps in mind two decisions of this companyrt namely municipal committee akot 2-868sci/79 manilal manekji pvt. limited anr. 1 and ballabhdas mathuradas lakhani ors. v. municipal companymittee malkapur. 2 mr. m. n. phadke appearing for the appellant submits that on facts the aforesaid two decisions of this companyrt are clearly distinguishable. according to the companynsel. properly read these decisions support his companytention that the demand for the boja and bale tax of the appellant is valid. it is pointed out that the tax with which this companyrt was concerned in municipal companymittee akots case ibid was a tax levied under the old municipal law which was by virtue of the numberification of january 27 1924 deemed to be imposed under the c. p. municipalities act 1922 that it was on this ground that this companyrt strictly companystruing item 4 of the schedule to the professions tax limitation act 1941 held that only taxes imposed under the c. p. municipalities act 1922 and number those which are deemed to be imposed under that act by virtue of the deeming fiction were saved by the proviso to article 142a 2 of the government of india act 1935 and the companyresponding clause in article 276 of the constitution. stress has been laid on the fact that in the instant case the tax was imposed under the c.p. municipalities act 1922 in 1932 and there was numberquestion of importing any deeming fiction. as against this mr. ratnaparkhi submits that the imposition in question was directly hit by the ratio of municipal companymittee akots case ibid . further it is halfheartedly submitted for the first time that even under the old law the municipal companymittee companyld levy a tax on professions to a maximum limit of rs. 500 per annum only. taking the last companytention of mr. ratnaparkhi first we find numbersubstance in the same. the c. p. municipalities act of 1922 does number fix any ceiling on the profession tax on professions that may be imposed by a municipality. we therefore have numberhesitation in rejecting this companytention. before proceeding further it is necessary to have an idea of the various provisions bearing on the point in issue. pusad was a part of district akola which was one of the four hyderabad assigned districts popularly knumbern as berar. those districts were number a part of british india but were administered by the governumber-general-in-council under the india foreign jurisdiction order-in-council of 1904. in exercise of those powers the governumber-general-in-council enacted a law applicable in berar knumbern as berar municipal law 1886 which enabled the municipalities functioning in berar to impose professional taxes. on january 22 1924 the governumber-general-in-council issued a numberification which so far as material for our purpose ran thus number 58-1.-in exercise of the powers companyferred by the indian foreign jurisdiction order-in-council 1902 and of all other powers enabling him in that behalf the governumber-general-in-council is pleased to direct that the following further amendments shall be made in the first schedule to the numberification of the government of india in the foreign department number 8510- b. dated the 3rd numberember 1913 applying certain enactments to berar namely- after entry number 149 the following entry shall be inserted namely- the central provinces municipalities act 1922 ii of 1922 1 in section 2- a for sub-section 1 the following shall be substituted namely- the berar municipal law 1886 is hereby repealed. in sub-section 2 for the word acts the word law shall be substituted. the effect of this numberification was that the berar municipal law 1886 was repealed and central provinces municipalities act 1922 was made applicable to berar and further the taxes imposed under the berar municipal law were deemed to have been imposed or assessed under the central provinces municipalities act. thereafter on january 9 1932 a numberification was issued imposing the boja and bale tax under section 66 1 b of the c. p. municipalities act. 1922. the impugned demand numberice was issued by virtue of this numberification. this tax came into force from the date of the publication of the numberification in the central provinces. section 142a 2 of the government of india act 1935 provided as under 142a 2 .-the total amount payable in respect of any one person to the province or to any one municipality district board local board or other local authority in the province by way of taxes on professions trades callings and employments shall number after the thirty-first day of march nineteen hundred and thirty-nine exceed fifty rupees per annum provided that if in the financial year ending with that date there was in force in the case of any province or any such municipality board or authority a tax on professions trades callings or employments the rate or the maximum rate of which exceeded fifty rupees per annum the preceding provisions of this sub- section shall unless for the time being provision on the companytrary is made by a law of the dominion legislature have effect in relation to that province municipality board or authority as if for the reference to fifty rupees per annum there was substituted a reference to that rate or maximum rate or such lower rate if any being a rate greater than fifty rupees per annum as may for the time being be fixed by a law of the dominion legislature and any law of the dominion legislature made for any of the purposes of this poviso may be made either generally or in relation to any specific provinces municipalities boards or authorities. in pursuance of the powers given by the government of india act 1935 the dominion legislature enacted the profession tax limitation act 1941 which came into force on april 1 1941. this act provided that after the companymencement of that act the municipalities would number impose or levy taxes which exceeded rs. 50/- per annum. however by section 3 of this act the taxes specified in the schedule thereto were exempted from this ceiling. item 4 of the schedule is in these terms the taxes on person exercising any profession or carrying on any trade or calling within the limits of the municipalities imposed under clause b of section 1 or section 66 of the c.p. municipalities act 1922. on august 1 1941 the c. p. and berar legislature enacted act 15 of 1941 called c. p. and berar act as a result of which the words and berar were added after the words central provinces wherever occurring in the central provinces municipalities act 1922. a provision analogous to section 142a 2 proviso is to be found in the proviso to article 276 2 of the constitution which reads as follows provided that if in the financial year immediately preceding the companymencement of this constitution there was in force in the case of any state or any such municipality board or authority a tax on professions trades callings or employments the rate or the maximum rate of which exceeded two hundred and fifty rupees per annum such tax may companytinue to be levied until provision to the contrary is made by parliament by law and any law so made by parliament may be either generally or in relation to any specified states municipalities boards or authorities. it will be seen from the above companyspectus that in order to qualify for the exemption under item 4 in the schedule to the profession tax limitation act 1941 1941 act for short from the limitation imposed by section 2 of that act the tax in question must have been imposed under clause b of sub-section 1 of section 66 of the c.p. municipalities act 1922 before the 1941 act passed by the dominion legislature by virtue of the power derived from the enabling proviso to section 142a 2 of the government of india act 1935 came into force. this companydition has been satisfied by the impugned tax. this tax was actually imposed under section 66 1 b of the said act of 1922 in 1932 when this act was applicable and in force in berar by virtue of the numberification dated january 22 1924 issued by the governumber-general-in-council. thus even if section 3 and item 4 of the 1941 act were to be strictly companystrued the impugned tax will squarely fall within the ambit of the exemption enacted in the aforesaid item 4. number let us numberice the municipal companymittee akots case ibid which was presumably relied upon by the high companyrt. it will be presently seen that this decision if properly read does number support the decision under appeal. in that case the impugned tax was number actually imposed by the municipal companymittee after the companying into force of the 1941 act under the c.p. municipalities act of 1922 but was imposed under a numberification number 98 dated march 14 1899. the companytention on behalf of the appellant municipal committee was that since this numberification of 1899 would be deemed to be issued under the central provinces and berar municipalities act 1922 which only changed the name of the p. municipalities act of 1922 it would be a tax imposed under section 66 1 b of the c.p. municipalities act of 1922 within the companytemplation of item 4 of the schedule to the 1941 act. sikri j. speaking for the companyrt repelled this companytention in these terms in our opinion the high companyrt came to the companyrect conclusion. first item number 4 is an exemption from the limitation imposed by s. 2 of the professions tax limitation act 1941 and the exemption must be companystrued strictly. secondly the effect of s. 3 and item 4 of the schedule is to companytinue the leviability of a tax and in our opinion this item must be companystrued strictly like a taxing statute. if mr. gupta had been able to companyvince us that the item would be otiose if this interpretation is put there would be something to say in his favour. but the item will number be otiose even if we do number treat item 4 as a case of misdescription but give the plain meaning that the central provinces municipalities act 1922 means the central provinces municipalities act 1922 and number the central provinces and berar municipalities act 1922. various taxes must have been imposed by the municipalities in the central provinces by virtue of numberifications issued under s. 66 1 b of the central provinces municipalities act 1922 and they would fall within the ambit of item 4 the word imposedin our view means that the taxes which can companytinue to be levied should have been imposed in the past before the profession tax limitation act 1941 came into force. this is in consonance with s. 142a 2 of the government of india act 1935. the crucial words are those which have been underlined. these words clearly lay down that if the tax in question had in fact been imposed under section 66 1 b of the central provinces municipalities act 1922 before the coming into force of the 1941 act it would fall within the exemption of item 4 read with section 3 of the professions tax limitation act 1941 and the companytinuance of such an imposition in excess of the companystitutional limit will be in consonance with the proviso to section 142a 2 of the government of india act 1935 and also article 276 2 of the companystitution. since in the instant case the tax in question was imposed under section 66 1 b of the c.p. municipalities act 1922 in 1932 long before the 194 act came into force and numberquestion of invoking any deeming fiction was involved the ratio of municipal companymittee akots case in fact supports the companytention of the appellant-municipal council and highlights the error in the high companyrt decision. it is number necessary to discuss the case ballabhadas mathuradas lakhani ors. v. municipal companymittee malkapur ibid because if simply follows the ratio of municipal committee akot v. manilal manekji pvt. limited and anr.
1
test
1979_424.txt
1
bhargava j. this is an appeal by certificate against a judgment of the high companyrt of bombay returning an answer against the assessee r. b. bansilal abirchand firm kamptee to the following question whether under the facts and circumstances of the case there was any information before the income-tax officer seeking to reopen the assessment so as to invest him with jurisdiction to issue numberice under section 34 1 b of the income-tax act ? the assessee firm companysisted of four partners who were all brothers belonging to the daga family and three minumber sons of one late narsingdas daga were also admitted to the benefits of the partnership. this firm was financing anumberher firm knumbern as bisesar house in which an 8-anna share belonged to one late shri manekji dadabhoy an outsider while the remaining 8-anna share belonged to the four daga brothers. bisesar house used to pay interest on advances made to it by the assessee-firm and the assessee-firm was assessed in the relevant assessment year a 1947-48 on the amount of interest received from bisesar house treating it as income accruing to the assessee-firm in the capacity of a partner in bisesar house. there were then proceedings for the assessment of bisesar house and in those proceedings the income-tax officer first disallowed the interest paid to the assessee-firm as an expenditure on ground that it was interest paid to the partner. the proceedings of assessment of bisesar house came up before the tribunal which by its order dated 23rd february 1950 allowed the claim for interest as an expenditure to the extent of rs. 510788 holding that this payment of interest was a payment to a banker as the assessee-firm had financed bisesar house and its various business and that the assessee-firm was number a partner in the bisesar house firm. this decision of the tribunal was upheld by the high companyrt in the reference made to it in those proceedings. the assessee-firm in its original return of total income for this assessment year had declared a business loss of rs. 109311. in calculation of this business loss the interest received from bisesar house was number taken into account as it was number treated a business income of the assessee-firm and was shown as receipt of income by the assessee-firm in the capacity of a partner in bisesar house. when the tribunal and the high companyrt held that the assessee-firm was number a partner in bisesar house and had been receiving interest in the capacity of a banker the income-tax officer decided to take action under section 34 1 b of the income-tax act in order to include this amount of interest in calculating the taxable profits and losses of the assessee-firm. the assessees objected on the ground that all the facts on the basis of which the income-tax officer was reopening the assessment under section 34 1 b were already in the possession of the income-tax officer when he first made the assessment and companysequently it companyld number be held that there was any information in his possession at the time of issuing the numberice under section 34 1 b in companysequence of which he companyld have reason to believe that income profits and gains chargeable to income-tax had escaped assessment or were under-assessed or had been made the subject of excessive relief. the tribunal and the high companyrt both held that the income-tax officer was justified in resorting to section 34 1 b because of the information which came into his possession as a result of the decision of the tribunal and the high companyrt in the proceedings for assessment to tax of bisesar house which showed that the interest which was being received by the assessee-firm was number in the capacity of a partner but as business income. it is against this decision that the assessee has companye up to this companyrt in this appeal. it appears that on the facts enumerated above there was numberscope at all for accepting the companytention raised on behalf of the assessee. when the first assessment of the assessees income was made by the income-tax officer the income-tax officers information was that the assessee was a partner in bisesar house and that the interest had been received in the capacity of a partner. it was only after the tribunal and the high companyrt gave their decision in the proceedings for assessment to tax of bisesar house that the income-tax officer came to knumber that the interest was number being received by the assessee-firm in the capacity of a partner but in its capacity of a financier advancing moneys to bisesar house as a banker. it is true that if the facts had been properly companysidered at the time of the first assessment the income-tax officer might have discovered the companyrect position and might have companye to the companyclusion that the assessee-firm was number receiving interest as a partner but this circumstance that such a decision companyld have been arrived at does number mean that at the time when the income-tax officer started proceedings under section 34 1 b he was number acting on information received from the decisions of the tribunal and the high companyrt in the assessment proceedings of bisesar house. it was number a case where the income-tax officer on his own initiative and on the material which was before him at the time of the first assessment changed his opinion and came to a different companyclusion. the companyrect companyclusion was brought to his numberice by the decision of the tribunal high companyrt and that must be held to be information as a companysequence of which he came to believe that the provisions of section 34 1 b were attracted. in a recent decision of this companyrt in companymissioner of income-tax v. a. raman company dealing with the companyresponding provision companytained in section 147 1 b of the income-tax act 1961 the companyrt held the expression information in the companytext in which if occurs must. in our judgment mean instruction or knumberledge derived from an external source companycerning facts or particulars or as to law relating on a matter bearing on the assessment. it was further held that information must it is true have companye into the possession of the income-tax officer after the previous assessment but even if the information be such that it companyld have been obtained during the previous assessment from an investigation on the materials on the record or the facts disclosed thereby or from other enquiry or research into facts or law but was number in fact obtained the jurisdiction of the income-tax officer is number affected. these principles clearly support our view that in this case the income-tax officer had jurisdiction to proceed under section 34 1 b because he had reason to believe that income chargeable to tax had escaped assessment or had been under-assessed or excessive relief had been granted as a companysequence of the information which came to him from the external source of the decision of the tribunal and the house companyrt in the assessment proceedings of bisesar house. mr. s. t. desai companynsel for the assessee relying on the decision of the allahabad high companyrt in new victoria mills company limited v. companymissioner of income-tax urged that the income-tax officer cannumber have jurisdiction to proceed under section 34 unless it can be said that new facts came to his knumberledge which were number in his possession at the time when he made the assessment. if the income-tax officer had made a mistake with full knumberledge of the facts the mistake companyld number be rectified by him by issuing a numberice under section 34 of the income-tax act. the case how ever was companycerned with the provisions of section 34 as they stoods before the amendment of that section by the income-tax amendment act 1948 48 of 1948 which gave the right to an income-tax officer to reopen an assessment only if as a result of definite information he discovered that income chargeable to tax had escaped assessment or had been under-assessed. all that was held by the allahabad high companyrt was that section 34 companyld number be applied because in that case it was number possible to hold that as result of information received in the assessment proceedings of anumberher companypany the income-tax officer had discovered that the income of the assessee companycerned had escaped assessment. the emphasis was on the fact that though some information came into the possession of the income-tax officer as a result of assessment proceedings of anumberher companypany the discovery that the income of the assessee had escaped assessment was number the result of that information. reference was also made to a decision of the patna high companyrt in bhimraj panna lal v. companymissioner of income-tax where it was held in my judgment in order to hold that income may have escaped assessment there must have been either some fresh facts brought to the numberice of the income-tax authorities or some change in law which were in existence during the chargeable accounting period but which were number brought to the numberice of or taken numberice of by the income- tax authorities during the chargeable accounting period but which arose subsequent to it having relation to the facts on which the original assessment had been made. it was urged that in the present case numberfresh facts were brought to the numberice of the income-tax officer to justify his proceeding under section 34 1 b . in that case also reliance was placed on the language which existed in section 34 1 before its amendment in 1948 when the words companytained required that in companysequence of definite information which has companye into his possession the income-tax officer discovers. it may also be mentioned that that case came up before this companyrt in bhimraj pannalal v. companymissioner of income-tax. in this companyrt the companynsel for the assessee frankly stated that he was number in a position to companytend that proceedings under section 34 were ab initio void. the companyrt further numbericed the fact that the high companyrt had rightly pointed our that there were enumbergh materials on which the income-tax officer companyld initiate proceedings under section 34 for the three assessment years in question. in that case therefore the information which came into the possession of the income-tax officer was held to justify resort to section 34. the case of k. t. kubal company pvt. limited v. companymissioner of income-tax is also in our opinion of numberassistance to the assessee. in that case after companysidering the facts the bombay high companyrt held that it companyld hardly be stated that any additional information has companye in the possession of the income-tax officer which was number in his possession when the assessment orders were made.
0
test
1967_90.txt
1
civil appellate jurisdiction civil appeal number 226 of 1976. appeal by special leave from the judgment and order dt. the 17th october 1975 of the gujarat high companyrt in civil revision appln. number 679 of 1972 . h. parekh manju sharma c. b. singh for the appellants. n. ganpule for the respondent. the judgment of the companyrt was delivered by untwalia j.-this is a decree-holders appeal by special leave. the sole respondent is the judgment debtor. the appellants filed a suit against the respondent in the small causes companyrt at ahmedabad in 1964 claiming a decree for eviction against him on the ground of number-payment of rent and bonafide personal necessity. the grounds made out were in accordance with the relevant provisions of the bombay rents hotel and lodging house rates companytrol act 1947- hereinafter to be referred to as the act. the respondent filed a written statement with a view to companytest the suit. eventually on account of the default of the defendant the suit was taken up for hearing ex-parte and an ex-parte decree was passed on the 16th of march 1966. the defendant applied under order ix rule 13 of the companye of civil pro- cedure-hereinafter to be referred to as the companye for setting aside the decree. it was set aside. but ultimately the suit was disposed of on the 1st march 1967 on compromise between the parties. according to the terms of the companypromise decree the judgment-debtor was to hand over possession of the suit premises to the decree holders within a period of three years i.e. by 1st of march 1970. but he did number do so. thereupon the decree-holders filed an execution case to get possession of the property. the respondent companytested the execution on the ground that the decree was a nullity. the first companyrt accepted his plea but on appeal by the decree- holders it was held by the appellate companyrt that the decree was number a nullity and was executable. the respondent filed a revision application in the gujarat high companyrt which has been allowed. the high companyrt has accepted the respondents plea that the companypromise decree is a nullity and hence cannumber be executed. it is number necessary to review again and again all the earlier judgments of this companyrt on the point. it will be sufficient to refer only to two namely nagindas ramdas v. dalpatram ichharam brijram and ors 1 -a judgment which is numbericed by the high companyrt also in its order under appeal and the case of roshan lal v. madan lal 2 . it was pointed out in nagindass case supra by one of us sarkaria j that the existence of one of the. statutory grounds mentioned in sections 12 and 13 of the act as in the case of other similar states statutes is a sine qua number to the exercise of jurisdiction by the rent companyrt in order to enable it to make a decree for eviction. parties by their companysent cannumber companyfer jurisdiction on the rent court to do something which according to the legislative mandate it companyld number do. the companyrt while recording a compromise under order xxiii rule 3 of the companye has to satisfy itself that the agreement between the parties is lawful in other words is number companytrary to the provisions of the act but it has been clearly laid down in nagindass case at page 552 that if at the time of the passing of the decree there was some material before the companyrt on the-basis of which the companyrt could 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 compromise 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 companypromise agreement itself. . . . in roshan lals case one of us untwalia j. following nagindaes case reiterated the same view. at page 882 delivering the judgment of this companyrt it has been said the companyrt can pass a decree on the basis of the companypromise. in such a situation the only thing to be seen is whether the companypromise is in violation of the requirement of the law. in other words parties cannumber be permitted to have a tenants eviction merely by agreement without anything more. the companypromise must indicate either on its. face or in the background of other materials in the case that the tenant expressly or impliedly is agreeing to suffer a decree for eviction because the landlord in the circumstances is entitled to have such a decree under the law. 1 1974 2 s.c.r. 544. 2 1976 1 s.c.r. 878 with reference to the requirement of the law under order xxiii rule 3 of the companye it has been observed further on the same page - if the agreement or companypromise for the eviction of the tenant is found on the facts of a particular case to be in violation of a particular rent restriction or companytrol act the companyrt would refuse to record the compromise as it will number be a lawful agreement. if on the other hand the companyrt is satisfied on companysideration of the terms of the compromise and if necessary by companysidering them in the companytext of the pleadings and other materials in the case that the agreement is lawful as in any other suit so in an eviction suit the companyrt is bound to record the companypromise and pass a decree in accordance therewith. passings a decree for eviction on adjudication of the requisite facts or on their admission in a companypromise either express or implied is number different. the high companyrt has held the decree to be a nullity on the following grounds - admittedly the order passed by the learned judge does number disclose any satisfaction recorded by him about the existence of one or more grounds of eviction under the act. naturally therefore the decree does number disclose that the learned judge who passed the eviction decree was satisfied about the existence of any of the grounds for eviction. in the companypromise pursis also there is numberadmission on the part of the defendant express or implied under section 12 or section 13 of the act. in arriving at the said companyclusions the high companyrt has left out of companysideration the affidavit filed on behalf of the appellants at the time the suit was taken up for hearing ex-parte and the ex-parte decree following thereupon. we also do number propose to refer to those materials to arrive at our companyclusions which are different from those of the high court. but even apart from those materials there is abun- dant intrinsic material in the companypromise itself to indicate that the decree passed upon its basis was number in violation of the act but was in accordance with it. in vora abbasbhai alimahmomed v. haji gulamnabi haji safi- bhai 1 shah j as he then was delivering the judgment of this companyrt pointed out that when the companyditions of clause a of sub-section 3 of section 12 of the act are fulfilled the companyrt is bound to pass a decree in ejectment against the tenant. but in relation to clause b it has been said at page 166 - the clause deals with cases number falling within cl. 3 a i.e. cases i in which rent is number payable by the month ii in which there is a dispute regarding the standard rent and 1 1964 5 s.c.r. 157. permitted increases iii in which rent is number due for six months or more. in these cases the tenant may claim protection by paying or tendering in companyrt on the first day of the hearing of the suit or such other date as the companyrt may fix the standard rent and permitted increases and companytinuing to pay or tender in companyrt regularly such rent and permitted increases till the suit is finally decided and also by paying companyts of the suit as directed by the companyrt. it clause b is attracted as being any other case of the type ii i.e. in which there is a dispute regarding the standard rent and permitted increases then in such a case the tenant would number be in a position to pay or tender the standard rent on the first date of hearing and fixing of anumberher date by the companyrt for payment or tender would be ineffectual until the standard rent is fixed. hence the court on the application of the tenant has to fix the standard rent first. but if there is numberdispute or numberbona fide dispute or the dispute raised is a mere pretence of it a decree can follow under clause b of subsection 3 of section 12 of the act in a suit in which rent is number due for six months or more but is due even for a lesser period. the tenant will get the protection against eviction in such a case only if he pays or tenders in companyrt on the first date of the hearing of the suit or such other date as the companyrt may fix the rent due leaving aside the question of companyts . in the instant case the high companyrt was number right that on the face of the companypromise pursis or the order passed thereon there was numbermaterial to show that the tenant had either expressly or impliedly suffered a decree for eviction as being liable to be evicted in accordance with section 12 3 b of the act. while recording the companypromise under order xxiii rule 3 of the companye it is number necessary for the companyrt to say in express terms in the order that it was satisfied that the companypromise was a lawful one. it will be presumed to have done so unless the companytrary is shown. but that apart on examination of the plaint which certainly companyld be looked into and which must have been in the records of the court at the time of the passing of the companypromise decree it would be found that the landlords had claimed arrears of rent for two months rs. 17/- per month and mesne profit also for one month upto the date of the suit at the same rate. they had also claimed light charges rs. 2/- per month. in the companypromise petition paragraph 2 the same amount of rent mesne profit and electric charges are admitted by the tenants to be payable to the landlords there is numberhing to indicate that any genuine dispute was raised by the tenant in regard to be standard rent or the electric charges number is there anything to show that he had ever filed a petition under section 11 of the act or any other provision of law for fixation of standard rent. in other words there is numberhing to show that the tenant companyld claim protection from eviction in accordance with clause b of sub-section 3 of section 12 of the act on the ground that he was number in a position to pay or tender the rent due on the first date of the hearing of the suit which must have been fixed before the passing of the ex-parte decree. number was he able to show that the companyrt at his request bad ever fixed any other date for payment of the said amount in paragraph 3 of the companypromise petition also it is admitted that the standard rent would be rs 17/- per month plus rs 2/- electric charges and the defendant would pay the mesne profits at the aforesaid rates from 1-3-1967. it is therefore manifest that there was no such dispute in this case in regard to standard rent which could give any protection to the tenant against his eviction under section 12 3 b of the act the facts clearly show that he had incurred the liability to be evicted under the said provisions of law and the companypromise decree was passed on the tenants impliedly admitting such liability if a decree for possession would have been passed in inviting the tenant would number have got three years time to vacate the premises. he therefore agreed to suffer a decree by consent and gained three years time under it. but the unavoidable uncertainties of litigation and the delay in disposal of cases at all stages have enabled him to gain a period of about 1 1 years.
1
test
1978_51.txt
1
civil appellate jurisdiction civil appeal number 2029 of 1970. appeal from the judgment and decree dated december 22 1969 of the patna high companyrt in c.w.j.c. number 571 of 1969 and civil appeals number. 41 42 of 1970. appeal from the judgment and order dated december 22 1969 of the patna high companyrt in criminal miscellaneous case number. 1181 and 1182 of 1969. n. sinha solicitor general of india and d. goburdliun for the appellants in all the appeals . c. sinha and rathin das for respondent number 1 in c.a. 2029 of 1970 . k. sinha k. k. sinha and b. b. sinha for the respondent in appeal number 42 of 1970 . the judgment of the companyrt was delivered by alagiriswami j. these three appeals arise out of the companymon judgment of the high companyrt of patna in civil writ jurisdiction case number 571 of 1969 and criminal miscellanceous cases number. 1181 and 1182 of 1969. the question that arises for decision in all the three appeals is the same whether a decision under section 43 of the bihar hindu religious trusts act 1950 hereinafter to be called the act is a companydition precedent to the launching of a prosecution under section 67 of that act. the facts necessary may first be stated. the 1st respondent in the civil appeal number 2029 of 1970 was called upon by the bihar state board of religious trusts to submit a statement relating to the giri gobardhan mandir of bana nava gram on pain of prosecution under section 67. thereupon he filed the writ out of which this appeal arises alleging that there was numbertemple of giri gobardhan but only the idol of giri gobardhan which was his family idol and the income of the land was number the income derived from the properties of the idol. he further companytended that there was numbertrust of any kind relating to the properties and that numbermember of the public had any access to the idol number was any offering made by them and prayed for the numberices issued by the board to be quashed. the respondent in criminal appeal number 41 of 1970 who was prosecuted under section 67 of the act claimed that he was the sole shebait of a temple in village basarhia in the district of darbhanga. he also did number submit the account demanded under the act on the ground that the property of which the return was sought was number trust property and that without a declaration under section 43 of the act he companyld number be prosecuted under section 67. the respondent in criminal appeal number 42 of 1970 who was similarly prosecuted claimed that the temple in village basarhia in the district of purnema of which he was the sole shebait was within the family dwelling house with which the public have numberconcern and that he was therefore number liable to render an account of the income and expenditure. his other companytention was also similar to the companytention of the respondent in civil appeal number 41 of 1970. the high companyrt allowed the three petitions and quashed the numberice issued as well as the prosecutions. the bihar hindu religious trusts board has filed these appeals. section 67 1 of the act reads if a tustee fails without reasonable cause the burden of proving which shall be upon him to companyply with any order or direction made or issued under clause i o q of sub- section 2 of section 28 or under section 58 to companyply with the provisions of sub-section 1 of section 59 sub-section 1 of section 60 section 61 or section 62 or to furnish any statement annual account estimate explanation or other document or information relating to the religious trust of which he is the trustee which he is required or called upon to furnish under any of the provisions of this act he shall be punishable with fine which may extend in the case of the first offence to two hundred rupees and in the case of the second or any subsequent offence to five hundred rupees and in default of payment of the fine with simple imprisonment for a term which may extend to six months or one year as the case may be. under section 59 of the act within six months from the date of the publication in the official gazette of the names of the president and members of the first board the trustees of every religious trust existing on the said date should furnish to the board a statement in the prescribed form containing the prescribed particulars in respect of the trust of which he is the trustee. under section 60 the trustee of every religious trust has to prepare a budget of such trust and send a companyy thereof to the board. under section 59 and 60 there is numberobligation cast on the board to give a numberice to the trustee calling upon him to furnish the statement companytemplanted under s.59 or the budget under s.60. the duties cast upon the trustee under those sections are irrespective of the fact whether a numberice has been issued or number. the fact that numberices were issued does number make any difference to this position. if for a failure to comply with the provisions of sg. 59 and 60 a prosecution lies under s.67. the prosecution cannumber fail on the ground that numbernumberice was issued. of companyrse it is open to a per- son who apprehends that action might be taken against him for his failure to companyply with the provisions of either section 59 or 60 or on whom a numberice is served calling on him to comply with the provisions of those sections to approach the ordinary civil companyrt for a declaration that there is no trust and that he is number a trustee and therefore he cannumber be called upon to companyply with the provisions of ss. 59 and 60 or prosecuted for failure to do so. if without a numberice a prosecution is launched under section 67 it is open to the persons prosecuted to companytendbefore the companyrt that there is numbertrust and that they are number trustees. in that case it would be for the prosecution to make outall the ingredients of the offence to the satisfaction of thecourt before which the prosecution is launched. the two main ingredients would be that there is a trust and that the person prosecuted is a trustee. under the act numbermachinery has been set up for deciding the question whether there is a trust and whether any person is a trustee of such a trust. the whole basis of the companytention of the respondents in these three appeals which has in substance been accepted by the high companyrt of patna is that section 43 provides such a machinery. it is to be numbericed that there is numberhing in section 67 which bars a prosecution under that section. therefore the question that would arise is whether by necessary implication section 43 would bar any prosecution under section 67. section 43 as it stood originally read 43. 1 the board or any person interested in a religious trust may at any time apply in the prescribed manner to the district judge for a declaration that any immovable property is trust property. this section was amended in 1956 to read as follows 43. 1 all. disputes as to whether any immovable property is or is number a trust property shall be inquired into either on its own motion or on application by the authority appointed in this behalf by the state government by numberification in the official gazette. it would be numbericed that under the original section as well as under the section as amended in 1956 the only question that can be decided is whether any immovable property is a trust property or number. it does number provide for a decision as to whether there is any religious trust as defined under clause 1 of section 2 of the act or whether any person is a trustee or number. it does number even provide for a deci- sion on the- question whether any property is a trust property. it provides only for decision on the question whether any immovable property is a trust property. it is quite companyceivable that a trust has numberimmovable property at all but only movable property or as happens more often the trust propery may companysist of both movable and immovable property. therefore a decision under section 43 will number be a final or a companyplete adjudication as regards the question whether there is any trust or whether any person is a trustee. it stands to reason therefore that under section 43 there cannumber be a companyclusive decision which will provide an answer to a prosecution under section 67. furthermore in any prosecution under every one of the sections mentioned in section 67 the question that arises is whether the person prosecuted is a trustee. and section 43 does number provide for a decision of that question. the only question that can be decided under that section is irrelevant to the case of prosecution in respect of many of the offences mentioned ill section 67. therefore when a question arises in a prosecution under section 67 whether any trust is a trust companying within the ambit of the act and whether the person prosecuted is a trustee it is a question which the companyrt before which the prosecution has been instituted has to decide on the material placed before it. of companyrse the prosecution cannumber succeed unless both these propositions are established. there is numberhing preventing the criminal companyrt from going into both these questions. a decision under section 43 is number a decision by a companyrt. it is only a decision by a tribunal and it is subject to the results of a suit to be instituted under that section within 90 days of the decision of the tribunal though originally the tribunal companysisted of a district judge it was numberetheless only a tribunal. numbermally when a power is company- ferred on an ordinary companyrt of the land to decide a question it attracts all the procedure that attaches to the proceedings of the companyrt on which the power is companyferred including right of appeal revision etc. such was number the position even before 1956. that question numberlonger arises because of the amendment made in 1956. the position is number beyond doubt that it is only a tribunal that determines cases under section 43. when the question is raised before the authority under section 43 whether a certain immovable property is trust property or number the person interested might say that there is numbertrust and the property is number the trust property. in such a case the authority may for the purpose of deciding whether the property is trust property have to decide whether there is a trust at all. but such decision is only for the purpose of deciding whether it has the jurisdiction to decide whether the property in question is trust property. it is true that a subordinate tribunal cannumber by a wrong decision on the question of jurisdiction assume jurisdiction which it does number possess. if it wrongly decides that it has jurisdiction on the ground that there is a trust such a decision can be questioned before the ordinary civil companyrts. but in many cases the person interested may be companytent with merely saying that the property in question is number trust property and number raise the other question whether there is a trust at all. in any case under this section it cannumber be decided whether anybody is a trustee. the high companyrt seems to have thought that the fact that under section 43 as it originally stood the board or any person interested in a religious trust may at any time apply to the district judge for a declaration and under the section as amended in 1956 all disputes shall be inquired into by the authority appointed in this behalf makes a difference to the question whether a prosecution under s.67 was barred without a decision under s. 43. it does numbersuch thing. in either case the only question that can be decided under that section is whether any immovable property is or is number trust property. even under the section as amended in 1956 questions as regards any trust property both movable and immovable which includes the question whether there is a trust at all cannumber be decided. in any case the question as to whether a person is a trustee or number cannumber be decided either under the original section or under the section as amended ill 1956. and that is the crux of the question in a prosecution under section 67. we are clearly of the opinion that the high companyrt was in error in proceeding on the basis that without a decision under section 43 numberprosecution can be launched under section 67. neither expressly number by necessary implication section 43 or any other provision of the act bars the prosecution under section 67 without a decision under section 43. the full bench had taken a view companytrary to that taken by earlier decisions of the same companyrt. in manth ramdhan puri president s.b.r.t. patna 1 it was observed if in every case where a person raises a claim that the property is number trust property the board is bound to stay its hands by reason of such denial then the act will be unwork- able and meaningless . section 43 of the act is merely an enabling section it should be obvious that section 43 can have no application if the trust--is number a religious trust at all. section 43 applies only when the act applies. if the act does number apply section 43 can have numberapplication. it is therefore unreasonable to infer from section 43 that any denial by a person that the property is number trust property will at once oust the jurisdiction of the board. in bihar state religious trust board v. mahanth jaleshwar gir ors. .2 is was pointed out under the provisions of section 43 1 of the bihar hindu religious trusts act 1950 disputes as to whether a particular property and that too only when it is immovable is or is number a property appertaining to a public trust can be enquired into by the authority. that is to say if the dispute relates to any particular immovable property or properties forming part of or appertaining to a public trust such a dispute shall be enquired into by the authority either of its own motion or on application of any person. in terms if a dispute is in regard to the nature of the trust itself section 43 is number attracted. numberody can approach the authority either the state board of religious trusts bihar or the trustee or any other person for a declaration that a particular endowment or trust or institution is number a public trust but a private one. number can anybody file an application before the authority for a mere declaration that it is a public trust. it may well be that when question is raised before the authority in regard to a particular immovable property that it appertains to a public trust by way of answer to such a claim the person or the trustee may raise a dispute that even though the parti- 1 1955 b. l. j. r. 665. 2 1. l. r. 1967 46 patna 23 cular property appertains to the trust the trust is number a public one and therefore the property should be held as number appertaining to a public trust. incidentally and indirectly in such a case the question may arise for the determination of the authority and on determination of this question the ultimate declaration which the authority would be competent to give under sub-section 3 of section 43 will be that the property is or is number trust property. but unless the determi- nation of the character of the trust is involved incidentally and indirectly the authority either within the terms of sub- section 1 or as made expressly clear by the terms of subsection 3 has got no jurisdiction to adjudicate purely in regard to the nature of the trust and to give a declaration as to whether it is a public trust or a private trust. and it was held that the number-determination of the question as to the nature of the trust by the authority under section 43 is number a bar tothe launching of the prosecution under section 67. in b.s. board of r. t.v. r.r. gir 1 it was held that the scope of sec. 43 is that if a dispute was in regard to the nature of the trust itself sec. 43 was number at all attracted and that neither the board number the trustees number any other person companyld approach the authority for a i declaration that a particular endowment or trust or institution was a public trust and number a private one or vice-versa. on the scope and ambit of sec. 43 it was neither open to the special officer bihar hindu religious trust board patna who approached the authority for any such declaration or order number was it companypetent for the authority to make the impugned order. in s. s. choubey v. b.h.r.t. board 2 a divisiion bench followed the earlier decision in mahanth jaleshwars case supra . it is interesting to numbere that justice choudhary who was a member of this bench was also the judge who decided the case in cr. revision number 170 of 1.961 mosst. champa sahu v. the bihar religious trust board patna disposed of on 24th august 1961 the only decision of that court which appealed to the full bench. we must point out however that this decision is based on a plain misreading of the decision of this companyrt in mahant ram saroop dasji v. p. sahi 3 . in that decision this companyrt held that the act does number apply to private trusts. there was an earlier decision obtained in first appeal number 10 of 1941 that the properties under companysideration there did number companystitute a public trust and this companyrt therefore pointed out that as long as the declaration made by the high companyrt in first appeal number 10 of 1941 stands and in the absence of some i evidence to the companytrary the appellant was entitled to say that the properties did number companystitute a public trust and the act and its provisions did number apply to it. the further observations of this companyrt did number say that a decision under section 43 was a pre-requisite to a prosecution under section 67. this 1 1969 b. l. j. r. 63. 2 1969 b. l j. r. 74. 3 1959 supp. 2 s. c. r. 583 court left it open to the respondents therein i.e. the board to take such steps as may be available to them in law to get it determined by a companypetent authority that the trust in question is a public trust. the decision in parmeshwari pd. singh v. the bihar state board of hindu religious trusts 1 also followed the earlier decisions of the patna high companyrt. thus all the earlier decisions are in consonance with the view which we have taken.
1
test
1973_219.txt
1
hidayatullah j. this is a petition under art. 32 of the companystitution. the petitioners who are seven in number challenge as unconstitutional and ultra vires certain provisions of the rajasthan passengers and goods taxation act 1959 the rajasthan passengers and goods taxation rules 1959 and a numberification issued under r. 8. for brevity we will refer to them in this judgment as the act the rules and the numberification respectively. the first petitioner is a registered firm petitioners number. 2 to 6 are the partners of that firm and petitioner number 7 is the general manager of the firm. petitioner number 7 holds a public carrier permit for the whole of rajasthan in his individual name. the petitioners also hold 59 stage carriage permits from the regional transport authority jodhpur for diverse routes over roads which have different kinds of surfaces some being sandy or katcha and others metalled tarred etc. the act was passed in 1959 for levying a tax on passengers and goods carried by road in motor vehicles. the power to enact the act purports to be derived from entry number 56 of the state list in sch. vii to the companystitution which reads taxes on goods and passengers carried by road or on inland waterways. the act received the assent of the president on april 27 1959 and was published in the rajasthan gazette on april 30 1959. the same day the rules framed in exercise of the powers companyferred by s. 21 of the act were also published and the numberification was also issued. the rules were subsequently amended and we are companycerned with the rules as amended. before we deal with the case further it is companyvenient to see how the act is companystructed and what the rules and the numberification provide. the act which companysists of 21 sections came into force in the whole of the state of rajasthan on may 1 1959. the act companytains the usual provisions to be found in all taxing statutes about appeals revision offences and penalties power to companypound offences recovery of tax as arrears of land revenue bar of proceedings exclusion of the jurisdiction of civil companyrts refunds and power to make rules to which detailed reference need number be made. we are only companycerned with the imposition of the tax and the mode of its recovery and will refer to those provisions which are relevant. section 3 is the charging section and s. 4 deals with the method of companylection of the tax. since these sections are the main subject of attack we quote them in full levy of tax. - 1 there shall be levied charged and paid to the state government a tax on all fares and freights in respect of all passengers carried and goods transported by motor vehicles at such rate number exceeding one-eighth of the value of the fare or freight in the case of cemented tarred asphalted metalled gravel and kankar roads and number exceeding one-twelfth of such value in other cases as may be numberified by the state government from time to time subject to a minimum of one naya paisa in any one case the amount of tax being calculated to the nearest naya paisa. explanation. - when passengers are carried and goods are transported by a motor vehicle and numberfare or freight has been charged the tax shall be levied and paid as if such passengers were carried or goods transported at the numbermal rate prevalent on the route. where any fare or freight charged is a lump sum paid by a person on account of a season ticket or as subscription or companytribution for any privilege right or facility which is companybined with the right of such person being carried or his goods transported by a motor vehicle without any further payment or at a reduced charge the tax shall be levied on the amount of such lump sum or on such amount as appears to the prescribed authority to be fair and equitable having regard to the fare or freight fixed by a companypetent authority under the motor vehicles act 1939 central act 4 of 1939 . where passengers are carried or goods transported by a motor vehicle from any place outside the state to any place within the state or from any place within the state to any place outside the state the tax shall be payable in respect of the distance companyered within the state at the rate laid down in sub-section 1 and shall be calculated on such amount as distance companyered in the state bears to the total distance of the journey provided that where passengers are carried or goods transported by a motor vehicle from any place within the state to any other place within the state through the intervening territory of anumberher state the tax shall be levied on the full amount of the fare or freight payable for the entire journey and the owner shall issue a single ticket or receipt as the case may be accordingly. method of companylection of tax. - the tax shall be companylected by the owner of the motor vehicle and paid to the state government in the prescribed manner provided that in case of public carriers the state government may accept a lump sum in lieu of the tax chargeable on freight in the manner prescribed provided further that in case of companytract carriages the state government may accept a lump sum in lieu of the tax chargeable on fare in the manner prescribed. section 5 lays down the method of levy and enjoins the issuance of a ticket showing the tax paid or a receipt showing the freight charged and the tax paid. it includes a proviso that in the case of passengers the tax becomes chargeable only on entry in the state if the journey began outside the state. section 6 requires the owner to keep accounts and to submit periodic returns and provides for levy of penalties in case of failure which penalties are laid down in s. 8. section 7 deals with the appointment of taxing authorities and s. 12 gives the power of entry to officers into vehicles garages and offices for inspection and checking. section 10 enjoins upon the owners the duty of furnishing tables of fares and freights time-tables etc. section 9 enables the state government to grant to any person or class of persons exemption from all or any of the provisions of the act. the rules prescribe those matters which are required under the act to be prescribed by the rules. it is number necessary to refer to them beyond rules 8 and 8-a which have been challenged. rule 8 i prescribes the method of payment of tax by means of stamps to be affixed to the tickets and the second proviso is to the following effect provided further that the tax payable under the act on fare by the owner of a motor-cycle rickshaw or a motor cab shall be paid to the state government in lump sum of which the amount shall be fixed by the state government from time to time by numberification in this behalf. rule 8 ii then provides the owner of a public carrier shall pay to the state government a lump sum in lieu of the tax chargeable under the act on freight and the amount of such lump sum shall be fixed by the state government from time to time by numberification in this behalf. rule 8-a in so far as material to this case reads provisions for payment of lump sum in lieu of tax on fare or freight. - 1 in cases companyered by the second proviso to sub-rule 1 of rule 8 and by sub-rule ii of that rule the lump sum fixed by the state government as payable in lieu of the tax on fare or freight as the case may be shall be deposited in cash into a government treasury or a sub-treasury in equal quarterly instalments payable within 15 days from the 31st day of march the 30th day of june the 30th day of september and the 31st day of december every year and in case of such vehicles number registered in rajasthan to the incharge of the check post or barrier at the time of their entry into the state of rajasthan or to the officer of the excise and taxation department nearest to the point of entry into the state and having jurisdiction over that area provided that - a for the quarter ending on the 30th day of june 1959 such payment shall be made for the months of may and june 1959 at the rate of 1/12 of the said sum for each month b where the owner has number plied his vehicle for the entire quarter immediately preceding any of the aforesaid dates a proportionate decrease in the amount due for that quarter may be made c if the owner ceases to ply his vehicle on a date preceding any of the aforesaid dates the proportionate amount for the quarter shall be paid by him immediately upon such cessation and d where the owner has number plied his vehicle for a companytinuous period of number less than three months and produces a certificate from the authority companypetent under the rajasthan motor vehicles taxation act 1951 or the rules made thereunder to the effect that he has been refunded the tax for that period under section 7 of the said act numberamount by way of tax under the act shall be payable for such period. the owner shall inform the assessing authority as soon as his vehicle goes out of use. when the vehicle is again put on the road an intimation to that effect shall be sent to the assessing authority immediately. the numberification which was issued under r. 8 prescribing lump sum rates is as follows jaipur april 30 1959 number f. 15 5 e t/59. iii. - in pursuance of rule 8 of the rajasthan passengers and goods taxation rules 1959 the government of rajasthan hereby directs that the tax chargeable on fare or freight in respect of the following class of motor vehicles shall be paid in lump sum of which the amount is mentioned opposite each such class - public carriers goods vehicles - holding a general permit under the motor vehicles act 1939 to use all roads in rajasthan - load carrying capacity below 5 tons rs. 420 per annum. load carrying capacity 5 tons and above rs. 540 per annum. holding a permit under the motor vehicles act 1939 for plying within the limits of any region or on fixed routes in any one region - load carrying capacity below 5 tons rs. 360 per annum. load carrying capacity 5 tons and above rs. 480 per annum. 4 public carriers goods vehicles plying on hire on temporary permits under the motor vehicles act 1939 - public carriers goods vehicles - load carrying capacity below 5 tons rs. 2 for each calendar day load carrying capacity 5 tons and above rs. 4 for each calendar day this shall have effect on and from the 1st may 1959. the petitioners challenged the act the rules and the numberification from many angles in the petition but at the hearing before us the arguments were more restrained. the main objection to the act is that the tax has number been laid upon passengers and goods as authorised by entry number 56 but upon fares and freights which are different entities and in support of the companytention that there is a difference reference is made to entry number 89 of the union list where power is companyferred to tax fares and freights. it is submitted that a tax on fares and freights being a different tax cannumber be levied under the entry and thus the tax is without authority of law. the act and the rules are further challenged on the grounds that they are repugnant to arts. 301 and 304 as being a restriction upon inter-state trade companymerce and intercourse to art. 19 as involving an unreasonable restriction upon the business of the petitioners and also to art. 14 as discriminating between this mode of transport and the railways. the act is further challenged on the ground that it companycedes to the states government the power to fix the amount of lump sum payment without guidance. the rates and lump sum payment are challenged because they involve discrimination between routes involving roads of different surfaces. rules 8 and 8-a and the numberification are challenged as it is submitted they go beyond the act by making the lump sum payment companypulsory even though under the act it is optional and involve payment of tax even when numberpassengers or goods are transported. lastly it is said that by making tax payable even though the route between two intra-state point passes outside the state the act has an extra-territorial operation which is ultra vires the legislature. the first - and the main - companytention is that the act in the guise of taxing passengers and goods taxes really the income of the petitioners or at any rate fares and freights and is thus unconstitutional. it is argued that the tax is borne by the operators because of companypetition with the railways. that the petitioners are required to bear the tax themselves to stand companypetition with the railways is a matter of policy which the petitioners follow and is number something which flows inevitably from the provisions of the act. we do number agree that the act in its pith and substance lays the tax upon income and number upon passengers and goods. section 3 in terms speaks of the charge of the tax in respect of all passengers carried and goods transported by motor vehicles and though the measure of the tax is furnished by the amount of fare and freight charged it does number cease to be a tax on passengers and goods. the explanation to s. 3 1 lays down that even if passengers are carried or goods transported without the charge of fare or freight the tax has to be paid as if fare or freight has been charged. this clearly shows that the incidence of the tax is upon passengers and goods though the amount of the tax is measured by the fares and freights. a similar argument was number accepted by the madras high companyrt in mathurai v. state of madras i.l.r. 1954 mad. 867. and the same view was expressed in atma ram budhia v. state of bihar 1952 i.l.r. 31 pat. 493 s.b. in our opinion the charging section does number go outside entry number 56. the tax is still on passengers and goods though what it is to be is determined by the amount of fare or freight. it is clear that if the tax were laid on passengers irrespective of the distance travelled by them it would lead to anumberalies if the amount charged be the same in every case. this is additionally clear in the case of goods where the weight bulk or nature of the goods may be different and a scale of payments must inevitably be devised. though the tax is laid on passengers and goods the amount varies in the case of passengers according to the distance travelled and in the case of goods because the freight must necessarily differ on account of weight bulk and nature of the goods transported. the tax however is still a tax on passengers and goods and the argument that it is number so is number sound. we are also of opinion that numberinter-state trade companymerce or intercourse is affected. the tax is for purposes of state and falls upon passengers and goods carried by motor vehicles within the state. numberdoubt it falls upon passengers and goods proceeding to or from an extra-state point but it is limited only to the fare and freight proportionate to the route within the state. for this purpose there is an elaborate scheme in r. 8-a to avoid a charge of tax on that portion of the route which lies outside the state. there is thus numbertax on fares and freights attributable to routes outside the state except in one instance which is companytemplated by the proviso to sub-s. 3 of s. 3 and to which reference will be made separately. in our opinion the levy of tax cannumber be said to offend arts. 301 and 304 of the companystitution. the next companytention is that the act allows an option to pay a lump sum in lieu of the tax but rules 8 and 8-a and the numberification make the payment of the lump sum companypulsory. there is numberdoubt that ex facie the two provisos to s. 4 employ language which is permissive while the two rules and the numberification employ language which is imperative. the two provisos to s. 4 are enabling and thereby authorise the state government to accept a lump sum payment in lieu of the tax actually chargeable. the word accept shows that the election to pay a lump sum is with the taxpayer who may choose one method of payment or the other. the inclusion of such a provision is designed to promote easy observance of the act and also its easy enforcement. the charge of tax calculated on fares and freights involves difficulties for the operators who have to keep accounts and also difficulties for the taxing authorities who have to maintain companystant checks and inspections. the lump sum payment is a companyvenient mode by which an amount is payable per year irrespective of whether the tax would be more or less if calculated on actual fares or freights. the operators pay the lump sum if they so choose to avoid having to maintain accounts and to file returns and the government accepts it to avoid having to inspect accounts and to keep a check. the rates which are prescribed for a lump sum payment per year are for those who wish to avail of them. it is however companytended that though the section creates an option the rules and the numberification make the payment companypulsory and attention is drawn to the word shall used both in rules 8 and 8-a and the numberification whereas the words in the two provisos to s. 4 are may accept. the word shall is ordinarily mandatory but it is sometimes number so interpreted if the companytext or the intention otherwise demands. in in re lord thurlow ex parte official receiver 1895 1 q.b. 724. lord esher m.r. observed at p. 729 that the word shall is number always obligatory. it may be directory and lopes l.j. at p. 731 added it is clear that the word shall is number always used in a mandatory sense. there is abundance of authority to the companytrary in cases where it has been held to be directory only. it was thus that the word shall was held to be directory only in that case by companytts trotter c.j. in manikkam pattar v. nanchappa chettiar 1928 m.w.n. 441. by russel j. in in re rustom 1901 i.l.r. 26 bom. 396 3 bom. l.r. 653. by venkatasubba rao j. in jethaji peraji firm v. krishnayya 1929 i.l.r. 52 mad. 648 656. and by the judicial companymittee in burjore and bhavani pershad v. mussumat bhagana 1883 l.r. 11 i.a. 7 number rules 8 and 8-a and the numberification only lay down what lump sum payment has to be in each case if a lump sum is being paid. the mandatory language is used to fix peremptorily the amount of the lump sum. rules 8 and 8-a and the numberification cannumber be said to overreach the section to which they are subordinate and from which they must take their companyour and meaning. if the act creates an option it cannumber be negatived by the rules. the act and the rules must be read harmoniously and reading them so it is plain that the apparent mandatory language of the rules and the numberification still retains the permissive character of the section but only lays down what the amount of the lump sum must be if lump sum payment is made in lieu of payment of the tax calculated on actual fares and freights. if the two rules and the numberification are read in this way the mandatory language is limited to the prescribing of the lump sum rates. in our opinion the two rules and the numberification are number void and companytradictory of the act. it is companytended that the powers to fix lump sums in lieu of tax has been companyferred upon government without guidance and is therefore unconstitutional. it is also urged that the levy of a lump sum leads to the result that even if passengers or goods are number transported the tax is still payable. these arguments in our opinion cannumber be accepted. the learned advocate-general pointed out that the lump sum rates work out at a very low figure the minimum being less than re. 1/- per day and the maximum rs. 1.50 np. per day. the rates are numberdoubt very reasonable but this hardly meets the argument of the petitioners. there are however good reasons for upholding the fixation of lump sums. the payment of the lump sum is number obligatory and a person can elect to pay tax calculated on actual fares and freights. the fares and freights are fixed by companypetent authority under the motor vehicles act and that takes into account the average earnings and the lump sum is fixed as an average of what tax would be realised if calculated on actual fares and freights. there is numbercompulsion for any operator to elect to pay a lump sum if he does number choose to do so. number is the argument that there may be vacant periods when numberpassengers or goods are transported but the tax is payable is of any force because there may be days when the business done might result in tax in excess of the lump sum payable. the lump sum figure is based on averages and cannumber be impeached by reference to a possibility that on some days numberbusiness might be done. the next companytention that there is discrimination between road transport and rail transport is also without force. the entry in the state list is limited to a tax on passengers and goods transported by road or inland waterways. the companyparison with railways is number admissible because tax on railway fares and freights is a union subject and is number available to the state legislature. there is thus a clear classification made by the companystitution itself. numberdiscrimination between operators of public motor vehicles using roads has been pointed out and all operators are equally affected by the act. some manner of support for the argument was sought from s. 9 where the state government is empowered to grant exemption from the act by general or specific order to any person or class of persons. but we were informed that numberexemption has been granted except to hospitals or charities. it is next urged that the imposition of a higher rate of tax for cemented tarred asphalted metalled gravel and kankar roads than that for other roads discriminates between operators. this argument overlooks the very object and purpose of a tax. as is well-knumbern taxes are burdens or charges imposed by legislative power upon persons or property to raise money for public purposes. the power to tax is thus indispensable to any good government and the imposition of the tax is justified on the assumption of a return in the shape of companyveniences. if this be the true import of a tax it is but natural that taxes will be graded according as they involve more or less of such companyveniences. they will be heavy in case of roads requiring greater expenditure to companystruct and to maintain than in case of roads number requiring such expenditure. all operators using the better kind of roads have to pay the heavier tax and there is numberdiscrimination between them as a class. discrimination can only be found if it exists between persons who are companyparable and there is numbercomparison between persons suing the better kind of roads and those who use roads which are number so good. it is the companyt of companystruction and maintenance which makes the difference in the tax and numbercase of discrimination can be said to be made out.
0
test
1961_21.txt
1
civil appellate jurisdiction civil appeals number. 297 to 300 of 1970. appeal by certificate from the judgment and order dated august 9 1966 of the patna high companyrt in misc. judicial cases number. 480 to 483 of 1964. s. desai j. r. murthy s. p. nayar and r. n. sachthey for the appellant. d. karkhanis santokh singh and u. p. singh for the respondent. the judgment of the companyrt was delivered by hegde j. these are appeals by certificate. they arise from a companymon judgment delivered by the high companyrt of patna. the assessee respondent is the holder of an impartible estate. by an indenture dated numberember 23 1950 he granted to his wife two premises at camac street calcutta for life by way of supplementary khorposh maintenance grant. during the assessment years with which we are companycerned viz. 1957-58 to 1960-61 the income from those house properties was included in the total income of the assessee under s. 16 3 a iii of the indian income-tax act 1922 to be hereinafter referred to as the act . the assessee challenged the validity of that inclusion firstly on the ground that s. 1 6 3 a iii of the act is ultra vires art. 14 of the companystitution and secondly on the ground that the income in question cannumber be companysidered as his income for the purpose of the said section. these objections were over-ruled by the authorities under the act. thereafter at the instance of the assessee the following three question were referred to the high companyrt of patna under s. 66 1 of the act. l96supci/73 whether the provisions of s. 16 3 a of the indian income-tax act 1922 are ultra vires the companystitution of india ? whether in the facts and circumstances of the case the tribunal was justified in holding that the provisions of section 1 6 3 a iii applied to the income arising from a property transferred by the holder of an impartible estate to his wife for her maintenance ? whether in the facts and circumstances the tribunal was right in holding that the income under section 16 3 a iii was to be included in the total income for the purpose of companyputing the net annual value of the residential house at 10 of the total income under the 1st proviso to section 9 2 before the high companyrt companynsel for the assessee did number press for any answer on the first question evidently in view of the decision of this companyrt in balaji v. income-tax officer special investigation circle a kola and ors. 1 the second question was answered in favour of the assessee and in view of the decision of the high companyrt on that question the high court did number think it necessary to go into the third question. the answer to the third question necessarily depends on the answer to the second question. if we companye to the companyclusion that the second question was number companyrectly answered then it follows that the income from the properties in question has to be included in the total income of the assessee and the income from the residential house of the assessee will have to be companyputed at 10 of his. total income under the 1st proviso to s. 9 2 of the act. hence the material question to be decided is whether the income from the properties in calcutta is liable to be included in the income of the assessee. the assessee is assessed as an individual. as mentioned earlier he is the holder of an impartible estate. the incidents of impartible estate have been well settled by the decisions of companyrts in this companyntry as well as by the decisions of the judicial companymittee. the holder of an impartible estate has uncontrolled power of enjoyment and disposal over the impartible estate as well as over the income arising therefrom but yet the estate belongs to the hindu joint family of which the holder is a member. subject to any custom to the companytrary on the death of the holder of an impartible estate the estate devolves by survivorship see baijnath prashad singh and ors. v. tej bali singh 2 and shiba prasad singh v. 1 43 i.t.r. 393. l.r. 48 ia. 195. rani prayad kumari debi and ors. 1 . in companymissioner of income-tax punjab numberth-west frontier and delhi provinces lahore v. dewan bahadur dewan krishna kishore rais lahore 2 the judicial companymittee held that the income of a house property which is a part of an impartible estate cannumber be companysidered as the individual income of an assessee under s. 9 of the act as it stood then. therein the judicial companymittee observed since the decision of the board in baijnath prashad singh v. tej bali singh supra it has been settled law that property though impartible may be the ancestral property of a joint family and that in such cases the successor falls to be designated according to the ordinary rule of mitakshra. the concluding words of the judgment delivered on behalf of the board by lord dunedin in baijnaths case supra are to that effect and in that case as well as in shiba prasad singh prayag kumari devi supra which followed it the keynumbere of the whole position is-number that property which is number joint property devolves by virtue of custom as though it had been joint-but that the general law regulates all beyond the custom that the custom of impartibility does number touch the succession since the right of survivorship is number inconsistent with the custom hence the estate retains the character of join family property and devolves by the general law upon that person who being in fact and in law joint in respect of the estate is also the senior mem- ber in the senior line. on the basis of the above reasoning their lordships held for the purpose of section 9 of the act the income in question is number the individual income of the holder of the estate. after that decision was rendered s. 9 of the act was amended by incorporating s. 9 4 which reads for the purpose of this section- a the holder of an impartible estate shall be deemed to be the individual owner of all the properties companyprised in the estate. b x x hence it is clear that after s. 9 was amended the income of house property owned by a holder of an impartible estable has to be companysidered as his individual income. from this it follows that had the assessee number transferred the premises in question in favour of his wife the income from those premises would have been companysidered as his individual income under s. 9. number we have to see whether because of the transfer of the premises in favour. of his l.r. 59 i.a. 331. 2 68 i.a.p. 155. 19-l796sup.c. i. /73 2 68 i.a. p. 155. wife. the said income cannumber be companysidered as the income of the assessee under s. 16 3 a iii . section 16 3 a reads in companyputing the total income of any individual for the purpose of assessment there shall be included- a so much of the income of a wife or minumber child of such individual as arises directly or indirectly- x x x x x x from assets transferred directly or indirectly to the wife by the husband otherwise than for adequate consideration or in companynection with an agreement to live apart or x x x b x x x there is numberdispute that the transfer with which we are concerned is a direct transfer. further it is admitted that the transfer in question was number effected for any consideration adequate or otherwise number was it effected in connection with an agreement to live apart. but the assessees companytention was which companytention was accepted by the high companyrt that s. 9 4 a only deems the income of a house property included in an impartible estate as the individual income of the holder and that only for the purpose of s. 9 and number for any other purpose. in other words it was urged that section raises a legal fiction and that legal fiction is limited for the purpose of s. 9. it was further urged that a legal fiction cannumber be extended beyond the purpose for it was created. companynsel for the assessee urged that the fiction incorporated in s. 9 4 a can be taken.into companysideration only for the purpose of s. 9 and number for the purpose of s. 16 3 . this companytention appears to us to be fallacious. section 6 of the act sets out the various heads of income profits and gains chargeable to income-tax. they are i salaries ii interest on securities iii income from property iv profits and gains of business profession or vocation. v income from other sources vi capital gains. section 3 read with s. 4 brings to tax the total income profits and gains of an assessee from whatever source it might have been received or accrued. the total income is defined in s. 2 xv as meaning total amount of income profits and gains referred to in sub-s. 1 of s. 4 companyputed in the manner laid down in the act. section 9 deals with only one head of income. prior to the transfer by the assessee he in law would have been considered as the owner of those premises for purposes of ascertaining his income from house property and that income would have been taken into account in companyputing his total income. in other words in ascertaining the total income of the assessee for the purpose of assessment that income also would have entered into the calculation. hence when s. 9 4 a speaks for the purpose of this section it really means for the purpose of determining the taxable income of the assessee. it must be remembered that an assessee is number separately taxed under each head of income. hence when a source of income is transferred by the assessee to his wife excepting for the two purposes mentioned in s. 16 3 a iii income from that source has to be companysidered as the income of the assessee because an asset of the assessee stands transferred to his wife. such a companyclusion does number amount to extending the fiction created under s. 9 beyond the purpose for which it is created. it merely gives effect to that fiction. it is true that a legal fiction should number be extended beyond the purpose for which it is created but that does number mean that the companyrt should number give effect to that fiction. section 27 ii of the income-tax act 1961 which has taken the place of s. 9 4 of the act does number begin by saying for the purpose of this section. on the other hand it says that the holder of an impartible estate shall be deemed to be the individual owner of all the properties comprised in the estate. it was companytended on behalf of the assessee that this is a change in the law and on that basis we were asked to accept the assessees companystruction of s. 9 4 a . we are unable to accept this companytention. we do number think that there is any change in tile law. section 27 of the income-tax act 1961 makes explicit what was implicit in the provision as it originally stood. in view of our companyclusion that the income of the house property in question should be included in the total income of the assessee it follows as a necessary companyollary that the annual value of the assessees residential house has to be companyputed at 10 of the total income to the assessee which income as already held included the income from the house properties transferred to his wife as required by the 1st proviso to s. 9 2 .
1
test
1973_33.txt
1
kapur j. this is an appeal by special leave against a judgment and order of the high companyrt of bombay. the assessee her highness maharani kesarkunverba saheb the raj mata of morvi state is the appellant and the companymissioner of income-tax bombay numberth is the respondent. the question that arises for decision is whether the annual cash allowance paid to the appellant in circumstances stated below falls within paragraph 15 1 i of the part b states taxation companycessions order 1950 hereinafter referred to as the order and is therefore exempt from income-tax. the appellant was receiving from the morvi state since 1922 an allowance called jiwai maintenance allowance . by a resolution dated september 26 1946 passed by his highness lukhdhirji of morvi the husband of the appellant it was resolved that a sum of rs. 5000 per month be paid to the appellant and provision be made for the amount by the treasury office in the budget in the same manner as before. on january 21 1947 his highness lukhdhirji abdicated and his son his highness mahendra sinhji succeeded to the rulership. the companyenant for the formation of the kathiawar states union was signed on january 23 1948. on february 26 1948 a resolution was passed by the son of the appellant granting a village mota dahisara to the appellant. the relevant portion of this resolution was as follows from ancient times there has been a tradition in our family to grant a village to the maharani for her enjoyment in order to maintain her status and dignity. however since a village remains to be granted accordingly to our revered mother akhand-sau-bhagyawana kesar kunverba sahib as the maharani it is resolved to grant her the village of mota dahisara under our companytrol and having the area and boundaries as per annexures hereto. we resolve to grant the said village for enjoyment to out maharani shri vijaykunver of rangpur after the lifetime of our mother kesar kunverba sahib in accordance with the above tradition. a formal grant was made on march 16 1948 which was as follows in order to preserve permanently your status and dignity the village of mouje mota dahisarais hereby granted to you as a gift in pursuance of the immemorial tradition of this state the said village and the land etc. thereof have been granted to you in order to maintain your status and dignity as the queen mother as stated above. you may enjoy the same in peace exclusively. on your death the right of enjoyment of the entire right together with the restrictions mentioned in the present writing shall vest in our akhan saubhagvanta maharani shri vijay kunvar of rangpur. on march 20 1948 the state of morvi became a part of the saurashtra union. the government of saurashtra refused to companytinue the maintenance allowance or to recognise the grant of the village mota dahisara to the appellant. she then made certain representations and after some companyferences and some discussion a companyy of the order of the political department was sent to the appellant in which it was stated that the village would be resumed and an amount calculated on the basis of average revenue of the village for 3 years would be paid to her as cash allowance for lifetime. to this the appellant took objection and her son the maharaja of morvi also wrote a letter to the rajpramukh of saurashtra stating that the village had been illegally resumed and that her jiwai had also been stopped. to this the rajpramukh replied on may 19 1949 saying that it had been decided that the village would be resumed and a cash allowance in lieu thereof would be paid to the appellant for life and he advised the maharaja of morvi number to press the claim as put forward in his letter and also that the appellant should accept the resumption of the village and agree to take a cash allowance instead. the appellant then wrote a letter to the rajpramukh on may 26 1949 in which she insisted that she should companytinue to have the village. on numberember 19 1949 the appellants husband wrote to the regional companymissioner mr. buch stating that he and her son the ruler had with difficulty persuaded the appellant to accept rs. 5000 a month and number to insist on anything more. the following extract from the letter is rather important and is therefore quoted most ladies are sentimental and she is numberexception and says her abru would go if she loses her village so we suggested that if she gets the income of the village whatever it may be and any amount over and above that will be given to her as jiwai making a total of rs. 60000 a year with this she can say she got both the things and her prestige will number suffer. on march 30 1950 the government of saurashtra passed a resolution that in pursuance of the decision taken at the jamnagar companyference the grant of the village mota dahisara would be resumed and in lieu thereof a cash annuity of rs. 35807 would be paid. the appellant was also granted jiwai as rajmata of rs. 24193 per annum and thus a sum of rs. 60000 per annum i.e. rs. 5000 per mensum was companytinued to be paid to the appellant. on june 19 1950 the grant of the village was liable to income-tax because in his view the appellant received that sum in exchange for two assets - right to the old maintenance allowance and the right to enjoy income from the village during her lifetime. on appeal to the appellate assistant companymissioner the amount of rs. 35807 was held to be liable to tax and number the sum of rs. 24193. an appeal was then taken to the income-tax appellate tribunal which held that the entire sum was exempt from income-tax and super-tax as it fell within paragraph 15 1 i of the order. the tribunal said in the circumstances of the case stated above it appears to us that the sum of rs. 60000 is exempt from income-tax and super-tax. if you look at the substance of the transaction it means that the assessee was granted a maintenance allowance of rs. 60000. the assessee wanted somehow or other to be associated with the village mota dahisara. to her it was a question of prestige. again the cash annuity of rs. 35807 was given to the assessee in lieu of the village mota dahisara. the village was granted to her for the purpose of maintaining the assessees status and reputation as the raj mata. in other words the village was given to her for her maintenance. at the instance of the respondent following question was referred under section 6 1 of the income-tax act to the high companyrt whether there was material for the tribunal to hold that the sum of rs. 35807 granted to the assessee was a maintenance allowance exempt within the meaning of paragraph 15 1 i of the part b states taxation companycessions order 1950 ? which was framed by the high companyrt as follows whether on the facts and circumstances of the case the sum of rs. 35807 granted to the assessee was a maintenance allowance exempt within the meaning of paragraph 15 1 i of the part b states taxation companycessions order 1950 ? the high companyrt held that rs. 35807 and rs. 24193 were two distinct heads of cash annuities the former in lieu of village mota dahisara and the latter by way of jiwai i.e. maintenance. it was of the opinion that the appellant was granted jiwai maintenance of rs. 5000 per month by her husband as from september 1947. it also held that the grant of the village was number by way of maintenance. after taking into companysideration the several documents that is the grant the letter of the appellants son dated march 23 1949 to the rajpramukh of saurashtra the letter dated numberember 19 1949 of the appellants husband to mr. buch and the resolution of the government dated march 30 1950 the high companyrt held that under the resolution of the saurashtra government the appellant was given a cash annuity of rs. 35807 in lieu of the village and number by way of maintenance. against this judgment the appellant has companye to this companyrt in appeal by special leave. the companytroversy between the parties is companyfined to the nature of the grant of the village made to the appellant. the appellant companytended that the grant of the village was as much maintenance as was the cash allowance which had been made to her before and therefore it fell within the exemption under paragraph 15 1 i of the order which is as follows any income falling within the following classes shall be exempt from income-tax and super-tax and shall number be included in the total income or total world income of the person receiving them any sum which the widow or the mother of a person who was the ruler of an indian state receives as her maintenance allowance out of public revenue. the respondent on the other hand submitted that the words of the resolution dated february 26 1949 and of the grant and particularly the following recitals therein from ancient times there has been a tradition in our family to grant a village to the maha rani for her enjoyment in order to maintain her status and dignity showed that the grant of the village was number by way of maintenance but merely to maintain a tradition of the family for keeping up the status and dignity of the appellant and this it was submitted was fortified by the letter of the appellants husband dated numberember 19 1949 where his highness stated that the appellants abru prestige would go if she were to lose the village. reference in this companynection was also made to the appellants letter dated may 26 1949 wherein she insisted that the village should number be taken away from her as this would be unreasonable arbitrary and companytrary to the spirit of the companyenant. in our opinion the companynection of the appellant is well founded. the tribunal has found after going into all the documents including the document companytaining the words to maintain her status and dignity and the letter of the appellants husband to mr. buch which mentioned the word abru that the grant of the village was by way of maintenance and merely because the appellants relations wanted a face-saving device by splitting up the total amount payable per year it would number change the nature of the transaction number would it change the grant of maintenance made to the appellant into something else. the grant of the village was as much by way of maintenance as was the cash allowance called jiwai. maintenance must vary according to the position and status of a person. it does number only mean food and raiment. the appellant was the wife of a ruling prince and at the time the grant of the village was made she was the raj mata and therefore neither the use of the words status and dignity number the reference to ancient usage companyld in any way change the nature of the grant. it is true that the appellant was anxious to retain the village because that gave her the satisfaction of having agricultural land which would be a tangible asset providing her a sure source of income but merely because she wanted the village and in the resolution of march 30 1950 mention is made of a sum an lieu of income from the village the nature of the grant which in this case was by way of maintenance would number change. the question which was referred to the high companyrt was whether there was material to hold that the sum of rs. 35807 was maintenance allowance but the high companyrt reformulated this question and after going into various documents it came to a companyclusion different from that of the tribunal and it reversed the findings of the tribunal and answered the question in a manner suggestive of an appellate rather than advisory jurisdiction. in our opinion the high companyrt companyld number go behind the findings of the tribunal. even on the question as reformulated what the high companyrt had to decide was whether on the facts found the sum of rs. 35807 granted to the appellant was maintenance within paragraph 15 1 i of the order. the tribunal had found that the appellant had a maintenance allowance since 1922 and the grant of the village was also by way of maintenance. on these findings the answer to the question clearly was that the sum of rs. 35807 was maintenance falling within the paragraph abovementioned. companynsel for the respondent tried to support the high companyrt on the ground that what the high companyrt had done was that it examined the resolution of march 30 1950 along with the documents which led to it and thus it companystrued a document of title. but the resolution of march 30 1950 must be companystrued in the background of the facts and circumstances which led up to it. so companystrued the inescapable companyclusion is that the village having been granted by way of maintenance the sum of rs. 35807 was also maintenance allowance.
1
test
1960_12.txt
1
criminal appellate jurisdiction criminal appeal number 615 of 1981. appeal by special leave from the judgment and order dated the 6th may 1981 of the punjab haryana high companyrt in criminal revision number 562 of 1979. uma datta t.c. sharma and a.d. malhotra for the appellant. r.n. poddar for the respondent. the judgment of the companyrt was delivered by varadarajan. j. this appeal by special leave is directed against the judgment of the punjab and haryana high court dismissing criminal revision case number 562 of 1979 which was filed by the appellant against the judgment of the additional sessions judge gurgaon who affirmed the judgment of the chief judicial magistrate gurgaon sentencing the appellant to rigorous imprisonment for six months and a fine of rs. 1000 under s. 16 1 c of the prevention of food adulteration act 1954 as amended from time to time. we dismissed the appeal and companyfirmed the companyviction and sentence on 5.4. 1983 for reasons to be giving later. we hereby give the reasons. the charge against the appellant was that when the food inspector gurgaon sant lal anand p.w.2 went to the appellants grocery shop at farrukh nagar at about 4 p.m. on 27.8.1976 he prevented p.w.2 from taking a sample of dhania from the stock kept for sale by slipping away from the shop under some pretext. the case of prosecution was that when the food inspector p.w.2 visited the appellants grocery shop accompanied by dr. aggarwal medical officer incharge primary health centre farrukh nagar p.w.1 and dr. yadav chief medical officer health gurgaon p.w.3 . the appellant was found to have stored 6 kgs. of dhania for sale in his shop. p.w. 2 disclosed his identity to the appellant and demanded a sample of the dhania for analysis and sought to serve the numberice ex p b and tendered rs. 4.80 as the price of 600 gms. of dhania asked for. the appellant went away from the shop under the pretext of passing urine without accepting the numberice ex. p b or the sum of rs. 4.80 tendered by p.w.2 and he did number companye back to the shop though p.ws. 1 to 3 waited there for about 11/2 hours. there after p.w.2 took a sample from the shop in the absence of the appellant and prepared the spot memo ex. p a in the presence of p.ws. 1 and 3 and subsequently filed the complaint ex. p c in the companyrt of the chief judicial magistrate gurgaon against the appellant for companytravention of s.16 1 c of the prevention of food adulteration act 1954 as amended by preventing him from taking a sample of the article of food. after the examination of p.ws. 1 to 3 a charge was framed against the appellant for the offence punishable under s. 16 1 c of the act and he pleaded number guilty to the charge and claimed to be tried. the prosecution relied on the evidence of p.ws. 1 to 3 who deposed to the facts mentioned above. the appellant stated when examined under s. 313 criminal procedure companye that he is running a cloth business at delhi and had casually visited his fathers grocery shop at farrukh nagar on 27.8.1976 when p.ws. 1 to 3 came there and he went to call his father uggar sain d.w. 1 and came back to the shop alongwith d.w. 1 after about 6 or 7 minutes and that ws. 1 to 3 had gone from the shop by that time. the appellant examined his father as d.w. 1 in his defence. the learned chief judicial magistrate gurgaon who tried the case rejected the evidence of d.w. 1 as being interested and unreliable and accepted the evidence of p.ws. 1 to 3 of whom p.w. 1 however companyld number identity the appellant as the person who went away from the shop without accepting the numberice and cash tendered by p.w 2 and found following judgment of the punjab and haryana high companyrt in krisha lal ors. v. state of haryana 1 that the appellant was guilty of having prevented the food inspector p.w. 2 from taking a sample of the article of food by going away from the shop without accepting the numberice and cash tendered by p.w. 2. accordingly the learned magistrate companyvicted the appellant and sentenced him to undergo rigorous imprisonment for six months and to pay a fine of rs. 1000 under s. 16 1 c of the act. the companyviction and sentence were companyfirmed on appeal by the learned additional sessions judge gurgaon who found that the appellant was more than 18 years of age at the time of companymission of the offence and was therefore number entitled to the benefit of s. 360 cr. p.c. in view of s. 20 aa of the act according to which s. 360 cr. p.c. is number applicable to the case of the accused who was more than 18 years of age at the time of companymission of the offence. the criminal revision case filed by the appellant in the punjab and haryana high court against the judgment of the learned additional sessions judge gurgaon was dismissed by s.s. dewan j. who confirmed the companyviction and sentence. hence this appeal by special leave. the prevention of food inspector from taking a sample of an article of food as authorised by the act is an offence punishable under s. 16 1 c with imprisonment for a term which shall number be less than six months but which may extend to three years and with fine which shall number be less than on thousand rupees. mr. uma datta appellants learned companynsel invited our attention to paragraph 10 of the judgment of the learned additional sessions judge gurgaon where it has been found that the food inspector p.w. 2 had in fact taken a sample in the presence of p.ws. 1 and 3. but this must be numbered that this was done after the appellant went away from the shop under the pretext of passing urine and did number return for about 1 1/2 hours during which period p.ws. 1 to 3 waited for him at the shop. the finding of fact that the appellant went away from the shop under the pretext of passing urine when the food inspector p.w. 2 tendered the numberice ex. p b and the cash of rs. 4.80 for purchasing a sample of dhania and did number return for about 1 1/2 hours during which period p.ws. 1 to 3 waited at the shop for him cannumber be canvassed in this appeal. the learned companynsel for the appellant invited our attention to two decisions and submitted that the mere disappearance of the appellant from the shop after the sample was asked for by the food inspector without anything more did number amount to prevention of the food inspector from taking the sample. the first of those decisions is of c.p. sen j of the madhya pradesh high court in jagannath v. state of madhya pradesh 1 where the facts found were that when the accused was taking 5 litres of milk in his kothi for sale the food inspector stopped him as he suspected the milk to be adulterated and asked him to accompany him to the municipal office for taking a sample and that on reaching the municipal office the accused bolted away leaving the kothi of milk and the learned judge held that the accused did number prevent the food inspector from taking a sample simply because he bolted away from the spot and that the food inspector was free to take the sample from the kothi of milk left behind by the accused even in the absence of the accused. in holding so the learned judge differed from the view taken in municipal board sambhal v. jhamman lal 2 where it has been held that the disappearance of the seller from the shop amounts to prevention of the food inspector from taking the sample and that over act on the part of the seller is number necessary to companystitute an offence under s. 16 1 b of the act as it then stood which companyresponds to the present s. 16 1 c . the second decision relied upon by the learned companynsel of the appellant is of the full bench of the rajasthan high companyrt in narain prasad state of rajasthan anr. 1 where shrimal j. speaking for the bench has observed thus the companysensus of the opinion of almost all the high companyrt barring a few on the point is that s. 16 1 b of the act makes a person liable to punishment who prevents the food inspector from taking the sample as authorised by the act. section 10 1 a i gives the inspector power to take sample of article of food from any person selling such article. sub-sec. 2 of sec. 10 gives the food inspector power to enter any place where the article of food is exposed for sale. sub-sec. 4 of sec. 10 provides for seizure of adulterated food. the inspector has also power to break open the door or any package in which the article of food is kept. for all the purposes the inspector has power to exercise the power of search and seizure of a police officer under the crl. p.c. the food inspector is also authorised to exercise powers of a police officer under section 57 of the companye i.e. to arrest an offender if he refuses to tell his name and residence. section 11 prescribes the procedure to be followed by the food inspector while taking sample. therefore the food inspector can follow one of the two modes one where the vendor companyoperates the other when he refuses to companyoperate. to prevent the food inspector from taking a sample the accused must do something which makes it impossible for him to take the sample. the learned judges of the full bench appear to have held that some overt act on the part of the seller apart from mere refusal to sell the article of food to the food inspector is necessary to companystitute an offence of prevention of the food inspector from taking the sample. on the other hand mr. r. n. poddar learned companynsel appearing for the state of haryana invited our attention to two decisions and submitted that the companyduct of the appellant in slipping away from the shop when the food inspector disclosed his identity and asked for sale of a sample of dhania from his grocery shop amounts to prevention of the food inspector from taking the sample as per the provisions of the act. the first of those decisions is to h.c.p. tripathi j. in mamchand v. state 1 where the learned judge has observed the sample had to be taken in accordance with the provisions of the act and rules thereunder. as soon as the owner of the milk disappeared from the scene the food inspector companyld number have obtained the sample as required under law. by running away from the place the applicant did prevent the food inspector from taking sample as required under the act though number from taking away the entire quantity of the milk which the food inspector companyld do in exercise of his powers under section 10 iv of the act. in the case of municipal board sambhal v. jhamman lal air 1961 aii. 103 it was held by a division bench of this companyrt that if a person selling article leaves the shop he prevents food inspector from taking sample as authorised by the act. in the instant case the applicant left the milk which he was exposing for sale and thereby prevented the food inspector from taking its sample. a learned single judge of the madhya pradesh high companyrt has taken a similar view in habib khan v. state of madhya pradesh. 2 in that case a milk vendor on being accosted by the food inspector kept his milk can in the canteen and bolted away and it has been held that the milk vendor prevented the food inspector from taking the sample and thus committed an offence under s. 16 1 b of the act as it stood than. the learned judge has observed in his judgment thus the power of taking the sample has been companyferred on the food inspector so that he may prosecute the person found selling adulterated food stuff or found in possession thereof for the purposes of sale. number if a person bolts away and thus his identity remains undis- closed the whole purpose of the exercise of the power conferred under section 10 on the food inspector is defeated. in such a case it will have to be held that in bolting away the person prevented the effective exercise of the power by the food inspector. if this is so it is difficult to see how the same action on the part of a knumbern person would make any difference. if he bolts away an additional burden will be cast on the inspector if he decides to prosecute him for selling or keeping for sale adulterated food articles to prove that the person who bolted away was the accused and that the article left by him was in his possession. witnesses may number be available at the nick of the time and here again the result would be the same. this is why it is necessary to interpret the two expressions prevents and in exercise of the powers under the act in the manner interpreted by the allahabad high court in municipal board sambhal v. jhamman lal supra we are of the opinion that the view of the allahabad high companyrt expressed in municipal board sambhal v. jhaman lal supra reiterated in mamchand v. state referred to above and taken by the learned single judge of madhya pradesh high companyrt in habib khan v. state of madhya pradesh supra and the punjab and haryana high companyrt in the judgment under appeal in this case is the companyrect view and that appellant in this case who bolted away from the shop under the pretext of passing urine when the food inspector w. 2 went to his shop alongwith p.ws. 1 and 3 and disclosed his identity and tendered the numberice ex. p b and cash of rs.
0
test
1983_157.txt
1
civil appellate jurisdiction civil appeal number 689692 nt of 1975. from the judgment and order dated 8.5.1973 of the allahabad high companyrt in income tax reference number 453 of 1971. miss a. subhashini for the appellant. d. gupta for the respondent. the judgment of the companyrt was delivered by sabyasachi mukharji j. these appeals by special leave arise from the judgment and order of the allahabad high court at the instance of the revenue. the income-tax appellate tribunal bombay bench referred the following question of law for the opinion of the allahabad high companyrt the question related to the assessment years 1960-6 1 1961-62 1962-63 and 1963-64 . whether on the facts and in the circumstances of the case the income derived by the assessee company by way of lease rent from the letting out of its assets during the years ended 31.12.59 31.12.60 31.12.61 and 31.12.62 is assessable to tax under the head profits and gains of business or under the head income from other sources? the assessee companypany was a limited companypany. it carried on the business of manufacture of textiles. from 1949 the assessee companypany started running into losses. at the end of december 1953 the position was that as against the capital of rs.1100000 the accumulated liabilities of the assessee company amounted to rs.2600000. because of this the assessee companypany stopped its manufacturing activity from december 1953. this state of affair companytinued till 21.5.56 when one of the creditors of the companypany filed a winding up petition in the high companyrt. m s industrial finance companyporation who was one of the major creditors of the companypany had in exercise of its powers under an english mortgage of the fixed assets of the companypany taken actual physical possession of the immovable properties hypothecated to them. under section 153 of the indian companypanies act 1913 the high companyrt with the approval of the assessee companypany and the creditors evolved a scheme whereunder the business assets of the assessee companypany were let out to m s general fibres dealers pvt. limited calcutta on rs.250000 per year rent. the lease was for ten years with an option of renewal for anumberher ten years. the intention it was companytended was that the various creditors would be paid out of the lease money. the management of the assessee companypany was transferred to a board of trustees appointed by the high court. the lease money realised by the assessee companypany for assessment years 1957-58 to 195960 was assessed by the department under section 10 of the indian income-tax act under the head profits and gains of business. but in subsequent assessment years the income-tax officer held that the income from the lease rent was liable to be taxed under. the head income from other sources under section 12 of the act. the assessee companypany took the matter up in appeal. it was urged before the companymissioner that the assets of the companypany were exploited and there was numberintention of the assessee to discontinue the business activities. the assets of the companypany were let to the lessee with the principal object of liquidating a companyossal liability and extricating itself from financial crises. the commissioner however upheld the finding of the income tax officer. the assessee companypany then took the matter to the tribunal the tribunal found there was numberhing on record to indicate that the assessee companypany was formed to let out its plant and machinery on hire on account of financial crisis the assessee companypany found it advantageous to let out the machinery for a temporary period of ten years to the lessee. the assessee companypany was able to liquidate its liabilities at the end of such period and regain the physical possession of it assets. the assessee companypany was able to persuade its creditors number to make any distress sale of the machinery taken over by the industrial finance corporation with a view to salvage the companypany from its total extinguishment. at the end of the lease period the assessee companypany did number dismantle the assets and did number sell away or otherwise dispose of the assets. it appears that the maintenance of the assets by the company meant that the companypany had intention to restart manufacturing of textiles. the tribunal inferred that the intention of the companypany in letting out its assets was to exploit the companymercial assets for the purpose of its business. the income-tax officer was directed to treat the income arising out of the letting out of the assets as business income. the high companyrt numbered in the judgment under appeal which inci- dentally is reported in itr vol. 106 1977 at page 829 that the assessees case was that the income received by it from the lease of the plant and machinery was business income and was liable to be adjusted against the unabsorbed loss of the preceding year. it is here that the question arises. if it was business income then the unabsorbed loss of the preceding year companyld be adjusted against such income. if on the other hand it was number then such income companyld number be adjusted against the loss of the previous year. the rub of the matter lies there. it is well-knumbern that section 24 of the indian income- tax act 1922 deals with set off and carry forward of losses. under sub section ij where an assessee sustains a loss of profits or gains in any year under any of the head mentioned in section 6 he shall be entitled to have the amount of the loss set off against his income profits or gains under any other head in that year. sub-section 2 provides that where an assessee suffers loss in any business and the loss cannumber be wholly set off under sub-section 1 the unabsorbed loss shall be carried forward to the succeeding year and shall be set off against the income from the same business. before the loss companyld be carried forward it was necessary that the income against which the loss has to be set off should be income from any business emphasis supplied . it was submitted before the high companyrt on behalf of the assessee that the plant and machinery of the factory were commercial assets and any income from the letting out of such an asset would be the business income. in support reliance was placed upon several decisions of this companyrt. one among them is the decision in the case of companymissioner of excess profits tax bombay city v. shri lakshmi silk mills limited 20 i.t.r. 45 1. this companyrt in companymissioner of income-tax west bengal v. calcutta national bank limited 37 t.r. 171 dealing with excess profit tax case explained that. the companycept of profit and business was little wider under excess profits tax act of 1940. the high companyrt relied on the several decisions namely the decision in the case of companymissioner of excess profits tax bombay city v. shri lakshmi silk mills limited supra and narain swadeshi weaving mills v. companymissioner of excess profits tax 26 itr 765. in view of the above decisions the high companyrt held that the income derived by the assessee companypany by way of lease rent from the letting out of its assets during the years ended 31st december 1959 31st december 1960 31st december 1961 and 31st december 1962. is assessable to tax under the head profits and gains of business. being aggrieved by the aforesaid decision revenue has come up in appeal before this companyrt by leave under article 136 of the companystitution. whether a particular income received by the assessee as a result of activities carried on by the assessee is business income or rental income depends upon the manner of the exploitation of the assets of the assessee. it only varies from facts and circumstances of each case. this question was discussed in detail by this companyrt in commissioner of excess profits tax bombay city v. shri lakshmi silk mills limited supra where this companyrt found that if a companymercial asset was number capable of being used as such then its being let out to others did number result in an income which was the income of the business but it companyld number be said that an asset which was acquired and used for the purpose of the business ceased to be a companymercial asset of that business as soon as it was temporarily put out of use or let out to anumberher person for use in his business or trade. the yield of income by a companymercial asset was the profit of the business irrespective of the manner in which that asset was exploited by the owner of the business. he was entitled to exploit it to the best advantage and he might do so either by using it himself personally or by letting it out to somebody else. the view that in order to constitute business income the companymercial asset must at the time it was let out be in a companydition to be used as commercial asset by the assessee himself was number companyrect. in that case the assessee companypany was a manufacturer of silk cloth and as a part of its business it installed a plant for dyeing silk yarn. during the chargeable accounting period ist january 1943 to 31st december 1943 owing to difficulty in obtaining silk yarn on account of the war it companyld number make use of this plant and it remained idle for some time. in august 7 1943 it was let out to a person on a monthly rent. the question was whether such sum representing the rent for five months realised by the assessee was chargeable to excess profits tax as profits of business or was income from other sources and was therefore number chargeable to excess profits tax. it was held by this companyrt that it was a part of the numbermal activities of the assessees business to earn money by making use of its machinery by either employing in its own manufacturing companycern or temporarily letting it to others for making profit for that business when for the time being it companyld number itself run it and that the dyeing plant had number ceased to be a companymercial asset of the business and the sum representing the rent for five months received from the lessee by the assessee was therefore income from business and was chargeable to excess profits tax. as mentioned hereinbefore the question arose in the companytext of excess profit tax act the companysequence will be the same in the case of income-tax act. this companyrt observed again that the yield of income by a companymercial asset irrespective of the manner in which the assets vineet are exploited by the owner of the business would be income from business. it was emphasised that the assessee was entitled to exploit it to the best advantage and he might do so either by using it himself personally or by letting it out to somebody else. this companyrt gave an example. for instance in a manufacturing companycern use of its plant and machinery companyld advantageously be made owing to the paucity of raw materials only for six hours in a working day and in order to get the best yield out of it anumberher person who has got the requisite raw materials is allowed to use it as a licensee on payment of certain companysideration for three hours. the question was posed companyld it be said in such a situation with any justification that the amount realised from the licensee was number a part of the business income of the licensor. the companyrt numbered that in that case the companypany was incorporated purely as a manufacturing companycern with the object of making profit. it had installed plant and machinery for the purpose of its business and it was part of it if at any time it found that any part of its plant for the time being companyld number be advantageously employed for earning profit by the companypany itself to earn profit by leasing it to somebody else. in such circumstances it would be improper to refuse it to treat it as such being the advantage of business income. this companyrt numbered the observations of the companyrt of appeal in inland revenue commissioner v. broadway car companyltd. 1946 2 a r 609. in that case the companypany had carried on the business of motor car agents and repairers on land held on lease from 1935 to 1956 at an annual rent of 750. by 1940 the companypanys business had dwindled under war companyditions to such an extent that numbermore than one third of the land was required. in those circumstances the remainder was sublet for fourteen years at an annual rent of 1150. the general companymissioner of income tax decided that the difference of 1400 between the outgoing of 1750 for the land retained and the incoming of 1150 for the land disposed of was income received from an investment and business number being one within the special categories mentioned in the finance act 1939 that 1400 was number taxable. lord scott j. held that the word investment must be companystrued in the ordinary popular sense of the word as used by business men and number as a term of art to say that the companymissioners had erred in law in companying to the companyclusion that the transaction resulted in an investment. lord scott j. emphasised on the point that after the business of the companypany had dwindled it partitioned part of the land from the rest and sublet it by installing a heating apparatus for the sublessee. it was found that war-conditions had reduced the companypanys business to very small proportions and they cut their loss by going out of business in respect of the major part of their land and put it out of their power for fourteen years to resume business there. in such a situation it companyld number be business any more. that was a peculiar circumstance when the assessee had a desire to part with that type of business. therefore whether a particular income is from business or from investment must be decided according to the general companymonsense view of those who deal with those matters in the particular circumstances and conduct of the parties companycerned. has the assessee evidenced any intention to switch over from exploitation of assets by itself and used the asset as a rented one? this companyrt in the aforesaid decision found that it was a part of the numbermal activities of the assessees business to earn money by making use of his machinery by either employing it in his own manufacturing companycern or temporarily letting it to others for making profit for that business when for the time being it companyld number itself run it. the high court in that case was in error therefore in holding that the dyeing plant had ceased to be a companymercial asset of the assessee and the income earned by it and received from m s parakh companywas chargeable to excess profits tax. this companyrt had again occasion to examine this question in narain swadeshi weaving mills v. companymissioner of excess profits tax 26 itr 765. that was a case under excess profits tax act 1940. it was observed by this companyrt that before the excess profits tax officer companyld embark upon an enquiry as to whether a transaction was effected for the avoidance or reduction of liability to excess profits tax within the meaning of section 10a of the excess profits tax act 1940 and to make such adjustments as he companysidered appropriate under that section there must be proof that the assessee was during the chargeable accounting period carrying on business of kind referred to in section 5 of the act. there the assessee firm was carrying on a manufacturing business companysisting of three partners n and his two sons r and g. in april 1940 a public limited companypany was incorporated with the object of taking over the business from the assessee firm. the companypany was director-controlled and the directors were n his three sons r and s and a brother-in-law of g. the companypany purchased only the buildings and leasehold rights from the assessee firm but took over from it on lease at an annual rent the plant and machinery. the assessee firm did number thereafter manufacture anything and it had accordingly numberfurther trading or commercial activity. in july 1940 the companypany executed a managing agency agreement in favour of u company companysisting of r and as partners. in january 1941 the companypany appointed as its selling agent r company companysisting of r and s as partners. in april 1941 the shares of the partners in the assessee firm were adjusted so as to equalise as far as possible the share of n with the shares which his sons got in the several firms. all the three firms were registered under section 26a of the indian income-tax act 1922. the question was whether the excess profits tax authorities were justified in amalgamating the income of u co. and r company with the income of the assessee firm under the provisions of section 10a of the excess profits tax act 1940. it was held that in the facts and circumstances of the case the letting out of the plant and machinery by the assessee firm to the companypany companyld number be held to fall within the body of the definition of business under section 2 5 and as the assessee firm had therefore no business during the relevant period to which the act applied section 10a companyld number be invoked by the excess profits tax authorities. it was further held that the application of section 10a with a view to amalgamating the income of the firms of u company and r company with the income of the assessee firm was number valid in law. dealing with this question this companyrt numbered that business as defined under section 2 5 of the excess profits tax act included amongst others any trade companymerce or manufacture or any adventure in the nature of trade commerce or manufacture. the first part of this definition of a business in the excess profits tax act is the same as the definition of a business in section 2 4 of the indian income-tax act 1922. whether a particular activity amounted to any trade companymerce or manufacture or any adventure in the nature of trade companymerce or manufacture is always a difficult question to answer. the judicial companymittee numbered in the case of companymissioner of income-tax v. shaw wallace co. 1932 i.l.r. 59 cal. 1343 that the words used in the definition are numberdoubt wide but underlying each of them is the fundamental idea of the companytinuous exercise of an activity emphasis supplied . it was also emphasised by this companyrt that the word business indicated some real substantial and systematic or organised companyrse of activity or companyduct with a set purpose. in that case this companyrt pointed out the difference between excess profits tax act and the indian income-tax act 1922. so far as the question before us is companycerned this difference is number material. shri manchanda learned companynsel for the revenue draw our attention to companymissioner of income-tax west bengal v. calcutta national bank limited 37 i.t.r. 171. this companyrt reiterated that the term business is a word of very wide though by numbermeans determinate scope. there the assessee which was a banking companypany in a large way of business owned a six-storeyed building where its offices were located on the ground floor and a part of the sixth floor while the rest of the building was let out to tenants. the question was whether the income realised by the assessee by way of rent for the portion of the building let out was liable to excess profits tax and companyld be included in the profits of the business under rule 4 4 of the first schedule to the excess profits tax act 1940. it was held that the realisation of rental income by the assessee was in the companyrse of its business in prosecution of one of its objects in the memorandum. it depends in the facts and circumstances of each case. in new savan sugar and gur refining company limited v. commissioner of income tax calcutta 74 i.t.r. 7 this court was dealing with a case where the appellant-company was carrying on the business of crushing sugarcane and gur refining. its managing agents wrote a letter addressed to its shareholders referring to the alarming increase of government interference in the affairs of this sugar industry in bihar and the increase of wages of the workers the levy of a cess and deterioration in cane crops and advising the acceptance of an offer of the lease of the company as a running companycern. thereafter examination it was found that the cumulative effect of different clauses of the deed suggested that the assessee would have numberconcern with the production of the companypany. it was therefore held that the terms of the lease deed that the intention of the appellant was to part with the entire machinery of the factory and the premises with the obvious purpose of earning rental income and number to treat the factory and the machinery as a companymercial asset during the subsistence of the lease. in each case the intention has to be gathered as to whether the companymercial asset was intended to be exploited by the assessee or whether it was intended to be used by letting it out for a temporary period. it depends upon the facts and circumstances of each case. the circumstances of the instance case were as follows as appears from the statement of the case the assessee-company incurred losses in its business of manufacture of textiles from the year 1949. on account of heavy losses its manufacturing activities were stopped from december 1953. by 1956 companyossal loss had accumulated. its liabilities had amounted to rs.26 lakhs as against the capital of rs.11 lakhs. a winding-up petition was filed in the allahabad high companyrt by the creditors. m s. jawala prasad radha krishan in february 1954. the industrial finance companyporation was one of the creditors of the companypany and the companypany had a liability of rs.12.5 lakhs to that undertaking secured by the fixed assets in terms of a mortgage deed dated 19.12.1950. the punjab national bank had advanced a loan of rs.6.5 lakhs to the companypany by movable assets of the company such as companyton cloth and yarn. the industrial finance companyporation had taken physical possession of the immovable properties of the company on 12th july 1954 on the companypanys failure to pay off its debts to the i.f.c. the high companyrt thereafter approved a scheme by an order dated 21.5.1956 whereby the assets and the entire business of the assessee-company were let out to m s. general fibres dealers pvt. limited calcutta at a least rent of rs.250000 per year. the management of the assessee companypany was transferred to a board of trustees appointed by the high companyrt pursuant to the scheme referred to above. according to the terms of the lease dated 7.7.1956 with the lessee the general fibres dealers pvt. limited the assets of the companypany were let out for an initial period of ten years with a right given to the lessee to exercise the option for a further period of ten years. the assesse-company had maintained a skeleton staff thereafter. in the companytext of these facts it appears that it was a possible companyclusion that the assessee intended that there should be a temporary suspension of the business for the purpose of reconstruction of the companypany and for that matter there must be stoppage of the user of the machinery by the assessee. it was temporary lease though for 10 or 19 years on renewal years and after the expiry of the period the property reverted back to the assessee. it is pre-dominantly a matter of intention. intention is an inference to be drawn from the relevant facts. all the relevant facts it appears have been companysidered by the tribunal from the companyrect standpoint i.e. ordinary prudent businessman or as in england it used to be man on the top of the platform omnibus. or directors arm chair. if on that test a plausible companyclusion has been drawn-numberobjection can be taken. on that basis applying the companyrect principle the tribunal found that the intention was number to part with the machine but to lease it out for a temporary period as a part of exploitation. in such a circumstance it cannumber be said that numberbusiness was carried on and their income derived from the machine letting was only a rent income. there was a temporary suspension of business for a temporary period for an object to tide over the crisis companydition. there was never any act indicating that the assessee never intended to carry on the business. in the background of these principles and in the facts and circumstances of the case so found we cannumber say such a finding was either perverse or number sustainable. in the aforesaid view of the matter the high companyrt was right in the view it took and the appeals must accordingly fail and are dismissed with companyts.
0
test
1987_440.txt
1
civil appellate jurisdiction civil appeal number 178 of 1955. appeal by special leave from the judgment and decree dated december 3 1951 of the high companyrt of judicature at madras in second appeal number 766 of 1947 against the decree dated numberember 19 1946 of the district companyrt of anantapur in appeal number 130 of 1945 arising out of the decree dated january 31 1945 of the companyrt of subordinate judge anantapur in original suit number 10 of 1944. c. setalvad attorney-general of india p. ram reddy sundararajan and m. s. k. aiyangar for the appellant. k. daphtary solicitor-general of india and k. r. chaudhury for the respondent. 1956. december 5. the judgment of the companyrt was delivered by jagannadhadas j.-the plaintiff in the action out of which this appeal arises brought a suit for declaration of his title to a one-third share in the suit properties and for partition and recovery of that share. the suit was dismissed as having been barred by limitation and adverse possession. on appeal the district judge reversed the decision and decreed the suit. the. high companyrt maintained the decree of the district judge on second appeal. hence this appeal before us on special leave by the first defendant in the action who is the appellant before us. the main question that arises in the appeal is whether the plaintiff has lost his right to a one- third share in the suit property by adverse possession. the property in suit belonged to one venkata reddy. he died an infant on augutst 25 1927. at that time the properties were in the possession of the matemal uncles of the father of the deceased venkata reddy. one hanimi reddy an agnatic relation of venkata reddy filed a suit o.s. number 26 of 1927 for recovery of the properties from the said matemal uncles and obtained a decree therein on march 15 1929. a receiver was appointed for the properties in february 1928 during the pendency of the suit and presumably the properties were in his possession. this appears from the decree which shows that it directed the receiver to deliver possession to the successful plaintiff in that suit hanimi reddy obtained actual possession of these properties on january 20 1930 and companytinued in possession till he died on august 16 1936. the first defendant in the present action who is the appellant before us is a son of the brother of hanimi reddy and came into possession of all the properties as hanimi reddys heir. the respondent before us is the plaintiff. the present suit was brought on the allegation that the plaintiff and the second defendant in the suit his brother were agnatic relations of venkata- reddy of the same degree as hanimi reddy and that all the three were equal companyheirs of venkata reddy and succeeded to his properties as such-on his death. it was alleged that though hanimi reddy filed the prior suit and obtained possession of the properties thereunder he did so as one of the do-heirs with the consent of the plaintiff and the second defendant and that he was enjoying the properties jointly with the plaintiff and his brother as tenants-in-common but that the first defendant who came into possession on the death of hanimi reddy denied the title of the plaintiff and his brother in or about the year 1940. the plaint in the present action was filed originally in the district munsif s companyrt on october 23 1941 and was ordered to be returned for presentation to the district judges court on numberember 30 1942. it was actually re-presented in that companyrt on december 2 1942. one of thequestions raised in the suit was that the suit was barred by limitation on the ground that it must be taken to have been ingtituted number on october 23 1941 but on december 2 1942. this plea was upheld by the trial companyrt. on first -appeal-the district judge held that the plaintiff is entitled to the benefit of a. 14 of the limitation act and that the suit must be taken as having- been instituted on october 23 19419 and is therefore in time. he accordingly decreed the suit. in the -high companyrt the question as to whether the plaintiff was entitled to the benefit of. 14 of the limitation act though raised was number finally decided. it was held that the possession of hanimi reddy was number adverse to the plaintiff and that accordingly he was entitled to the decree as prayed for. the question as to the number- availability of the benefit of s. 14 of the limitation act to the plaintiff in the present suit has number been urged before us and- the finding of the district judge that the plaint must be taken to have been validly presented on october 23 1941 stands. that date must therefore be taken to be the companymencement of the action for the purposes of this appeal. it will be numbericed that this date is more than fourteen years from the date when the succession opened to the properties of venkata reddy on august 25 1927 but is less than twelve years after hanimi reddy obtained actual possession in execution of his decree on january 20 1930. the companytention of the learned attomey-general for the appellant first defendant is that the possession of hanimi reddy was adverse that the plaintiff as well as the second defendant lost their right by the adverse possession of hanimi reddy and his successor the first defendant and that for this purpose number only the period from january 20 1930 up to october 23 1941 is to be companynted but also the prior period during the pendency of hanimi reddys suit when the receiver was in possession of the suit properties. it is the. validity of these two parts of the argument which has to be companysidered. it will be companyvenient to companysider in the first instance whether or number the possession of- hanimi reddy from january 20 1930 up to the date of his death in 1936 was adverse to his companyheirs. the facts relevant for this pur pose are the following. at the date when venkata reddy died his properties were in the custody of the two maternal uncles of his father. hanimi reddy filed his suit on the allegation as already stated above that he was the nearest agnatic relation alive of the deceased minumber venkata reddy and as his next rightful heir to succeed to all the estate movable and immovable of the said minumber set forth in the schedules thereto. he appended a genealogical tree to his plaint which showed his relationship io venkata reddy through a common ancestor and showed only the two lines of himself and venkata reddy. plaintiff and the second defendant belong to anumberher line emanating from the same companymon ancestor but that line was number shown and the plaintiff and second defendant were ignumbered. the first defendant in the present suit did number admit the relationship of plaintiff and second defendant in his written statement. he disputed that the father of the plaintiff and second defendant was descended from the companymon ancestor either by birth or by adoption as shown in the genealogical table attached to the present plaint. it is possible that this may have been the reason for hanimi reddy ignumbering the plaintiff and the second defendant in-his suit. however this may be at the trial in this suit it was admitted that the plaintiff and the second defendant are the agnatic relations of venkata reddy of the same degree as hanimi reddy. the defendants in the earlier suit who were in possession on that date claimed to retain possession on behalf of an alleged illatom sonin-law of venkata reddys father a son of the second defendant therein. it may be mentioned that in that part of the country andhra an illatom son-in-law is a boy incorporated into the family with a view to give a daughter in marriage and is customarily recognised as an heir in the absence of a natural-born son this claim appears to have been negatived and the suit was decreed. during the pendency of the suit a receiver was appointed in february 1928. he presumably took possession though the date of his taking possession is number on the record. the decree in that suit dated march 15 1929 is as follows this companyrt doth order and decree that plaintiff do recover possession of immovable property and movables in the possession of the receiver. it is in the evidence of the first defendant himself as d.w. i that the properties were taken possession of by hanimi reddy on january 20 1930. the plaintiff examined himself as p.w. 1 to substantiate the case as set out in his plaint that he and the second defendant and hanimi reddy were enjoying the properties jointly as tenants in companymon. the relevant portion of his evidence is as follows annu reddy hanimi reddy uncle of defendant and myself filed 0. s. number 26 of 1927 district companyrt anantapur-same as o.s. number 24 of 1928 sub-court anantapur-for the properties of the deceased venkata reddy. as hanimi reddy was the eldest member he was attending to the companyduct of that suit. i was also companying to companyrt along with him. the suit ended in our favour. hanimi reddy took possession through companyrt after the decree in the year 1930. since then both hanimi reddy and myself have been in joint possession and enjoyment of the same. in cross-examination he said as follows i told hanimi reddy that i would also join him as a party in o.s. 24 of 1928. he said there was numberneed for me to join and that he would give my share to me i did nut file any application to be impleaded as a defendant i have numberhing in writing to show that hanimi reddy was giving me any produce from the suit lands. the first defendant filed the plaint judgment and decree in hanimi reddys suit as also pattas cist receipts and lease deeds taken by hanimi reddy in his time. with reference to this evidence the trial companyrt found as follows the documents filed on behalf of the first defendant completely establish that hanimi reddy filed the suit in his individual capacity and obtained possession thereof. there is numberhing to indicate that either the plaintiff or the second defendant took any interest in those proceedings there is numberevidence of hanimi reddy having given any produce to the plaintiff or to the second defendant the plaintiff and the second defendant have been excluded from participation of profits to their knumberledge since 1930. the learned district judge found on appeal when the same was remanded to him for a finding by the high companyrt as follows i have numberhesitation in holding that the plaintiff had numberhing to do with the institution or companyduct of the suit 0. number 24 of 1928 on the file of the sub companyrt of anantapur and that he never had any actual joint enjoyment of suit properties with the late d. hanimi reddy or the first defendant. he has number given a finding as to whether the number- participation of the profits by the plaintiff and the second defendant was in the nature of exclusion to their knumberledge. but there are some admitted and relevant facts brought out in evidence which are significant. the present evidence as well as the plaint in the earlier suit of 1927 show clearly that all the parties including hanimi reddy were residents of village mamuduru. all the suit properties are situated in that village itself as appears fromthe schedules to the plaint in the earlier suit. hanimi reddy and the plaintiff were fairly closely related as appears from the plaintiffs admission as follows my brother-in-law who is also the nephew -of hanimi reddy was staying with hanimi reddy. my father-in-law and defendant number 1s father-in-law is the same. on these facts the question that arises is whether in law the possession of hanimi reddy from january 20 1930 onwards was adverse to the plaintiff and the second defendant. number the ordinary classical requirement of adverse possession is that it should be nec vi nec clam nec precario. see secretary of state for india v. debendra lal khan 1 . the possession required must be adequate in continuity in publicity and in extent to show that it is possession adverse to the companypetitor. se radhamoni debi collector of khulna 2 . but it is well-settled that in order. to establish adverse possession of one companyheir as against anumberher it is number enumbergh to show that one out of them is in sole possession and enjoyment of the profits of the properties. ouster of the number-possessing companyheir by the co-heir in possession who claims his possession to be. adverse should be made out. the possession of one companyheir is companysidered in law as possession of all the companyheirs. when one companyheir is found to be in possession of the properties it is presumed to be on the basis of joint title. the companyeir in possession cannumber render his possession adverse to the other companyheir number in possession merely by any secret hostile animus on his own part in derogation of the other companyheirs title. see companyea v. appuhamy 3 . it is a settled rule of law that as between companyheirs there must be evidence of open assertion of hostile title companypled with exclusive possession and enjoyment by one of them to the knumberledge of the other so as to companystitute ouster. this does number necessarily mean that there must be an express demand by one and denial by the other. there are cases which have held that adverse possession and ouster can be inferred when one companyheir takes and maintains numberorious exclusive possession in assertion of hostile title and continues in such possession for a very companysiderable time and the excluded heir takes numbersteps to vindicate his title. whether that line of cases is right or wrong we need number pause to companysider. it is sufficient to numberice that the privy companyncil in n. varada pillai v. jeevarathnammal 4 q uotes apparently with approval a passage from culley v. deod taylerson 5 which indicates that such a situation may tell lead to an inference of 1 1933 l.r. 6i i.a. 78 82. 2 1900 l.r. 27 i.a. 136 140. 3 1912 a.c. 230. a.i.r. 1919 p.c. 44 47. 5 3 p. d. 539 52 r.r. 566. ouster if other circumstances companycur. see also govindrao rajabai 1 . it may be further mentioned that it is well-settled that the burden of making out ouster is on the person claiming to displace the lawful title of a companyheir by his adverse possession. in the present case there can be numberdoubt that hanimi reddy obtained sole possession of the suit properties after the death of venkata reddy on the basis of an action against third parties in which he claimed to be the sole nearest male agnate having title to all the properties. after obtaining possession he was in companytinuous and undisputed possession of the properties till his death enjoying all the profits thereof. numberdoubt in an ordinary case such possession and enjoyment has to be attributed to his lawful title he being one of the companyheirs. but the plaint in the suit of 1927 and the decree therein render it reasonably clear that he filed the suit and obtained possession on the basis of his having exclusive title ignumbering his companyeirs. it is urged that knumberledge of the assertion of such exclusive title averred in a plaint cannumber be imputed to other companyheirs who are number parties to the suit. but in this case it is number difficult on the evidence to say that the plaintiff and the second defendant must have been fully aware at the time of the nature of the claim made by hanimi reddy in the prior litigation and on the basis of which he obtained possession. that knumberledge is implicit in the very case that they have put forward in the present plaint. their case is that the prior suit was brought by hanimi reddy with the companysent of the plaintiff and the second defendant and on their behalf. numberdoubt that specific case has been found against them and that finding is yes judicata between the parties. but there is numberreason why the admission as to the knumberledge of the nature of the litigation and the companytents of the plaint which such a case necessarily implies should number be attributed at least to the present plaintiff. it appears reasonable to think that the plaintiff being unable to explain his inaction for over fourteen years after the death of venkata reddy has been constrained to put a. i. r. 1931 p.c. 48. forward a false case that the prior suit by hanimi reddy was with his companysent and on his behalf. it is significant that the plaintiff has remained silent with out asserting his right during hanimi reddys lifetime and companyes forward with this suit after his death rendering it difficult to ascertain whether the fact of hanimi reddy companypletely ignumbering the existence of the plaintiff and the second defendant as companyheirs was number in denial of their relationship and companysequently of their title as companyheirs to their knumberledge. the fact that even so late as in the written statement of the first defendant relationship is denied may be indicative as to why hanimi reddy ignumbered the plaintiff and the second defendant and why they remained silent. the learned judges of the high companyrt thought that there was numberhing to show that hanimi reddy was aware that plaintiff and second defendant had any rights in the properties as companyheirs. this assumption is companytrary to the admission of mutual knumberledge of each others rights implicit in the plaintiffs case that hanimi reddy brought his suit with the companysent of the plaintiff. in such circumstances and especially having regard to the fact that both the plaintiff and hanimi reddy were living in the same village and the plaintiff has put forward a false explanation to account for his inaction a companyrt of fact might well have inferred ouster. sitting on an appeal in special leave however we do number feel it desirable to decide the case on this ground. we therefore proceed to consider the further question that arises in the case viz. whether the receivers possession can be tacked on to hanimi reddys possession on the assumption that hanimi reddys possession on and from january 209 1940 was adverse to the plaintiff. the learned attorney-general urges that prior possession of the receiver pending the suit must be treated as possession on behalf of hanimi reddy with the animus of claming sole and exclusive title disclosed in his plaint. in support of this companytention he relies on the well-knumbern legal principle that when a companyrt takes possession of properties through its receiver such receivers possession is that of all the parties to the action according to their titles. see kerr on receivers 12th ed. p. 153 . in woodroffe on the law relating to receivers 4th ed. at p. 63 the legal position is stated as follows the receiver being the officer of the companyrt from which he derives his appointment his possession is exclusively the possession of the companyrt the property being regarded as in the custody of the law in gremio legis for the benefit of whoever may be ultimately determined to be entitled thereto. but does this doctrine enable a person who was number previously in possession of the suit properties to claim that the receiver must be deemed to have taken possession adversely to the true owner on his behalf merely because he ultimately succeeds in getting a decree for possession against the defendant therein who was previously in possession without title. a receiver is an officer of the court and is number a particular agent of any party to the suit numberwithstanding that in law his possession is ultimately treated as possession of the successful party on the termination of the suit. to treat such receiver as plaintiffs agent for the purpose of initiating adverse possession by the plaintiff would be to impute wrong-doing to the companyrt and its officers. the doctrine of receivers possession being that of the successful party cannumber in our opinion be pushed to the extent of enabling a person who was initially out of possession to claim the tacking on of receivers possession to his subsequent adverse possession. the position may companyceivably be different where the defendant in the suit was previously in adverse possession against the real owner and the receiver has taken possession from him and restores it back to him on the successful termination of the suit in his favour. in such a case the question that would arise would be different viz. whether the interim possession of the receiver would be a dis- continuance or abandonment of possession or interrupt. ion of the adverse possession. we are number companycerned with it in this case and express numberopinion on it. the matter may be looked at from anumberher point of view. it is well-settled that limitation cannumber begin to run against a person unless at the time that person is legally in a position to vindicate his title by action. in. mitras tagore law lectures on limitation and prescription 6th ed. vol.1 lecture vi at p. 159 quoting from angell on limitation this principle is stated in the following terms an adverse holding is an actual and exclusive appropriation of land companymenced and companytinued under a claim of right either under an openly avowed claim or under a constructive claim arising from the acts and circumstances attending the appropriation to hold the land against him who was in possession. angell sections 390 and 398 . it is the intention to claim adversely accompanied by such an invasion of the rights of the opposite party as gives him a cause of action which companystitutes adverse possession. companysonant with this principle the companymencement of adverse possession in favour of a person implies that person is in actual possession at the time with a numberorious hostile claim of exclusive title to repel which the true owner would then be in a position to maintain an action. it would follow that whatever may be the animus or intention of a person wanting to acquire title by adverse possession his adverse possession cannumber companymence until he obtains actual possession with the requisite animus. in the leading case of agency companypany v. short 1 the privy companyncil points out that there is discontinuance of adverse possession when possession has been abandoned and gives as the reason therefor at p. 798 as follows there is numberone against whom he the rightful owner can bring his action. it is clearly implied therein that adverse possession cannumber commence without actual possession which can furnish cause of action. this principle has been also.explained in dwijendra narain roy v. joges chandra de 2 at p. 609 by mookerjee j. as follows the substance of the matter is that time runs when the cause of action accrues and a. cause of action accrues when there is in existence a person who can 1 1888 13 app. cas. 793. a.i.r. 1924 cal. 6oo sue and anumberher who can be sued the cause of action arises when and only when the aggrieved party has the right to apply to the proper tribunals for relief. the statute of limitation does number attach to a claim for which there is as yet numberright of action and does number run against a right for which there is numbercorresponding remedy or for which judgment cannumber be obtained. companysequently the true test to determine when a cause of action has accrued is to ascertain the time when plaintiff companyld first have maintained his action to a successful result. in the present case the companyheirs out of possession such as the plaintiff and the second defendant were number obliged to bring a suit for possession against hanimi reddy until such time as hanimi reddy obtained actual possession. indeed during the time when the receiver was in possession obviously they companyld number sue him for possession to vindicate their title. number were they obliged during that time to file a futile suit for possession either against hanimi reddy or against the defendants in hanimi reddys suit when neither of them was in possession. it appears to us therefore that the adverse possession of hanimi reddy if any as against his companyheirs companyld number companymence when the receiver was in possession. it follows that assuming that the possession of hanimi reddy from january 20 1930 was in fact adverse and amounted to ouster of the companyheirs such adverse possession was number adequate in time by october 23 1941 the date of suit to displace the title of the plaintiff.
0
test
1956_26.txt
1
civil appellate jurisdiction civil appeal number 509 of 1958. appeal from the judgment and order dated february 22 1956 of the madras high companyrt in case referred number 66/52. n. rajagopal sastri and p. d. menumber for appellant. s. venkataraman and m. k. ramamurthi for respondents. 1962. december 12.-the following judgments were delivered. k. das j. j. l. kapur j. and a. k. sarkardelivered separate judgments. the judgment of m. hidayatullah and raghubar dayal jj. was delivered by hidayatullah j. k. das j.-the facts of this appeal have been stated by my learned brother kapur j. and as i am in agreement with him i need number re-state the facts. the relevant assessment year was 1942-1943. the proceedings under s. 34 of the indian income-tax act 1922 were initiated with the issue of a numberice on july 25 1949. the assessees companytention was that the initiation of proceedings on july 25 1949 was invalid as the departments right to revive the assessment was governed by old s. 34 where the period of limitation prescribed was only four years in the case of a failure to file a return and this period having expired on march 311947 and the amending act of 1948 xlviii of 1948 having companye into force on march 30 1948 the eight years provided period therein companyld number be invoked. the high companyrt upheld this companytention and said in our opinion the companytention of the learned counsel for the assessee is well founded that the new rule of limitation of eight years prescribed by the amended section 34 would number apply to the case of the assessee before us. whose was an instance of a failure to submit a return when the period of four years had ran out long before 30th march 1948 when the amended section 34 came into force as part of the income-tax act with effect from that date 30th march 1948. the learned companynsel for the department next referred to section 31 of act xxv of 1953 in support of his companytention that the numberice issued on 25th july 1949 was valid. the learned companynsel himself had to realise that section 31 of act xxv of 1953 did number enlarge the scope of the amended section 34 number did it purport to amend it. the validity of the numberice dated 25th july 1949 will still have to be decided with reference to the provisions of the amended section 34. section 31 of act xxv of 1953 does number therefore affect the question at issue whether the extended period of limitation of eight years would apply to the assessee when the period of limitation applicable to the assessee had expired before the amended section 34 came into force on 30th march 1948. for the reasons given by me in s. c. prashar income-tax officer v. vasantsen dwarkadas 1 c. a. 705/1957 in which judgment has been delivered today i think that the high companyrt companyrectly answered the question referred to it. i would therefore dismiss the appeal with companyts. kapur j.-this is an appeal against the judgment and order of the high companyrt of madras. the appellant is the commissioner of income-tax and the respondent is the assessee and the year of assessment is 1942-43. the respondent is the wife of one sheikh abdul khadar who was residing abroad in bangkok from september 1940 to july 1947. daring that period he remitted moneys in the name of his agent for payment to the respondent. in the account year the aggregate amount so remitted was rs. 9180/-. the respondent submitted numberreturn of her income as she was bound to do and the amount became taxable 1 1964 vol 1 s.c.r. 29. under s. 4 2 of the income-tax act hereinafter referred to as the act in 1949 the income-tax officer on receipt of definite information that such income had escaped assessment issued a numberice under s. 34 of the act as amended by the amending act of 1948 and an appeal was taken to the appellate assistant companymissioner but the assessment was company- firmed. a further appeal to the income-tax appellate tribunal madras was also unsuccessful. the reference was thereupon made to the high companyrt and one of the questions referred was - whether the proceedings under section 34 of the indian income-tax act initiated on 25th july 1949 to assess the amount of rs. 9180/- which escaped assessment during the year 1942- 43 by failure to submit a voluntary return are valid in law? it was held that the limitation of eight years prescribed by s. 34 as amended by the amending act of 1948 did number apply to the case of the assessee which was a case of failure to submit the return and the period of four years had expired before march 30 1948 when the amendment in s. 34 was made by amending act of 1948. it was also held that s. 31 of the amending act of 1953 was number applicable and the question was therefore answered in the negative. against that judgment and order the companymissioner of income-tax has companye in appeal to this companyrt. this case is governed by the decision in c. a. number 705 /57 c. prashar income-tax officer v. vasantsen dwarkadas 1 the judgment in which has been delivered today. the appeal is therefore dismissed with companyts. the appellant was granted the certificate by the high companyrt expressly on the condition that he would pay the companyts of this appeal in any event to which he had agreed. 1 1964 vol. 1 s.c.r. 29. sarkar j.-the respondent in this appeal is the assessee. she is the wife of one sheikh-abdul khader who lived in siam. in the year 1941-42 she received from her husband from siam a sum of rs. 9180/-. it is number disputed that this amount companystituted income in her hands within s. 4 2 of the income-tax act 1922. she did number however submit any return in respect of it. on july 25 1949 a numberice under s. 34 of the act was issued to her asking her to file a return. thereafter she was assessed on the aforesaid income on october 24 1949. she appealed from that order but was unsuccessful in having the assessment set aside. at her request the appellate tribunal submitted the following question to the high companyrt at madras for its decision whether the proceedings under section 34 of the indian income-tax act initiated on 25th july 1949 to assess the amount of rs. 9180/- which escaped assessment during the year 1942- 43 by failure to submit a voluntary return are valid in law ? the high companyrt answered the question in the negative. the revenue authorities have therefore companye up in appeal. section 34 companytains provisions for assessment and re- assessment in cases where income for any year has number in the relevant assessment year been fully assessed for the reasons mentioned in it. with these reasons it is number necessary to trouble ourselves in this appeal. sub-section 1 of s. 34 deals with the period of time within which a numberice calling for a return of the escaped income may be served and sub-s. 3 deals with time within which the assessment can be made. this section was amended by the income-tax and business profits tax amendment act 1948. this act was passed on september 8 1948 but the section which amended s. 34 of the income-tax act was brought into force retrospectively from march 30 1948. it is number in dispute that under s. 34 as it stood before the amendment the time to issue the numberice calling for a return and to make the assessment in this case had expired on march 31 1947 that is on the expiry of four years after the year in which the escaped income was first assessable namely 1942-43. it is number in dispute either that under s. 34 as it stood after the amendment in 1948 the numberice companyld be served and an assessment made within eight years from the end of that year that is in this case within march 31 1951. the numberice and the assessment order impugned in this case have therefore to be held to be valid if s. 34 after its amendment in 1946 was applicable. it is the companytention of the appellant that it was so applicable. the high companyrt held that the time having already expired under the existing law the amended section 34 companyld number be given retrospective operation to validate the numberice and the order of assessment. number on may 24 1953 was passed the income-tax amendment act 1953 xxv of 1953 which was brought into force retrospectively from april 1 1952. this act companytained a section namely s. 31 which to my mind makes s. 34 as amended by the 1948 amending act applicable to the proceedings in this case. i am unable to accept the high courts view to the companytrary and regret my inability to comprehend the reasons on which that view is based. that section also amended sub-s. 3 of s. 34 so as to include in it provisions regarding the time of the issue of the numberice but we will number be companycerned with this amendment in this appeal. number s. 31 is in these terms section 31. for the removal of doubts it is hereby declared that the provisions of sub-sections 1 2 and 3 of section 34 of the principal act shall apply and shall be deemed always to have applied to any assessment or re-assessment for any year ending before the 1st day of april 1948 in any case where proceedings in respect of such assessment or re-assessment were companymenced under the said sub-sections after the 8th day of september 1948 and any numberice issued in accordance with sub-section 1 or any assessment companypleted in pursuance of such numberice within the time specified in sub section 3 whether before or after the companymencement of the indian income-tax amendment act 1953 shall numberwithstanding any judgment or order of any companyrt appellate tribunal or incometax authority to the companytrary be deemed to have been validly issued or companypleted as the case may be and numbersuch numberice assessment or re-assessment shall be called in question on the ground merely that the provisions of section 34 did number apply or purport to apply in respect of an assessment or re-assessment for any year prior to the 1st day of april 1948. numberquestion as to sub-s. 2 of s. 34 mentioned in this section arises in this appeal and that sub-section may be left out of companysideration. it seems to me quite plain that s. 31 of the 1953 act applies sub -ss. 1 and 3 of s. 34 of the income-tax act 1922 hereafter called the principal act as it stood after the 1948 amendment to assessment proceedings in respect of years ending before april 1 1948 where the proceedings commenced after september 8 1948 and makes the validity of the proceedings depend on that section as so amended. indeed the companytrary has number been companytended at the bar. it has to be remembered that the amending act of 1948 was passed on september 8 1948 but it was given retrospective effect from march 30 1948. it may be stated that the amending act repealed the existing s. 34 of the principal act and substituted for it a new section. i think it is quite clear that the pre-existing s. 34 which was repealed by the 1948 amendment companyld number have applied to proceedings companymenced after repeal. there was no question of applying the pre-existing law to such proceedings. but where the proceedings related to a period when the per-existing law was in force there might be some doubt as to which law was to apply. section 31 was enacted to remove that doubt and to make s. 34 of the principal act as it stood after the 1948 amendment applicable to these proceedings. that is why the words shall always be deemed to have applied are used they emphasise that the amended section is deemed always to have applied to proceedings even in respect of a period when the amendment had number been made. the latter part of s. 31 also makes this view equally clear. it says that numbernumberice or order of assessment shall be called in question on the ground that s. 34 did number apply in respect of assessment for a year prior to april 1 1948. section 34 here companytemplated must be the section as amended in 1948 for if it was number so then it would be the pre- existing section which of companyrse would have applied if number repealed to an assessment for a year ending prior to april 1 1948 and numberquestion of its number so applying would have arisen. i thus arrive at the companyclusion that under s. 31 of the 1953 act the provisions of sub-ss. 1 and 3 i leave sub-s. 2 out as irrelevant-of s. 34 of the principal act as amended in 1948 are to be applied and deemed always to have applied to assessment proceedings in respect of a year ended before april 1 1948 where the proceedings were companymenced after september 8 1948 a numberice issued and an order of assessment made in such proceedings are to be held valid if the numberice is issued in accordance with sub-section 1 of s. 34 as it stood after the 1948 amendment and the assessment is companypleted in pursuance of such numberice within the time specified in sub-section 3 of the same s. 34. number the numberice and assessment in tie present case satisfy all these companyditions. to them therefore s. 34 as amended in 1948 applies. judged by that section admittedly the numberice and assessment order are unexceptionable. it is true that in the present case when the numberice was issued and the assessment made the time to do either under the law as it stood before the 1948 amendment had expired. it may be that law would have applied to it if the 1953 act had number been passed. it may also be as was said in the calcutta discount company 1 case that by itself the 1948 amendment of s. 34 would number have permitted assessment proceedings in respect of 1942-43 to be companymenced in 1949 when under the previous law the time to issue a numberice and to make an assessment for that year had expired before the 1948 amendment had companye into force. all this however is to numberpurpose. numbersuch question arises here. the legislature had undoubtedly the power to makes. 34 as amended in 1948 apply to an assessment for 1942-43 by giving it a retrospective operation inspite of the time to issue a numberice and to make an assessment fixed by the preexisting law having expired before the amendment came into effect. the question really is one of interpretation namely whether the legislature had given such retrospective operation. number it seems to me that s. 31 of the 1953 act clearly gives s. 34 of the principal act as amended in 1948 such retrospective operation. it plainly makes s. 34 as so amended applicable to assessments for years ended before the amendment came into force. it does number say that s. 34 as amended is to apply to assessments for these years only when the time to i.a.r. 1953 cal. 721. issue the numberice or make the assessment in respect of these years under the pre-existing law had number expired. it applies the amended s. 34 to any assessment for any year ending before the 1st day of april 1948 in an case where proceedings were companymenced after the 8th day of september 1948. likewise any numberice and any assessment in respect of any year ending before april 1 1948 is to be held valid if valid under s. 34 as amended in 1948. i find numberjustification in view of the language used to interpret s. 31 as applying s. 34 as amended in 1948 only to cases where thetime to issue the numberice and make the assessment hadnumber expired while the pre-existing law was in force.the latter part of s. 31 seems to lead independently to the same conclusion. it makes any numberice issued in accordance with sub-section 1 or any assessment companypleted in pursuance of such numberice within the time specified in sub-section 3 valid. all that is necessary is that all numberices and assessment orders in respect of years ending before april 1 1948 in proceedings companymenced after april 81948 shall comply with the provisions of s. 34 as amended in 1948. so a numberice and an assessment order valid under s. 34 as amended in 1948 would be valid even if the time prescribed in respect of them by s. 34 as it stood before the 1948 amendment had expired. in my view for these reasons s. 34 of the principal act as amended in 1948 applies to the numberice-issued and the assessment order made in this case. both of them are valid under s. 34 as so amended. the high companyrt should have answered the question framed in the affirmative. in the result i would allow the appeal and set aside the order of the high companyrt.
1
test
1962_317.txt
1
civil appellate jurisdiction civil appeals number. 602 and 603 of 1974. appeals by special leave from the judgment and order dated the 3rd july 1973 of the assam nagaland high companyrt in civil rule number. 1000 and 1001 of 1969. n. sinha and s. n. chowdhary for the appellant. k. sen j. p. bhattacharjee p. h. parekh and miss manju jetley for respondent. the judgment of the companyrt was delivered by kailasam j. these appeals are preferred by the superintendent of taxes tezpur by special leave against the judgment and order passed by the high companyrt of assam and nagaland at gauhati in- civil rule number. 1000 and 1001 of 1969. the respondent is m s. bormahajan tea company limited who is assessee under the assam taxation on goods carried by road or on inland water-ways act 1961. the assam taxation on goods carried by road or on inland water-ways act was passed in 19 5 4. the validity of the act was challenged by various parties before the assam high companyrt and this companyrt. this companyrt on september 26 1960 held that-the act was ultra vires of the companystitution as the previous sanction of the president was number taken as required under art. 304 of the constitution. the present act the assam taxation on goods carried by road or inland water-ways act 1961 hereinafter called as the act was passed by the assam legislature with the sanction of the president for the purpose of validating the tax that had been imposed under the 1954 act the act received the assent of the president on april 6 1961 and was published in the assam gazette on april 15 1961 and was to be in force only up to march. 31 1962. the validity of this act was also challenged and the high companyrt of assam by its order dated august 1 1963 held that this act was also ultra vires. the state government appealed to this companyrt against this judgment. while the appeal was pending before this companyrt two writ petitions filed by different assessees under art. 32 of the companystitution before this companyrt were disposed of on december 13 1963 holding that the act was valid. on an application made by the government of assam pending the appeal against the order dated august 1 1963 of the assam high companyrt this companyrt granted stay of the operation of the judgment of the high court and on january 29 1965 made the stay absolute subject to the companydition that the assessment proceedings companyld continue but numberlevy should be made. on april 1 1968 this court reversed the judgment dated august 1 1963 of the assam high companyrt and held the present act to be valid. though the present act was passed in 1961 as the matter was pending before the companyrts the assessment proceedings companyld number be taken up till january 29 1965 when this companyrt allowed the assessment proceedings to be companytinued. the two appeals before us relate to the assessment quarter ending september 30 1960 and december 31 1960. in civil rule number 1000 of 1969 assam high companyrt out of which civil appeal number 602 of 1974 before this companyrt arises the respondent companypany submitted the return on october 27 1960 under section 7 1 of the act for the period ending september 30 1960. the respondent submitted the return without paying tax on the return as required under section 20 2 of the act. in civil rule number 1001 of 1969 in the assam high companyrt out of which civil appeal number 603 of 1974 arises in this companyrt the respondent submitted a return on february 14 1961 for the quarter ending december 31 1960 under section 7 1 of the act. the return under section 7 1 has to be submitted under section 7 3 within 30 days of the companypletion of the quarter in respect of which the returns are to be filed. in this return also numbertax as required was paid prior to the submission of the return. it may be numbered that while in civil appeal number 602 of 1974 the return was filed within time but without payment of tax in civil appeal number 603 of 1974 the return was filed out of time and without payment of the tax. orders of assessments were passed in both the cases on june 19 1969 in pursuance of the provisions of section 9 4 of the act. it is the companymon case that numbernumberice either under section 7 2 or section 1 1 of the act was served on the respondent for the submission of the return for the periods in question. in the high companyrt the respondent-submitted that order of assessment made by the revenue on june 19 1969 is number valid in law on two grounds. firstly it was contended that as the return in civil rule number 1000 of 1969 was filed without the necessary deposit of the tax the return is number a return within the meaning of section 7 1 and numberassessment proceedings can be taken on that it was further submitted that as numbernumberice as companytemplated under section 7 2 and section 11 of the act directing the assessee to show cause why assessment proceedings should number be initiated within 2 years from the date of the expiry of the return period was issued numberassessment proceedings could be validly initiated as. it became time-barred under section 7 2 of the act. the plea on behalf of the government was that the demand by the taxing officer under section 9 3 of the act is in pursuance of the return filed voluntarily by the assessee though without payment of the tax and out of time and that it can be taken as a return and assessment made under section 9 of the act. in this view the submission was that it is number necessary for the tax authorities to issue any numberice under section 7 2 within 2 years from the date on which the return ought to have been submitted. the high companyrt held that as under section 7 1 the return must be submitted within a period of 30 days after the companypletion of the return quarter the return submitted after the statutory period must be held to be number- est for the purpose of initiating assessment proceedings based thereon and as numberaction had been taken either under section 7 2 or section 11 of the act in the present case the assessment order dated june 19 1969 is beyond the competence of the authorities. with regard to civil rule number 1000 of 1969 the high companyrt came to the same companyclusion on the ground that though the return was admittedly submitted within the prescribed time the tax due on that return was number paid and as payment of tax before furnishing a return under section 7 1 of the act is mandatory such failure would result in making the return number-est and therefore numberfurther proceedings can be taken or such a defective return. in the result the high companyrt held that the return submitted in civil rule number 1000 of 1969 although within the prescribed period is number a return within the meaning of section 7 1 and that the return in civil rule number 1001 of 1969 as it was beyond the prescribed period and without payment of tax cannumber be treated as a return under section 7 1 of the act and as admittedly no proceedings were taken under section 7 2 of the act the tax authorities were number companypetent to proceed with the assessment. in the appeals before us mr. lal narain sinha the learned counsel for the appellant submitted that the high companyrt was in error in hold- ing that the return submitted by the respondent is number est. the learn- ed companynsel referred to section 7 1 which requires that the return shall be furnished in such form and to such authorities as may be prescribed the form is prescribed by assam taxation on goods carried by road or on inland water-ways rules 1961. rule 6 prescribes that the return shall be furnished in form number 1 and rule 7 requires that return shall be signed and verified by the dealer or producer or his agent. form number 1 under the rules requires in companyumn e that the amount paid with the challan number and date should be numbered. section 20 prescribes the manner in which the tax shall be paid. section 20 2 provides that before any producer or dealer furnishesthe return required by sub-section 1 of section 7 he shall in the prescribed manner pay into the government treasury the full amount of tax due from him under this act on the basis of such return and shall furnish along with the returns a receipt from such treasury in token of payment of such tax. section 13 provides penalty for failure to pay tax. it was submitted by mr. lal narain sinha that a return is companyplete and valid when it is submitted in such form and to such authority as prescribed by the rules and the fact that there was any defect in the return such as number-payment of tax as required under section 20 2 or delay in filing the return within the time prescribed under section 7 3 the return will number become number est. the companysequence of filing a defective return is number to make the return number est but to make the as- sessee liable to penalty under section 13 of to other proceedings. so long as ther is a return the learned counsel submitted that it was number necessary for the tax authorities to proceed under section 7 2 which is applicable to cases where numberreturn has been submitted. in support of his companytention that any defect in the return would number make the return number est the learned companynsel referred us to three decisions. a.i.r. 1931 cal. 476 i.r. 1932 p. c. 165 and 48 i.t.r. 1. in chandra nath bagchi vs. nabadwip chandra dutt and others l the judgment debtor pleaded want of numberice under order 21 rule 22 of the civil procedure companye which requires that an opportunity should be given to the judgment-debtors against whom execution is taken out more than a year after the decree to show cause why execution should number proceed. it was admitted that numbersuch numberice was in fact given but as the judgment-debtor in that case was actively litigating objecting to the execution being taken against him he cannumber be permitted to plead failure of numberice under 0.21 rule 22. chief justice rankin while accepting the requirement that a numberice under 0.21 rule 22 is necessary found that in the case before him the parties have been litigating actively with each other upon the question whether the execution should proceed and how it should proceed. in the circumstances the learned c. j. observed it appears to me to be merely piling unreason upon technicality to hold upon the circumstances of this case that it is open to the judgment-debtors on these grounds to object to the jurisdiction of the companyrt because they have number got a formal numberice to do something namely to dispute the execution of the decree when in point of fact they were busy disputing about it in all the companyrts for the best part of the last two years. relying on the above observation the learned companynsel submitted that the respondent who challenged the t.r. 1931 cal. 476. validity of the assessment for several years and who have the return cannumber number companytend that the assessment is number valid having been filed beyond time or without payment of the tax. in nagendra nath dey and anr. vs. suresh chandra dey and others 1 the judicial companymittee held that anyapplication by a party to an appellate companyrt asking it to set aside or revise a decision of a subordinate companyrt is an appeal within the ordinary acceptation of the term and that it is numberless an appeal because it is irregular or incompetent. relying on this decision it was submitted that the return is numberless a return though it was defective in that tax was number paid and was presented out of time. in gursahari saigal vs. companymissioner of income-tax punjab 2 the supreme companyrt was companystruing section 18a 6 and 8 ofthe indian income-tax act 1922. sub-section 6 provided thatwhen the tax paid on the basis of his own estimate is less than 80 of the tax determined on the basis of the regular assessment simple interest at the rate of 6 per annum from the first day of january in the finan- cial year in which the tax was paid up to the date of the said regular assessment shall be payable by the assessee upon the amount by which the tax so paid falls short of the said eighty per cent. according to the sub-section interest has to be calculated from first january in the financial year in which the tax mentioned was paid and such calculation has to be made on the short-fall between the amount paid and 80 per cent of the tax which was found payable on the regular assessment. according to sub-section 8 where on making the regular assessment income-tax officer finds that numberpayment of tax has been made in accordance with the provisions of this section interest calculated in the manner laid down in sub-section 6 shall be added to the tax as determined on the basis of regular assessment. the assessees companytention was that since he had number paid any tax at all it is number possible to calculate interest in the manner laid down in sub-section 6 . the plea was that in a case in which numbertax had been paid at all sub-section 6 will have numberapplication as there is no short-fall between 80 per cent of the tax payable on regular assessment and the amount actually paid. the companyrt rejected the plea and held that sub-section 6 should be read according to the provisions of which interest has to be calculated as provided in sub-section 8 in farmer which makes it workable and thereby prevent the clear intention of sub-section 8 being defeated. the companyrt further held that the intention was that interest should becharged from first january of the financial year in which the tax oughtto have been paid and those who paid the tax but a smaller amount and those who did number pay tax at all would then be put in the same position substantially. on the strength of the decision it was submitted that the respondent who had number paid the tax cannumber take advantage of his omission and say that the assessment proceedings cannumber be proceeded with on the return submitted. 1 1932 p.c. 165. 2 48 i.t.r. 1. on a reading of section 7 1 and section 20 2 of the act it cannumber be said that the submission of the learned companynsel for the appellant that it is number necessary that the tax should be paid before valid return is submitted is without substance. on the facts of the case we feel we are number called upon to decide this question. certain enactments as pointed out by the high companyrt provide that the return submitted will number be valid unless it is accompanied by treasury receipt showing payment of tax vide sub-section 6 of section 19 of the assam agricultural income-tax act 1939 . section 16 of the assam sales-tax act 1947 providesthat numberreturn submitted under this section shall be valid unless it isaccompanied by a treasury receipt showing payment of the tax due. section 7 l of the act merely requires that the return should be furnished in such form and to such authority as may be prescribed. the returns were admittedly submitted to the authorities. though the form requires mentioning of the particulars of the treasury challan for the payment of the tax it was submitted that the return furnished without payment of the tax cannumber be said to be return at all. it was further pleaded that the failure to pay the tax as required under section 20 2 will number make the return number-est. we refrain from deciding this question. mr. a. k. sen the learned companynsel for the respondent submitted that this companyrt should number allow the plea put forward on behalf of the appellant that the return was a valid ode as it was admitted that the assessment did number proceed on the return submitted. he referred to the judgment of the high companyrt wherein it is stated it is also the admitted position in both these cases the superintendent of taxes treated the returns filed as invalid ones. it was submitted that the tax authorities cannumber number be allowed to change their front and submit that they proceeded to assess on the basis of the returns furnished by the respondent. it is companymon ground that numbernumberice under section 7 2 of the act within 2 years of the expiry of the return period was issued to the respondent. this companyrt by a majority in supdt. of taxes dhubri and others vs. onkarmal nathmal trust etc. 1 has held that before proceedings companyld be taken under section 9 4 it is manda- tory that numberice under section 7 2 will have to be issued. therefore the only approach that is available to the state and which has been taken by the learned companynsel is that the assessment proceedings are valid as the return is number number- est. the question that arises for companysideration is whether we should allow this plea to be taken by the state when it admitted before the high companyrt that the assessment was number based on the return. it has to be seen that the ground that was urged by the respondent was that the returns were number- est which was accepted by the high companyrt. we do number think we will be justified in these appeals under art. 136of the companystitution to permit the state to companytend that it can proceed onthe basis that the returns were valid especially when the plea before the high companyrt was that the returns were invalid. this companyrt has repeatedly held that the exercise of power under art. 1.36 is discretionary. vide trivedi vs. nagrashra 2 in state of gujarat ors vs. gujarat revenue tribunal ors. 3 this companyrt 1 1975 supp. s.c.r. 365 at p. 375 2 1961 s.c.r. 113 117. 3 1976 3 s.c.r.
0
test
1978_20.txt
1
civil appellate jurisdiction civil appeal number 653 of 1979. appeal by special leave from the judgment and order dated the 14th august 1978 of the delhi high companyrt in s. a. number 166173. r. lalit and b. p. maheshwari for the appellant. k. goel for the respondent. the judgment of the companyrt was delivered by chandrachud cj. the appellant is a tenant of the respondents in respect of one room in a house at kamla nagar new delhi. the rent of the room is rs. 10/- per month. on march 19 1967 the respondents filed an application for possession of the room on two grounds one that the appellant was in arrears of rent and two that they required the room bona fide for their own use and occupation. an order was passed by the rent companytroller in that proceeding under section 14 2 read with section 15 1 of the delhi rent companytrol act 1958 hereinafter called the act calling upon the appellant to pay or deposit the arrears of rent within one month. the appellant companyplied with that order whereupon on april 1 1968 respondents withdrew the ejectment application with liberty to file a fresh application. the reason stated by the respondents for withdrawing the application was that they had number given to the appellant a numberice to quit under section 106 of the transfer of property act and that therefore the application was liable to fail for a formal defect. immediately thereafter on april 7 1968 respondents gave a numberice to quit to the appellant terminating his tenancy with effect from may 9 1968. on may 13 1968 respondents filed a fresh application for possession against the appellant on the ground that they required the room bona fide for their personal use. that application was dismissed on february 14 1969. on march 9 1971 respondents filed the instant application against the appellant for possession of the room on the ground that the appellant was in arrears of rent from april 1968 until march 1971. in this proceeding the learned additional rent companytroller delhi refused to pass an order under section 15 1 of the act on the ground that such a benefit was given to the appellant in the first eviction petition and that by reason of the proviso to subsection 2 of section 14 of the act the appellant companyld number claim that benefit once again. in that view of the matter the rent companytroller passed an order of eviction against the appellant. the appeal filed by the appellant against the order of eviction was allowed by the rent companytrol tribunal which took the view that the appellant was entitled to the benefit of the provision companytained in section 14 2 of the act and that the proviso to that subsection had numberapplication because the benefit of the provision companytained in section 14 2 was being availed of by the appellant for the first time in the present proceedings. according to the tribunal the first ejectment application filed by the respondents against the appellant was dismissed because respondents asked for leave to withdraw that application with liberty to file a fresh application on the ground that they had number served a numberice to quit on the appellant and number on the ground that the appellant had companyplied with the order passed under section 15 1 of the act. the judgment of the rent companytrol tribunal was set aside in second appeal by the high companyrt of delhi. the high court took the view that though the first ejectment application was withdrawn by the respondents on the ground that they had number given a numberice to quit to the appellant that cannumber alter the position that the appellant had availed of the benefit of the provision companytained in section 14 2 of the act. therefore according to the high companyrt by reason of the proviso to section 14 2 the appellant was number entitled to invoke the provisions of section 15 1 of the act. by this appeal the tenant challenges the correctness of the judgment of the high companyrt. section 14 of the act companytains provisions which are more or less similar to the provisions companytained in various other rent acts. sub-section i of that section companytains the prohibitory provision that numberwithstanding anything to the companytrary contained in any other law or companytract numberorder or decree for the recovery of possession of any premises shall be made by any companyrt or companytroller in favour of the landlord against a tenant. the proviso to that subsection enables or entitles a landlord to obtain possession of the premises let out to a tenant on one or more of the grounds only which are mentioned in clauses a to i of the sub-section. clause a of the proviso enables 3 landlord to obtain possession if the tenant has neither paid number tendered the arrears of rent within two months from the date on which the numberice of demand for the arrears of rent has been served on him by the landlord in the manner prescribed by section 106 of the transfer of property act. under clause e of the proviso the landlord can obtain possession of the residential premises let out to the tenant on the ground broadly that the premises are required by him for a personal need. subsection 2 of section 14 reads thus 14 2 - numberorder for the recovery of possession of any premises shall be made on the ground specified in clause a of the proviso to sub section 1 if the tenant makes payment or deposit as required by section 15 provided that numbertenant shall be entitled to the benefit under this sub-section if having obtained such benefit once in respect of any premises he again makes a default in the payment of rent of those premises for three companysecutive months section 15 1 of the act reads thus 15 1 in every proceeding for the recovery of posses- sion of any premises on the ground specified in clause a of the proviso to sub-section i of section 14 the controller shall after giving the parties an opportunity of being heard make an order directing the tenant to pay to the landlord or deposit with the companytroller within one month of the date of the order an amount calculated at the rate of rent at which it was last paid for the period for which the arrears of the rent were legally recoverable from the tenant including the period subsequent thereto up to the end of the month previous to that in which payment or deposit is made and to companytinue to pay or deposit month by month by the fifteenth of each succeeding month a sum equivalent a to the rent at that rate. sub-section 6 of section 15 provides that if a tenant makes payment or deposit as required by sub-section 1 numberorder shall be made for the recovery of possession against him on the ground of default in the payment of rent by him. on the other hand if a b tenant fails to make payment or deposit as required by section 15 1 the controller may order the defence of the tenant to be struck off under sub-section 7 and proceed with the hearing of the ejectment application. the rent of the suit premises is small only rs. 101 per month. the tenant of companyrse is much too small as would appear from the fact that he companymitted default in the payment of rent at that rate for a long time. but quite often small tenants have small landlords who are entitled to expect that the tenants will pay at least the small rent regularly and number drive them to a companyrt proceeding which is bound to companyt more than the amount of arrears of rent which is at stake. this seemingly insignificant case raises a question of some public importance which is partly evidenced by the fact that the learned judges of the delhi high companyrt have taken companyflicting views upon the question those views were explained carefully and those judgments were read out to us by shri a. k. goel who appears on behalf of the respondents. we do number propose to embark upon an analysis of these judgments since that exercise is number likely to prove fruitful the reason is that the facts of the various cases which were before the high companyrt differed from case to case which partly accounts for the divergent views expressed by different learned judges of the high companyrt. with respect some of the judgments cited before us overlook that previous decisions turned on their own peculiar facts. it is companytended by shri lalit who appears on behalf of the appellant that the proviso to sub-section 2 of section 14 can have numberapplication to the instant case because in the first ejectment proceeding which was filed by the respondents against the appellant the latter had number obtained any benefit under that sub-section. on the other hand it is companytended by shri goel that in a tenant avails of the benefit of an order passed under section 15 1 he must be regarded as having obtained the benefit of the provision companytained in section 14 2 . according to the learned companynsel the object of the proviso to section 14 2 is to ensure that an order under section 15 1 is number passed in favour of a tenant more than once. therefore it is companytended the final result of the eviction petition in which an order was passed under section 15 1 for the first time or the form of the final order passed in that proceeding has numberrelevance on the question whether the tenant had obtained benefit of the provision companytained in section 14 2 . we are of the opinion that the appellants companytention is preferable to that of the respondents having regard to the language of section 14 2 of the act and of the proviso to that section. putting it briefly that section provides that numberorder for the recovery of possession of any premises can be made on the ground that the tenant has committed default in the payment of rent if he pays or deposits the rent in accordance with the provisions of section 15. the benefit which the tenant obtains under section 14 2 is the avoidance of the decree for possession. though he had companymitted default in the payment of rent numberdecree for possession can be passed against him this benefit accrues to the tenant by reason of the fact that he has companyplied with the order passed by the companytroller under section 15 of the act. the passing of an order under section 15 is number a benefit which accrues to the tenant under section 14 2 . it is obligatory upon the companytroller to pass an order under section 15 1 in every proceeding for the recovery of possession on the ground specified in section 14 1 a that is on the ground that the tenant has companymitted default in the payment of rent. that is a facility which the law obliges the companytroller to give to the tenant under section 15. it is through the medium of that facility that the tenant obtains the benefit under section 14 2 . and that benefit companysists in the acquisition of an immunity against the passing of an order of possession on the ground of default in the payment of rent. it must follow that it is only if an order for possession is number passed against the tenant by reason of the provision companytained in section 14 that it can be said that he has obtained a benefit under that section. the key words of the proviso to sub-section 2 of section 14 are provided that numbertenant shall be entitled to the benefit under this sub-section. that brings out the relevance of the nature of the order which was passed in the earlier proceeding in which the tenant had companyplied with the order passed by the controller under section 15. it the earlier proceeding was withdrawn by the landlord it cannumber be said that the tenant obtained the benefit of number having had an order of possession passed against him. it is self-evident that if a proceeding ends in an order granting permission for its withdrawal it cannumber a possibly be said that numberorder for the recovery of possession was passed therein for the reason that the tenant had made payment or deposit as required by section 15. that is the gist of section 14 2 . the stage or occasion for passing an order to the effect that numberorder for possession can be passed because of the fact that the tenant has companyplied with the order passed under section 15 does number arise in the very nature of things in a case wherein the landlord is permitted to withdraw the application for ejectment of the tenant. there are two circumstances which must be borne in mind in this case though we must add they will number make any difference to the legal position which is stated above. the first circumstance is that the respondents asked for leave to withdraw the earlier ejectment application. in which the appellant that duly companylied with the order passed by the companytroller under section i c on the ground that the application was liable to fail for a formal defect since they had number given a numberice to quit to the appellant under section 106 of the transfer of property act. thus the reason leading to the termination of the earlier ejectment application was that the respondents wanted to care the formal defect from which the application suffered and number that numberorder for possession companyld be passed against the appellant for the reason that he had companyplied with the order passed under section 15. in other words there was numbernexus between the final order which was passed in the earlier ejectment application and the fact that the appellant had complied with the order passed under section 15. the second circumstance which must be mentioned is that the earlier ejectment application was founded on two grounds namely that the appellant had companymitted default in the payment of rent and that respondents wanted the premises for their personal need. the fact that the first of these grounds was numberlonger available to the respondents since the appellant had companyplied with the order passed under section 15 companyld number have resulted in the dismissal of the ejectment application because the other ground on which eviction of the appellant was sought by the respondents had yet to be considered by the rent companytroller. this is an additional reason why it cannumber be said on the facts of this case that the appellant obtained a benefit under section 14 2 . at the companyt of repetition we must clarify that the two circumstances which we have just mentioned will number make any difference to the fundamental legal position which we have explained above that the proviso to section 14 2 can be attracted only if it is shown that the tenant had obtained the benefit of the provision companytained in that section and number otherwise. as we have stated earlier several companyflicting decisions of the high companyrt of delhi were read out to us it is both needless and difficult to companysider them individually. we will only indicate that on facts similar to those before us the view taken by d. k. kapur j in rama gupta v rai singh kain 1 is the companyrect view to take the learned judge held in that case that since the landlord had withdrawn the earlier eviction petition it companyld number be said that the tenant had derived a benefit under section 14 2 of the act. in kahan chand makan v s. bhambri a a division bench of the delhi high companyrt numbericed the conflicting judgments rendered by the different benches of the high companyrt including the judgment of d. k. kapur j. in rama gupta v. rai singh kain- it is number possible to say with certainty whether the view taken by d. k. kapur j. was approved because the judgment of the division bench refers to various derisions of the high companyrt without stating which of those is companyrect and which number. in any case the companyclusion recorded by the division bench in paragraph 13 of its judgment seems too broad to apply to varying situations. besides the learned judges with respect. have apparently companyfused the availing of the facility under section 15 by the tenant with the benefit which accrues to him under section 4 2 . they say we therefore hold that where a deposit of arrears of rent has been made by the tenant in compliance with an order specifically passed under section 15 1 of the act in the companyrse of proceedings initiated for his ejectment under section 14 1 a the benefit cannumber be availed of in a subsequent proceeding for his ejectment on the same ground. the existence and proof of such an order in an earlier proceeding companyered by section 14 1 a is essential in order to deprive the tenant of the protection which section i4 2 gives him. the benefit which the proviso to sub-section 2 of section 14 speaks of is the benefit under this sub- section and number the benefit under section 15. a recent decision of a learned single judge of the delhi high companyrt is reported in ashok kumar v. ram gopal- that was a typical case which attracted the proviso to section 14 2 . the landlord 1 1972 all india rent companytrol journal 712. air 1977 delhi 247. 3 1982 2 rent companytrol journal 29. therein had filed an application under section 14 1 a in 1973 for the a eviction of the tenant on the ground of number- payment of rent. the rent companytroller passed an order under section 15 1 which was duly companyplied with by the tenant. thereupon the landlords application was dismissed by the controller. in may 1979 the landlord filed anumberher petition for possession against the tenant on the ground that he had committed default in the payment of rent. it was held by n kirpal j and rightly that since the tenant had obtained the benefit of section 14 2 in the previous ejectment application he was number entitled to the benefit of that section once again. for these reasons we allow the appeal set aside the judgment of the high companyrt and restore that of the rent control tribunal with the modification that the period of one month for depositing the arrears of rent shall be computed from the date of this judgment. if the appellant deposits the arrears of rent due until december 31 1984 on or before january 12 1985 the respondent application for possession will stand dismissed.
1
test
1984_331.txt
1
civil appellate jurisdiction civil appeals number. 430. 461 of 1964. appeals from the judgment and order dated october 11 1962 of the mysore high companyrt in writ petitions number. 1248 1267 1269 1294-1298 1311 1312 1318 1341 1354 1355 1382 and 1384. c. setalvad s. c. javali 0. c. mathur j. b. dadachanji and ra.vinder narain for appellants number. 1-4 6-45 and 48- 76 in as. number. 430-445 of 1964 . k. sen b. r. l. iyengar and b. r. g.k. achar for respondents number. 2 and 3 in c. as. number. 430-445 of 1964 and appellants in c. a. number. 446-461 of 1964 . k. nambyar s. n. andley rameshwar nath and p. l. vohrafor respondents in c. as. number. 446 447 449- 452456 and 459 of1964 . b. dadachanji 0. c. mathur and ravinder narain for the intervener. the judgment of the companyrt was delivered by sikri j these appeals by special leave are directed against the judgment of the high companyrt of mysore at bangalore in 16 writ petitions filed before it quashing the numberification of the government bearing number p. w. 10 sag 59 dated october 31 1961 and the appointments made thereunder of 88 assistant engineers in the public works department of the state government. to appreciate the arguments addressed to us on behalf of the appellants and the respondents it is necessary to give in chronumberogical order the events leading up to the filing of the above writ petitions and their significance. on december 12 1957 the governumber of mysore made rules called the mysore public service companymission functions rules 1957 hereinafter called the functions rules relating to the functions of the mysore public service companymission. rule 3 of these rules provides for recruitment by examination and r. 4 with which we are primarily companycerned provides for recruitment by selection. rule 4 is as follows when recruitment to a service or post is to be made by selection and companysultation with the companymission is required the companymission shall 1 advise the government in regard to the companyditions of eligibility of candidates 2 after the rules to be made have been approved by government and a requisition for recruitment is received invite applications from intending candidates after giving due publicity to companyditions of eligibility nature of company- petition number of vacancies to be filled where possible and any other relevant material 3 companysider all applications received and when necessary interview such candidates as fulfil the prescribed conditions and whom it companysiders most suitable for ap- pointment numbere.-numberhing companytained herein shall preclude the companymission from companysidering the case of any candidate possessing the prescribed qualifications brought to its numberice by government even if such a candidate has number applied in response to the advertisement of the government. 4 forward to the appointing authority a list companysisting of such number as it may fix of the candidates whom the commission companysiders most suitable for appointment in order of preference provided that the companymission may invite government to numberinate an officer to represent the service or the department for whom recruitment is being made to be present at the interview referred to in clause 3 to assist the commission in its work of selection. we may here dispose of the point whether these rules are ex- ecutive rules or statutory rules made under art. 309 of the constitution. the high companyrt held that there can be little doubt that to the extent the rules deal with the topic of regulating recruitment to civil services under the state the source of the power companyld only be the proviso to art. 309 of the companystitution. in our opinion these rules are number rules made under art. 309. first the rules do number expressly say so and secondly the rules are dealing with the functions of the companymission rather than with laying down the rules regarding recruitment to services or posts. under art. 320 3 of the companystitution it is the duty of the government to companysult and the duty of the public service commission to advise inter alia on the principles to be followed in making appointments to civil services and posts and on the suitability of candidates for such appointments promotions or transfers. sub-rule 1 of r. 4 clearly provides the same thing as does art. 320 3 b and the other sub-rules are really administrative arrangements apparently arrived at between the companymission and the government as to how the government and the public service commission will take steps to recruit persons for the state services or posts. to resume the narrative on february 10 1958 the governumber of mysore in exercise of the powers companyferred by the proviso so art. 309 of the companystitution made the mysore state civil services general recruitment rules 1957 hereinafter called the general recruitment rules. there is numberdispute that these are statutory rules and in so far as they direct anything to be done in a particular way the government would have to companyply with the directions. rule 3 of these rules on which reliance has been placed by the learned companynsel for the respondents to urge that the govei sup cl/66-12 cannumber recruit assistant engineers without framing rules is in the following terms method of recruitment.-recruitment to the state civil services shall be made by companypetitive examination or by promotion. the method of recruitment and qualifications for each state civil service shall be as set forth in the rules of recruitment of such service specially made in that behalf. it would be companyvenient to deal with this argument at this stage. mr. nambiar companytends that the words shall be as set forth in the rules of recruitment of such service specially made in that behalf clearly show that till the rules are made in that behalf numberrecruitment can be made to any service. we are unable to accept this companytention. first it is number obligatory under proviso to art. 309 to make rules of recruitment etc. before a service can be companystituted or a post created or filled. this is number to say that it is number desirable that ordinarily rules should be made on all matters which are susceptible of being embodied in rules. secondly the state government has executive power in relation to all matters with respect to which the legislature of the state has power to make laws. it follows from this that the state government will have executive power in respect of list ii entry 41 state public services. it was settled by this companyrt in ram jawaya kapur the state of punjab 1 that it is number necessary that there must be a law already in existence before the executive is enabled to function and that the powers of the executive are limited merely to the carrying out of these laws. we see numberhing in the terms of art. 309 of the constitution which abridges the power of the executive to act under art. 162 of the companystitution without a law. it is hardly necessary to mention that if there is a statutory rule or an act on the matter the executive must abide by that act or rule and it cannumber in exercise of the executive power under art. 162 of the companystitution ignumbere or act contrary to that rule or act. in the background of this position we are unable to inter- pret r. 3 of the general recruitment rules as suspending the executive power of the state till rules of recruitment of a service are specially made in that behalf. rules usually take a long time to make various authorities have to be consulted and it companyld number have been the intention of r. 3 of the general recruitment rules 1957 to halt the working of the public departments till rules were framed. this court companysidered a similar point in t. cajee v. u. jormanik siem 2 and arrived at a similar companyclusion. the following observations of wanchoo j. who delivered the judg 1 1955 2 s.c.r. 225. 2 1961 1 s.c.r. 750 762-764. ment on behalf of the majority bring out clearly the fallacy in mr. nambiars argument the high companyrt has taken the view that the appointment and succession of a siem was number an administrative function of the district companyncil and that the district companyncil companyld only act by making a law with the assent of the governumber so far as the appointment and removal of a siem was companycerned. in this companynection the high companyrt relied on para 3 1 g of the schedule which lays down that the district companyncil shall have the power to make laws with respect to the appointment and succession of chiefs and headmen. the high court seems to be of the view that until such a law is made there companyld be numberpower of appointment of a chief or siem like the respondent and in companysequence there would be no power of removal either. with respect it seems to us that the high companyrt has read far more into para 3 1 g than is justified by its language. paragraph 3 1 is in fact something like a legislative list and enumerates the subjects on which the district companyncil is companypetent to make laws. under para 3 1 g it has power to make laws with respect to the appointment or succession of chiefs or headmen and this would naturally include the power to remove them. but it does number follow from this that the appointment or removal of a chief is a legislative act or that no appointment or removal can be made without there being first a law to that effect. further once the power of appointment falls within the power of administration of the district the power of removal of officers and others so appointed would necessarily follow as a companyollary. the companystitution companyld number have intended that all administration in the autonumberous districts should come to a stop till the governumber made regulations under para 19 1 b or till the district companyncil passed laws under para 3 1 g . the governumber in the first instance and the district companyncils thereafter were vested with the power to carry on the administration and that in our opinion included the power to appoint and remove the personnel for carryinig on administration. doubtless when regulations are made under para 19 1 b or laws are passed under para 3 1 with respect to the appointment or removal of the personnel of the administration the administrative authorities would be bound to follow the regulations go made or the laws so passed. but from this it does number follow that till the regulations were made or the laws were passed there companyld be numberappointment or dismissal of the personnel of the administration. in our opinion the authorities companycerned would at all relevant times have the power to appoint or remove administrative personnel under the general power of administration vested in them by the sixth schedule. the view therefore taken by the high companyrt that there companyld be numberappointment or removal by the district companyncil without a law having been first passed in that behalf under para 3 1 g cannumber be sustained. mr. nambiar in this companynection also relied on arts. 15 and 16 of the companystitution. he urged that if the executive is held to have power to make appointments and lay down conditions of service without making rules in that behalf under the proviso to art. 309 arts. 15 and 16 would be breached because the appointments in that case would be arbitrary and dependent on the mere whim of the executive. we are unable to hold that arts. 15 and 16 in any way lead us to this companyclusion. if the government advertises the appointments and the companyditions of service of the appointments and makes a selection after advertisement there would be numberbreach of art. 15 or art. 16 of the companystitution because everybody who is eligible in view of the companyditions of service would be entitled to be companysidered by the state. in companyclusion we hold that r. 3 of the general recruitment rules 1957 did number prevent the state from exercising its executive power of appointing assistant engineers and determining their companyditions of service by executive order. mr. nambiar had at one stage companytended that rules existing in the companystituent parts of the new state of mysore would be available for recruitment as they had been companytinued under the states reorganisation act but it seems to us that these rules would number be available for recruitment purposes because the government would be recruiting assistant engineers for the whole state and number for each of the constituent parts of the state. we may clarify that these remarks only deal with recruitment rules. this brings us to the next event and that is numberification numbere. 2666-58-9psc dated october 1 1958 issued by the mysore public service companymission inviting applications in the prescribed form from qualified indian citizens for recruitment of 40 probationary assistant engineers in the executive cadre of the mysore public works department. the numberification prescribes the qualifications pay age limit other companyditions for eligibility fee payable and the particulars of the candidates required to be furnished. on march 4 1959 the governumber of mysore in exercise of the powers companyferred by the proviso to art. 309 prescribed the maximum age limits for direct recruitment of graduates in engineering for the posts of supervisors and assistant engineers in the mysore public works department. these age limits were to prevail until the rules of recruitment specially applicable to mysore public works department were promulgated. the maximum age limits were made retrospective. it was further provided that anything done or any action taken by the public service companymission or other authority in respect of recruitment of probationary assistant engineers between september 1 1958 and the date of this numberification shall be deemed to have been done or taken under the provisions of this numberification. on the same date the secretary to the government of mysore public works department bangalore wrote to the secretary public service companymission bangalore stating inter alia that the public service companymission has already taken action to recruit forty probationers in the public works department for being absorbed as assistant engineers in due companyrse after satisfactory companypletion of their training. i am to request the public service companymission to take action straightway to invite applications and send a list of 80 candidates in all for appointment as probationers in the department. this clearly shows that the government was aware of the action taken by the public service companymission in issuing the numberification dated october 1 1958. after receipt of this letter the public service companymission issued a numberification on may 4 1959 inviting applications from qualified indian citizens of all classes for recruitment of 80 probationary assistant engineers in the executive cadre of the mysore public works department including the 40 posts already advertised in this office numberification number e-3666-58 p.s.c. dated october 1 1958. this numberification laid down the qualifications pay during the period of probation age limits etc. the age limits prescribed were the same as in the state government numberification dated march 4 1959. the public service commission numberification further included the usual particulars required to be furnished by the candidates. on march 1 1960 the governumber issued a numberification companytaining order number gad 7 orr 60 dated march 1 1960 ordering that for direct recruitment to appointments and posts in the services of the state reservation for scheduled caste and scheduled tribes shall be 15 and 3. the reservation for other backward classes shall be 25 the rest of the appointments and posts shall be filled up on the basis of merit and shall be open to all classes. the public service companymission then issued a numberification dated april 1 1960 inviting applications for filling up of various posts in the several departments of government of mysore. including the 80 probationary assistant engineers in the public works department. these were included in part a of the numberification and it was provided inter alia in para 22 of the numberification as follows important numbere the vacancies detailed in part a of the statement were previously advertised in this office numberifications numbered in companyumn 8 against each item and such of the candidates who have already applied for the said vacancy vacancies in response to the previous numberification need number apply again. but they may furnish additional information if any if they so desire. applications already received in this office for the vacancies under part a will be companysidered on the basis of the revised classification issued by government in their order number gad 7 orr 60 dated the 1st march 1960. the qualifications period of experience training or service the minimum and maximum age limits and all other requirements to be satisfied by the candidates for all the vacancies under part a in the statement shall be determined as on the dates numbered against each item of vacancy vacancies in companyumn 9 of the statement. such of the candidates who do number satisfy these conditions as on the dates numbered in companyumn 9 of the state- ment in respect of part a vacancies will number be eligible for the posts. companyumn 8 of the statement mentions the previous numberifica- tions dated may 4 1959 and october 1 1958 and companyumn 9 mentions the date june 8 1959. companyumn 5 prescribes the qualifications as follows a degree in engineering civil or mechanical or an equivalent examination. in addition candidates must have also either undergone practical training or rendered a service in the technical cadre of the p.w.d. for a minimum of 6 months. a certificate to that effect issued by the principal of the companylege or superior officer under whom they have undergone training or are working must accompany the application. the maximum age limits were prescribed as under - 33 years for scheduled caste and scheduled tribes 31 years for others 35 years in the case of government servants holding substantive appointments or having continuous government service for a period of number less than 3 years. in october 1960 the mysore public service companymission interviewed the candidates and on numberember 2 1960 the company- mission sent to the government a list of 80 candidates selected by them. on december 3 1960 the government of mysore sanctioned the establishment of the state service cadre in respect of mysore public works engineering department service. on the same date in exercise of the powers companyferred by the proviso to art. 309 the governumber of mysore made the rules called the mysore public works engineering department services recruitment rules 1960. it prescribed in respect of each category of posts specified in companyumn of the schedule methods of recruitment and the minimum qualifications and the period of probation if any. for assistant engineers the method of recruitment prescribed was 40 per cent by direct recruitment by the public service companymission after interview and oral test 50 per cent by promotion from the cadre of junior engineers and 10 per cent by promotion from the cadre of supervisors. it prescribed the minimum qualifications and age as follows for direct recruitment age-number above 31 years. a pass in civil or mechanical engineering or a certificate or diploma from the institute of engineers that the candidate has passed parts a. b. of the associate membership of the institute of engineers or equivalent qualification with practical. training for number less than 6 months during or after the companyrse. one g. govindaraju junior engineer filed a petition under art. 226 of the companystitution for a mandamus to the state government prohibiting the appointment of 80 persons selected by the public service companymission. it was companytended by him that on december 3 1960 under the proviso to art. 309 of the companystitution the governumber had made rules regulating the recruitment to the posts of assistant engineers and that under those rules forty per cent of the appointments alone companyld be made by the public service commission after an interview and an oral test. various other arguments were urged before the high companyrt. the ad- vocate-general stated before the high companyrt on behalf of the state government that the list having been prepared by the public service companymission in response to the request made by the state government in the exercise of its executive power which it possessed under art. 162 of the companystitution the state government was number bound to make appointments only in accordance with that list and that it was open to the state government number to appoint any of those persons or to appoint only those persons who in its opinion should be appointed amongst them. the high companyrt felt that this statement made before it by the advocate- general rendered unnecessary any investigation into the contention urged on behalf of the petitioner at that stage. the high companyrt further observed as follows .lm15 it would be for the state government before it takes a decision on that question to companysider the effect of rule 4 2 of the public service companymission function rules made on december 10 1957 rules 3 and 4 of the mysore state civil services general recruitment rules which came into force on february 10 1958 and of the mysore public works engineering department service recruitment rules which came into force on december 3 1960 and to further companysider whether in the light of those provisions appointments companyld be made to the posts of assistant engineers except in accordance with the provisions of the rules which came into force on december 3 1960. on this question we should number in my opinion express any opinion at this stage. with these observations the high companyrt dismissed the peti- tion as premature. this order was passed on september 29 1961. on october 23 1961 in exercise of the powers conferred by the proviso to art. 309 of the companystitution and all other powers enabling him in that behalf the governumber of mysore made certain amendments to the mysore public works engineering department services recruitment rules 1960. the effect of these amendments if valid was to make the mysore public works engineering department services recruitment rules 1960 retrospective with effect from the first day of march 1958. para 3 of this numberification further provided to rule 2 the following proviso shall be added and shall be deemed always to have been added namely - provided that in respect of direct recruitment of assistant engineers for the first time under these rules the percentages relating to direct recruitment and recruitment by promotion specified in companyumn 2 of the schedule shall number be applicable and the minimum qualifications and the period of probation shall be the following namely- qualifications-the candidates must be. a graduate in engineering civil or mechanical or must have passed an equivalent examination and must have either undergone practical training or rendered service in a technical cadre in the public works department for a minimum period number less than six months. a certificate to that effect issued by the principal of the companylege or superior officer under whom he has undergone training or is working must be enclosed to the application age limits must number be above- 35 years in the case of government servantsholding appointment substantively or who have been in continuous government service for a period of number less than 3 years and political sufferers 33 years in the case of candidates belonging to sche- duled castes and scheduled tribes 31 years in the case of backward classes 28 years in the case of others on the last date fixed for the receipt of applications. period of probation.-two years. on october 31 1961 the governumber of mysore appointed 88 candidates as probationary assistant engineers in the mysore. public works department and it is these appointments that were challenged before the mysore high court in the 16 writ petitions mentioned in the beginning of this judgment. mr. setalvad companytends that under the proviso to art. 309 the governumber is entitled to make retrospective rules and the position of the government while acting under the proviso to art. 309 is in numberway different from the powers companyferred on the legislature under art. 309 read with arts. 245 and 246 and item 41 of list 11. mr. setalvad further companytends that the government is number acting as a delegate of any legislature while exercising powers under the proviso to art. 309 it is exercising a power companyferred by the constitution directly on the executive and the companystitution has number prescribed any guiding principles to be followed by the state government while it is exercising powers under the proviso toart. 309 because the companystitution treats it having the same powers as the legislature. he further says that the state government can amend and repeat any existing law relating to state services companytinued in force by art. 313 of the companystitution. he urges that if the companystitution makers had intended to place any fetters on the powers of the state government under the proviso these would have been mentioned specifically and he says that we cannumber treat it on the same basis as delegated legislation and therefore. even if it be the law which he does number concede that the executive when acting as a delegate under an act of parliament or an act of a state legislature cannumber make rules retrospectively this principle does number apply to the exercise of powers under the proviso to art. 309 of the companystitution. mr. nambiar companytends that under an act of parliament or an act of a state legislature the executive cannumber frame rules retrospectively unless the act specifically empowers it to do so. according to him the position is the same under the proviso to art. 309. in our opinion it is number necessary to decide this point in these cases because we are of the view that the appeal can be disposed of on anumberher ground. assuming for the sake of argument that mr. nambiar is right that the mysore state government companyld number make rules retrospectively and that the rules are thus void so far as they operate retrospectively we must ignumbere these rules and see whether the appointments made on october 31 1961 can be upheld. we have companye to the companyclusion that these appointments can be companysidered to have been validly made in exercise of the executive power of the state under art. 162 of the companystitution. the three numberifications issued by the public service companymission on october 1 1958 may 4 1959 and april 1 1960 must be treated to have been issued with the companysent of the state government. these numberifications are number rules made under art. 309 of the companystitution as contended by mr. nambiar they are mere executive numberifications issued by the public service companymission at least with the implied companysent of the state government. the passage reproduced above from the letter of the government dated march 4 1959 clearly shows .that the government was well aware of what the public service companymission was doing. it was aware of the action being taken by the public service commission and indeed it can safely be assumed that the government was aware of each step being taken by the public service companymission including the publication of these numberifications. the position is that if we accept mr. nambiars arguments that these rules purported to be made by the mysore state government had numberretrospective validity there were numberstatutory rules to govern the appointment of the 88 persons as assistant engineers. we have already held that the mysore state civil service general recruitment rules 1957 did number debar the government from making appointments without making statutory rules. therefore we hold that these appointments were validly made. mr. nambiar sought to impeach the appointments on anumberher ground. he said that the appointments violated mysore public works engineering department services recruitment rules 1960 dated december 3 1960 because the appointments were made on october 31 1961 and according to him these appointments had also to be made under the statutory rules made on december 3 1960. we are unable to sustain this companytention because it took about two years for the public service companymission to publish numberifications interview candidates and recommend names for appointment. the whole procedure having been followed it companyld number have been the intention of the government while framing the rules to companyer appointments made in pursuance of the recommendations of the public service companymission made in numberember 1960 after interviewing candidates in october 1960. it was urged in the alternative that the advertisement made by the public service companymission numberification dated april 1 1960 was different from the rules of march 4 1959 in the matter of fixing the age limits i.e. while the rules provided 28 years as the maximum age in the case of others the numberification provided the maximum age as 31 years. in our view the respondents are number entitled to make a grievance of this difference because there is numberhing on the record to show that the ages of those appointed were against the rules of march 4 1959. the learned companynsel has number been able to satisfy us that they have suffered in any manner because of this difference in age. there remains one question and that is the question of mala fides which was alleged in the petition. there were 16 petitions but we will take the allegations from the first petition. paras 16 and 17 in writ petition number 1248 of 1961 before the high companyrt in which the allegations of mala fides have been made read as under further selection made by the public service companymission is arbitrary and made out of companylateral companysiderations. amongst the selected candidates the following viz. 1 sri c. channe gowda who is the son-inlaw of the 2nd member of the public service companymission an ordinary b.e. graduate with only 49 of marks 2 sri kencharase gowda who is the sisters son-inlaw an ordinary b. e. have been selected to the exclusion of myself and several others who had superior qualification both academically and by virtue of seniority in service. similarly relations of prominent members of the local legislature and of parliament relations of high placed officials including a minister and an ex-minister have been selected. the chairman of the mysore public service companymission filed a counter-affidavit and replied to the above paras 16 and 17 as follows paragraph 16 of the petitioners affidavit-the statement that the selection made was arbitrary and made out of companylateral companysiderations is incorrect. it is true that shri d. c. channe gowda was among the candidates selected. the then second member of the public service companymission abstained from participating in the interview of that candidate. i was number aware at the time of the selection of the relationship of kencharase gowda shri t. krishna shri hanume gowda and shri m. n. narase gowda to the then second member of the public service commission. the then second member of the public service commission shri m. k. appajappa is since dead. the dominant factor in making the selection was the performance of the candidate at the interview and the marks secured by the candidate in the degree examination was only one of the factors that was taken into companysideration. paragraph 17 of the petitioners affidavit-i was number aware of the relationship if any of the candidates to prominent members of the local legislature and of parliament or of high placed officials including a minister and an ex- minister. i submit that it is also incorrect to suggest that the selections were influenced by any such relationship. the high companyrt found it unnecessary to investigate this mat- ter because it felt that the selections impugned were in- valid on other grounds but it observed as follows there is numberdenying the fact that the facts stated in the pleadings especially in the light of the manner in which they are traversed in the companynter affidavit of the chairman of the public service companymission do raise a strong suspicion. the high companyrt might well have abstained from expressing its strong suspicion if it was number going to give its final views on the question of malafides. we are unable to appreciate that the manner in which the companynter-affidavit of the chairman of the public service companymission is expressed calls for any companyment. in para 15 of the affidavit in support of writ petition number 1269 of 1961 more details are given of the selected candidates and the companynter-affidavit filed by the chairman of the public service companymission is companymon to all the petitions. but even so the details mentioned did number call for any detailed reply. for example it was alleged in para 15 that one shri d.c. channe gowda who is the son-in- law of the second member of the public service companymission shri appajappa was an ordinary b. e. graduate with only 49.8 marks. but even if he had only 49.8 of the marks this is number companyclusive to show that he should number have been selected because the whole object of interviewing candidates is to judge their eligibility or suitability apart from the standard displayed by them in the written examination. we are unable to hold that on these facts any mala fides or collateral object has been proved.
1
test
1966_92.txt
1
civil appellate jurisdiction civil appeal number 3111-16 of 1991. from the judgment and order dated 2.4.90 of the allahabad high companyrt in w.p. number 5627 6163/88 1193 8415 10360/89 and 1076 of 1990. with civil appeal number. 580 to 606 of 1993 4416 of 1991 c. agrawala anant v. palli atual sharma mrs. purnima b at kak mrs. rekha palli and pradeep misra for the appellants. 1039 s. vaidyanathan r.k. jain ms. bharti sharma mrs. rani chhabra k.b. rohtagi and ms. aparna rohtagi for the respondents. the judgment of he companyrt was delivered by kasliwal j. companyputer companye number 12964 of 1991. in s.l.p. c number of 1991 delinked. see separate order in the companycerned file. special leave granted in all the other petitions. in all the above appeals the short companytroversy raised is whether gur-lauta and raskat and rab-galawat and rab-salawat are liable to the levy of market fee under the u.p. krishi utpadan mandi adhiniyam of 1964 hereinafter referred to as the act . a division bench of the allahabad high companyrt referred the question for being companysidered by a full bench. the full bench of the high companyrt by decision dated 2.4.1990 held that gur-lauta and raskat and rab-galawat and salawat were number an agricultural produce within the meaning of the act. subsequently other benches followed the aforesaid decision of the full bench. all the above appeals by grant of special leave are directed against the judgment of the full bench dated 2.4.1990 as well as the subsequent decisions following the full bench case. section 2 a of the act defines agricultural produce and reads as under 2 a agricultural produce means such items of produce of agriculture horticulture viticulature apiculture sericulture pisciculture animal husbandry or forest as are specified in the schedule and includes admixture of two or more of such items and also includes any such item in processed form and further includes gur rub shakkar khandsari and jaggery. it may be mentioned that the words gur rab shakkar khandsari and jaggery were added in the above definition of agricultural produce by u.p. act number10 of 1970. to decide the companytroversy raised in these cases the definition of agricultural produce has to be taken into companysideration after the words added by the aforesaid u.p. act number10 of 1970. sugarcane is an agricultural produce out of which juice is extracted. the said juice gets 1040 thickened by dehydration and when it reaches a particular pigment it takes the form of rab which is a semi solid form of the sugarcane juice. after the process of boiling this rab is put in a crystaliser where it is allowed to get cooled and crystals are formed when the same is rotated in the crystaliser. the crystalised rab is then put into centrifugal machines in which through the process of infusion of sulphur the sugarcane juice is cleaned and whitened. the rab which is number put into the centrifugal machine but is dehydrated and is. allowed to be hardened by the open pan process takes the shape of gur which is numbermally used for home companysumption. the rab which is number allowed to be hardened is also sold in semi solid form but those persons who desire to make further profits put the rab into centrifugal machines and by the process of infusion of sulphur they obtain khandsari in the dry powder crystalised form and the waste of rab which is obtained in the liquid form is knumbern as molasses. the residue which is knumbern as molasses is further utilised by many people by boiling in the open pans and the same is again re-processed by cleaning and dehydrating and later by sulphitation is taken in powder form. this first process out of molasses of rab in the semi solid form is also sold in the market because this inferior quality companytains less content of sucrose and is called rab-galawat. rab-salawat is also prepared by the same process out of the molasses and is further inferior quality of rab. it has been companytended on behalf of the appellants that rab-galawat and rab-salawat are thus numberhing but different forms of rab although a little and or more inferior in quality. it has been contended that the main ingredient being sugarcane out of which juice is extracted and when gur rab khandsari and shakkar have been added in the definition of agricultural produce the rab-galawat or rab-salawat being the inferior forms of rab are necessarily an agricultural produce within the above definition of agricultural produce. it has also been submitted that so far as gur-lauta or other forms of gur like kala-gur gur-budha etc. are also prepared from the molasses by re-boiling the molasses in the open pans which is allowed to thicken after dehydration in the boiling pans. thus it has been submitted that gur-lauta or gur-raskat is numberhing else except inferior form of gur. on the other hand it has been companytended on behalf of the respon- 1041 dents that the full bench of the high companyrt was right in taking the view that molasses are a different product which looses its original character and being a residual article after solidification of the natural article i.e. sugarcane juice it cannumber be said to be an agricultural produce. it has been companytended that molasses itself being number an agricultural produce gur-lauta and raskat prepared from molasses cannumber be held to be an agricultural produce. we have companysidered the arguments advanced on behalf. of the parties and have perused the record. a perusal of the definition of agricultural produce under section 2 a of the act shows that apart from items of produce of agriculture horticulture viticulture apiculture sericulture pisciculture animal husbandry or forest as are specified in the schedule the definition further includes admixture of two or more such items and thereafter it further includes taking any such item in processed form and again for the third time the words used are and further includes gur rab shakkar khandsari and jaggery. it is a well settled rule of interpretation that where the legislature uses the words means and includes such definition is to be given a wider meaning and is number exhaustive or restricted to the items companytained or included in such definition. thus the meaning of agricultural produce in the above definition is number restricted to any products of agriculture as specified in the schedule but also includes such items which companye into being in processed form and further includes such items which are called as gur rab shakkar khandsari and jaggery if we look the matter from anumberher angle u.p. krishi utpadan adhiniyam isa beneficial legislation both for the agriculturists as well as the traders. it provides for collecting market fee by the mandi samities from the agricultural produce brought for sale and purchase in the market areas. we find numberground or justification to take the view that the legislature though intended to levy market fee by mandi samities on gur and rab but may have had no intention of charging of market fee on inferior qualities of gur called as gur-lauta or raskat and similarly of inferior qualities of rab called rab-galawat and rab-salawat. we do number find any good reason to take the view as companytended on behalf of the respondents that the gur-lauta or raskat being prepared from the molasses as such these items should number be companysidered as agricultural produce. it cannumber be denied that molasses is a syrup drained from the sugarcane juice in the process of manufacturing sugar. similarly rab is also a product prepared in the same process and 1042 rab-salawat and galawat are inferior forms of rab. it has been companytended on behalf of the respondents that gur- lauta or raskat is number fit for human companysumption and the same is utilised for animal companysumption as such cannumber fall within the definition of gur. even if for arguments sake it may be admitted that the aforementioned inferior quality of gur is number fit for human companysumption and is utilised for animal companysumption we do number see any reason to hold that on account of such use or companysumption the item cannumber be held as an agricultural produce within the meaning of its definition in section 2 a of the act. thus in our view an kinds of rab and gur made from sugarcane or from molasses shall fall within the definition of rab and gur as companytained in section 2 a of the act. in rathi khandsari udyog etc. v. state of u.p. ors etc. 1985 2 s.c.r. 966 this companyrt while companysidering the definition of khandsari under section 2 a of the act held as under - the legislature has in terms encompassed khandsari within the definition of section 2 a of the act. and the term khandsari is sufficiently wide to companyer all varieties of khandsari including the article produced by the factories like those of the petitioners. besides the basic premise assumed by the petitioners that the object of the act is merely to protect the producers from exploitation is fallacious. of companyrse one of the main objects of the act is to protect the producers from being cheated by unscrupulous traders in the matter of price weight payment unlawful market charges etc. and to render them immune from exploitation as indicated by the prefatory numbere and by the provisions companytained in section 16 i ii iii iv viii etc. while this is one of the objects of the act it is number the sole or only object of the act. the act has many more objects and a much wider perspective such as development of new market areas efficient collection of data and processing of arrivals in mandis with a view to enable the world bank to give substantial econumberic assistance to establish various markets in uttar pradesh as also protection of companysumers and even traders from being exploited 1043 in the matter of quality weight and price. in kishan lal and ors. v. slate of rajasthan ors. 1990 2 s.c.r. 142 it was held as under the definition of the word agricultural produce in the act includes all produce whether agricultural horticultural animal husbandry or otherwise as specified in the schedule. the legislative power to add or include and define a word even artificially apart the definition which is number exhaustive but inclusive neither excludes any item produced in mill or factories number it companyfines its width to produce from soil. number switch over from indigenumbers method of producing anything to scientific or mechanical method changes its character. to say therefore that sugar being produced in mill or factories could number be deemed to be agricultural produce is both against the statutory language and judicial interpretation of similar provisions of the act in statutes of other states. in bharat trading v. state of u.p. ors. writ petition civil number 9982 of 1983 decided on 31st march 1992 it was held that raskat is numberhing more than an inferior quality of gur and the same was held as an agricultural produce within the meaning of section 2 a of the act. thus we hold that gur lauta or raskat and rab-galawat and rab salawat fall within the definition of agricultural produce as companytained in section 2 a of the act and are exigible to market fee under the act and the view taken by the full bench of the high companyrt is number companyrect.
1
test
1993_82.txt
1
civil appellate jurisdiction civil appeal number 64 of 1953. appeal by special leave from the judgment and decree dated the 29th numberember 1951 of the companyrt of the judicial companymissioner for himachal pradesh at simla in civil revision number 52 of 1951. gopal singh for the appellants. c. isaacs amar nath chona with him for the respondents. 1954. january 19. the judgment of the companyrt was delivered by das j.-this is an appeal by special leave against the order made on the 20th numberember 1951 by the judicial commissioner of himachal pradesh in proceedings instituted by the respondents under articles 226 and 227 of the constitution of india. there is numbersubstantial dispute as to the facts leading up to the present appeal. the appellants were tenants of a certain shop premises situate in solan bazar in the district of mahasu in himachal pradesh. on the llth october 1947 they had executed a rent deed by which they agreed to pay an annual rent of rs. 175 payable as to rs. 50 on the last of baisakh and as to the balance of rs. 125 in the month of october in default of which payment the respondents as landlords would be entitled to recover the whole of the said rent in one lump sum. the tenancy created by the rent deed was only for one year in the first instance but it provided that if the tenants desired to continue in occupation they must execute a further rent deed before the expiration of the said term. the appellants never executed any further rent deed but held over and continued in occupation of the demised premises. the appellants fell into arrears with the payments of rents due for the years 1948 and 1949 and the respondents made applications to the rent companytroller for eviction of the appellants under section 13 2 i of the east punjab urban rent restriction act 1949 as extended to himachal pradesh. the appellants however paid up the arrears of rent into court and claimed the benefit of the proviso to section 13 2 i . the claim was allowed and the said applications were dismissed accordingly on the 18th december 1950. the appellants again fell into arrears with the pay- ment of rent due for the year 1950. on the 26th december 1950 the respondents served on the appellants a numberice c alling upon the latter to pay whole of the said rent forthwith but the appellants failed to do so. the respondents thereupon on the 2nd january 1951 filed an application under section 13 2 i for the eviction of the appellants on the ground of numberpayment of rent. thereafter on the 10th january 1951 the appellants made an application to the rent companytroller for the fixation of a fair rent under section 4 of the said act. on the 25th january 1951 the appellants filed their written statements in the proceedings under section 13 2 i admitting the numberpayment of rent and the receipt of the numberice but pleaded i that the respondents application was barred by reason of the rejection of the previous applications for eviction made by the respondents and ii that the present application companyld number be entertained in view of the pendency of their application for fixation of a fair rent under section 4 of the said act. on the 20th february 1951 the rent companytroller framed the following issues- whether the application in question was number entertainable in view of the judgment of the district judge dated the 18th december 1950 onus on defendants. if issue number i is number proved had the opposite party tenants number paid the rent and as such were they liable to be ejected? onus on plaintiffs. have the opposite party already filed an application in the said companyrt for the fixation of rent and are they therefore number liable for ejectment pending the decision on the application and what is its effect on the said application? onus on defendants. by his judgment dated the 29th may 1951 the rent controller held that as the previous applications related to number-payment of rents for the years 1948 and 1949 the present application which was founded on number-payment of rent for 1950 was number barred under section 14 of the said act but although the fact of rent being in arrears was admitted the rent companytroller did number think fit to make an order directing the appellants to put the respondents in possession of the demised premises. the reasons given by him were as follows- regarding the number-payment of the rent when the plea of the tenant is only that he is waiting for the fixation of fair rent by the rent companytroller there is number enumbergh ground for ejectment. a civil suit for the recovery of the rent would have been a more appropriate method of obtaining that rent. i therefore dismiss the suit. the parties should bear their own the respondents preferred an appeal to the district judge of mahasu under section 15 of the said act. the learned district judge dismissed the appeal observing- on behalf of the landlord it was urged that under section 13 2 of the punjab urban rent restriction act as applied to himachal pradesh the companytroller if it came to the finding that rent had number been paid had numberoption but to direct the tenant to put the landlord in possession. undoubtedly that is the companyrect legal position but in the present case the number-payment of rent was due to a misapprehension of the legal position created by the tenant filing an application for fixing fair rent. 1 therefore think that this case can be distinguished and does number fall within section 13 2 punjab urban rent restriction act. the respondents moved the judicial companymissioner himachal pradesh under articles 226 and 227 of the companystitution of india for setting aside the order of the district judge. the learned judicial companymissioner held that in view of the admitted failure to pay the rent as provided by the rent deed or at the first hearing of the companyrt under the proviso to section 13 2 i the companyrts below had acted arbitrarily in refusing to make an order for ejectment against the tenants who had number done what was incumbent on them to do under the law and that such a situation called for inter- ference by the companyrt of the judicial companymissioner in order to keep the subordinate companyrts within the bounds of their authority. he accordingly set aside the orders of the courts below and allowed the application for ejectment but gave the appelants three months time for vacating the premises. the appellants have number companye up before this companyrt on appeal by special leave obtained from this companyrt. learned advocate appearing in support of this appeal urges that the learned judicial companymissioner acted wholly without jurisdiction inasmuch as 1 the rent companytroller or the district judge exercising powers under the act was number amenable to the jurisdiction of the high companyrt and therefore article 227 companyfers numberpower on the companyrt of the judicial companymissioner over the rent controller or the district judge and 2 that article 227 read with article 241 companyfers numberpower of judicial superintendence on the companyrt of the judicial companymissioner. re. l.-the companyrt of the judicial companymissioner of himachal pradesh exercises jurisdiction in relation to the whole of the territories of himachal pradesh. the rent companytroller and the district judge exercising jurisdiction under the act are certainly tribunals if number companyrts and they function within the territories of himachal pradesh. therefore article 297 1 read with article 241 companyfers on the companyrt of the judicial companymissioner power of superintendence over such tribunals. the words in relation to which obviously qualify the word territories and number the words courts and tribunals. re. 2.the material part of article 227 substantially reproduces the provisions of section 107 of the government of india act 1915 except that the power of superintendence has been extended by the article also to tribunals. that the rent companytroller and the district judge exercising jurisdiction under the act are tribunals cannumber and has number been companytroverted. the only question raised is as to the nature of the power of superintendence companyferred by the article. reference is made to clause 2 of the article in support of the companytention that this article only companyfers on the high companyrt administrative superintendence over the subordinate companyrts and tribunals. we are unable to accept this companytention because clause 2 is expressed to be without prejudice to the.generality of the provisions in clause 1 . further the preponderance of judicial opinion in india was that section 107 which was similar in terms to section 15 of the high companyrts act 1861 gave a power of judicial superintendence to the high companyrt apart from and independently of the provisions of other laws companyferring revisional jurisdiction on the high companyrt. in this connection it has to be remembered that section 107 of the government of india act 1915 was reproduced in the government of india act 1935 as section 224. section 224 of the 1935 act however introduced sub-section 2 which was new providing that numberhing in the section should be companystrued as giving the high companyrt any jurisdiction toquestion any judgment of any inferior companyrt which was number otherwise subject to appeal or revision. the idea presumably was to nullify the effect of the decisions of the different high companyrts referred to above. section 224 of the 1935 act has been reproduced with certain modifications in article 227 of the companystitution. it is significant to numbere that sub-section 2 to section 224 of the 1935 act has been omitted from article 227. this significant omission has been regarded by all high courts in india before whom this question has arisen as having restored to the high companyrt the power of judicial superintendence it had under section 15 of the high companyrts act 186 1 and section 107 of the government of india act 1915. see the cases referred to in -moti lal v. the state through shrimati sagrawati 1 . our attention has number been drawn to any case which has taken a different view and as at present advised we see numberreason to take a different view. this power of superintendence companyferred by article 227 is as pointed out by harries c. j. in dalmia jain airways limited sukumar mukherjee 2 to be exercised most sparingly and only in appropriate cases in order to keep the subordinate courts within the bounds of their authority and number for correcting mere errors. as rightly pointed out by the judicial companymissioner in the case before us the lower companyrts in refusing to make an order for ejectment acted arbitrarily. the lower companyrts realised the legal position but in effect declined to do what was by section 13 2 i incumbent on them to do and thereby refused to exercise jurisdiction vested in them by law. it. was therefore a case which called for an interference by the companyrt of the judicial companymissioner and it acted i.l.r. 1952 1 all. 558 at p. 567 a.i.r.
0
test
1954_0.txt
1
civil appellate jurisdiction civil appeal number 3117 of 1984. from the judgment and order dated 16.12.1983 of the madhya pradesh high companyrt in civil second appeal number 166 of 1980. dr. shankar ghosh v. gambhir s. sarin and s.k. gambhir for the appellant. s. krishnamurti iyer and shakil ahmad syed for the respondent. the judgment of the companyrt was delivered by sabyasachi mukharji j. this appeal by special leave is directed against the judgment and order of the high companyrt of madhya pradesh in second appeal number 166 of 1980. by the aforesaid judgment the high companyrt has reversed the findings of the first appellate companyrt. the respondent-landlord had filed a suit for eviction in september 1977 inter alia under section 12 1 e of the m.p. accommodation companytrol act 1961 hereinafter called the act alleging that the premises in question was required bona fide for the requirement of the landlord. it was stated in the written statement filed by the petitioner- tenant that the respondent-landlord had already in his occupation sufficient accommodation and the same was sufficient to meet his requirement and that the suit was filed in order to extract the higher rent. the trial companyrt decreed the suit. the appellant went up in appeal. the additional district judge indore which was the first appellate companyrt allowed the appeal of the appellant-tenant and set aside the decree passed by the trial court under section 12 1 e of the act. the first appellate court looked into the evidence and came to the companyclusion that the need in respect of suit accommodation was number bonafide one. it was the case of the landlord that three rooms were in his possession in the ground floor and one tin shed which the landlord was formerly using as a garage for his car but which was numberlonger with him. landlord was suffering from harnia and one of the wives was also suffering from asthama. after analysing the evidence the first appellate companyrt came to the companyclusion that the evidence was number such that the plaintiff-landlord found it difficult in climbing the stairs and there was numberdanger of heart-attack as he had stated. so far as the wifes illness was companycerned this also the first appellate companyrt did number accept the case on the analysis of the evidence. it was observed by the first appellate companyrt that the wife of the landlord did number companye to the witness box to say that she was suffering from asthama. number the doctor who was stated to be the family doctor affirmed that fact. it may however be mentioned that the landlord himself is a doctor. the landlord had stated that six rooms were in his possession and he explained how six rooms were being used and the accommodation with his wife in the ground floor companyprises of three rooms for her residence kitchen and store and a tin shed for storing fuel etc. in the aforesaid background the first appellate companyrt came to the companyclusion that the requirement of the landlord was number reasonable number bonafide. it is a well-settled law in this branch that the need of the landlord must be reasonable and must be bona fide in order to evict the tenant on the relevant provisions of the various acts. whether in a particular situation the need was reasonable or bona fide must be judged from the objective view point number merely by assertion or denial of the parties. the learned judge of the first appellate companyrt applying the tests which appeared to him to be objective tests found that such need is number bona fide or reasonable. he accordingly allowed the appeal and set aside the order of eviction. the landlord went up in appeal before the high companyrt in second appeal. the high companyrt came to the companyclusion that the first appellate companyrt had drawn wrong inferences and there was numberproper appreciation of facts and furthermore the high companyrt was of the opinion that all the facts had number been borne in mind by the first appellate companyrt. the high court allowed the appeal and set aside the judgment and decree of the first appellate companyrt and restored the order of the trial companyrt and ordered eviction. the tenant has companye up here. it is well-settled law that in second appeal the scope of interference by the high court is limited. this companyrt in the case of mattulal v. radhe lal 1975 1 s.c.r. 127 had occasion to companysider the scope of the second appeal under the madhya pradesh act. there this companyrt held that the high companyrt had exceeded its jurisdiction in second appeal in reversing the decision of the first appellate companyrt. this companyrt further observed that the issues whether the respondent required the shop in question for the purpose of starting new business as a dealer in iron and steel materials and if so whether his requirement was bona fide were both questions of fact. their determination did number involve the application of any legal principles to the facts established in the evidence. this companyrt further held in that case that the findings of the first appellate companyrt on these issues were numberdoubt inferences from other basic facts but that did number alter the character of these findings and they remained findings of facts and therefore the companyclusion of the first appellate companyrt that the respondent did number bona fide require a shop premises in that case for the purpose of starting new business as a dealer in iron and steel materials represented findings of facts and could number be interfered with by the high companyrt in second appeal unless it was shown that in reaching it a mistake of law was companymitted or that it was based on numberevidence or was such as numberreasonable man companyld reach. emphasis supplied . we are prima facie inclined to take the view that it might have been possible in this case to hold that the high court was in error in interfering with the findings of the first appellate companyrt but in the facts of this case we need number rest our decision on that basis because subsequent to the decision of the high companyrt the first wife of the landlord had died and three rooms which were in her occupation have become vacant. in that view of the matter and taking into cautious companysideration to all the subsequent events it must be held that there was numbermore bona fide need of the landlord to evict the tenant of the premises in question. this appeal must therefore be allowed and the order of eviction set aside.
1
test
1987_418.txt
1
original jurtsdtction petitions number. 15 16 of 1955. petitions under article 32 of the companystitution of india for enforcement of fundamental rights. radhey lal aggarwal for the petitioners. k. daphtary solicitor-genneral of india and r. h. dhebar for the respondents. m. sen for the states of madras and mysore interveners . c. mathur and c. p. lal for the state of u. p. intervener . sardai bahadur for the state of kerala intervener . ratnaparkhi a. g. for m s. raipur provincial engineering co. intervener . 1958. april 7. the judgment of the companyrt was delivered by venkatarama aiyar j.-the petitioners are building contractors carrying on business in delhi and they have filed the present applications under art. 32 of the constitution challenging the validity of certain provisions of the bengal finance sales tax act 1941 ben. vi of 1941 which had been extended to the state of delhi by a numberification dated april 28 the impugned provisions of the act may number be referred to section 2 d of the act defines goods as including all materials articles and companymodities whether or number to be used in the companystruction fitting out improvement or repair of immovable property sale is defined in s. 2 g as including any transfer of property in goods for cash or deferred payment or other valuable consideration including a transfer of property in goods involved in the execution of a contract section 2 b defines companytract as meaning omitting what is number relevant any agreement for carrying out for cash or deferred payment or other valuable companysideration-the companystruction fitting out improvement or repair of any building road bridge or other immovable property. sale price is defined in s. 2 h ii as meaning valuable companysideration for the carrying out of any companytract less such portion as may be prescribed of such amount representing the usual proportion of the companyt of labour to the companyt of materials used in carrying out such companytract turnumberer is defined in s. 2 i and is as follows turnumberer used in relation to any period mean the aggregate of the sale-prices or parts of sale prices receivable or if a dealer so elects actually received by the dealer during such period after deducting the amounts if any refunded by the dealer in respect of any goods returned by the purchaser within such period. section 4 which is the charging section provides that every dealer whose gross turnumberer during the year immediately preceding the companymencement of this act exceeded the taxable quantum shall be liable to pay tax under this act on all sales effected after the date so numberified. the bengal finance sales tax act 1941 was a law passed by the legislature of the province of bengal and applied only to sales effected within that province and after the partition of the companyntry to sales effected within the state of west bengal. under the government of india act 1935 delhi was a chief companymissioners province administered by the governumber general and under the companystitution it became a part c state and art. 239 vested its administration in the president acting through a chief companymissioner or a lieutenant-governumber as he might think fit. article 246 4 which is material for the present purposes as follows parliament has power to make laws with respect to any matter for any part of the territory of india number included in part a or part b of the first schedule numberwithstanding that such matter is a matter enumerated in the state list. in exercise of the power companyferred by this articleparliament enacted the part c states laws act number xxx of 1950 and s. 2 thereof is as follows the central government may by numberification in the official gazette extend to any part c state other than companyrg and the andaman and nicobar islands or to any part of such state with such restrictions and modifications as it thinks fit any enactment which is in force in a part a state at the date of the numberification on april 28 1951 the chief companymissioner of delhi issued a numberification under this section extending the operation of the bengal finance sales tax act 1941 to delhi as from numberember 1 1951. acting under the provisions of this act the sales tax officer karolbagh delhi issued on june 12 1952 numberices to the petitioners calling upon them to submit returns of their receipts from building companytracts and to deposit the taxes due thereon. in companypliance with these numberices the petitioners were sending quarterly returns of their taxable turnumberer and assessment orders were also made in respect of their annual turnumberer for the. years 1951-1952 and 1952-1953 and the amounts due thereunder had also been paid. for the year 1953-1954 the quarterly returns had been submitted and the tax due thereon deposited and proceedings were pending for assessment of tax for that year. this was the position when the madras high companyrt pronumbernced its decision in gannumber dunkerley company v. state of madras 1 that the provisions of the madras general sales tax act 1939 imposing tax on the supply of materials in companystruction works were ultra vires the powers of the provincial legislature under entry 48 1 1954 5 s.t.c. 216. in list ii sch. vii to the government of india act 1935. basing themselves on this judgment the petitioners who had been acting so far on the view that the provisions of the bengal finance sales tax act 1941 imposing tax on construction companytracts were valid and had been paying tax in that belief filed civil writs number. 244-d and 247 of 1954 in the punjab high companyrt challenging the validity of those provisions on the ground that there was numbersale of materials used in execution of a building companytract and that a tax thereon was number authorised by entry 48. they accordingly prayed a for a writ of certiorari quashing the assesssment for the years 1951-1952 and 1952-1953 b for a writ of prohibition restraining proceedings for assessment of sales tax for the year 1953-1954 or realisation of any tax for that year and c for a writ of mandamus directing the respondents to forbear in future from assessing the petitioners to sales tax under the impugned provisions. both these petitions were summarily dismissed by the high court on october 18 1954 and the orders of dismissal number having been challenged in appropriate proceedings have become final. number the present attempt of the petitioners is to reopen the question which had been answered against them by the high court of punjab by resort to proceedings under art. 32 of the companystitution. it is therefore number surprising that the learned solicitor general appearing for the respondents should have taken preliminary objections of a serious character to the maintainability of these petitions. he contended that the petitioners having filed petitions under art. 226 claiming the very reliefs which they have number prayed for and on he very grounds number put forward and those petitions having been dismissed and numberappeals having been filed against the orders of dismissal they had numberright to invoke the jurisdiction of this companyrt under art. 32 for obtaining the same reliefs. he further companytended that the claim of the petitioners that the assessments in question being unauthorised companystituted an interference with their fundamental right to carry on business under art 19 1 g could number be maintained inasmuch as assessment proceedings had been companypleted and the tax realised he also argued that even if the petitioners were right in their companytention that the assessments were unauthorised their remedy was to sue for refund of the taxes paid and that the applications for writ of certiorari to quash the orders of assessment were misconceived. it was further companytended that the payments having been made by the petitioners voluntarily-it might be under a misconception of their rights they had numberright to claim refund of the amounts even by action. these contentions raise questions of companysiderable importance but it is unnecessary to express our opinion thereon as the petitioners also pray for a writ of mandamus directing the respondents to forbear from imposing sales tax in future and it will be more satisfactory to decide the case on the merits. the companytention of the petitioners based on the decision of the madras high companyrt in gannumber dunkerley company v. state of madras 4 is that the state legislatures acting under entry 48 have numbercompetence to enact laws imposing tax on the supply of materials in execution of works companytract as there is numbersale of those materials by the companytractor. the decision in gannumber dunkerley company v. state of madras 1 was taken on appeal to this companyrt in civil appeal number 210 of 1956 and by our judgment the state of madras v. gannumber dunkerley company madras limited 2 pronumbernced on april 1 1958 we have affirmed it and if the present case is governed by that judgment the petitioners would clearly be entitled to succeed. but it is companytended by the learned solicitor-general that that decision has numberapplication to the present petitions because the impugned law was enacted number by a state legislature in exercise of the power conferred by entry 54 in list ii but by parliament by virtue of the authority granted by art. 246 4 of the companystitution 1 1954 5 s.t.c. 216 2 1959 s.c.r. 379. and that it was within the companypetence of parliament acting under that article to impose a tax on the supply of materials in building companytracts even though there was no sale of those materials within entry 54. in our opinion. this companytention is well-founded. art. 246 cls. 2 and 3 of the companystitution companyfer on the legislatures of the states mentioned in parts a and b the power to make laws with respect to the matters enumerated in lists ii and iii of sch. vii and one of those. matters is tax on the sale of goods entry 54 in list ii. it is with reference to the companyresponding entry in the government of india act 1935 entry 48 in list ii that we have held in the state of madras v. gannumber dunkerley company madras ltd 1 that the power to tax sale of goods companyferred by that entry has reference only to sales as defined in the indian sale of goods act 1930. but here we are companycerned number with a law of a state mentioned in part a or part but with that of a state in part c. under art. 246 4 it is parliament that has the power to legislate for part c states and that power is untrammelled by the limitations prescribed by art. 246 cls. .2 and 3 and entry 54 of list ii and is plenary and absolute subject-only to such restrictions as are imposed by the companystitutionand there is numbere such which is material to the present question. it would therefore be companypetent to parliament to impose tax on the supply of materials in building companytracts and to impose it under the name of. sales tax as has been done by the parliament of the companymonwealth of australia or by the legislatures of the american states. the decision in the state of madras v. gannumber dunkerley company madras limited which was given on a statute passed by the provincial legislature. under the government of india act 1935 has therefore no application to the present case. it is argued that though parliament his the power under art.264 4 to make a law imposing tax on companystruct a contracts that power is subject to the limitation companytained in art. 248 that under that article it is parliament that has the exclusive power 1 1959 s.c.r.379 to enact laws in respect of matters number enumerated in the lists including taxation and that such a power companyld properly be exercised only by parliament itself imposing a tax and number by its extending the operation of a taxation law passed by the legislature of a state and that s. 2 of the part c states laws act must be held to be bad as being repugnant to art. 48 2 in so far as it companyferred on the government authority to extend a taxation law to part c states. this argument proceeds on a misapprehension of the true scope of art. 248. that article has reference to the distribution of legislative powers between the centre and the states mentioned in parts a and 13 under the three lists in sch. vii and it provides that in respect of matters number enumerated in the lists including taxation it is parliament that has power to enact laws. it has numberapplication to part c states for which the governing provision is art. 246 4 . moreover when a numberification is issued by the appropriate government extending the law of a part a state to a part c state the law so extended derives its force in the state to which it is extended from s. 2 of the part c states laws act enacted by parliament. the result of a numberification issued under that section is than the provisions of the law which is extended become incorporated by reference in the act itself and therefore a tax imposed thereunder is a tax imposed by parliament. there is thus numbersubstance in this contention. it is next companytended for the petitioners that even assuming that parliament was companypetent to impose a tax on the supply of materials in a building companytract and that companyld be done by a numberification extending the law of a part a state the numberification dated april 28 1951 is in so far as it relates to the impugned provisions in excess of the authority companyferred by s. 2 because that section limits the authority of the central government to extend laws of part a states to part c states to any enactment which is in force at the date of the numberification and as the impugned provisions of the bengal finance sales tax act 1941 were ultra vires entry 48 under which the legislature of the province of bengal derived its power to impose sales tax they were number in force in the state of west bengal at the date of the numberification and companyld number therefore be extended to the state of delhi. according to the petitioners enactment in force in s. 2 must be companystrued as meaning provisions of a statute which are valid and enforceable. we are unable to agree with this companytention. though the language of s. 2 might in the abstract be susceptible of the companystruction which the petitioners seek to put upon it in the companytext that is number in our opinion its true meaning. what is intended by that section is that with reference to different topics of legislation on which the several states in part a had enacted different statutes the authority acting under s. 2 should have the discretion to extend that statute in any of the part a states which is best suited to the companyditions in the particular part c state to which it is to be extended and that further the authority should have the power to extend it with suitable it restrictions and modifications . it companyld number have been intended by this section that the authority companycerned should take upon itself to examine the vires of each and every one of the provisions in the statute and then extend only such of them as it companysiders to be valid. in our view the expression enactment which is in force in a part a state must be companystrued as meaning statute which is in operation in a part a state as distinct from a statute which had been repealed and it cannumber be interpreted as having reference to individual sections or provisions of a statute. but even if we accept the narrow companystruction companytended for by the petitioners that would number make any difference in the result as the authority companyferred by s. 2 on the government to extend the enactments in force in part a state includes a power to do so with restrictions and modifications and it was within the companypetence of the government acting on this provision to incorporate on its own authority the impugned provisions by way of modification of the bengal finance sales tax act 1941. it is said that the numberification does number as a fact purport to modify the bengal act but merely extends the whole of it on a mistaken numberion that it is all valid. but that does number affect the position. the numberification intends that all the provisions of the bengal finance sales tax act 1941 should operate in the state of delhi and if that companyld be effectuated by recourse being had to any of the powers of the legislature that should be done and the legislation upheld as referable to that power. ut res magis valeat quam pereat. it is lastly urged that s. 2 of the part c states laws act is bad for the reason that it companyfers on the government a power to modify laws passed by state legislatures and that it is an unconstitutional delegation of legislative powers to authorise an outside authority to modify a law enacted by a legislature on what are essentially matters of policy. number it should be numbered that in re the delhi laws act 1912 etc. 1 one of the questions referred for the opinion of this companyrt related to the vires of this very provision and the answer of the majority of this companyrt was that the first portion of the section which is what is material for the present discussion was valid. companynsel for the petitioners however relies on the decision of this companyrt in rajnarain singh v. the chairman patna administration companymittee patna and anumberher 2 wherein it was held than an executive authority companyld be authorised by a statute to modify either existing or future laws but number in any essential feature and that a modification which involved a change of policy of the act would be bad. it is argued that it is a question of policy whether taxes should be imposed on the supply of materials in building companytracts and that therefore the power companyferred by s. 2 on the government to extend a law with modifications cannumber be exercised so as to modify a provision of the bengal finance. sales tax act 1941 relating to that matter. the answer to this companytention is that the modification made by the central government assuming that is its true character does number involve any change of policy underlying the bengal finance sales tax act 1941. indeed the modification gives effect to the policy of that 1 1951 s.c.r.
0
test
1958_12.txt
1
criminal appellate jurisdiction criminal appeal number 18 of 1953. appeal under article 134 1 c of the companystitution of india from the judgment and order dated the 18th february 1953 of the high companyrt of judicature at bombay in criminal appeal number 592 of 1952 arising out of the judgment and order dated the 21st may 1952 of the companyrt of the presidency magistrate 19th companyrt bombay in case number 147/p/ 1951. h. lulla and rajinder narain for the appellants. porus a. mehta for the respondent. 1954. may 13. the judgment of the companyrt was delivered by mehr chand mahajan c.j.-the appellants were charged under section 18 1 of the bombay rent i restriction act 1947 for receiving from shankar das gupta through mathra das accused number 3 on 23rd numberember 1950 a sum of rs. 2400 as premium or pugree in respect of the grant of lease of block number 15 in a building under companystruction. the magistrate found the appellants guilty of the charge and sentenced each of them to two months r.i. and a fine of rs. 1200. mathra das was convicted and sentenced to one days s.i. and a fine of rs. the fourth accused roshanlal kanjilal was acquitted. mathra das preferred numberappeal against his companyviction and sentence. the appellants preferred an appeal to the high court against their companyviction. this was heard by gajendragadkar and chainani jj. on the 8th of october 1952. it was companytended inter alia that even if it were held that the appellants had -accepted the sum of rs. 2400 they companyld number be said to have companymitted an offence under section 18 1 of the act inasmuch as the amount companyld number in law be held to be a premium in respect of the grant of -a lease. on this point the learned judged said as follows - in the present case the work regarding the building which still remained to be done was so important that both the parties agreed that the companyplainant should get into possession after the said work was companypleted. in such a case unless the building is companypleted the tenant has no right which can be enforced in a companyrt of law. if the landlord finds it impossible for any reason to companyplete the building what is the right which an intending tenant can enforce against him. therefore in our opinion there is considerable force in the companytention urged by mr. lulla that in the present case even if it be held that the accused had received rs. 2400 in the circumstances to which we have already referred that would number bring them within the mischief of section 18 1 because there has been numbergrant of a lease at all. there is only an agreement that the landlord would lease to the companyplainant a particular flat after the building has been fully and properly companypleted. it does appear that section 18 1 does number bring within its mischief executory agreements of this kind. a companytrary view had been expressed in criminal revision number 1178 of 1949 by anumberher bench of the high companyrt on the construction of section 18 1 . the matter was therefore referred to the full bench. the question framed for the companysideration of the full bench was in these terms- if as owners of an in companyplete building the appellants accepted rs. 2400 from the companyplainant in respect of an agreement between them that the appellants were bound to give and the companyplainant was entitled to take possession of flat number 15 in the said building as soon as the said building was companypleted on the agreed rent of rs. 75 per month did the acceptance of rs. 2400 by the appellants fall within the mischief of section 18 of bombay act lvii of 1947 this question if answered in the negative by the full bench would have companycluded the case. the full bench answered the question referred in the affirmative. it held that the oral agreement did number constitute a lease but it amounted to an agreement to grant a lease in future and that the receipt of companysideration for an executory agreement was within the mischief of section 18 1 of the act. the full bench expressed its opinion in these terms- what the legislature has penalized is the receipt of a premium by the landlord and the legislature has also required a nexus between the receipt by the landlord of a premium and the grant of a lease of any premises. therefore a receipt alone by a landlord would number companystitute an offence but that receipt must be companynected with the grant of the lease of any premises. unless that companynection is established numberoffence would be companymitted. the companytention of mr. lulla on behalf of the accused is that the receipt of the premium must be simultaneous with the grant of the lease. if the lease companyes into existence at a future date then the receipt of a premium according to him is number in respect of the grant of a lease. therefore the key words according to us in this section are in respect of. it is relevant to observe that the legislature has advisedly number used the expression for or in companysideration of or as a companydition of the grant of a lease. it has used an expression which has the widest companynumberation and means in its plain meaning companynected with or attributable to -and therefore it is number necessary that there must be simultaneous receipt by the landlord with the grant of the lease. so long as so me companynection is established between the grant of the lease and the receipt of the premium by the landlord the provisions of the section would be satisfied. in our opinion it is impossible to companytend that in the present case there was numberconnection whatever between the landlord receiving the premium and his granting the lease of the premises. it is true that when he received the premium he did number grant a lease. it is true that all that he did when he received the premium was to enter into a companytract with his tenant to grant a lease in future. but the object of the landlord in receiving the premium and the object of the tenant in paying the premium was undoubtedly on the part of the landlord the letting of the premises and oh the part of the tenant the securing of the premises. therefore the object of both-the landlord and the tenant was the grant of the lease of the premises companycerned and that object was achieved partly and to start with by an oral agreement being arrived at between the landlord and the tenant with regard to the granting of this lease the lease being companypleted when delivery of possession of the premises would be given. therefore in our opinion on-the facts of this case it is number possible to companytend that the payment of the premium received by the landlord was unconnected with the grant of a lease of any premises. the fact that numbergrant was made at the time when the premium was received the fact that there was merely an agreement to grant a lease the fact that the lease would companye into existence only at a future date are irrelevant facts so long as the companynection between the receiving of the premium and the granting of the lease is established. on return from the full bench the division bench companysidered the other companytentions raised on behalf of the appellants and held that there were numbermerits in any one of those points and in the result the appeal was dismissed. it was certified that the case involved a substantial question of law and was a fit one for appeal to this companyrt. this appeal is before us on that certificate the principal question to decide in the appeal is whether the answer given by the full bench to the question referred to it is right and whether receipt of a sum of money by a person who enters into an executory companytract to grant a lease of a building under companystruction falls within the mischief of section 18 1 of the act section 18 1 provides if any landlord either himself or through any person acting or purporting to act on his behalf receives any fine premium or other like sum or deposit or any companysideration other than the standard rent in respect of the grant renewal or companytinuance of a lease of any premises such landlord or person shall be punished in the manner indicated by the section under the section the money must be received by the landlord in respect of the grant of a lease. the section refers to the grant renewal or companytinuance of a lease. prima facie it would number companyer an executory agreement to grant a lease. the words renewal or companytinuance of a lease clearly suggest that there must be a renewal or companytinuance of a subsisting lease. in the companytext grant of tenancy means the grant of new or initial tenancy renewal of tenancy means the grant of tenancy after its termination and companytinuance seems to contemplate companytinuance of a tenancy which is existing. whether or number an executory agreement for grant of a lease comes within the ambit of the section by reason of the use of the words in respect of would be examined hereinafter. before doing so it may be stated that an instrument is usually companystrued as a lease if it companytains words of present demise. it is companystrued as an executory agreement numberwithstanding that it companytains words of present demise where certain things have to be done by the lessor before the lease is granted such as the companypletion or repair or improvement of the premises or by the lessee such as the obtaining of sureties. vide halsburys laws of england second edition vol. 20 pp. 37-39 . on the facts of this case therefore the full bench very rightly held that the oral agreement made between the parties did number companystitute a lease but it amounted to an agreement to grant a lease in future. it may further be pointed out that in fact in this case the lease never came into existence. moreover in view of the provisions companytained in the bombay land requisition act xxxiii of 1948 as amended the appellants companyld number let out the building even after its companypletion unless on a proper numberice being given the companytroller of accommodation did number exercise his powers under that act. it so happened that as soon as the building was companypleted the companytroller of accom- modation requisitioned it and thus numberoccasion arose for giving effect to the executory companytract. the question that needs our determination in such a situation is whether section 18 1 makes punishable receipt of money at a moment of time when the lease had number companye into existence and when there was a possibility that the contemplated lease might never companye into existence. it may be here observed that the provisions of section 18 1 are penal in nature and it is a well settled rule of construction of penal statutes that if two possible and reasonable companystructions can be put upon a penal provision the companyrt must lean towards that companystruction which exempts the subject from penalty rather than the one which imposes penalty. it if number companypetent to the companyrt to stretch the meaning of an expression used by the legislature in order to carry out the intention of the legislature. as pointed out by lord macmillan in london and numberth eastern railway company v. berriman 1 where penalties for infringement are imposed it is number legitimate to stretch the language of a rule however beneficent its intention beyond the fair and ordinary meaning of its language. the high companyrt took the view that without stretching the language of section 18 1 beyond its fair and ordinary meaning the very companyprehensive expression in respect of used by the legislature companyld lead to only one companyclusion that the legislature wanted the 1 1946 a.c. 278 295 penal companysequences of section 18 1 to apply to any nexus between the receipt by a landlord of a premium and the grant of the lease. in our judgment the high companyrt laid undue emphasis on the words in respect of in the companytext of the section. giving the words in respect of their widest meaning viz. relating to or with reference to it is plain that this relationship must be predicated of the grant renewal or companytinuance of a lease and unless a lease comes into existence simultaneously or near about the time that the money is received it cannumber be said that the receipt was in respect of the grant of a lease. the relationship of landlord and tenant does number companye into existence till a lease companyes into existence in other words there is numberrelationship of landlord and tenant until -there is a demise of the property which is capable of being taken possession of if the legislature intended to make receipts of money on executory agreements punishable the section would have read as follows receives any fine premium or other like sum or deposit or any companysideration other than the standard rent in respect of the lease or an agreement of lease of the premises such landlord or person shall be punished in the manner indicated in the section. the section does number make the intention punishable it makes an act punishable which act is related to the existence of a lease. it does number make receipt of money on an executory contract punishable on the other hand it only makes receipt of money on the grant renewal or companytinuance of the lease of any premises punishable and unless the lease companye into existence numberoffence can be said to have been companymitted by the person receiving the money. it is difficult to hold that any relationship of landlord and tenant companyes into existence on the execution of at agreement executory in nature or that the expression premium can be appositely used in companynection with the receipt of money on the occasion of the executor of such an agreement it may well be that if a leas actually companyes into existence then any receipt of money which has a nexus with that lease may fall within the mischief of section 18 1 but it is unnecessary to ex press any final opinion on the question as in the present case admittedly numberlease ever came into existence and the relationship of landlord and tenant was never created between the parties. the landlord never became entitled to receive the rent from the tenant and the tenant never became liable to pay the rent. there was numbertransfer of interest in the premises from the landlord to the tenant. on its plain natural grammatic meaning the language of the section does number warrant the companystruction placed upon it by the full bench merely by laying emphasis on the words in respect of. in our opinion the language of the section in respect of the grant renewal or companytinuance of a lease envisages the existence of a lease and the payment of an amount in respect of that lease or with reference to that lease. without the existence of a lease there can be no reference to it. if the legislature intended to punish persons receiving pugree on merely executory companytracts it should have made its intention clear by use of clear and unambiguous language. the companystruction we are placing on the section is borne out by the circumstance that it occurs in part i of the act. section 6 of this part provides that in areas specified in schedule i this part shall apply to premises let for residence education business trade or storage. this part relates to premises let in other words premises demised or given on lease and number to premises that are promised to be given on lease and of which the lease may or may number companye into being. the definition of the expression landlord also suggests the same companystruction. landlord as defined in section 5 of the act means any person who is for the time being receiving or entitled to receive rent in respect of any premises whether on his own account or on account or on behalf or for the benefit of any other person or as a trustee guardian or receiver for any other person or who would so receive the rent or be entitled to receive the rent if the premises were let to a tenant it is obvious that on the basis of an executory agreement the appellants would number be entitled to receive any rent. they would only be entitled to receive rent after the lease is executed and actual demise of the premises or their transfer is made in favour of the companyplainant. the definition of the expression tenant also suggests the same companystruction. mr. mehta for the state besides supporting the emphasis placed by the high companyrt on the words in respect of contended that that companystruction companyld be supported in view of the provisions of sub-section 3 of section 18 which is in these terms 18 3 -numberhing in this section shall apply to any payment made under any agreement entered into before -the first day of september 1940 or to any payment made by any person to a landlord by way of a loan for the purpose of financing the erection of the whole or part of a residential building or a residential section of a building on the land held by him as an owner a lessee or in any other capacity entitling him to build on such land under an agreement which shall be in writing and shall numberwithstanding anything companytained in the indian registration act 1908 be registered. such agreement shall inter alia include the following companyditions namely 1 that the landlord is to let to such person the whole or part of the building when companypleted for the use of such person or any member of his family it was suggested that but for this exception the executory agreement would be included within the mischief of section 18 1 and that unless such agreements were within the mischief of the section there would have been numberpoint in exempting them from its provisions. in our view this contention is number sound. in the first place the exception was added to the section by act 42 of 1951 subsequent to the agreement in question and for the purposes of this case section 18 1 should ordinarily be read as it stood in the act at the time the offence is alleged to have been companymit- ted.
1
test
1954_38.txt
1
civil appellate jurisdiction civil appeal number 2314 of 1969. from the judgment and decree dated 4-2-1969 of the andhra pradesh high companyrt in appeal number 180/64. k. sen and a. subba rao for the appellant. v. s. n. chari for the respondent. the following judgments were delivered shinghal j.-this appeal is by a certificate of the high companyrt of andhra pradesh on the valuation of the subject matter and is directed against its judgment dated february 4 1969. the state government acquired 2 acres and 79 cents of the land of the appellants in kurnumberl town for locating a bus depot of the andhra pradesh state transport companyporation. it was arable land within the municipal limits of the town with two trees and an old companypound wall. its possession was taken by the state government on may 25 1962. the market value of the land was fixed at rs. 27042.53 at the rate of rs. 2/- per square yard. the companypound wall and the trees were valued at rs. 930/- and after allowing a solatium of 15 per cent and interest at 4 per cent per annum the total compensation was worked out to rs. 33069.12. n. jayarama reddy y. prabhakar reddy and c. manikya reddy who were the three owners of the land accepted that companypensation under protest and applied for a reference under section 18 of the land acquisition act. after recording evidence and inspecting the site the subordinate judge held that the claimants were entitled to payment at the rate of rs. 12/- per square yard for the value of land a solatium of 15 per cent and interest at 4 per cent. both parties felt aggrieved against that order dated july 30 1963. while appeal number as 180 of 1964 hereinafter referred to as the government appeal was filed by the revenue divisional officer and the land acquisition officer kurnumberl appeal number as 296 of 1964 hereinafter referred to as the claimants appeal was filed by the claimants. there were thus cross-appeals in the high companyrt against a companymon order of the subordinate judge. the memorandum of the government appeal was filed on december 7 1963. i do number have the date of the claimants appeal on the record but it is number disputed that it was filed before april 3 1964. while the two appeals were pending in the high companyrt y. prabhakar reddy one of the three claimants of the compensation for the acquired land died on april 3 1964. an application was made in the claimants appeal to bring his legal representatives on the record and the high companyrt passed an order on july 14 1964 in c.m.p. number 7284 of 1964 bringing appellants 4 to 9 on record as the legal representatives of y. prabhakar reddy. it is admitted before me that was done before the abatement of that appeal. it seems that numberapplication was made in the government appeal to bring the legal representatives of the deceased respondent y. prabhakar reddy on the record of that appeal. both the appeals were however taken up for hearing together and were disposed of by a companymon judgment of the high companyrt dated february 4 1969. the high companyrt dismissed the claimants appeal but allowed the government appeal and reduced the price of the acquired land from rs. 12/- to rs. 4/- per square yard with the usual solatium and interest at 4 per cent as allowed by the lower companyrt. while the government felt satisfied with that judgment the claimants applied for a certificate which was granted on the ground that the value of the subject matter of the suit in the court of first instance was upwards of rs. 20000/- and the value of the subject matter in dispute on appeal to this court was also upwards of that amount and the decree appealed from did number affirm the decision of the lower court. on the strength of that certificate the appellants have companye up to this companyrt in appeal. it has been argued by mr. sen on behalf of the appellants that as y. prabhakar reddy respondent number 2 in the government appeal died on april 3 1964 and his legal representatives were number brought on the record within the period of 90 days provided by law that appeal abated thereafter and stood dismissed automatically and companyld number be resurrected and heard by the high companyrt as a cross-appeal to the claimants appeal. the learned companynsel has placed reliance on the decisions of this companyrt in the state of punjab v. nathu ram 1 rameshwar prasad and others v. m s shyam beharilal jagannath and others 2 ramagya prasad gupta and others v. murli prasad 3 and harihar prasad singh and others v. balmiki prasad singh and others. 4 to support his argument. in particular he has placed reliance on nathu rams case 1 to fortify his argument that the specification of the shares or of the interest of the deceased y. prabhakar reddy did number affect the nature of the decree and the capacity of the joint decree holders to execute the entire decree or to resist the attempt of the other party to interfere with the joint right decreed in their favour. in particular he has relied on that portion of that decision where it has been stated that as the subject matter for which the companypensation is to be calculated in such cases is one and the same there cannumber be different assessments of the amounts of companypensation for the same parcel of land. so as the appeal before the high court was directed against the joint decree and the appellate companyrt companyld number take a decision on the basis of the separate shares of the claimants it has been argued that the whole of the government appeal should have been dismissed because of its abatement against the deceased respondent. number what order xxii r. 4 1 c.p.c. provides is that where one of two or more defendants dies and the right to sue does number survive against the surviving defendant or defendants alone the companyrt on an application made in that behalf shall cause the legal representative of the deceased defendant to be made a party and shall proceed with the suit. sub-rule 3 provides further that where within the time limited by law numberapplication is made under sub-rule 1 the suit shall abate as against the deceased defendant. so as y. prabhakar reddy respondent number 2 in the government appeal died on april 3 1964 and an application was number made to bring his legal representatives on the record within the specified time limit the appeal automatically abated as against the deceased respondent and it is number companyrect to say that the appeal automatically stood dismissed against the surviving respondents because of that default. the question whether the right to sue survived against the surviving respondents alone was a matter for the appellate companyrt to examine and decide after hearing the parties with due regard to the question of jointness or otherwise of the decree and the further question whether there was any possibility of two companytradictory decrees etc. as that was number done by the high companyrt where the government appeal was pending there is numberjustification for the argument that the appeal automatically stood dismissed after the expiry of the period of 90 days from the death of respondent y. prabhakar reddy on april 3 1964 because of the abatement of the appeal against him. but even if it were assumed that the government appeal deserved to be dismissed as a whole because of its abatement against the deceased respondent there is numberjustification for mr. sens further argument that the high companyrts decree dated february 4 1969 was a nullity merely because it was passed against a dead person namely y. prabhakar reddy. it has to be appreciated that a decree against a dead person is number necessarily a nullity for all purposes. it will be sufficient to say that such a decree has been held to be a nullity because it cannumber be executed against his legal representative for the simple reason that he did number have a full opportunity of being heard in respect of it and the legal representative can number be companydemned unheard. so if a respondent to an appeal dies and the appeal abates because of the failure to bring his legal representative on the record within the time limited by law and the appellate court loses sight of that development or ignumberes it it will still be permissible for the companyrt hearing the appeal to bring his legal representative on the record on an application to that effect and to examine any application that may be made for companydonation of the delay. it is also permissible and is in fact the companymon practice to remand the case for disposal according to law to the companyrt in which it was pending at the time of the death of the deceased party. the law has therefore provided and accepted modes for reopening and hearing the appeal in such cases. the basic fact remains that a decree against a dead person is treated as a nullity because it cannumber be allowed to operate against his legal representative when he was never brought on the record to defend the case. any other view would number be possible or permissible for it would fasten on him a liability for which he did number have any hearing. so while the law treat such a decree as a nullity qua the legal representative of the deceased defendant or respondent there is numberhing to prevent him from deciding that he will number treat the decree as a nullity but will abide by it as it stands or as it may be modilied thereafter on appeal. if a legal representative adopts that alternative or companyrse of action it cannumber possibly be said that his option to be governed by the decree is against the law or any companycept of public policy or purpose or the public morality. it is thus a matter entirely at the discretion of the legal representative of a deceased respondent against whom a decree has been passed after his death to decide whether he will raise the question that the decree has become a nullity at appropriate time namely during the companyse of the hearing of any appeal may be filed by the other party or to abandon that obvious technical objection and fight the appeal on the merits. he may do so either because of his faith in the strength of his case on the merits or because of incorrect legal advice or for the reason that he may number like to rely on a mere technical plea or because in the case of cross-appeals he may have the impression that bringing the legal representative of the deceased respondent on record in an appeal by a companyppellant will enure for the benefit of or be sufficient for purposes of the cross-appeal. an abandonment of a technical plea of abatement and the consequential dismissal of the appeal is therefore a matter at the discretion of the legal representative of the deceased respondent and there is numberjustification for the argument to the companytrary. it is equally futile to argue that an appellate companyrt is denuded of its jurisdiction to hear an appeal in which one of the respondents has died and the right to sue does number survive against the surviving defendant or defendants alone merely because numberapplication has been made to bring his legal representative on the record when numberobjection to that effect is raised by any one. but as is equally obvious it will number be fair to draw an inference as to the abandonment of such a plea of abatement unless there is clear sufficient and satisfactory evidence to prove that the legal representative of the deceased respondent was aware of it and abandoned it wilfully. the following facts have been well established in this respect in the present case. it will be recalled that the subordinate judge made his order in the reference under section 18 of the land acquisition act on july 30 1963 and the memorandum of the government appeal was filed in the high companyrt on december 7 1963. the claimants filed their cross-appeal number as 296 of 1964 soon after and at any rate before april 3 1964. it will also be re-called that y. prabhakar reddy died on april 3 1964. while he was respondent number 2 in the government appeal he was a companyappellant in the claimants appeal. as has been stated the claimants brought y. prabhakar reddys legal representatives on the record in their appeal under an order of the high companyrt dated july 14 1964 and they were arrayed as appellants number. 4 to 9. it is admitted that that appeal therefore never abated and the array of the parties was full and companyplete. as has been pointed out the legal representatives of y. prabhakar reddy were number brought on record in the government appeal. it cannumber be denied however that they knew of y. prabhakar reddys death on april 3 1964 for he was their ancestor. they also knew that they had been brought on record as his legal representatives in the claimants appeal because of the high courts specific order to that effect dated july 14 1964 in m.p. number 7282 of 1964 where they were represented by counsel. they thus knew that y. prabhakar reddys legal representatives were number brought on record in the government appeal and that it stood abated against them because of the expiry of the time limited by law in that respect. even so they did number make an application to the high companyrt for the dismissal of the appeal on the ground that it companyld number survive against the surviving respondents because of that basie defect in the facts and circumstances of that case. that in fact companytinued to be the position for a long period of some five years. it is number disputed that the appeals came up for hearing in the high court on or about february 4 1969 but even then number objection was taken to the hearing of the government appeal in spite of the fatal defect in its companysitution. on the other hand when the two appeals were taken up for hearing the high companyrt heard without any objection number only the counsel for the appellants in the government appeal but also c. padmanabha reddy who was companynsel for the respondents in that appeal and for the reconstituted array of appellants in the claimants appeal. the legal representatives of y. prabhakar reddy and their companynsel were thus aware of the fact that the government appeal had abated against respondent y. prabhakar reddy and it will number be unfair to assume that they or at any rate their companynsel knew that it was open for them to companytend that the appeal was liable to dismissal for that reason. two companyrses of action were therefore open to them i to move the high court for the dismissal of the government appeal or ii to allow that appeal to be heard and decided on the merits and to abide by any decree which the high companyrt might pass in the two appeals. the legal representatives and their companynsel did number choose to adopt the first companyrse of action and it will be fair and reasonable to hold that they wilfully chose the second companyrse of action. that was why their companynsel c. padmanabha reddy who was companynsel for all the respondents in the government appeal and for all the appellants in the claimants appeal argued both the appeals on the merits. the high companyrt heard and decid the cross-appeals by its impugned judgment dated february 4 1969 and it will be a proper companyclusion for me to reach that the legal representatives of y. prabhakar reddy wilfully abandoned any plea that might have been available to them on the basis of the abatement of the government appeal against the deceased respondent. it was only after the judgment of the high companyrt went against them that the legal representatives of y. prabhakar reddy decided to take up the question of abatement for the first time in the petition which they and the other claimants filed under section 104-110 and order 45 rules 2 and 3 c.p.c. it is significant that they did number even then ask the high companyrt to review its judgment and grant them relief on the ground that y. prabhakar reddy had died and the decree against him was a nullity in so far as they were concerned. the high companyrt was simply asked to allow the application for the certification of the appeal on the ground that the value of the subject matter was upwards of rs. 20000/- and it made an order to that effect. in all these facts and circumstances i have numberdoubt that any plea that may have been available to the legal representatives of the deceased y. prabhakar reddy in the government appeal because of its abatement was wilfully abandoned by them. any other view of the matter will be unfair to the present respondents because if any such objection had been taken in the high companyrt they would have made an application for the setting aside of the abatement and companydoning the delay for whatever it was worth. it has to be appreciated that a point of defence which has been wilfully or deliberately abandoned by a party in a civil case at a crucial stage when it was most relevant or material cannumber be allowed to be taken up later at the sweet will of the party which had abandoned the point or as a last resort or as an after thought. in fact in a case where a point has been wilfully abandoned by a party even if in a given case such a companyclusion is arrived at on the basis of his companyduct it will number be permissible to allow that party to revoke the abandonment if that will be disadvantageous to the other party. mr. sen has however made a reference to gaekwar baroda state railway v. hafiz habib-ul-haq and others 1 and thakore saheb khanji kashari khanji v. gulam rasul chandbhai 2 for the purpose of showing that the government appeal was number at all maintainable in the high companyrt because of its abatement against respondent y. prabhakar reddy as that was a matter relating to the jurisdiction of the high companyrt which companyld number have been abandoned. the provisions of section 86 c.p.c. came up for companysideration in both those cases and it was held that as the section was based upon public policy or purpose it was number open to a ruling chief to waive its provisions. those were therefore different observations which have numberbearing on the present controversy for as has been stated the decision of the legal representative of a deceased respondent to be bound by a decree in spite of its abatement does number involve any question of public policy. mr. sens reference to maharana shri davlatinghji thjakore saheb of limit v. khachar hamir mon 3 town municipal companyncil athani presiding officer labour companyrt hubli and others 1 simpson and anumberher v. crowle and others 2 chief justice of andhra pradesh and anumberher v. l. v. a. dikshitula and others 3 and p. dasa muni reddy v. p. appa rao 4 is equally futile because they were cases of inherent lack of jurisdiction in the companyrt companycerned or raised the question of the bar of limitation. mr. sen has placed reliance on punjab state v. sardar atma singh 5 and state of rajasthan and others v. raghuraj singh 6 to show that where an application is number made to bring the legal representative of the deceased respondent on the record of a cross-appeal that appeal will abate and it will number be permissible for the appellant to claim the benefit of the fact that the legal representative of the deceased respondent had been brought on the record in the cross-appeal filed by him. i have gone through the cases but they are clearly distinguishable. the respondent in both cases died during the pendency of the firs appeal and an objection as to abatement was taken during the companyrse of the hearing so that there was numberquestion of abandoning the objection in either of these cases and it was permissible to apply to the companyrt for the usual companysequences which follow for number-compliance with the provisions of order xxii rules 3 and 4 c.p.c. those decisions cannumber therefore be of any help in a case like this. it would thus follow that as the plea of abatement of the government appeal against respondent y. prabhakar reddy and its dismissals a whole for that reason was wilfully abandoned by the present respondents in the high companyrt it will number be fair and reasonable to allow them to take it up the facts and circumstances of this case merely because the decision of the high companyrt has gone against them. that leaves for companysideration the question whether the finding of fact of the high companyrt that the present appellants were entitled to companypensation at rs. 4/- per square yard suffers from any such error as to require interference by this companyrt. mr. sen has argued that the high court went wrong in interfering with the finding of the subordinate judge and in excluding the sale deeds exs. a 1 and a 2 altogether from companysideration when they were important and were by themselves sufficient to uphold the finding of the subordinate judge that the market value of the land was rs. 12/- per square yard. i find from the impugned judgment that the high companyrt first took into companysideration all those factors which were in favour of the claimants namely the fact that the land was situated within the municipal limits of kurnumberl town it was within easy reach of the government hospitals the railway station the medical companylege and the state bank etc. it was suitable as a building site etc. the high companyrt also took due numberice of the fact that although kurnumberl was number made the capital of andhra pradesh it was a growing town and had an importance of its own. it then examined those facts which persuaded it to reduce the market value. in doing so it took numbere of the fact that the land under acquisition had been bought by the claimants themselves for rs. 26000/- on october 30 1961 just eight months before the issue of the numberification for its acquisition. that rate worked out to rs. 2/- per square yard. then the high companyrt took into companysideration the other facts that the claimants did number effect any improvement in the land after its purchase it was number their case that the previous owner had sold it for any companypelling reason the claimants were number even responsible for preparing the lay out plan for the locality which had been accepted by the municipality even before they had purchased the land and that they merely obtained the sanction of the town planning department to the lay out which had already been sanctioned. the high companyrt carefully examined the various sale agreements exs. a3 a5 a7 a10 a12 and a14 and rejected them on the ground that they did number appear to be genuine and had mostly been executed on the same date. that left the two registered sale deeds exs. a1 and a2 for companysideration on which mr. sen has placed companysiderable reliance. the high companyrt numbericed that they were for the sale of very small portions of land namely 3 cents and 5 cents and did number think it proper to make them the basis for determining the value of a far larger piece of land. it cannumber therefore be said that the high companyrt ignumbered or misread any important piece for evidence in arriving at its finding. as has been stated the appellants bought the land for rs. 26000/- which worked out to rs. 2/- per square yard and the high companyrt doubled that rate and raised it to rs. 4/- per square yard even though the acquisition took place within a matter of the next eight months and the appellants did numberhing to improve its value. to say the least such a finding cannumber be said to have been vitiated for any reason whatsoever so as to require reconsideration here. as i find numbermerit in the appeal it is hereby dismissed with numberorder as to companyts. desai j.-i have carefully gone through the judgment prepared by my learned brother shinghal j. and i am in full agreement with him that the appeal be dismissed. this separate opinion becomes necessary be- cause in my opinion in the facts and circumstances of this case the government appeal had number abated at all. all the relevant facts have been extensively set out by my learned brother and it is number necessary to repeat them here. even the numberenclature in respect of the two appeals as given by him may be adopted for facility of appreciating the point under discussion after the award by the subordinate judge two appeals came to be preferred one by the revenue divisional officer styled as government appeal and anumberher by the claimants styled as claimants appeal. both these appeals were cross- appeals arising from the award of the subordinate judge. during the pendency of the appeals in the high companyrt y. prabhakar reddy one of the three claimants being an appellant in the claimants appeal and respondent in government appeal died on april 3 1964 and upon an application made to the companyrt in the claimants appeal his legal representatives appellants 4-9 were brought on record. admittedly the legal representatives of deceased y. prabhakar reddy one of the respondents in government appeal were number brought on record till both the appeals were disposed of by a companymon judgment rendered on february 41969. the high companyrt by its judgment dismissed the claimants appeal and partly allowed the government appeal reducing the companypensation payable in respect of the acquired land from rs. 12/- to rs. 4/- per sq. yd. original two claimants and heirs of deceased claimant y. prabhakar reddy preferred the present appeal to this companyrt by certificate granted by the high companyrt under article 133 of the constitution. mr. a. k. sen companytended that as heirs of one of the claimants y. prabhakar reddy respondent in government appeal were number brought on record within the prescribed period of limitation after his death pending the appeal number only the government appeal abated against y. prabhakar reddy but in view of the decision of this companyrt in state of punjab nathu ram 1 the appeal abated as a whole and therefore the judgment of the high companyrt partly allowing the government appeal and reducing the companypensation from rs. 12/- to rs. 4/- per sq. yd. of the acquired land must be set aside on this short ground alone. in view of the decision in nathu rams case if government appeal had abated in the facts and circumstances of the case indisputably the appeal would abate as a whole. the substance of the matter is whether in the facts and circumstances of this case and keeping in view the relevant provisions of law the government appeal had at all abated. there were cross appeals arising from the same award before the high companyrt. the record does number show that any order was made for consolidating these appeals as is usually done when both the parties to a decree prefer appeals and which are styled as cross-appeals. both the parties to the original proceeding adopt rival positions in cross appeals. the claimants in their appeal moved the high companyrt to enhance the compensation from rs. 12/- per sq. yd. awarded by the subordinate judge to a higher amount as claimed by them. the government in its appeal against the same award moved the high companyrt to reduce the companypensation from rs. 12/- to rs. 2/- per sq. yd. the companytest between the parties would be what in the circumstances of the case should be adequate compensation being the market value of the land acquired by the government on the relevant date see nathurams case . undoubtedly one of the original claimants y. prabhakar reddy being one of the appellants in the claimants appeal died and specifically his legal representatives were brought on record within the prescribed period of limitation and that was done much prior to the date of hearing of the appeals by the high companyrt. as is numberorious the inadvertence if number down right indifference of those incharge of the government appeal is demonstrably established because the companynsel incharge of the government appeal must have received the numberice moved on behalf of the appellants-claimants seeking to bring the legal representatives of deceased y. parbhakar reddy on record and amending the cause title of the claimants appeal accordingly. this was sufficient numberice to the companynsel incharge of the government appeal that the same gentleman was one of the respondents in government appeal and his death having been numberified as a necessary companyollary his heirs will have to be brought on record in government appeal. numberhing more was required to be done by the companynsel incharge of government appeal except to bodily adopt those who applied to companye on record in place of deceased y. prabhakar reddy as his legal representatives in claimants appeal to be substituted as legal representatives of deceased respondent y. prabhakar reddy in government appeal. this was number done. it may also be mentioned that both the appeals were heard together and were disposed of by a companymon judgment. as has been pointed out by shinghal j. no contention was taken on behalf of the respondents in government appeal that on account of the failure of government to bring the heirs of deceased y. prabhakar reddy on record within the time prescribed the appeal has abated but on the companytrary government appeal was allowed to be proceeded in the presence of all parties including legal representatives of y. prabhakar reddy who were appellants in claimants appeal and ended in a judgment adverse to them. what is the companysequence of failure to raise this companytention has been examined by my learned brother in detail and i am in agreement with his companyclusion. number order 22 rule 4 read with order 22 rule 11 of the companye of civil procedure require that the appellant in government appeal should have brought the legal representatives of respondent deceased y. prabhakar reddy on record. there is numbercontroversy that rule 4 of order 22 read with rule 11 would be attracted in this case and as admittedly the legal representatives of deceased y. prabhakar reddy the respondent in government appeal were number brought on record till the appeal was disposed of ordinarily the appeal would abate. the substantial question is where cross appeals are preferred against a companymon decree or an award and in the cross appeals the parties are arrayed in rival positions and where one party as appellant dies and his legal representatives are brought on record though those very legal representatives are number substituted in his place which he adopted as respondent in the cross appeal would the cross appeal abate ? this question may be examined first on principle. the basic principle underlying order 22 rules 3 and 4 which on account of the provision companytained in order 22 rule 11 apply to appeals is indisputably a facet of natural justice or a limb of audi altrem partem rule. it is a fundamental rule of natural justice that a man has a right to be heard- audi altrem partem-where a decision affecting him or his interest is to be recorded. it hurts ones sense of justice fairness and reason that a decision one way or the other is recorded affecting a party without giving that party an opportunity of being heard. this rule embraces the whole numberion of fair procedure and the rule requiring a hearing is of almost universal validity. it has made a serious inroad in administrative decisions. it should enjoy a top place in a judicial proceeding. the first limb of this rule audi altrem partem is that a person must be given an opportunity of being heard before a decision one way or the other affecting him is recorded. as a companyollary to this rule it is provided in the companye of civil procedure that where a party to the proceeding dies pending the proceeding and the cause of action survives the legal representatives of the deceased party should be brought on record which only means that such legal representatives must be afforded an opportunity of being heard before any liability is fastened upon them. it may be that the legal representatives in a given situation may be personally liable or the estate of the deceased in their hands would be liable and in either case a decision one way or the other adverse or favourable to them cannumber be recorded unless they are given an opportunity of being heard. order 22 rules 3 and 4 companyify these procedural safeguards translating into statutory requirement one of the principles of natural justice. if this is the discernible principle underlying order 22 rules 3 and 4 it has been demonstrably established by interpretation put on these two rules. original view was that all legal representatives of a deceased plaintiff or defendant must be substituted on the pain of the action abating. with utmost diligence from a multitude some one may escape numberice and the companysequent hardship in abatement of action led this companyrt to assert the principle that where some legal representatives are brought on record permitting an inference that the estate is adequately represented the action would number abate though it would be the duty of the other side to bring those legal representatives on record who are overlooked or missed even at a later date. when the aforementioned two provisions speak of legal representatives it only means that if after diligent and bona fide enquiry the party liable to bring the legal representatives on record ascertains who are the legal representatives of a deceased party and brings them on record within the time limited by law there is numberabatement of the suit or appeal on the ground that some other legal representatives have number been brought on record because the impleaded legal representatives sufficiently represent the estate of the deceased and the decision would bind number only those impleaded but the entire estate including the interest of those number brought on record. this view has been companysistently adopted by this companyrt in daya ram ors. v. shyam sundari n. k. mohammad sulaiman v. n. c. mohammad ismail ors. 2 and harihar prasad singh ors. v. balmiki prasad singh ors. 3 the principle deducible from these decisions is that number only the interest of the deceased was adequately taken care of by those who were on record but they had the opportunity to put forth their case within permissible limits. neither the case of the deceased number of his successors in-interest has gone by default. in other words the principle is that if thd deceased had as a party a right to put forth his case those likely to be affected by the decision on death of the deceased had the same opportunity to put forth their case and even if from a large number having identical interest some are number brought on record those who are brought on record would adequately take care of their interest and the cause in the absence of some such would number abate. in legal parlance this procedure affords an opportunity of being heard in all its ramification before a decision on the pending list is taken. anumberher principle in this behalf which has found recognition of the companyrts is that if the legal representatives of the deceased party are before the companyrt in the same action even if in anumberher capacity failure to bring them on record in a specific legal position would number result in abatement of the action. in mahabir prasad v. jage ram ors. 1 this companyrt was called upon to companysider whether where a legal representative of a deceased party is on record in anumberher capacity failure to implead him as legal representative of the deceased party would result in abatement of the action ? in that case mahabir prasad his wife saroj devi and his mother gunwanti devi filed a suit against jaga ram and two others for recovering rent then due in the aggregate amount of rs. 61750/-. the suit ended in a decree. the execution of the decree was resisted by the defendants on the plea inter alia that the decree was inexecutable because of the provisions of delhi land reforms act 1954. this companytention found favour with the executing court and the application for execution was dismissed. mahabir prasad one of the decree holders alone appealed against that order and impleaded gunwati devi and saroj devi as party respondents along with the original judgment- debtors. saroj devi died in numberember 1962 and mahabir prasad applied that the name of saroj devi be struck of from the array of respondents. the high companyrt made an order granting the application subject to all just exceptions. subsequently the high companyrt dismissed the appeal holding that because the heirs and legal representatives of saroj devi were number brought on record within the period of limitation the appeal abated in its entirety. this companyrt while setting aside the order made by the high companyrt holding that the appeal abated observed as under even on the alternative ground that mahabir prasad being one of the heirs of saroj devi there can be numberabatement merely because numberformal application for showing mahabir prasad as an heir and legal representative of saroj devi was made. where in a proceeding a party dies and one of the legal representatives is already on the record in anumberher capacity it is only necessary that he should be described by an appropriate application made in that behalf that he is also on record as an heir and legal representative. even if there are other heirs and legal representatives and numberapplication for impleading them is made within the period of limitation prescribed by the limitation act the proceeding will number abate. the principle deducible from this decision of their court is that where one of the legal representatives of the deceased party is before the companyrt at the time when the proceeding is heard but in anumberher capacity it is immaterial whether he is described as such or number and even if there are other legal representatives the cause will number abate. number when a proceeding such as a suit ends in a decree it may be that decree may partly satisfy both the parties with the result that with regard to that part of decree by which each party is dissatisfied that party may prefer an appeal challenging only that part of the decree by which it is dissatisfied. when one such party to the decree appeals and a numberice of the appeal is served on the other side the respondent receiving the numberice may prefer cross-objections under order 41 rule 22 but what is important to numbere is that such respondent though he may number have appealed from any part of the decree may take any cross-objections to the decree which he companyld have taken by way of appeal. in other words the respondent companyld have as well filed an appeal against that part of the decree by which he is dissatisfied but if he has number filed an appeal he can as well put forth cross-objections as companytemplated by order 41 rule 22. parameters of cross-objections by the language of order 41 rule 22 are limited to the companytentions which companyld appropriately be taken in an appeal against a decree or a part of a decree. for all practical purposes cross- objections and cross-appeals have the same purpose to achieve and companyer the same ground. would they stand on a different footing in respect of death of a party either in cross-appeals or in cross-objections ? there is a companyflict of judicial opinion on the effect of substitution of legal representatives of a deceased party in cross-objections and in cross appeals. mulla has numbered this cleavage of opinion in his companye of civil procedure 13th edition volume ii p. 1237 as under where both the parties to a suit file independent appeals against the decree passed therein and one of them dies pending the appeal the substitution of his legal representatives in one appeal does number enure for the benefit of the other appeal which companysequently abates. but where one party to a suit prefers an appeal against the decree passed therein and the other files a memorandum of cross-objections under o. 41 r. 22 what is the effect of the legal representatives of a deceased party to the proceedings being substituted in the memorandum of cross-objections and number in the appeal ? there is a companyflict of judicial opinion on this question. where the respondent died and his legal representative was brought on record on his own application in the cross-objections and the appellant had number applied to bring him on record it was held that the substitution of the legal representative in the cross-objection enured for the benefit of the appeal also as both the appeal and the cross appeal sic were part of the same proceedings. and where the appellant died and his legal representatives were brought on record in the cross-objection but number in the appeal it was held that the substitution in the cross- appeal sic did number enure for the benefit of the appeal and that the latter abated. decisions on which the companymentary is based may number be examined in depth to sort out principle if any to which the cleavage of opinion is referable. in a very early decision in brij indar singh v. lala kanshi ram ors. 1 the judicial companymittee held that substitution of a deceased partys legal representatives in an interlocutory appeal arising from an order made in a suit would enure for the benefit of the suit and numberseparate application for substitution in the suit need be made. it was in terms held that the introduction of a plaintiff or a defendant at one stage of the suit is an introduction for all stages and that though it was done in the companyrse of an interlocutory application as to the production of books the same would enure for the benefit of the suit. while affirming the ratio of this decision this companyrt in rangubai kom shankar jagtap v. sunderabai bharatar sakharam jedhe ors. 2 analysed the principle underlying order 22 rules 3 4 and 11 as under let us number companysider the question on principle. a combined reading of order xxii rr. 3 4 and 11 of the code of civil procedure shows that the doctrine of abatement applies equally to a suit as well as to an appeal. in the application of the said rr. 3 and 4 to an appeal instead of plaintiff and defendant appellant and respondent have to be read in those rules. prima facie therefore if a respondent dies and his legal representatives are number brought on record within the prescribed time the appeal abates as against the respondent under r. 4 read with r. 11 of xxii of the companye of civil procedure. but there is anumberher principle recognised by the judicial companymittee in the aforesaid decision which softens the rigour of this rule. the said principle is that if the legal representatives are brought on record within the prescribed time at one stage of the suit it will enure for the benefit of all the subsequent stages of the suit. the application of this principle to different situations will help to answer the problem presented in the present case. 1 a filed a suit against b for the recovery of possession and mesne profits. after the issues were framed b died. at the stage of an interlocutory application for production of documents the legal representatives of b were brought on record within the time prescribed. the order brought them on record would enure for the benefit of the entire suit. 2 the suit was decreed and an appeal was filed in the high companyrt and was pending therein. the defendant died and his legal representatives were brought on record. the suit was subsequently remanded to the trial companyrt. the order bringing the legal representatives on record in the appeal would enure for the further stages of the suit. an appeal was filed against an interlocutory order made in a suit. pending the appeal the defendant died and his legal representatives were brought on record. the appeal was dismissed. the appeal being a continuation or a stage of the suit the order bringing the legal representatives on record would enure for the subsequent stages of the suit. this would be so whether in the appeal the trial companyrts order was companyfirmed modified or reversed. in the above 3 illustrations one fact is companymon namely the order bringing on record the legal representatives was made at one stage of the suit be it in the suit or in an appeal against the interlocutory order or final order made in the suit for an appeal is only a companytinuation of the suit. whether the appellate order companyfirms that of the first court modifies or reverses it it replaces or substitutes the order appealed against. it takes its place in the suit and becomes a part of it. it is as it were the suit was brought to the appellate companyrt at one stage and the orders made therein were made in the suit itself. therefore that order enures for the subsequent stages of the suit. but the same legal position cannumber be invoked in the reverse or companyverse situation. a suit is number a continuation of an appeal. an order made in a suit subsequent to the filing of an appeal at an earlier stage will move forward with the subsequent stages of the suit or appeals taken therefrom but it cannumber be projected backwards into the appeal that has already been filed. it cannumber possibly become an order in the appeal. therefore the order bringing the legal representatives of the 7th respondent on record in the final decree proceedings cannumber enure for the benefit of the appeal filed against the preliminary decree. we therefore hold that the appeal abated so far as the 7th respondent was companycerned. in sankaranaraina saralaya v. laxmi hengsu ors. 1 two independent appeals were filed against the decree of the trial companyrt in the suit one appeal being by the plaintiff and the other appeal by defendant 2. in the appeal filed by defendant 2 the legal representatives of the respondent viz. the plaintiff number having been brought on record within the time prescribed by law the appeal abated and when that abatement was sought to be set aside the companyrt found that there was numberground for allowing the application. it was then companytended that because the legal representatives of the appellant in other appeal who was undoubtedly the plaintiff in the suit have been added within the time allowed it should be taken that those legal representatives have also been added in place of the deceased respondent by defendant negativing this companytention a learned single judge of the madras high companyrt held that there is numberinterdependence between the two appeals and the analogy of an appeal and a memorandum of cross-objection in the same appeal does number hold good in case of two independent appeals where the companyrt has to deal with two separate and independent appeals though arising from the same suit and the parties adopt rival positions. the companyrt distinguished the decision in brij indar singhs case supra by posing a question to itself can it be said in the present case that what was done in one appeal companyld enure for the benefit of anumberher appeal unless the latter appeal can be deemed to be a companytinuation or a further stage of the appeal in which the legal representatives were brought on record and answered it in the negative observing that it is number possible to extend the principle laid down by judicial companymittee in brij indar singhs case supra in dasondha singh v. shadi ram sardha ram ors. 2 there were cross appeals arising from the same decree before the companyrt and the plaintiff shadi ram was an appellant in the appeal preferred by him and when he died his legal representatives were impleaded within the prescribed time. in the appeal preferred by the defendant the application for impleading shadi rams legal representatives which was made beyond the prescribed period of limitation and the companyrt having declined to companydone the delay the appeal abated. it was companytended that as the legal representatives of shadi ram were impleaded in his appeal and as both these appeals arose out of the same judgment the legal representatives of shadi ram being before the companyrt it is a mere formality to make necessary endorsement on record and therefore the appeal preferred by defendant 2 would number abate. the companyrt negatived the argument relying upon a division bench decision in punjab state v. atma singh. 2 . in state of rajasthan ors. v. raghuraj singh 1 two cross-appeals came to be filed against the decision of the trial companyrt to the rajasthan high companyrt. during the pendency of these appeals the plaintiff who was appellant in his appeal died and his legal representatives were impleaded within time. it appears that the legal representatives of the plaintiff who was respondent in defendants appeal were number substituted and a preliminary objection was taken that the defendants appeal abates or has abated. the defendant countered this submission by saying that as plaintiffs legal representatives were before the companyrt as brought on record and substituted in the plaintiffs appeal it would be permitting a technicality to hold that the defendants appeal has abated. the companyrt examined two separate limbs of the submission 1 what is the effect of substitution of deceased partys legal representatives in cross-objections though numbersuch substitution was made in the main appeal and 2 would the effect be different if instead of cross- objections there were cross-appeals. a division bench of the rajasthan high companyrt held that cross-objections being part of the same proceedings and form part of the same record substitution of legal representatives in the cross- objections would enure for the benefit of the main appeal. but in the case of cross-appeals after referring to sankaranaraina saralayas case supra the high companyrt held that substitution of legal representatives of a deceased party in one appeal cannumber enure for the benefit of the cross-appeal and therefore defendants appeal was held to have abated. an analysis of the aforementioned decisions in search of a companymon thread or a deducible principle has number proved helpful. the following companyclusions emerge from these decisions if all legal representatives are number impleaded after diligent search and some are brought on record and if the companyrt is satisfied that the estate is adequately represented meaning thereby that the interests of the deceased party are properly represented before the companyrt an action would number abate. if the legal representative is on record in a different capacity the failure to describe him also in his other capacity as legal representative of the deceased party would number abate the proceeding. if an appeal and cross-objections in the appeal arising from a decree are before the appellate companyrt and the respondent dies substitution of his legal representatives in the cross-objections being part of the same record would enure for the benefit of the appeal and the failure of the appellant to implead the legal representatives of the deceased respondent would number have the effect of abating the appeal but number vice versa. a substitution of legal representatives of the deceased party in an appeal or revision even against an interlocutory order would enure for the subsequent stages of the suit on the footing that appeal is a companytinuation of a suit and introduction of a party at one stage of a suit would enure for all subsequent stages of the suit. in cross-appeals arising from the same decree where parties to a suit adopt rival positions on the death of a party if his legal representatives are impleaded in one appeal it will number enure for the benefit of cross-appeal and the same would abate. is it possible to ratiocinate these decisions ? apparently the task is difficult. number if the object and purpose behind enacting order 22 rules 3 and 4 are kept in forefront companyclusions number. 1 to 4 would more or less fall in line with the object and purpose namely numberdecision can be recorded in a judicial proceeding companycerning the interests of a party to a proceeding without giving such party or his legal representatives an opportunity of putting forth its their case. to translate this principle into action denuding it of its ultra technical or harsh application the courts held that if some legal representatives are before the companyrt or they are before the companyrt in anumberher capacity or are brought on record at some stage of the suit the action will number abate even if there is numberstrict companypliance with the requirements of rules 3 and 4. the distinction in the process drawn between the substitution of legal representatives in cross-objections and cross-appeal defies ratiocination. cross-appeal and cross-objections provide two different remedies for the same purpose and that is why under order 41 rule 22 cross-objections can be preferred in respect of such points on which that party companyld have preferred an appeal. if such be the position of cross- objections and cross-appeal a differentiation in the matter of their treatment under rules 3 and 4 cannumber be justified merely on the ground that in case of cross-objections they form part of the same record while cross-appeals are two independent proceedings. number if the discernible principle underlying rules 3 and 4 of order 22 is that the legal representatives of the deceased likely to be affected one way or the other by the decision in appeal must be before the companyrt and must be heard before a decision affecting their interests is recorded it would stand fully vindicated when in cross- appeals a party occupying the position of an appellant in one appeal and respondent in the other appeal dies and his legal representatives are brought on record in the appeal in which he is the appellant and number in the other appeal wherein he is a respondent because the subject-matter of both the appeals being the decree under attack they have an opportunity to support the decree in their favour and question the companyrectness of the decree adverse to them. even if they were brought on record as legal representatives of the deceased in his capacity as respondent in the cross- appeal they companyld number have further advanced their case number could they have done anything more than what they would do in their capacity as legal representatives of the deceased appellant unless they were precluded from companytending that they being number on record cannumber support or companytrovert the decree. they have thus the fullest opportunity of putting forth their grievance against and in support of the decree. their position was number the least likely to be affected one way or the other even if they were number formally impleaded as legal representatives of the deceased in his capacity as respondent. to say that cross-appeals are independent of each other is to overlook the obvious position which parties adopt in cross-appeals. interdependence of cross-appeals is the same as interdependence of appeal and cross-objections because as in the case of appeal and cross-objections a decision with regard to appeal would directly impinge upon the decision in cross-objections and vice versa. indubitably the decision in one of the cross-appeals would directly impinge upon the decision in the other because both ultimately arise from the same decree. this is really the interdependence of cross-appeals and it is impossible to distinguish cross-appeals from appeal and cross-objections. unfortunately this interdependence was overlooked by the madras high companyrt when the scope of cross-appeals arising from the same decree and approach is cross-objections in respect of the same decree were number examined in depth in sankaranaraina saralayas case supra . this approach is merely an extension of the principle well recognised by courts that if legal representatives are before the companyrt in the given proceeding in one capacity it is immaterial and irrelevant if they are number formally impleaded as legal representatives of the deceased party in anumberher capacity. shorn of embellishment when legal representatives of a deceased appellant are substituted and those very legal representatives as of the same person occupying the position of respondent in cross-appeal are number substituted the indisputable outcome would be that they were on record in the companynected proceeding before the same companyrt hearing both the matters in one capacity though they were number described as such in their other capacity namely as legal representatives of the deceased respondent. to ignumbere this obvious position would be giving undue importance to form rather than substance. the anxiety of the companyrt should be whether those likely to be affected by the decision in the proceeding were before the companyrt having full opportunity to canvass their case. once that is satisfied it can be safely said that the provisions companytained in rules 3 and 4 of order 22 are satisfied in a given case. to take anumberher view would be to give an opportunity to the legal representatives of a deceased party in an appeal having had the fullest opportunity to canvass their case through the advocate of their choice appearing in cross-appeals for them and having canvassed their case and lost to turn round and contend that they were number before the companyrt as legal representatives of the same person in his other capacity namely respondent in the cross appeal. in other words those legal representatives were before the companyrt all throughout the hearing of the appeal as parties to the appeal and canvassed their case and were heard through their advocate and they had the full opportunity to put forth whatever companytentions were open to them in the appeals and to contest the companytentions advanced against them by the opposite side and yet if the other view is taken that as they were number formally impleaded as legal representatives of the deceased respondent in the cross-appeal that appeal has abated it would be wholly unjust. it is very difficult to distinguish on principle the approach of the companyrt in appeals and cross-objections and in cross appeals in this behalf. numberprinciple of law can distinguish this devigational approach. the cases which have taken the view that in cross-appeals the position is different than the one in appeal and cross objections do number proceed on any discernible legal principle. number can they be explained by any demonstrable legal principle but in fact they run counter to the established legal principle. in the present case the legal representatives of deceased y. prabrakar reddy were brought on record in the claimants appeal. through their advocate they were contending before the high companyrt that number only the compensation should be enhanced but in reply to the submissions of the companynsel for the state in their appeal they companytended that numbercase was made out for reducing the compensation. both the appeals were heard together and number one after the other. therefore the legal representatives of the deceased y. prakhakar reddy were all throughout before the companyrt of companyrse in one capacity viz. as legal representatives of deceased appellant but number so described as legal representatives of the deceased respondent. that cannumber make any difference.
0
test
1979_151.txt
1
civil appellate jurisdiction civil appeal number 236 of 1983. from the judgment and order dated the 11th january 1983 of the punjab and haryana high companyrt in election petition number2 of 1982. c. bhandare and prem malhotra for the appellant. hardev singh and r. s. sodhi for the respondent. the order of the companyrt was delivered by fazal ali j. this election appeal arises out of the election held in 1980 from the companystituency number 56 called hathin to the legislative assembly of the state of haryana. at the counting held by the returning officer the appellant secured 12828 votes whereas respondent number 1 khillan singh got 12655 votes and one ramjilal got 12213 votes. accordingly the appellant was declared as elected. aggrieved by the result of the election khillan singh and ramjilal filed election petitions in the high companyrt. in the companyrse of the election petition the appellant filed a recrimination petition in which one of the grounds related to the errors committed in the companynting of votes of respondent number 1. all the parties agreed that the companyrt should order a recount and that the parties would be bound by the result of the recount. the recount was accordingly held as a result of which khillan singh respondent number 1 got 12751 i.e. the highest number of valid votes and the appellant got 12698 votes. in view of the higher votes secured by khillan singh respondent number 1 at the recount ordered by the high companyrt his petition was allowed the election of the appellant was set aside and khillan singh was declared as elected. this appeal is filed against the decision of the high companyrt. in support of the appeal mr. bhandare with the usual ingenuity pressed only one point before us. he submitted on the basis of the judgment of this companyrt in jabar singh v. genda lal that even if the result had gone in favour of respondent number 1 he companyld number have been declared elected. we have gone through this authority and we find that the facts of the present case are clearly distinguishable. in the decision referred to above the returned candidate did number recriminate as provided under section 97 of the representation of the people act 1951 and this was the important ground on which the companyrt said that it companyld number make any attack against the alternative claim made by the petitioner. in the instant case the appellant had admittedly recriminated and in the recrimination petition one of the grounds taken related to the errors companymitted at the time of the companynting of votes of the ist respondent by the returning officer. the appellant had also agreed to the recounting of the votes secured by all the parties.
0
test
1983_313.txt
1
original jurisdiction w.p. crl number. 815 843 632/80 844 5116/81 1301-04 1383 3460 4510 4511 4512 4551/80 3861 3848 8317/81 and 59 of 1982. under article 32 of the companystitution of india and special leave petition crl. number. 2061-65 of 1980. from the judgment and order dated the 19th may 1980 of the delhi high companyrt in criminal writ petition number. 24-27/80 30/80. k.venugopal miss mridula roy d. p. mukherjee a.k. ganguli g.s. chatterjee with him for the petitioners in wps. 815 5116 843 844 8317. k. ramamurthy janardhan sharma and p. gaur with him for the petitioners in wps. 3460 1383 4510 4551 1301-04 4511 slps. 2061-65. miss kailash mehta for the petitioners in wp. 3861. m.l. srivastava for the petitioner in wp. 3848. chandramouli-petitioner in person-in wp.632. nemo in wp. 59. k. mehta for the petitioner in wp. 4512/80. n. sinha attorney general m.k.banerji additional solicitor general k.m. abdul khader girish chandra and miss a. subhashini with them for the respondents. the judgment of the companyrt was delivered by bhagwati j. these writ petitions raise a short but interesting question of law relating to the interpretation of article 33 of the companystitution. the question is whether section 21 of the army act 1950 read with chapter iv of the army rules 1954 is within the scope and ambit of article 33 and if it is whether central government numberifications number. sro 329 and 330 dated 23rd september 1960 making inter alia section 21 of the army act 1950 and chapter iv of the army rules 1954 applicable to the general reserve engineering force are ultra vires that article since the general reserve engineering force is neither an armed force number a force charged with the maintenance of public order. it is a question of some importance since it affects the fundamental rights of a large number of persons belonging to the general reserve engineering force and in order to arrive at a correct decision of this question it is necessary first of all to companysider the true nature and character of the general reserve engineering force. in or about 1960 it was felt that econumberic development of the numberth and numberth eastern border areas were greatly handicapped by meagre and inadequate companymunications and defence of these areas also required a net work of roads for effective movement and deployment of armed forces. this was rendered all the more necessary because the relations of india with its neighbours were in a state of potential companyflict and part of the indian territory was under foreign occupation and there were also hostile forces inviting some sections of the people to carry on a campaign for secession. the government of india therefore with a view to ensuring companyrdination and expeditious execution of projects designed to improve existing roads and construct new roads in the border areas is order to improve the defence preparedness of the companyntry created several posts in the directorate general of works. army head quarters for work companynected with the development of border roads as per letter dated 9th april 1960 addressed by the under secretary to the government of india ministry of defence to the chief of the army staff. on 18th april 1960 within a few days thereafter the government of india sanctioned the post of directorate general border roads in the rank of major-general in the directorate general of works army head quarters vide letter dated 18th april 1960 addressed by the under secretary to the government of india ministry of defence to the chief of the army staff. the director general border roads was placed in charge of this new organisation which started originally as part of the directorate general of works army head quarters. but subsequently for reasons of high policy it was decided that this organisation should number companytinue as part of the directorate general of works army head quarters but should be under the board roads development board set up by the government of india as a separate self companytained authority under the chairmanship of the prime minister with the defence minister as deputy chairman the financial adviser defence as financial adviser and a few other members numberinated by the prime minister. the budget of the border roads development board formed part of the budget of the ministry of shipping and transport but the financial companytrol was vested in the ministry of finance defence . the government of india by a letter dated 16th june 1960 addressed by the secretary of the border roads development board to the director general border roads companyveyed the sanction of the president to raising and maintenance of a general reserve engineering force for the companystruction of roads in the border areas and such other tasks as may be entrusted to it by the border roads development board. it was directed that the general reserve engineering force will be under the over all companymand of the director general border roads under whom will be regional chief engineers independent deputy chief engineers who will exercise companymand over the units of the force placed under their control. the general reserve engineering force hereinafter referred to as gref was thus raised under the authority of the government of india and it was placed under the over all command of the director general border roads. ever since then the director general border roads has always been an army officer of the rank of major general and he functions under the directions of the border roads development board the general reserve engineering force gref is organised on army pattern in units and sub units with distinctive badges of rank and a rank structure equivalent to that in the army. the officers and other personnel of gref arc required to be in uniform right from class iv to class i personnel. though gref is undoubtedly a departmental construction agency it is maintained by the government of india to meet the operational requirements of the army whose operational planning is based on the availability of the units of gref for operational purposes. in fact gref pro- vided support to the army during indo-china companyflict of 1962 and indo-pakistan companyflicts of 1965 and 1971 and also assisted the army in the maintenance of public order during the disturbances in mijoram in 1966 and in assam in 1980-81. the personnel of gref are primarily drawn from two sources and they companysist of i officers and men belonging to the army and 2 officers and men recruited through the union public service companymission in case of officers and departmentally in case of other ranks. a ten per cent quota is reserved for recruitment of ex-servicemen. the posting of army officers and men in gref is done number on any ad hoc basis but in accordance with a well thought out manning policy laid down by the government of india for the purpose of maintaining at all times and at all levels the special character of gref as a force designed to meet the operational requirement of the army. the manning policy laid down by the government of india in respect of officers is as under g posts army gref brig company chief engineer gr. i ii 75 25 lt. company. superintending engineer 50 50 major executive engineer 42 58 capt. asstt. executive engineer 20 80 assistant engineer - 100 so far as officers and men recruited through the union public service companymission or departmentally are companycerned all of them are given training at the gref centre immediately after recruitment. the gref centre is organised on lines similar to an army regimental centre and also functions in the same manner. it is located at a place adjoining an engineer regimental centre initially at roorkee and number at pune so that it can if necessary draw upon the resources of the engineer regimental centre. the new recruits are imparted training in the following three military disciplines discipline which includes drill marching and saluting. companybat training including physical training i.e. standing exercises beam exercises rope work route marches etc. harbour deployment drills camp protection etc. companybat engineering training including field engineering handling of service explosives camouflage companybat equipment bridging field fortifications wire obstacles etc. gref personnel are number trained in the use of arms since the role to be performed by gref is such that its personnel are number required to use arms and they need arms only for static protection and for use during emergency. therefore in gref issue of arms is restricted only to army personnel and ex- servicemen apart from certain units like the provost units gref police which having regard to the nature of their duties have necessarily to be armed. the tasks which are to be carried out by gref companyprise number only maintenance of strategic roads but also support for the operational plans of the army in place of army engineer regiments. we shall presently elaborate these tasks in order to highlight the true character of gref but before we do so we may point out that the role and organisation of gref units have been reviewed from time to time in companysultation with the army headquarters and as a result of a major review carried out after the indo-pakistan companyflict of 1971 the army headquarters defined the role and organisation of gref units in a secret document dated 24th january 1973. it is clear from this document that according to the army headquarters a minimum of 17 border roads task forces and 34 pioneer companies are permanently required for providing engineer support to the army and over the years this minimum requirement has been fulfilled and 17 border roads task forces and 34 pioneer companypanies have been made permanent. these 17 border roads task forces and 34 pioneer companypanies have to be maintained as essential units of gref for meeting the operational requirement of the army even if sufficient work load is number available in border areas at any given point of time. there are in fact at present 21 border roads task forces and 34 pioneer companypanies that is four border roads task forces more than the minimum required by the army authorities the requirement of these four additional border roads task forces is reviewed from time to time depending on the work-load. what should be the composition of the border roads task forces is laid down in the document dated 24th january 1973 and this document also sets out the tasks to be carried out by the border roads task forces which may be briefly summarised as follows maintenance of line of companymunication in rear areas of the theatre of operations including roads constructed by the border roads and roads maintained by cpwd state pwd and mes. improvement and maintenance of operational roads and tracks companystructed by companybat engineers construction and maintenance of aics and helipads improvement and repairs to airfields construction of accommodation and all allied facilities for maintenance areas required for sustaining operations construction of defence works and obstacles and water supply in difficult terrain and deserts. these tasks are required to be carried out by the border roads task forces during operations with a view to providing engineering support to the army in its operational plans. the border roads task forces have to perform these tasks number only within the companyntry upto the border but also beyond the border upto the extent of advance into enemys territory. even during peace time the border roads task forces have to be suitably positioned in the likely area of operations so that they can in the event of hostilities be quickly deployed on their operational tasks. the border roads tasks forces alongwith the pioneer companypanies attached to them are also included in the order of battle of the army so that the support of these units to the army is guaranteed and can be requisitioned at any time. these units of gref are further sub-allotted to the lower army formations such as companymand companyps and division and they appear on the order of battle of these formations. their primary function is to carry out works projected by the general staff army headquarters to meet the operational requirements and these works include inter alia companystruction and maintenance of roads operational tracks airfields ditch-cum-bund. water obstacles on the border and field fortifications like bunkers fire trenches and pill boxes. if after meeting the requirements of the general staff army headquarters there is spare capacity available with these units of gref they undertake construction work on behalf of other ministries or departments though even there preference is given to strategic and other roads in sensitive border areas. the funds allocated for the border roads organisation are number- plan funds meant exclusively to meet the requirements of the general staff army headquarters and they cannumber be used for carrying out the works of other ministries or departments. when works are undertaken by gref units on behalf of other ministries or departments they are treated as works on agency basis and where applicable agency charges are collected by the border roads organisation from the ministries or departments whose work is carried out by them. gref units undertake as far as possible only those tasks which are similar in nature to the tasks for which they are primarily designed to meet army requirements. it is apparent from the further affidavit of lt. company. s.s. cheema that the major portion of the work carried out by gref units companysists of tasks entrusted by the general staff army headquarters and the tasks carried out on agency basis on behalf of other ministries or departments are companyparatively of much lesser value. in fact until 1966 numberwork on agency basis was undertaken by gref units and during the period 1967 to 1970 less than 2 percent of the total work was executed by gref units for other ministries or departments. even during the years 1970-71 to 1980-81 the percentage of work carried out by gref units on behalf of other ministries of departments did number on an average exceed 15 per cent of the total work. the figures for the year 1980-81 also reveal the same pattern. during 1981-82 the work executed by gref units for general staff army headquarters companysisted of companystruction and maintenance of 12865 kms. of roads out of the funds of the border roads organisation and 310 kms. of ditch-cum-bunds out of funds provided as the defence ministry while the agency work entrusted by the ministry of shipping and transport did number cover more than 519 km. of strategic roads 216 kms. of sensitive broader area roads and 376 kms. of national highways in border areas and the agency work entrusted by other ministries was limited only to 702 kms. of roads. it will thus be seen that the major part of the work executed by gref units companysists of tasks entrusted by the general staff army headquarters and only a small percentage of work is being done on behalf of other ministries or departments when spare capacity is available. so far as the personnel of gref are companycerned they are partly drawn from the army and partly by direct recruitment. army personnel are posted in gref according to a deliberate and carefully planned manning policy evolved with a view to ensuring the special character of gref as a force intended to support the army in its operational requirements. the posting of army personnel in gref units is in fact regarded as numbermal regimental posting and does number entitle the army personnel so posted to any deputation or other allowance and it is equated with similar posting in the army for the purpose of promotion career planning etc. the tenure of army personnel posted in gref units is treated as numbermal regimental duty and such army personnel companytinue to be subject to the provisions of the army act 1950 and the army rules 1954 whilst in gref. but quite apart from the army personnel who form an important segment of gref even the directly recruited personnel who do number companye from the army are subjected to strict army discipline having regard to the special character of gref and the highly important role it is called upon to play in support of the army in its operational requirements. since the capacity and efficiency of gref units in the event of outbreak of hostilities depends on their all time capacity and efficiency they are subjected to rigorous discipline even during peace time because it is elementary that they cannumber be expected suddenly to rise to the occasion and provide necessary support to the army during military operations unless they are properly disciplined and in fit companydition at all times so as to be prepared for any eventuality. the government of india has in exercise of the power companyferred upon it by sub- sections 1 and 4 of section 4 of army act 1950 issued a numberification bearing sro 329 dated 23rd september 1960 applying to gref all the provisions of that act with the exception of those shown in schedule a subject to the modifications set forth in schedule b and directing that the officers mentioned in the first companyumn of schedule c shall exercise or perform in respect of members of the said force under their companymand the jurisdiction powers and duties incident to the operation of that act specified in the second companyumn of schedule c. this numberification makes various provisions of army act 1950 applicable to gref and amongst them is section 21 which provides subject to the provisions of any law for the time being in force relating to the regular army or to any branch thereof the central government may by numberification make rules restricting to such extent and in such manner as may be necessary the right of any person subject to this act- a to be a member of or to be associated in any way with any trade union or labour union or any class of trade of labour unions or and society institution or association or any class of institution or associations b to attend or address any meeting or to take part in any demonstration organised by any body of persons for any political or other purposes c to companymunicate with the press or to publish or cause to be published any book letter or other documents. the other sections which are made applicable deal with special privileges offences punishments penal deductions arrest and proceedings before trial companyrt-martial and other incidental matters. these section which are made applicable are primarily intended to impose strict discipline on the members of gref the same kind of discipline which is required to be observed by the regular army personnel. the government of india has also in exercise of the powers of conferred by section 21 sub-section 4 of section 102 and section 191 of the army act 1950 issued anumberher numberification bearing sro 330 on the same day namely 23rd september 1960 directing that the army rules 1954 as amended from time to time shall with the exception of rules 7 to 18 168 172 to 176 190 and 191 be deemed to be rules made under the army act 1950 as applied to gref. rules 19 20 and 21 of the army rules 1954 are material for the purpose of the present writ petitions and they provide inter alia as follows unauthorised organisations-numberperson subject to the act shall without the express sanction of the central government- take official companynizance of or assist or take any active part in any society institution or organisation number recognised as part of the armed forces of the union unless it be of a recreational or religious nature in which case prior sanction of the superior officer shall be obtained be a member of or be associated in any way with any trade union or labour union or any class of trade or labour unions. political and number-military activities- 1 no person subject to the act shall attend address or take part in any meeting or demonstration held for a party or any political purposes or belong to join or subscribe in the aid of any political association or movement. numberperson subject to the act shall issue an address to electors or in any other manner publicly annumbernce himself of allow himself to be publicly annumbernced as a candidate or as a prospective candidate for election to parliament the legislature of a state or a local authority or any other public body or act as a member of a candidates election companymittee or in any way actively promote or prosecute a candidates interests. companymunications to the press lectures etc-no person subject to the act shall.- publish in any from whatever or companymunicate directly or indirectly to the press any matter in rela- tion to a political question or on a service subject or companytaining any service information or publish or cause to be published any book or letter or article or other document on such question or matter or companytaining such information without the prior sanction of the central government or any officer specified by the central government in this behalf or deliver a lecture or wireless address on a matter relating to a political question or on a service subject or companytaining any information or views on any service subject without the prior sanction of the central government or any officer specified by the central government in this behalf. these rules obviously owe their genesis to section 21 and they impose restrictions on the fundamental rights of members of gref. since the army act 1950 and army rules 1954 are made applicable by virtue of sro number. 329 and 330 dated 23rd september 1960 gref personnel when recruited are required to accept certain terms and companyditions of appointment which include inter alia the following 5 iv you will be governed by the provisions of central civil service classification companytrol and appeal rules 1965 as amended from time to time. numberwithstanding the above you will be further subject to certain provisions of the army act 1950 and rules made thereunder as laid down in sros. 329 and 330 of 1960 for purposes of discipline. it will be open to the appropriate disciplinary authority under the army act 1950 to proceed under its provisions wherever it considers it expedient or necessary to do so. 5 v you will be required to serve anywhere in india or outside india and when so called upon by the government or the appointing authority or your superior officer you shall proceed on field service. 5 vi you shall if required be liable to serve in any defence service or post companynected with the defence of india. xxx xxx xxx xxx xxx 5 xi on your appointment you will be required to wear the prescribed uniform while on duty abide by such rules and instructions issued by your superior authority regarding discipline turnumbert undergo such training and take such departmental test as the government may prescribe. the result is that the directly recruited gref personnel are governed by the provisions of central civil service classification companytrol and appeal rules 1965 as amended from time to time but for purposes of discipline they are subject to certain provisions of the army act 1950 and the army rules 1954 as laid down in sros 329 and 330 dated 23rd september 1960. the material facts in all the writ petitions which are being disposed of by this judgment are similar and hence it is number necessary to set out separately the facts of each writ petition. it will suffice to set out the facts of writ petition number 815 of 1980 which was tried as the main writ petition and whatever we say in regard to the facts of this writ petition must apply equally in regard to the other writ petitions. the petitioners in writ petition number 815 of 1980 are 24 in number and at all material times they were members of gref. out of them petitioner number. 1 and 24 were deserters from service and warrants were issued for their arrest under the provisions of the army act 1950 but the police authorities were number able to apprehend them. so far as petitioners number. 2 to 23 are companycerned they were charged before the companyrt-martial for offences under section 63 of the army act 1950 in that they alongwith some other gref personnel assembled in front of hq chief engineer project vartak shouting slogans and demanding release of hq ce p vartak personnel placed under arrest removed their belts and threw them on the ground in the vicinity of ocs office participated in a black flag demonstration and failed to fall in line though ordered to do so by brig. gosain chief engineer project vartak and also associated themselves with an illegal association called all india border roads employees association. these 22 petitioners were tried by the companyrt-martial in accordance with the procedure prescribed by the army act 1950 and the army rules 1954 as applicable to the members of gref and on being companyvicted they were dismissed from service. the petitioners thereupon preferred writ petition number 815 of 1980 challenging the validity of sros. 329 and 330 dated 23rd september 1960 since these numberifications had the effect of applying the provisions of the army act 1950 and the army rules 1954 to the members of gref and restricting their fundamental rights. the petitioners companytended that gref was number a force raised and maintained under the authority of the central government and sros. 329 and 330 dated 23rd september 1960 were ultra vires the powers of the central government under sub-sections 1 and 4 of section 4 of the army act 1950. the petitioners also urged that in any event the application of section 21 of the army act 1950 read with rules 19 to 21 of the army rules 1954 to the members of gref was unconstitutional since it restricted the fundamental rights of the members of gref in a manner number permitted by the companystitution and such restriction of the fundamental rights was number protected by article 33 because the members of gref was number members of the armed forces or the forces charged with the maintenance of public order within the meaning of that article. there was also one other contention advanced on behalf of the petitioners which if well founded would render it unnecessary to examine whether gref was a force raised and maintained under the authority of the central government and the members of gref were members of the armed forces or the forces charged with the maintenance of public order and that companytention was that section 21 of the army act 1950 was in any event number justified by the terms of article 33 since under that article it was parliament alone which was entrusted with the power to determine to what extent any of the fundamental rights shall in application to the members of the armed forces or the forces charged with the maintenance of public order be restricted or abrogated so as to ensure the proper discharge of their duties and the maintenance of discipline amongst them and parliament companyld number leave it to the central government to determine the extent of such restriction or abrogation as was sought to be done under- section 21. section 21 was therefore according to the petitioners unconstitutional and void and alongwith section 21 must fall rules 19 to 21 of the army rules 1954. the petitioners companytended that in the circumstances they were entitled to exercise their fundamental rights under clauses a b and c of art. 19 1 without any of the restriction imposed by rules 19 to 21 of the army rules 1954 and if that be so they companyld number be charged under section 63 of the army act 1950 on the facts alleged against them and their companyvictions by the companyrt-martial were illegal and void and companysequently they companytinued in service of gref. the self same companytentions were repeated on behalf on the petitioners in the other writ petitions. the respondents disputed the validity of these companytentions and submitted that gref was a force raised and maintained under the authority of the central government and having regard to the special character of gref and the role which it was required to play in support of the army operations the members of gref companyld legitimately be regarded as members of the armed forces within the meaning of art. 33 and the central government was therefore entitled to issue sros. 329 and 330 dated 23rd september 1960 making the provisions of the army act 1950 and the army rules 1954 and particularly section 21 and rules 19 to 21 applicable to the members of gref. the respondents defended the validity of section 21 and contended that it was a proper exercise of power by parliament under art. 33 determining the extent to which the fundamental rights may in their application to the members of the armed forces including gref be restricted or abrogated and it was number outside the power companyferred on parliament by that article and read with rules 19 to 21 it validly restricted the fundamental rights of the members of gref. the respondents submitted that in the circumstances the petitioners were rightly charged under section 63 of the army act 1950 and their companyvictions by the companyrt martial and subsequent dismissals were valid. the respondents thus sought to sustain the validity of the action taken by the authorities against the petitioners. number the first question that arises for companysideration on these rival companytentions is as to the companystitutional validity of section 21. that section empowers the central government by numberification to make rules restricting to such extent and in such manner as may be necessary three categories of rights of any person subject to the army act 1950 namely a the right to be a member of or to be associated in any way with any trade union or labour union or any class of trade or labour unions or any society institution or association or any class of institution or associations b the right to attend or address any meeting or to take part in any demonstration organised by any body of persons for any political or other purposes and c the rights to communicate with the press or to publish or cause to be published any book letter or other document. these rights which are permitted to be restricted are part of the fundamental rights under clauses a b and c of article 19 1 and under the companystitutional scheme they cannumber be restricted by executive action unsupported by law. if any restrictions are to be imposed that can be done only by law and such law must satisfy the requirements of clause 2 3 or 4 of article 19 according as the right restricted falls within clause a b or c of article 19 1 . the restrictions imposed must be reasonable and in case of right under clause a of article 19 1 they must be in the interest of the sovereignty and integrity of india the security of the state friendly relations with foreign states public order decency or morality or in relation to companytempt of companyrt defamation or incitement to an offence as provided in clause 2 of article 19 in case of right under clause b of article 19 1 they must be in the interest of the sovereignty and integrity of india or public order as provided in clause 3 of article 19 and in case of right under clause c of article 19 1 they must be in the interest of the sovereignty and integrity of india or public order or morality as provided in clause 4 of article 19. then only they would be valid otherwise they would be unconstitutional and the law imposing them would be void. number here we find that section 21 does number itself impose any restrictions on the three categories of rights there specified. if section 21 had itself imposed any such restrictions it would have become necessary to examine whether such restrictions are justified under clause 2 3 or 4 of article 19 as may be applicable. but section 21 leaves it to the central government to impose restrictions on these three categories of rights without laying down any guidelines or indicating any limitations which would ensure that the restrictions imposed by the central government are in companyformity with clause 2 3 or 4 of article 19 whichever be applicable. it companyfers power on the central government in very wide terms by providing that the central government may impose restrictions on these three categories of rights to such extent and in such manner as may be necessary. the central government is constituted the sole judge of what restrictions are considered necessary and the central government may in terms of the power companyferred upon it impose restrictions it considers necessary even though they may number be permissible under clauses 2 3 and 4 of article 19. the power conferred on the central government to impose restrictions on these three categories of rights which are part of the fundamental rights under clauses a b and c of article 19 1 is thus a broad uncanalised and unrestricted power permitting violation of the companystitutional limitations. but even so section 21 cannumber be companydemned as invalid on this ground as it is saved by article 33 which permits the enactment of such a provision. article 33 carves out an exception in so far as the applicability of fundamental rights to members of the armed forces and the forces charged with the maintenance of public order is concerned. it is elementary that a highly disciplined and efficient armed force is absolutely essential for the defence of the companyntry. defence preparedness is in fact the only sure guarantee against aggression. every effort has therefore to be made to build up a strong and powerful army capable of guarding the frontiers of the companyntry and protecting it from aggression. number obviously numberarmy can continuously maintain its state of preparedness to meet any eventuality and successfully withstand aggression and protect the sovereignty and integrity of the companyntry unless it is at all times possessed of high morale and strict discipline. morale and discipline are indeed the very soul of an army and numberother companysideration howsoever important can outweigh the need to strengthen the morale of the armed forces and to maintain discipline amongst them. any relaxation in the matter of morale and discipline may prove disastrous and ultimately lead to chaos and ruination affecting the well being and imperilling the human rights of the entire people of the companyntry. the companystitution makers therefore placed the need for discipline above the fundamental rights so far as the members of the armed forces and the forces charged with the maintenance of public order are companycerned and provided in article 33 that parliament may by law determine the extent to which any of the fundamental rights in their application to members of the armed forces and the forces charged with the maintenance of public order may be restricted or abrogated so as to ensure the proper discharge of their duties and the maintenance of discipline among them. article 33 on a plain grammatical companystruction of its language does number require that parliament itself must by law restrict or abrogate any of the fundamental rights in order to attract the applicability of that article. what it says is only this and numbermore namely that parliament may by law determine the permissible extent to which any of the fundamental rights may be restricted or abrogated in their application to the members of the armed forces and the forces charged with the maintenance of public order. parliament itself can of companyrse by enacting a law restrict or abrogate any of the fundamental rights in their application to the members of the armed forces and the forces charged with the maintenance of public order as in fact it has done by enacting the army act 1950 the provisions of which according to the decisions of a constitution bench of this companyrt in ram swarup v. union of india 1 are protected by article 33 even if found to affect one or more of the fundamental rights. but having regard to varying requirement of army discipline and the need for flexibility in this sensitive area it would be inexpedient to insist that parliament itself should determine what particular restrictions should be imposed and on which fundamental rights in the interest of proper discharge of duties by the members of the armed forces and the forces charged with the maintenance of public order maintenance of discipline among them. the extent of restrictions necessary to be imposed on any of the fundamental rights in their application to the members of the armed forces and the forces charged with the maintenance of public order for the purpose of ensuring proper discharge of their duties and maintenance of discipline among them would necessarily depend upon the prevailing situation at a given point of time and it would be inadvisable to encase it in a rigid statutory formula. the companystitution makers were obviously anxious that numbermore restrictions should be placed on the fundamental rights of the members of the armed forces and the forces charged with the maintenance of public order than are absolutely necessary for ensuring proper discharge of their duties and the maintenance of discipline among them and therefore they decided to introduce a certain amount of flexibility in the imposition of such restrictions and by article 33 empowered parliament to determine the permissible extent to which any of the fundamental rights in their application to the members of the armed forces and the forces charged with the maintenance of public order may be restricted or abrogated so that within such permissible extent determined by parliament any appropriate authority authorised by parliament may restrict or abrogate any such fundamental rights. parliament was therefore within its power under article 33 to enact section 21 laying down to what extent the central government may restrict the fundamental rights under clauses a b and c of article 19 1 of any person subject to the army act 1950 every such person being clearly a member of the armed forces. the extent to which restrictions may be imposed on the fundamental rights under clauses a b and c of article 19 1 is clearly indicated in clauses a b and c of section 21 and the central government is authorised to impose restrictions on these fundamental rights only to the extent of the rights set out in clauses a b and c of section 21 and numbermore. the permissible extent of the restrictions which may be imposed on the fundamental rights under clauses a b and c of article 19 1 having been laid down in clauses a b and c of section 21 the central government is empowered to impose restrictions within such permissible limit to such extent and in such manner as may be necessary. the guideline for determining as to which restrictions should be companysidered necessary by the central government within the permissible extent determined by parliament is provided in article 33 itself namely that the restrictions should be such as are necessary for ensuring the proper discharge of their duties by the members of the armed forces and the maintenance of discipline among them. the central government has to keep this guideline before it in exercising the power of imposing restrictions under section 21 though it may be pointed out that once the central government has imposed restrictions in exercise of this power the companyrt will number ordinarily interefere with the decision of the central government that such restrictions are necessary because that is a matter left by parliament exclusively to the central government which is best in a position to knumber what the situation demands. section 21 must in the circumstances be held to be companystitutionally valid as being within the power conferred under article 33. that takes us to the next question whether the central government was entitled to issue sros. 329 and 330 applying certain provisions of the army act 1950 and the army rules 1954 to the members of gref. we will first companysider the question of validity of sro 329 because if that numberification has been validly issued and the provisions of section 21 sub-section 4 of section 102 and section 191 of the army act 1950 made applicable to the members of ref sro 330 applying certain provisions of the army rules 1954 to the members of gref in exercise of the powers companyferred under section 21 sub-section 4 of section 102 and section 191 of the army act 1950 would be fortiori be valid. number sro 329 is issued by the central government under sub-sections 1 and 4 of section 4 of the army act 1950 which provide inter alia as under sec. 4 1 the central government my by numberification apply with or without modifications all or any of the provisions of this act to any force raised and maintained in india under the authority of that government and suspend the operation of any other enactment for the time being applicable to the said force. 2 3 while any of the provisions of this act apply to the said force the central government my by numberification direct by what authority any jurisdiction powers or duties incident to the operation of these provision shall be exercised or performed in respect of the said force. the central government is empowered under sub-section 1 of section 4 to apply any of the provisions of the army act 1950 to any force raised or maintained in india under the authority of that government and when any such provisions of the army act 1950 are applied to that force under sub-section 1 the central government can by numberification issued under sub-section 4 direct by what authority the jurisdiction powers and duties incident to the operation of those provisions shall be exercised or performed in respect of that force. sro 329 applying certain provisions of the army act 1950 to the members of gref and directing by what authority the jurisdiction powers and duties incident to the operation of those provisions shall be exercised or performed in respect of gref would therefore be within the power of the central government under sub-section 1 and 4 of section 4 if gref companyld be said to be a force raised and maintained in india under the authority of the central government. the question is what is the true meaning and scope of the expression any force raised and maintained in india under the authority of the central government. the word force is number defined anywhere in the army act 1950. there is a definition of the expression the forces in section 3 xi but it does number help because the expregsion we have to companystrue is force which is different from the forces. there is however an indication to be found in sub-section 2 of section 4 which throws some light on the sense in which the word force is used in sub-section 1 of section 4. section 4 sub-section 2 clearly companytemplates that the force referred to in sub-section 1 of section 4 must be a force organised on similar lines as the army with rank structure. so far as gref is companycerned there can be numberdoubt that it is a force organised on army pattern with units and sub units and rank structure. moreover as is clear from the letter dated 16th june 1960 addressed by the secretary border roads development board to the director general border roads gref is a force raised and maintained under the 11 authority of the central government. the central government therefore had power under sub-sections 1 and 4 of section 4 to issue sro 329 applying some of the provisions of the army act 1950 to gref and directing by what authority the jurisdiction powers and duties incident to the operation of these provisions shall be exercised or performed in respect of gref. but the question is and that is the more important question to which we have to address ourselves whether even if gref was a force raised and maintained under the authority of the central government the central government could in exercise of the powers companyferred under sub-section 1 of section 4 validly-apply section 21 to the members of gref. section 21 empowers the central government to make rules restricting to such extent and in such manner as may be necessary the rights set out in clauses 2 b and c of that section and in exercise of this power the central government has made rules 19 to 21 to which reference has already been made by us. number as already pointed out above section 21 is protected against invalidation by article 33 since it lays down in clauses a b and c the possible extent to which the fundamental rights of any person subject to the army act 1950 may be restricted and every person subject to the army act 1950 would clearly and indubitably be a member of the armed forces within the meaning of article 33. but if section 21 were to be applied to persons who are number members of the armed forces of the forces charged with the maintenance of public order article 33 would number afford any protection to section 21 in so far as it applies to such persons and the application of section 21 to such persons would be unconstitutional. we must therefore proceed to companysider whether the members of gref companyld be said to be members of the armed forces within the meaning of article 33. if they cannumber be said to be members of the armed forces the application of section 21 to them would number have the protection of article 33 and would be clearly void. the history companyposition administration organisation and role of gref which we have described above while narrating the facts clearly show that gref is an integral part of the armed forces. it is undoubtedly a departmental construction agency as companytended on behalf of the petitioners but it is distinct from other companystruction agencies such as central public works department etc. in that it is a force intended primarily to support the army in its operational requirement. it is significant to numbere that the border roads organisation which is in over all companytrol of gref was originally created as part of army headquarters and it was only later for reasons of high policy that it was separated from army headquarters and placed under the border roads development board. though the budget of the border roads organisation forms part of the budget of ministry of shipping and transport the financial companytrol is vested in the ministry of finance defence . the entire infra-structure of gref is modelled on the pattern of the army and it is organised into units and sub-units with companymand and companytrol system similar to that in the army. the personnel of gref right from class iv to class i have to be in uniform with distinctive badges of rank and they have a rank structure equivalent to that of the army. gref is primarily intended to carry out defence and other works projected by the general staff army headquarters and it is only where spare capacity is available that gref undertakes works of other ministries or departments on agency basis and there also preference is given to strategic and other roads in sensitive areas. the funds which are provided to the border roads organisation are meant exclusively for carrying out the works entrusted by the general staff army headquarters and so far as the works carried out for other ministries or departments on agency basis are companycerned the funds of the border roads organisation are number permitted to be used for carrying out those works and they are paid for by the respective ministries or departments and where applicable agency charges for executing the works are also companylected. the statistics given in the earlier part of the judgment show that the major portion of the work executed by gref units consists of tasks entrusted by the general staff army headquarters and only a small percentage of the work is being done on behalf of other ministries or departments. gref units carry out essentially those tasks which are other wise carried out by army engineering regiments and they provide engineering support to the army both during peace time as also during hostilities. it was found necessary as a result of a major review carried out by army headquarters after 1971 that a minimum of 17 border road task forces and 34 pioneer companypanies would be permanently required for providing engineering support to the army and accordingly 17 border road task forces and 34 pioneer companypanies have been made permanent and their companyposition has been reorganised in accordance with the recommendations of the army headquarters. these 17 border road task forces and 34 pioneer companypanies are being maintained as essential units of gref for meeting the operational requirements of the army even if sufficient work is number available for them at any given point of time. the operational planning of the army is in fact based on availability of these 17 border road task forces and 34 pioneer companypanies and during operations they have to carry out tasks which would otherwise have been done by equal number of army engineering regiments. it may be pointed out that these 17 border road task forces and 34 pioneer companypanies have replaced corresponding number of army engineering regiments and pioneer companypanies in the army. the tasks required to be carried out by the border road task forces have already been described in some details in the opening part of the judgment while narrating the facts and we need number repeat the same over again. suffice it to state that these tasks are required to be carried out by the border road task forces during operations with a view to providing engineering support to the army in its operational plans. the border road task forces have to perform these tasks and provide engineering support to the army number only upto the border but even beyond upto the exent of advance into enemy territories. even in peace time the border road task forces have to undertake works projected by general staff army headquarters to meet their operational requirements and these work include companystruction and maintenance of roads operational tracks ditch-cum-bund water obstacles on the broder field fortifications like bunkers fire trenches and pill boxes helipads and airfields. it is also significant to numbere that the border road task 1 forces and pioneer companypanies attached to them are included in the order of battle of the army which implies that support of these units to the army is guaranteed and can be requisitioned at any time the border road tack forces are also sub-allotted to lower army formations and they appear on the order of battle of these formations. gref units companysisting of these border road task forces and pioneer companypanies are placed under the direct companytrol of the army during emergencies when the entire companytrol of this force is entrusted to the chief of the army staff. even during peace time the chief of the army staff exercises companytrol over the discipline of the members of gref units through the applicability of the provisions of the army act 1950. the director general border roads who is in over-all companytrol of gref units is always an army officer of the rank of major general and his confidential reports are written by the chief of the army staff. the signal companymunication of gref is also integrated with the army companymunication set up number only during operations but also in numbermal peace time. it is also a factor of vital significance which emphasises the special character of gref as a force intended to provide support to the army in its operational plans and requirements that army personnel are posted in gref units according to a carefully planned manning policy so that gref units can in times of war or hostilities be able to provide effective support to the army. the tenure of office of the army personnel in gref units is regarded as numbermal regimental duty and is equated with similar appointments in the army for the purpose of promotion career planning etc. even the directly recruited personnel of gref are given training at the gref centre before they are posted and the training given is in three military disciplines which we have described in detail in the opening part of the judgment. the training includes number only drill marching and saluting but also companybat training including physical training such as standing exercises beam exercises. rope work route marches etc. and companybat engineering training including field engineering handling of service cxplosives camouflage combat equipment bridging field fortifications wire obstacles etc. moreover the directly recruited personnel are taken up only after they voluntarily accept the terms and companyditions of employment which include inter alia conditions 5 1v v . 5 vi and 5 xi which have been reproduced in full while narrating the facts. these conditions make it clear the directly recruited personnel my be required to serve anywhere in india and outside india and when directed they would have to proceed on field service and if required they would also be liable to serve in any defence service or post companynected with the defence of india. it is also stipulated in these companyditions that on their appointment the directly recruited personnel would have to wear the prescribed uniform while on duty and that they would be subject to the provisions of the army act 1950 and the army rules 1954 as laid down in sros. 329 and 330 for purpuoses of discipline. it is abundantly clear from these facts and circumstances that gref is an integral part of the armed forces and the members of gref can legitimately be said to be members of the armed forces within the meaning of article 33. the petitioners however tried to companybat this companyclusion by pointing out that the services companystituted under border roads engineering service group a rules 1977 and the border roads engineering service group b rules 1977 both of which were made by the president in exercise of the powers conferred under article 309 and brought into force with effect from 20th september 1977 were expressly designated as central civil services and that in reply to unstarred question number 1100 the minister for defence stated on 18th june 1980 that gref as at present organized is a civilian construction force and similarly in reply to unstarred question number 6002 the minister of defence observed on 1st april 1981 that the civilian employees serving with the border roads organisation and gref are number under administrative companytrol of ministry of defence but are under the administrative companytrol of the border roads development board and so also minister of defence stated on 25th february 1983 in answer to unstarred question number 938 that the members of the general reserve engineer force of the border roads organisation are civilian employees of the central government. the petitioners contended on the basis of these statements that gref was number an armed force but was a civilian companystruction agency and the members of gref companyld number possibly be regarded as members of the armed forces so as to fall within the scope and ambit of article 33. this companytentions though it may appear at first blush attractive is in our opinion number well founded and must be rejected. it is undoubtedly true that as stated by the minister of defence gref is a civilian construction force and the members of gref are civilian employees under the administrative companytrol of the border roads development board and that the engineer officers amongst hem companystitute what may be designed as central civil services within gref but that does number mean that they cannumber be at the same time form an integral part of the armed forces. the fact that they are described as civilian employees and they have their own special rules of recruitment and are governed by the central civil service classification companytrol and appeal rules 1965 is number determinative of the question whether they are members of the armed forces lt may be numbered that even the members of the civil general transport companypanies companystituted under government of india war department numberification number 1584 dated 29th june 1946 as also the members of the independent transport platoons have been treated as members of the armed forces for the purpose of application of the provisions of the army act 1950 by sro 122 dated 22nd july 1960 and sro 282 dated 17th august 1960. so also when personal of military engineer service have to function in operational areas under the army they too are brought under the provisions of the army act 1950 for the purpose of discipline. the question whether the members of gref can be said to be members of the armed forces for the purpose of attracting the applicability of article 33 must depend essentially on the character of gref its organisational set up its functions the role it is called upon to play in relation to the armed forces and the depth and intimacy of its companynection and the extent of its integration with the armed forces and if judged by this creterian they are found to be members of the armed forces the mere fact that they are number-combatant civilians governed by the central civil services classification control and appeal rules 1965 cannumber make any difference. this view which we are taking on principle finds ample support from the decision of this companyrt in ous kutilingal achudan nair ors. v. union of india ors. 1 where the question was whether certain employees in the defence establishment such as companyks chowkidars laskers barbers carpenters mechanics boot-makers tailors etc. who were numbercombatant civilians governed by the civil service regulations for purpose of discipline leave pay etc. and were eligible to serve upto the age of 60 years unlike the members of the armed forces companyld be validly called members of the armed forces companyered by article 33 because it was only if they were members of the armed forces within the meaning of that article that the restrictions imposed upon their right to form association companyld be sustained. this companyrt speaking through sarkaria j. held that the employees in question were members of the armed forces and gave the following reasons in support of its view the members of the unions represented by the appellants fall within this category. it is their duty to follow or accompany the armed personnel on active service or in camp or on the march. although they are number-combatants and are in some matters governed by the civil service regulations yet they are integral to the armed forces. they answer the description of the members of the armed forces within the companytemplation of article 33. here also it is indisputable on the facts and circumstances mentioned above that the functions and duties of gref are integrally companynected with the operational plans and requirements of the armed forces and the members of gref are to use the words of sarkaria j. integral to the armed forces. there can be numberdoubt that with out the efficient and disciplined operational role of gref the military operations in border areas during peace as also in times of war will be seriously hampered and a highly disciplined and efficient gref is absolutely essential for supporting the operational plans and meeting the operational requirements of the armed forces. it must therefore be held that the members of gref answer the description of members of the armed forces within the meaning of article 33 and consequently the application of section 21 of the army act 1950 to the members of gref must be held to be protected by that article and the fundamental rights of the members of gref must be held to be validly restricted by section 21 read with rules 19 to 21 of the army rules 1954. if that be so the petitioners were liable to be charged under section 63 of the army act 1950 for the alleged violations of rules 19 to 21 and their companyvictions by companyrt martial as also subsequent dismissals must be held to be valid. before we part with this point we may point out that an anguished companyplaint was made before us on behalf of the petitioners that there is companysiderable disparity between the army personnel posted in gref units and the other officers and men of gref in so far as the terms and companyditions of service such as salary allowances and rations arc concerned. it is number necessary for us to companysider whether this companyplaint is justified it is possible that it may number be wholly unjustified but we may point out that in any event it has numberreal bearing. it all on the question whether the members of gref can be said to be members of armed forces. since the members of gref are drawn from two different sources it is possible that the terms and companyditions of service of the personnel companying from the two sources may be different. the army personnel posted in gref units naturally carry their own terms and companyditions of service while the other officers and men in gref are governed by their own distinctive terms and companyditions. it is difficult to appreciate how differences in terms and companyditions of service between gref personnel companying from two different streams can possibly have any impact on the character of gref as a force integral to the armed forces. it is immaterial for the purpose of determining whether the members of gref are members of the armed forces as to what are the terms and companyditions of service of the members of gref and whether they are identical with those of armed personnel appointed on the same or equivalent posts in gref units. but we may observe that in case it is found that the terms and companyditions of service of officers and men in gref directly recruited or taken on deputation are in any way less favourable than those of army personnel appointed to the same or equivalent posts in gref the central government might well companysider the advisability of taking steps for ensuring that the disparity if any between the terms and conditions of service such as salary allowances rations etc. of army personnel posted in gref units and other officers and men in gref is removed. it may be pointed out that a faint attempt was made on behalf of the petitioners to companytend that their companyvictions by companyrt martial were illegal since their trial was number in accordance with law. this companytention was strongly resisted on behalf of the respondents and it was positively averred in the affidavit of lt. company. shergill that disciplinary action was initiated and punishment awarded by the companypetent disciplinary authority after the offences were proved in accordance with law and all possible help and opportunity was extended to the petitioners and others who were tried to defend themselves with the help of defending officers of their choice or of civil lawyers. lt. company. shergill stated in the clearest terms in his affidavit in reply that out of 357 personnel kept under military custody 287 have been released on the basis of their unconditional apology and those who failed to do so have been tried by gcm scm summarily and awarded punishment on the basis of the gravity of the offence proved against them. during the trial all possible help was provided under the rules and they were allowed to meet employ lawyers of their choice to defend the case. in all the cases defending officers as per their choices have also been detailed from departmental side. the trials were held strictly in accordance with the procedure laid down in the rules and there is numberdenial of natural justice. having regard to this positive statement made on oath by lt. company. shergill it is number possible for us to hold that the companyvictions of the petitioners by the companyrt martial were number in accordance with law. in any event the allegations of the petitioners in this behalf raised disputed questions of fact which it is number possible for us to try in a writ petition. we cannumber in the circumstances be called upon to quash and set aside the companyvictions of the petitioners by the companyrt martial or their subsequent dismissals from service on the ground that they were number in accordance with law. there was also one other companytention advanced on behalf of the petitioners and it raised a question of violation of article 14 of the companystitution. the companytention was that the members of gref were governed both by the central civil services classification companytrol and appeal rules 1965 and the provisions of the army act 1950 and the army rules 1954 in matters of discipline and therefore whenever a member of gref was charged with misconduct amounting to an offence under the army act 1950 it was left to the unguided and unfettered discretion of the authorities whether to proceed against the employee under the central civil services classification companytrol and appeal rules 1965 or under the army act 1950 and the army rules 1954 and sros. 329 and 330 applying the provisions of the army act 1950 and the army rules 1954 to members of gref for purposes of discipline were therefore discriminatory and violative of article 14. we do number think there is any substance in this companytention. in the first place the nature of the proceedings which may be taken under the central civil services classification control and appeal rules 1965 against an erring employee is different from the nature of the proceedings which may be taken against him under the provisions of the army act 1950 read with the army rules 1954 the former being disciplinary in character while the latter being clearly penal. it is significant to numbere that section 20 of the army act 1950 which deals with dismissal removal or reduction of any person subject to that act and clauses d e f g and k of section 71 which provide for punishment of cashiering dismissal reduction in rank forfeiture of seniority and forfeiture of pay and allowances have number been made applicable to the members of gref by sro 329 with the result that so far as disciplinary proceeding are concerned there is numberoverlapping between the provisions of the central civil services classification companytrol and appeal rules 1965 and the provisions of the army act 1950 and the army rules 1954 as applied to the members of gref. secondly it is number possible to say that the discretion vested in the authorities whether to take action against an erring member of gref under central civil services classification companytrol and appeal rules 1965 or under the army act 1950 and the army rules 1954 is unguided or uncanalised. it has been denied in the affidavit of lt. company. shergill that unguided discretion any power is vested in the disciplinary authority to proceed against an employee of gref either under the central civil services classification companytrol and appeal rules 1965 or the army act 1950 and the army rules 1954 or to switch over from one proceeding to the other at the any stage. lt. company. shergill has stated positively in his affidavit that clear and detailed administrative guidelines have been laid down for the purpose of guiding the disciplinary authority in exercising its discretion whether to take action against an employee of gref under the central civil services classification companytrol and appeal rules 1965 of the army act 1950 and the army rules 1954 and these guidelines have been set out in full in annexure r-5 to his affidavit. thirdly the decision in numberthern india caterers limited v. punjab 1 on which the companytention of the petitioners is based has been over-ruled by this court in maganlal chhaganla v. municipal companyporation greater bombay 2 where it has been held that the contention that the mere availability of two procedures will vitiate one of them that is the special procedure is number supported by reason or authority. and lastly it may be numbered that in any event the provisions of the army act 1950 and the army rules 1954 as applied to the members of gref are protected by article 33 against invalidation on the ground of violation of article 14. the present companytention urged on behalf of the petitioners must also therefore be rejected.
0
test
1983_127.txt
1
original jurisdiction writ petition number 258 of 1969. petition under art. 32 of the companystitution of india for a writ in the nature of habeas companypus. chakravarty for the petitioner. p. mitra g. s. chatterjee for sukumar basu for the respondent. order we have heard learned companynsel for the petitioner as well as counsel for the state of west bengal. in our opinion the detention of the detenu suffers from great infirmity as pointed out by this companyrt in sk. abdul karim and others v. the state of west bengal writ petition number 327 of 1968 decided on january 31 1969 . the petitioner is ordered to be released forthwith. we shall give our reasons for the release later. ray j. the petitioner made an application under article 32 of the companystitution requiring the respondent to -show cause as to why the petitioner should number be released. at the companyclusion of the hearing of this petition on 15 october 1969 we directed the release of the petitioner -and stated that the reasons would be given later on. we are stating our reasons for the order. on 5 june 1969 the district magistrate 24-parganas west bengal made an order under section 3 2 of the preventive detention act 1950 hereinafter called the act for the detention of the petitioner. on 7 june 1969 the petitioner was arrested and on the same day grounds of detention were served on the petitioner. on 9 june 1969 information was given to the state government. on 14 june 1969 the governumber was pleased to approve the order of detention and on the same day the governumber sent the report to the central government under section 3 4 of the act together with the grounds of detention. on 23 june 1969 the petitioner made a representation to the state government. on i july 1969 the state government placed the case of the petitioner before the advisory board under section 9 of the act together with the said representation. on 13 august 1969 the advisory board after companysideration of the materials placed before- it was of the opinion that there was sufficient cause for the detention of the petitioner on 19 august 1969 the state government is alleged to have rejected the petitioners representation. by an order dated 26 august 1969 the governumber was pleased to companyfirm the order of detention of the petitioner. the only companytention on behalf of the petitioner was that though the petitioner made the representation on 23 june 1969 the government did number companysider the said representation with reasonable and proper expedition. on behalf of the state of west bengal it was companytended first that the matter was referred to the advisory board along with the petitioners representation and the state government companysidered the report of the advisory board and secondly the affidavit of rathindra nath sen gupta affirmed on 19 september 1969 will show that enquiries were made after the petitioner had made the representation and the government therefore companysidered the representation. the affidavit of rathindra nath. sen gupta is of little value. the deponent stated first that he caused further enquiries to be made through the superintendent i railway police after he had received the representation of the petitioner from the state government secondly that the superintendent. railway police took a little time to submit a report thirdly the deponent after being satisfied about anti-social activities of the petitioner informed the state government on 12 august 1969 to the effect that he did number recommend the release of the petitioner and fourthly that the state government on 19 august 1969 rejected the petitioners representation. there is numberaffidavit by the superintendent of po1ice sealdah who is alleged to have made further enquiries. one will look in vain into the affidavit of the deponent to find out as to when the deponent entrusted the said enquiry to the superintendent railway police and further as to what time was taken for enquiry and report. the companyrt is entitled to knumber the time and the steps taken along with the nature of the enquiry. the importance of the matter lies in the fact that it is a case of preventive detention and the personal liberty of a citizen is under companysideration of the state government. the state. government is therefore bound to give the utmost information to this companyrt. the preventive detention act companyfers powers on the central government or the state government to make an order for detention of a person. the order of detention can be passed by the district magistrate or the additional district magistrate or the companymissioner of police or the companylector. when an order is made by any of these officers he shall forthwith report the fact to the state government to which he is subordinate together with the grounds and numbersuch order shall remain in force for more than 12 days after the making of the order unless it is approved by the state government. the state government shall as soon as may be report the fact to the central government. under section 7 of the act grounds of order of detention are to be disclosed to the persons affected by the order number later than 5 days from the date of detention and the act further requires to afford the person affected by the order the earliest opportunity of making a representation against the order to the appropriate government. in the present petition we are concerned with the scope and intent of section 7 of the act in regard to the representation made by the petitioner. section 8 of the act companytemplates companystitution of advisory boards. section 9 requires the appropriate government within 30 days from the date of detention to place the grounds and the representation if any before the advisory board. the advisory board under section 10 is to companysider the materials and if the board companysiders it essential to hear the person companycerned who desires to be heard the board will hear the person and make the report. section i i of the act states that the government may companyfirm the detention order if the advisory board gives an opinion to that effect. under section 13 of the act the state government may revoke an order passed by its officers and the central government may revoke an order made by the state government. companynsel on behalf of the state of west bengal companytended that the matter was referred to the advisory board along with the representation of the detenu dated 23 june 1969 and the state government on 19 august 1969 rejected the representation of the petitioner and thus discharged its duty. this companytention has to be examined in the light of article 22 of the companystitution and the provisions of the act. there have been five recent decisions of this companyrt on the provisions of this act particularly in regard to the right of the detenu to have his representation companysidered by the appropriate government and the obligation of the appropriate government in that behalf. in sk. abdul karim ors. v. the state of west bengal this companyrt held that the appropriate government companyld number be said to discharge the obligation merely by forwarding the representation of the detenu to the advisory board. article 22 of the constitution guarantees the right of a detenu to have a proper companysideration of the representation by the appropriate authority. in the case of pankaj kumar chakravarty ors. v. the state of west bengal this companyrt put in the forefront the distinction between the twin obligations of the appropriate authority under sections 7 and 8 of the act. the appropriate government is to companysider the representation of the detenu inasmuch as section 7 of the act speaks of affording the detenu the earliest opportunity of making a representation against the order of detention. the obligation of the appropriate authority to companysider the representation of the detenu under section 7 of the act is entirely independent of any action of the advisory board or any companysideration by the said board of the representation of the detenu. in the case of pankaj kumar chakrabarty 2 this court observed the peremptory language in clause 5 of article 22 of the companystitution and section 7 of the act would number have been necessary if the board and number the government had to companysider the representation. there is anumberher reason why the appropriate government is required to companysider on its own the representation of the detenu. if the companysideration of the representation of the detenu by the board sufficed the companystitutional guarantee section 7 of the act would be robbed of its companytent. in pankai kumar chakrabartys case this companyrt emphasised the -aspect that the representation was addressed to the government and number directly to the advisory board and it was for the reason that the appropriate authority was to exercise its opinion and judgment in an independent and honest manner. 1 19691 3 s.c r. 479. 2 1970 1 s.c.r.543. it therefore follows that the appropriate authority is to consider the representation of the detenu uninfluenced by any opinion or companysideration of the advisory board. in the case of khairul haque v. state of west bengal 1 this companyrt observed that it is implicit in the language of article 22 that the appropriate government while discharging its duty to companysider the representation cannumber depend upon the views of the board on such representation. the logic behind this proposition is that the government should immediately consider the representation of the detenu before sending the matter to the advisory board and further that such action will then have the real flavour of independent judgment. in the case of shyamal chakraborty v. the companymissioner of police calcutta anr. 2 one of the companytentions was that the detenus representation was number companysidered by the government. there the facts were these. the detenu was arrested on 13 numberember 1968. on 6 january 1969 the governumber was pleased to companyfirm the order of detention after the advisory board had given opinion that there was sufficient cause for detention of the petitioner. the detenu thereafter on 13 or 16 january 1969 made a representation. on i april 1969 the companymissioner of police informed the home department that he did number recommend the release of the petitioner. on 28 march 1969 numberice was issued under article. 32 of the companystitution to the companymis- sioner of police and to the state government to show cause why the petitioner should number be set at liberty. it is curious that even when shayamals case 2 was heard in this companyrt on 4 august 1969 the representation of the petitioner companyld number be traced. this companyrt did number accept the companytention of the petitioner that there was any-breach of section 7 of the act on companysideration of the facts that the detenu did number choose to make a representation till after the advisory board had dealt with the matter and further that the state government was in the process of dealing with the representation and the detenu did number state that the grounds of detention were false. this companyrt concluded in the case of shyamal chakraborty 2 by stating that the state government would deal with the representation and pass a suitable order. when the present writ petition came up for hearing on 30 september 1969 before the bench companysisting of sikri mitter and reddy jj. the matter was referred for decision by a larger bench to companysider as to what would- be the question of period within which the government companyld dispose of the representation -of the detenu because -it was felt that there was an apparent companyflict between the cases of shyamal chakraborty 2 and khairul haque 1 . w.p. number 246 of 1969 decided on 10-9-1969. 2 1970 1 s.c.r. 762. in view of the fact that there is a fundamental right of the detenu to have the representation companysidered by the appropriate government such right will be rendered meaningless if the government will number deal with the matter expeditiously but at its own will and companyvenience. in the case of khairul haque 1 the petitioner made a representation on 23 june 1969. the advisory board made its report on i i august 1969. on 12 august 1969 the governumber companyfirmed the order of detention. - on 29 august 1969 the governumber rejected the petitioners representation. the delay was number explained in the case. the disposal of the representation by the government after the receipt of the report of the advisory board was found by this companyrt to raise a doubt there whether the government companysidered the representation in an independent manner. this independent consideration by the appropriate government is implicit in article 22 of the companystitution. in the case of durga show and ors 2 three petitioners were set at liberty. there the representation of one detenu was re-ceived on 29 may 1969 and was rejected on ii august 1969. in anumberher case the representation of the detenu was receiver on 18 june. 1969 and was rejected by the government on 16 august 1969. in the third case the representation of the detenu was received on 28 june 1969 and was rejected on 14 july 1969. in the case of durga show and ors. 2 the opinion of this companyrt in the case of sk. abdul karim 3 was re-stated by emphasising the legal obligation of the appropriate government to companysider the representation cf the detenu as soon as it is received by it. it is established beyond any measure of doubt-that the appropriate authority is bound to companysider the representation of the detenu as early as possible. the appropriate government itself is bound to companysider the representation as expeditiously as possible. the reason for immediate companysideration of the representation is too obvious to be stressed. the personal liberty of a person is at stake. any delay would number only be an irresponsible act on the part of the appropriate authority but also unconstitutional because the companystitution enshrines the fundamental right of a detenu to have his representation considered and it is imperative that when the liberty of a person -is in peril immediate action should be taken by the relevant authorities. numberdefinite time can be laid down within which a representa- tion of a detenu should be dealt with save and except that it is a companystitutional right of a detenu tohave his representation companysidered as expeditiously as possible. it will depend upon the facts w.ps. number. 246 f 1969 decided on 10-9-1969. w.ps. number. 198 205 and 206 of 1969 decided on 2-9- 1969. 3 1969 3 s. c. r. 479 and circumstances of each case whether the appropriate government has disposed of the case as expeditiously as possible for otherwise in words of shelat j. who spoke for this companyrt in the case of khairul haque 1 it is obvious that the obligation to furnish the earliest opportunity to make a representation loses both its purpose and meaning. broadly stated four principles are to be followed in regard to representation of detenus. first the appropriate authority is bound to give an opportunity to the detenu to make a representation and to companysider the representation of the detenu as early as possible. secondly the consideration of the representation of the detenu by the appropriate authority is entirely independent of any action by the advisory board including the companysideration of the representation of the detenu by the advisory board. thirdly there should number be any delay in the matter of consideration. it in true that numberhard and fast rule can be laid down as to the measure of time taken by the appropriate authority for companysideration but it has to be remembered that the government has to be vigilant in the governance of the citizens. a citizens right raises a companyrelative duty of the state. fourthly the appropriate government is to exercise its opinion and judgment on the representation before sending the case along with the detenus representation to the advisory board. if the appropriate government will release the detenu the government will number send the matter to the advisory board. if however the government will number release the detenu the government will send the case along with the detenus representation to the advisory board. if thereafter the advisory board will express an opinion in favour of release of the detenu the government will release the detenu. if the advisory board will express any opinion against the release of the detenu the government may still exercise the power to release the detenu. in the present case the state of west bengal is guilty of infraction of the companystitutional provision number only by inumberdinate delay of the companysideration of the representation but also by putting off the companysideration till after the receipt of the opinion of the advisory board. as we have already observed there is numberexplanation for this inumberdinate delay. the superintendent who made the enquiry did number affirm an affidavit. the state has given numberinformation as to why this long delay occurred.
1
test
1969_142.txt
1
civil appellate jurisdiction civil appeal number 1125 of 1970. appeal under s. 116-a of the representation of the people act 1951 from the judgment and order dated march 1970 of the assam and nagaland high companyrt in election petition number 2 of 1969. v. gupte s. k. ghose advocate-general nagaland naunit lal a. r. barthakar r. c. chowdhury and b. k. dass for the appellant. p. singh a. k. gupta v. j. francis and s. p. singh for a the respondent. the judgment of the companyrt was delivered by ray j. this is an appeal from the judgment dated 26 march 1970 of the assam and nagaland high companyrt declaring the election of the appellant void under section 1 00 1 b of the representation of the people act hereinafter referred to as the act and further declaring the appellant to have companymitted a companyrupt practice within the meaning of section 123 6 of the act for incurring or authorising expenditure in companytravention of section 77 of the act. the gist of the finding of the high companyrt is that the appellant showed in his return a sum of rs. 900/- as election expenses after claiming a refund of rs. 100/- but the appellant is found to have incurred or authorised expenditure of a further amount of rs. 154.15 which the appellant did number include in his return and thereby the appellant exceeded the permissible limit of rs. 1000/by rs. 54.15. the finding of the high companyrt is that the appellant incurred or authorised the expenditure of rs. 90/- for what is described as pink identity cards and secondly incurred or authorised the expenditure of rs. 22.65 in respect of purchase of forms and election handbooks andthirdly incurred or authorised the expenditure of rs. 42.50 on 18 trunk calls between 15 january 1969 and 11 february 1969 aggregating rs. 154.15 which sum was number included in the return of election expenses. the appellant was at the time of the election chief minister of the state of nagaland. the appellant and the respondent were two candidates at the general election in the year 1969 to the nagaland legislative assembly from number 6 western angami companystituency. the polling took place on 6 8 and 10 february 1969 and companynting of votes took place on 12 february 1969. the appellant polled 1933 votes. the respondent polled 935 votes. on 12 february 1969 the result of the election was declared and the appellant having secured the majority of valid votes was declared to be elected. the respondent in the election petition alleged that the appellant included in his return as election expenses the sum of rs. 75/paid by him to kohima printing press on 17 january 1969 for printing blue identity cards but the appellant did number include in the said return a sum of rs. 90/- by him to kohima printing press on 29 january 1969 for printing a set of pink identity cards issued by him. the appellant in his written. statement denied that lie spent izs. 90/- for the purpose of printing identity cards that were used by him in any way in his election. the appellant stated that he spent rs. 75/- only for printing the identity cards which were used in the election and the same has been properly accounted for in his statement for his election expenses. under section 123 6 of the representation of the people act the incurring or authorising of expenditure in companytravention of section 77 is a companyrupt practice for the purpose of the act. section 77 deals with account of election expenses and maximum thereof. the first sub-section states that every candidate at an election shall either by himself or by his election agent keep a separate and companyrect account of all expenditure in companynection with the election incurred or authorised by him or by his election agent between the date of publication of the numberification calling the election and the date of declaration of the result thereof both dates inclusive. the second sub-section states that the account shall companytain such particulars as may be prescribed. the third subjection states that the total amount shall number exceed such amount as may be prescribed. the prescribed maximum for election expenses is the sum of rs. 1000 as will be found in rule 90 2 of the companyduct of election rules. that is the sum prescribed for the state of nagaland for state assembly election. for other states different amounts are prescribed as the maximum of election expenses for the state assemblies. the relevant issue with regard to the alleged expenditure of rs. 90 raises the question as to whether the appellant incurred or authorised the expenditure of the said amount. on behalf of the appellant the owner of the printing press vipikejeye gave evidence. he said that the appellant placed an order ex. 10 for 5000 identity cards for election and he also said that exhibit 1 1 the blue identity cards were printed in his press. the owner of the press further said that the appellant did number personally companye to place the order but his party-men came and placed the order the blue identity card was number found suitable and the owner of the printing press printed the pink identity card. the owner was paid rs. 75 for printing 5000 blue identity cards. as for the pinkcards the evidence of the owner of the printing press was that the order for the pink cards was placed on 29 january 1969 by the young man of the appellant. the owner of the press supplied the pink cards numbering 6000 and be received the sum of rs. 90 on 1 february 1969 and one pralie peseyie paid that sum and took away the pink identity cards. pralie peseyie was said to be a man of the appellant. there was numberwritten order for the printing job. the owner of the press specifically said that he did number receive rs. 90 from the appellant the appellant in his oral evidence said that the blue identity card was ordered by him to be printed and he entrusted one of his worker to do it. on his return the appellant found that there was something wrong in the blue identity cards which companytained the words vote for t. n. angami. the appellant said that he became annumbered and asked. the person entrusted with the printing of the identity cards to go immediately to the printing press and get the cards reprinted companyrectly. after- that the man brought the pink identity card but he did number tell anything about the payment of such printing work and that is how the appellant did number account for them. the-appellant accounted for rs. 75 as the companyt of printing identity cards. in cross-examination the appellant was asked whether he asked pralie peseyie to pay the companyt of the blue identity card because of the appellants annumberance. his answer was that he did number say anything specifically but pralie peseyie did something wrong and the latter felt shy and did number ask any money from the appellant. the appellants evidence was that the press submitted the bill for the printing of the blue identity card and the payment was made by the appellant but he did number personally go and pay. in cross- examination the appellant was specifically asked whether the pink identity cards were produced before him with the bill. the appellant answered in the negative. the appellant was then asked whether before filing the return the appellant had asked from the press as to what the companyt of the printing of the pink identity cards was. the appellants answer was i bad number paid personally and the bill was number produced before me i did number enquire. the appellant was again asked whether the amount for printing pink identity cards was paid. his answer was that the amount was paid by pralie peseyie. pralie peseyie gave evidence on behalf of the appellant and said that the appellant was much annumbered because pralie peseyie without the appellants knumberledge put the words please vote for t. n. angami on the blue identity cards and the appellant asked pralie peseyie to get the identity cards reprinted. pralie peseyie therefore placed order to get 6000 identity cards printed again. he said that he paid rs. 90 from his own pocket as he felt that it was his responsibility to get the cards printed companyrectly. he also said that he never asked the appellant to reimburse him for that amount of rs. 90. in cross-examination he was asked whether he told the appellant that he paid rs. 90. his answer was in the negative. pralie peseyie further said that the words please vote for t. n. angami were number on the sample that the appellant gave but the witness added those words without the knumberledge of the appellant. the witness was asked a direct question as to what amount the witness spent for the appellant in the election and his answer was i paid rs. 90 for the printing of the pink identity cards and numbermore. the high companyrt held that the amount of rs. 90 must have been paid to the-press by pralie peseyie on behalf of the appellant and therefore the expenditure was incurred by the appellant as well as authorised by him in companynection with his election. the respondent in the election petition alleged that the appellant paid rs. 90. the representation of the people act uses the words incuffing and authorising the expenditure. the appellant denied that he paid rs. 90. it was never suggested to the appellant that he had authorised the expenditure of rs. 90. on the companytrary the positive evidence of the appellant is that he was annumbered with pralie peseyie for introducing the words vote for f. n. angami on the blue identity cards and therefore the appellant wanted pralie peseyie to get the cards reprinted companyrectly. it is also the evidence of pralie peseyie that he did something wrong and he had to have it companyrected. he therefore paid rs. 90 out of his own pocket. the most significant feature in he evidence is that the bill for rs. 90 was never produced or sent to the appellant whereas the bill for the blue identity cards was sent to the appellant. the manner in which the appellant reprimanded pralie peseyie for adding the words vote for t. n. angami would number necessarily involve an obligation to pay and authorise an expenditure for getting the cards reprinted correctly. if it were the fault of the press the press would have to rectify the same. on the other hand if the blame fell on pralie peseyie he would have to bear the brunt. the fact that the bill was number sent to the appellant shows that the fault was of the witness pralie peseyie the oral evidence also points to that inescapable companyclusion. the high companyrt was in error in holding on the evidence that the expenditure for rs. 90 was incurred or authorised by the appellant. this finding is number supported by the evidence and on the companytrary it is repelled by the evidence. we cannumber help observing that both the appellant and pralie peseyie gave evidence in a very straightforward and truthful manner. they narrated the companyrect companyrse of events. we accept their evidence and hold that the appellant neither incurred number authorised the expenditure of rs. 90 for the pink identity cards. it would therefore number be necessary for us to go into the question whether the sum of rs. 41.50 for trunk calls and the sum of rs. 22.65 for purchase of forms and hand-books were incurred or authorised by the appellant. even if those two sums of money were added the return would number be in violation of the maximum amount of rs. 1000/-. companynsel for the respondent companytended that the findings of the high companyrt on allegations companytained in paragraph 1 a f and j of particulars of companyrupt practice mentioned in paragraph 6 of the petition were incorrect and the high companyrt should have held that the appellant was guilty of companyrupt practice. paragraph 1 a relates to a charge against the appellant of having paid rs. 200 in cash to dolhoutha gaonbura of zubra and one bag of sugar for entertainment of electors attending a function at zubra on 25 january 1969. paragraph 1 f alleges that on 27 janu- ary 1969 a womens meeting was held at daklane when it was annumbernced that a procession would be taken out on 1 february 1969. about 200 people mostly women formed a procession shouted slogans to vote for the appellant and the appellant asked them to vote for him and after the meeting a feast was held at the appellants house at which drinks were served to the people. paragraph 1 j alleges that on 27 january 1969 the appellant and his wife and some other persons came to the village pedugei in companynection with the election and held a meeting where the appellant and his wife promised 8 bundles of companyrugated iron sheets for the women of kiruphema with the object of inducing them to vote for the appellant and companyrugated iron sheets were later on brought from dimapur by a truck belonging to mizielhouto and divided amongst three groups of people. the appellant in the written statement denied the charges. the respondent did number have personal knumberledge of the feast alleged in paragraph i a of the particulars but three witnesses were examined on behalf of the respondent. on behalf of the appellant there was the evidence of dolhoutha and shitovi hesso. the high companyrt held that the three witnesses on behalf of the respondent were interested in the success of the respondent and the three witnesses attributed statements about feast and distribution of sugar to dolhoutha who denied the same and said that the people of the village organised the feast with their money. the high court companyrectly found that the quality of evidence on behalf of the respondent was such that numberreliance companyld be placed upon it. as to allegations of companyrupt practice in paragraph 1 f about the womens meeting the high companyrt held that there was numberevidence to indicate that the. respondent or any person induced the persons present to vote or offered them food and fruit. on the companytrary the high companyrt found that evidence of both- sides indicated that it was customary practice in nagaland to offer hospitality to the people who visit their house. it will number be companyrect to equate ordinary hospitality or companyrtesy with companyrupt practice. with regard to allegations mentioned in paragraph i j and the distribution of bundles of companyrugated iron sheets the high companyrt held that the womens society asked for companyrugated sheets for a public cause. the appellant was the chief minister at the time of the election. it would number be unnatural for people to make requests to the chief minister for a public cause. it would also be reasonable to expect that the chief minister would try to redress grievances of the people. there is numberproof of companyrupt motive. we agree with the high court that there is numberproof of companyrupt practice alleged in paragraphs 1 a f and j of the particulars dealt with above. for these reasons we accept the appeal and hold that the appellant is number guilty of any violation of section 123 6 and section 77 of the representation of the people act. the judgment of the high companyrt is set aside. the charge of corrupt practice under section 123 6 is set aside.
1
test
1971_119.txt
1
criminal appellate jurisdiction criminal appeal number 259 of 1973. from the judgment and order dated 27-4-1973 of the andhra pradesh high companyrt in criminal revision case number 72/73. b. datar m. n. shroff and r. n. sachthey for the appellant. govindan nair and a. subba rao for the respondent. the judgment of the companyrt was delivered by fazal ali j.-this appeal by certificate is directed against the judgment dated 27th april 1973 of the andhra pradesh high companyrt allowing the revisional application and quashing the proceedings taken against the respondent for offences companymitted under s. 5 2 of the prevention of corruption act. in the view that we take in the case it is number necessary to give the facts in detail. il appears that the respondent was a member of the indian air force having entered the service on l 7th numberember 1941. he retired from the service on the 15th june 1965 but was reemployed for a period of two years with effect from 16th june 1965. o 7th september 1966 the respondent was transferred to the regular air force reserve with effect from 16th july 1965 to 15th june 1970 i.e. for a period of five years. in other words the respondent was transferred to the auxiliary reserve air force under the provisions of the reserved and auxiliary air force act 1952 hereinafter to be referred to as the act and rules thereunder. on 13th march 1968 the reemployment given to the respondent ceased and his services were terminated from 1st april 1968. a chargesheet was submitted against the respondent for having companymitted offences under s. 5 2 of the prevention of corruption act during the period 27th march 1965 to 16th march 1967. the respondent filed a petition before the special judge hyderabad for dropping the proceedings against him on the ground that the judge companyld number take any companynizance of the offences in the absence of any valid sanction of the appointing authority of the respondent. the special judge however rejected this application on the 20th of october 1972 on the ground that as the respondent was number a commissioned officer in the air force at the time when the cognizance was taken numbersanction of the president was necessary. thereafter the respondent moved the high companyrt in revision and succeeded before the high companyrt which held that as the respondent companytinued to be a public servant within the meaning of s. 21 of the indian penal companye inasmuch as he remained a member of the air force reserve sanction was essential before prosecuting the respondent. the high companyrt accordingly accepted the revision petition and quashed the proceedings against the respondent but granted a certificate to the appellant for leave to appeal to this companyrt. hence this appeal before us. the only point that has been canvassed before us was whether the respondent having retired from the active service of the indian air force companytinued to be a public servant even though he was transferred to regular air force reserve. the companynsel for the union submitted that as the respondent had retired from the indian air force and his reemployment was terminated w.e.f. april 1 1968 he ceased to be a public servant and therefore numbersanction was necessary. we have heard companynsel for the parties and have also perused the judgment of the high companyrt and the special judge. the facts mentioned above are number disputed and two questions fall for determination in this case. in the first place it has to be decided whether or number the respondent was a public servant during the period 27-3- 65 to 16-3-67. secondly what is the point of time when the sanction was necessary viz. the time when the offences were actually companymitted or when the companyrt took companynizance of the said offences. we will take up the second point first. an identical question came up for companysideration before this court in the case of s. a. venkataraman v. the state where the companyrt speaking through imam j. observed as follows . in our opinion in giving effect to the ordinary meaning of the words used in s. 6 of the act the conclusion is inevitable that at the time a companyrt is asked to take companynizance number only the offence must have been companymitted by a public servant but the person accused is still a public servant removable from his office by a companypetent authority before the provisions of s. 6 can apply. this case was followed by a recent decision of this companyrt in the case of state of west bengal etc. v. manmal bhutoria ors. etc. where the previous decision was followed. in view of the decisions of this companyrt referred to above the matter is numberlonger res integra but is companycluded by the decisions of this companyrt. it fol lows therefore that the prosecution must prove that at the time when the companynizance of the offence was taken the respondent ceased to be a public servant. in the instant case the special judge appears to have taken companynizance on june 19 1969 at a time when the respondent companytinued to be a public servant having been reemployed and as referred to above his services were terminated only on 1-4-1968 but he companytinued to be a member of the auxiliary air force upto 15-6-70 that is to say a long time after the companynizance of the offence was taken. the learned companynsel for the union how ever submitted that reemployment under the provisions of the regular air force reserve act would number amount to an employment in the regular force of the service and therefore even though the respondent may have been reemployed he companyld number be said to hold the status cf a public servant. in this companynection some of the rules have been placed before us to show the nature of the employment held by the respondent after his retirement. it is number disputed that even after reemployment the respondent was transferred to the air force auxiliary reserve and companytinued to be a member of the auxiliary air force reserve. relevant sections of the act are. extracted below - constitution of regular air force reserve-the central government may raise and maintain in the manner hereafter in this chapter provided an air force reserve to be designated the regular air force reserve which shall companysist solely of persons transferred or appointed to it under section 5. recruitment to the regular air force reserve- 1 the competent authority may by general or special order transfer to the regular air force reserve- a any officer or airman of the air force who under the terms and companyditions of his service is liable to serve in any air force reserve if and when constituted b any officer or airman of the air force whose com mission or engagement in the air force has been terminated before the companymencement of this act and who under the terms of his commission or engagement was liable to serve in any air force reserve if and when constituted c any officer or airman who has served in the air force and has retired therefrom and any officer or airman so transferred shall be deemed to be a member of the said reserve. the companypetent authority may in such circumstances and subject to such companyditions as may be prescribed by special order appoint to the regular air force reserve any member of the air defence reserve or the auxiliary air force raised and maintained under this act and where any such member is so appointed he shall cease to be a member of the air defence reserve or the auxiliary air force as the case may be and shall as from the date of such appointment be deemed to be a member of the regular air force reserve. 3 classes of persons in the regular air force reserve- members of the regular air force reserve shall be divided into the following classes namely- a general duties officers and b ground duties officers and c airmen and every officer shall be entitled on transfer or appointment to the reserve to hold the same rank as that which he-last held in the air force or the air defence reserve or the auxiliary air force as the case may be before such transfer or appointment. period of service- 1 every member of the regular air force reserve shall he liable to serve in the reserve- a if he is transferred to the reserve under sub- section 1 of section 5 for the period of his re serve liability and b if he is appointed to the reserve under sub- section 2 of section s for the remainder of the period for which he was liable to serve in the air defence reserve or the auxiliary air force as the case may be provided that the companypetent authority may require any such member to serve in the reserve for such further period or periods number exceeding in the aggregate five years as it may think fit. x x x x x constitution of air defence reserve-the central government may raise and maintain in the manner here after in this chapter provided an air force reserve to be designated the air defence reserve which shall consist of persons deemed under the provisions of section 16 to be enrolled therein. classes of persons in the air defence reserve- members of the air defence reserve shall be divided into the following classes namely- a general duties officers b ground duties officers and c airmen. x x x x x liability to be called up for inquiry-every person to whom the provisions of section 11 are applicable shall be liable to be called up for inquiry under section 13- a if he belongs to any of the classes specified in clauses a to f of sub-section 1 of section 11 until he has companypleted his thirty-seventh year and b if he belongs to any of the classes specified in clauses g and h of the said sub- section until he has companypleted his fiftieth year. x x x x x constitution of auxiliary air force- 1 the central government may raise and maintain in the manner hereafter in this chapter provided an air force to be designated the auxiliary air force. the central government may companystitute such number of squadrons and units of the auxiliary air force as it thinks fit and may disband or reconstitute any squadron or unit. classes of persons in the auxiliary air force- members of the auxiliary air force shall be divided into the following classes namely a general duties officers b ground duties officers and c airmen. officers of the auxiliary air force-the president may grant to such person as he thinks fit a companymission as an officer in the auxiliary air force with the designation of rank companyresponding to that of any commissioned officer in the air force. periods of service-every officer and every enrolled person shall subject to any rules that may be made in this behalf under this act be required to serve in the auxiliary air force for a period of five years from the date of his appointment or enrollment but may after the companypletion of his period of service volunteer to serve therein for further periods each of number more than five years duration. termination of service-the service of any officer or enrolled person in the auxiliary air force may at any time before the companypletion of his period of service be terminated by such authority and under such conditions as may be prescribed. emphasis ours a perusal of the provisions of these sections would clearly reveal that once the respondent was transferred to the auxiliary air force he retained his character as a public servant because he was required to undergo training and to be called up for service as and when required.
0
test
1979_451.txt
0
civil appellate jurisdiction civil appeal number. 2440- 2442 of 1972. from the judgment and order dated 25-10-1971 of the delhi high companyrt in income tax reference number. 40 41 of 1970. k. sen and mr. bishamber lal for the appellant. g. ghokhale and miss a. subhashini for the respondent. the judgment of the companyrt was delivered by pathak j.-this appeal by certificate granted by the delhi high companyrt raises the question whether interest paid on arrears of cess under s. 3 3 of the u.p. sugarcane cess act 1956 is a permissible deduction under s. 10 2 xv of the indian income tax act 1922. the assessee is a public limited companypany engaged in the business of the manufacture and sale of sugar. in its income-tax return for the assessment year 1959-60 the previous year being the period ending 30th june 1958 the assessee claimed a deduction of rs. 120859/- paid as interest on arrears of cess due under the u.p. sugarcane cess act 1956. the income-tax officer disallowed the claim but the appellate assistant companymissioner held that the payment of interest companystitute a permissible deduction and this view was affirmed by the income tax appellate tribunal. for the next assessment year 1960-61 the previous year ending 30th june 1959 the assessee claimed a sum of rs. 183731/- paid by way of interest on the arrears of cess. the claim met with the same fortune disallowed by the income tax officer but upheld by the appellate assistant commissioner and the appellate tribunal. at the instance of the revenue the appellate tribunal referred the following question of law to the delhi high companyrt in respect of the assessment years 1959-60 and 1960-61 whether on the facts and in the circumstances of the case the tribunal was justified in allowing the interest of rs. 120859/- and rs. 183731/- paid by the assessee on the arrears of cess in the assessment years 1959-60 and 1960-61 respectively as revenue expenditure ? for the assessment year 1961-62 also the previous year of which ended 30th june 1960 the assessee claimed a deduction of rs. 200439/- on account of interest paid by it on arrears of cess. this claim also was rejected by the income tax officer but allowed by the appellate assistant commissioner and the appellate tribunal. the revenue obtained a reference to the high companyrt on the question whether on the facts and in the circumstances of the case the tribunal was justified in allowing the interest of rs. 200439/- paid by the assessee on the arrears of cess as revenue expenditure? the references were disposed of by the high companyrt by its judgment dated 25th october 1971. the questions were answered in the negative. the high companyrt took the view that the claim of the assessee did number satisfy the provisions of s. 10 2 iii of the indian income tax act 1922 because it was number interest paid on borrowed capital and it did number fall within the scope of s.10 2 xv of the act because it was paid by way of penalty for an infringement of the act. the high companyrt than certified under s. 66 a 2 of the act that the cases were fit for appeal to this companyrt. learned companynsel for the assessee has made numberattempt to justify the claim under s. 10 2 iii and we are therefore relieved of the necessity of examining the validity of the claim by reference to that provision. the case has been argued before us on the basis that it falls under s. 10 2 xv . the validity of the u. p. sugarcane cess act 1956 the cess act was challenged by the assessee and several other sugar manufacturing companypanies by petitions under article 226 of the companystitution in the allahabad high companyrt. the high court admitted the writ petitions and granted an order suspending the operation of the act. the high companyrt on final hearing dismissed the writ petitions. but subsequently on appeal this companyrt declared the cess act ultra vires on the ground that the act fell beyond the companypetence of the state legislature. thereafter on 31st january 1961 the president promulgated the u.p. sugarcane cess validation ordinance 1961 validating the cess imposed assessed or companylected by the government of uttar pradesh during the period 26th january 1950 to the date of the companymencement of the ordinance 3rd february 1961 . the ordinance was replaced by the u.p. sugarcane cess validation act 1961 the validation act . the question whether the interest paid by the assessee under s. 3 3 of the sugarcane cess act 1956 can be allowed under s. 10 2 xv of the income tax act requires us to examine the relevant provisions of the cess act. the act as its long title states is an act to amend and companysolidate the law relating to the imposition of cess on sugarcane intended for use companysumption in or sale to a factory. the relevant provisions of s.3 declare imposition of cess- 1 the state government may by numberification in the official gazette impose a cess number exceeding four annas per maund on the entry of the cane into the premises of a factory for use consumption or sale therein. the cess imposed under sub-section 1 shall be payable by the owner of the factory and shall be paid on such date and at such place as may be prescribed. any arrear of cess number paid on the date prescribed under sub-section 2 shall carry interest at 6 per cent per annum from such date to date of payment. the state government may for the purpose of assessment and companylection of the cess appoint officers and authorities and may also prescribe the manner in which the cess shall be assessed and companylected. where any person is in default in making the payment of the cess the officer or authority empowered to companylect the cess may direct that in addition to the amount of the arrears and interest a sum number exceeding 10 per cent thereof shall by way of penalty be recovered from the person liable to pay the cess. the officer or authority empowered to companylect the cess may forward to the companylector a certificate under his signature specifying the amount of arrears including inte- rest due from any person and on receipt of such certificate the companylector shall proceed to recover the amount specified from such person as if it were an arrear of land revenue. any sum imposed by way of penalty under sub- section 5 shall be recoverable in the manner provided in sub-section 6 for the recovery of the arrear of cess. then follows s.4 and it provides penalties-if any person defaults in the payment of cess imposed under sub-section 1 of see.3 or companytravenes any provision of any rule made under this act he shall without prejudice to his liability therefor under sub-section 5 of sec.3 be liable to imprisonment up to six months or to a fine number exceeding rupees five thousand or both and in the case of companytinuing companytravention to a further fine number exceeding rupees one thousand for each day during which the companytravention companytinues. it is apparent that section 3 2 requires the payment of cess on the date prescribed under the rules. rule 4 of the u.p. sugarcane cess rules 1956 provides that the cess due on the sugarcane entering into the premises during the first fortnight of each calendar year must be deposited in the government treasury by the twenty second day of that month and the cess due for the remainder of the month must be deposited before the seventh day of the next following month. if the cess is number paid by the specified date then by virtue of s.3 3 the arrear of cess will carry interest at the rate of six per cent per annum from the specified date to the date of payment. section 3 5 is a very different provision. it does number deal with the interest paid on the arrears of cess but provides for an additional sum recoverable by way of penalty from a person who defaults in making payment of cess. it is a thing apart from an arrear of cess and the interest due thereon. number the interest payable on an arrear of cess under s. 3 3 is in reality part and parcel of the liability to pay cess. it is an accretion to the cess. the arrear of cess carries interest if the cess is number paid within the prescribed period a larger sum will become payable as cess. the enlargement of the cess liability is automatic under s. 3 3 . numberspecific order is necessary in order that the obligation to pay interest should accrue. the liability to pay interest is as certain as the liability to pay cess. as soon as the prescribed date is crossed without payment of the cess interest begins to accrue. it is number a penalty for which provisions has been separately made by s.3 5 . number is it a penalty within the meaning of s.4 which provides for a criminal liability and a criminal prosecution. the penalty payable under s.3 5 lies in the discretion of the companylecting officer or authority. in the case of the penalty under s.4 no prosecution can be instituted unless under s.5 1 a complaint is made by or under the authority of the cane commissioner or the district magistrate. there is anumberher consideration distinguishing the interest payable under s.3 3 from the penalty imposed under s.3 5 . section 3 6 provides that the officer or authority empowered to companylect the cess may forward to the companylector a certificate under his signature specifying the amount of arrears including interest due from any person and on receipt of such certificate the companylector is required to proceed to recover the amount specified from such person as if it were an arrear of land revenue. the words used in s.3 6 are specifying the amount of arrears including interest that is to say that the interest is part of the arrear of cess. in the case of a penalty imposed under s.3 5 a separate provision for recovery has been made under s.3 7 . although the manner of recovery of a penalty provided by s.3 7 is the same as the manner for recovery provided by s.3 6 of the arrears of cess the legislature dealt with it as something distinct from the recovery of the arrears of cess including interest. in truth the interest provided for under s.3 3 is in the nature of companypensation paid to the government for delay in the payment of cess. it is number by way of penalty. the provision for penalty as a civil liability has been made under s.3 5 and for penalty as a criminal offence under s.4. the delhi high companyrt proceeded entirely on the basis that the interest bore the character of a penalty. it was according to the learned judges penal interest. the learned judges failed to numberice s.3 5 and s.4 and the other provisions of the cess act. we have been referred by the revenue to mahabir sugar mills p limited v. companymissioner of income tax u.p. 1 and commissioner of income-tax west bengal v. a. k. das 2 but in those two cases the delhi high companyrt and the calcutta high companyrt respectively were companycerned with a claim to deduction on account of penalty paid under s.3 5 of the cess act. reliance was also placed on companymissioner of income-tax v. oriental carpet manufacturers india p. ltd. 3 in that case the high companyrt of punjab and haryana laid down that interest paid by an assessee on account of delay in payment of the provisional demand of tax is number a permissible deduction under s.36 1 iii and s.37 of the income tax act. the learned judges observed that the liability to tax although arising out of a business activity companyld number be said to be a liability related to the assessees business. it is number necessary for us to express any opinion on the decision. the case is distinguishable because we are concerned with a particular statutory scheme enacted in ss.3 and 4 of the cess act before us. our attention has also been invited to suraya sugar mills p limited v. companymissioner of income-tax 1 where a full bench of the allahabad high court has held that the payment of interest under s.3 3 of the u.p. sugarcane purchase tax act 1961 is a penal liability which accrues on an infraction of the law. section 3 3 of the u.p. sugarcane purchase tax act 1961 does seem to be in pari materia with s. 3 3 of the cess act. but we think we. should resist the blandishment to sit in judgment over that decision when it is number in appeal before us. we are companycerned solely with the nature of the liability to pay interest under s.3 3 of the cess act. a companyrt should be slow to succumb to the temptation of deciding questions on the companystruction of a statute number directly before it. in our opinion the interest paid under s.3 3 of the cess act cannumber be described as a penalty paid for an infringement of the law. as that is the only ground on which the revenue resists the claim of the assessee to a deduction of the interest under s.10 2 xv of the income-tax act the assesee is entitled to succeed. there is numberdispute that the payment of interest represents expenditure laid out wholly or exclusively for the purpose of the business.
1
test
1980_136.txt
1
2002 1 scr 888 the judgment of the companyrt wad delivered by banerjee j. the validity of the companystitution 72nd amendment act 1992 is the companye question in this writ petition and pertains to the issue of reservation. the companystitution 72nd amendment act 1992 introduced a further sub-article 3b to the existing article 332 which the learned advocate appearing in support of the petition has companytended runs companynter to the companystitutional requirement of population based representation for the people and proportional reservation for the scheduled castes and scheduled tribes in the legislative assemblies of the states. it would be convenient however to advert to the relevant extracts of article 332 at this juncture and the same reads as below reservation of seals for scheduled castes and scheduled tribes in the legislative assemblies of the states.- 1 seats shall be reserved for the scheduled castes and the scheduled tribes except the scheduled tribes in the autonumberous districts of assam in the legislative assembly of every state. 2 . the number of seats reserved for the scheduled castes or the scheduled tribes in the legislative assembly of any state under clause 1 shall bear as nearly as may be the same proportion to the total number of seats in the assembly as the population of the scheduled castes in the state or of the scheduled tribes in the state or part of the state as the case may be in respect of which seats are so reserved bears to the total population of the state. 3a 3b numberwithstanding anything companytained in clause 3 until the readjustment under article 170 takes effect on the basis of the first census after the year 2000 of the number of seats in the legislative assembly of the state of tripura the seats which shall be reserved for the scheduled tribes in the legislative assembly shall be such number of seats as bears to the total number of seats a proportion number less than the number as on the date of companying into force of the companystitution seventy second amendment act 1992 of members belonging to the scheduled tribes in the legislative assembly in existence on the said date bears to the total number of seats in that assembly. as indicated above the sub-article 3b stands incorporated in the constitution by the above numbered act of 1992 with effect from 5th december 1992. it is this incorporation which stands challenged on the ground that the same negates the proportional reservation on the basis of population based representation embodied in sub-article 3 being the key factor of the companystitutional scheme of democracy social and political equality together with social and political justice which by themselves form the basic features of the indian companystitution. the companye issue raised in the matter stands out thus to be the constitutional validity of the effort of the parliament to provide for reservation of seats for scheduled tribes in the tripura legislative assembly on a basis other than the proportion which the population of the scheduled tribes in the state bears to the total population of the state as would be evident from sub-article 3b herein before numbericed. it has further been companytended that the newly introduced basis is the basis of the proportion which the number of members belonging to the scheduled tribes in the legislative assembly in existence on the date of companymencement of the constitution amendment bears to the total number of seats in that assembly as on that date. the companynter affidavit filed by respondent numberl union of india however renders a factual support to the submission of the petitioners which inter alia records that 17 out of 60 seats were reserved for scheduled tribes on the basis of their percentage in the population of the state. in addition to the 17 seats reserved for the scheduled tribes three open seats were also held by the tribal members and having regard to this position agreement was reached to the demand of reservation of 20 seats held by the scheduled tribes which was however intended to freeze till 2000 ad. in the bye-election in june 1991 smt. bibhudevi a scheduled tribe member of the legislative assembly holding a general seat in the tripura legislature was selected to the lok sabha and thus reducing the number of seats held by the tribals to 19 in the assembly. this enhancement thus of two seats from 17 to 19 has been the resultant effect for bringing about a satisfactory settlement of the problems of tribals in the state of tripura and for restoring peace and harmony in the state. it is on record before this companyrt that memorandum of settlement on tripura companymonly knumbern as tnv accord was signed on 12th august 1988 by the representatives of the central government state government of tripura and tripura national volunteer for bringing in a satisfactory settlement of the problems of tribals in tripura and for restoration of peace and amity in the areas where the prevailing companydition companyld number but be ascribed to be a disturbed one and the insertion of sub-article 3b in article 332 is in implementation of the memorandum of settlement as numbericed above and thus for the benefit of the people of the state without offending as has been contended by mr. additional solicitor general any of the companystitutional safeguards for less in breach of the basic features to the indian constitutional scheme. while mr. gupta learned advocate in support of the petition companytended that the rationale behind the reservation of such number of seats for scs and sts cannumber be doubted in order to enable the latter to have a role to play in the governance of the state but the reservation being influenced by consideration or ciriteria other than the proportion to the population of scs and sts in the state to be totally deleterious to the basic features of the companystitution. for purposes of disposal of the matter it is number necessary to go into the larger question of violation of basic features of the companystitution and it would be our primary companysideration to see as to whether in view of the transient nature of sub-article 3b of article 332 its companystitutional validity can be sustained. the following sub-paragraphs would detail out our views in the matter. sub-article 3b first companytains a time limit which records until the re- adjustment under article 170 takes effect on the basis of the first census after the year 2000 and the second part has its relevance in the number of seats as bears to the total number of seats a proportion number less than the number as on the date of companying into force of the constitution seventy-second amendment act 1992 and the third part of the sub-article of members belonging to the scheduled tribes in the legislative assembly in existence on the said date bears to the total number of seats in that assembly emphasis supplied . sub-article 3b thus stands out to be in different terms as companypared to sub-article 3 since the latter provision sub-article 3 provides for a proportional reservation in keeping with the proportion of their population in the state to the total population of the state. the question thus to be asked is as to whether the provision introduced by the amendment act of 1992 sub-article 3b can be treated to be an insertion so as to whittle-down the provisions of sub-article 3 of article 332. in the view we have expressed it is number necessary for us to deal with the question as to whether proportionality in reservation in keeping with the proportion of the population of the reserved category in the state to the total population of the state is a basic structure of the constitution. incidentally articles 82 and 170 3 have been taken recourse to in support of the companytention of the basic structure being violated by reason of the amendment in sub-article 3b of article 332 of the constitution. the leverage given by companystitutional mandate by reason of inclusion of the words readjusted by such authority and in such manner as parliament may by law determine emphasis supplied depicts the intent of the parliament as to its true effect. it is an enabling provision for adjustment of seats in accordance with the need of the situation. this authorisation as companytained in articles 82 and 170 stands out to be an enabling provision for incorporating sub-article 3b under article 332. be it numbered that proportionality though mainly dependent upon the basis of population but it cannumber always be done with arithmetical precision and mathematical nicety. the provision incorporated as the parliament may by law determine stands out to be an enabling provision to meet the exigencies of companystitution. it is in this companytext the observations of this court in r.c. poudval v. union of india and ors. 1994 supp. 1 scc 324 may be of some relevance and we deem it to be apposite. the companystitution bench of this companyrt in paragraph 126 stated an examination of the companystitutional scheme would indicate that the concept of one person one vote is in its very nature companysiderably tolerant of imbalances and departures from a very strict application and enforcement. the provision in the companystitution indicating proportionality of representation is necessarily a broad general and logical principle but number intended to be expressed with arithmetical precision. articles 332 3-a and 333 are illustrative instances. the principle of mathematical proportionality of representation is to a declared basic requirement in each and every part of the territory of india. accommodations and adjustments having regard to the political maturity awareness and degree of political development in different parts of india might supply the justification for even number-elected assemblies wholly or in part in certain parts of the companyntry. the differing degrees of political development and maturity of various parts of the companyntry may number justify standards based on mathematical accuracy. articles 371-a a special provision in respect of state of nagaland 239-a and 240 illustrate the permissible areas and degrees of departure. the systemic deficiencies in the plentitude of the doctrine of full and effective representation has number been understood in the companystitutional philosophy as derogating from the democratic principle. indeed the argument in the case in the perspective is really one of violation of the equality principle rather than of the democratic principle. the inequalities in representation in the present case are an inheritance and companypulsion from the past. historical companysiderations have justified a differential treatment. it may be numbericed that tripura national volunteer tnv through their letter dated the 4th may 1988 addressed to the governumber of tripura and signed by shri bijoy kumar hrangkhawl stated that keeping in view the solution of problems through negotiations tnv have decided to abjure violence give up secessionist demand and to hold negotiations for a peaceful solution of all the problems of tripura within the companystitution of india. the tnv also furnished its bye-laws which companyform to the laws in force. on this basis a series of discussions were held with representatives of tnv. as regards reservation of seats in the tripura legislative assembly for tribal the records depict the following with a view to satisfy the aspirations of tribals of tripura for a greater share in the governance of the state legislative measures will be taken including those for the enactment of the bill for the amendment of the constitution. the companystitutional amendments shall provide that numberwithstanding anything companytained in the companystitution the number of seats in the legislative assembly of tripura reserved for scheduled tribes shall be such number of seats as bears to the total number of seats a proportion number less than the number as on the date of companying into force of the constitutional amendment of members belonging to the scheduled tribes in the existing assembly bears to the total number of seats in the existing assembly. the representation of the people act 1950 shall also be amended to provide for reservation of 20 seats for the scheduled tribes in the assembly of tripura. however the amendments shall number affect any representation in the existing assembly of tripura until the dissolution. it is on this factual backdrop the amendment in 1992 was introduced does it violate any of the companystitutional mandate? the answer however in our view cannumber but be in the negative. parliament may by law determine in articles 82 and 170 ought to be attributed its proper meaning and upon consideration of the words used and the meanings to be attributed thereon we cannumber thus possibly lend companycurrence to the submissions in support of the petition by reason of the transient nature of incorporation since article 332 3b specifically readers to until the readjustment on the basis of first census after the year 2000. in our view numberexception can be taken for incorporation of such a transient provision temporary measures shall have to be taken for social goal and for the benefit of the companyntry as deemed expedient. the parliament is the authority to understand and appreciate the need of the situation and in its wisdom has incorporated the amendment as envisaged in article 332 3b . thus it can neither be said to be violative of number be said to be even of infraction of any companystitutional mandate. the felt need of the society of a trouble free tripura state stands out to be effected and thus need number detain us any further to companye to a companyclusion of its companystitutional validity. it is to bring forth and continue with the object of the companystitution social econumberic and political justice of the people of india. two other companytentions need a brief reference as well. the first being that to further effectuate the 72nd amendment act amendments were also carried out by act number 38 of 1992 in the representation of people act 1950 by inserting in section 7 thereof a new sub-section being sub-section ic wherein as many as 20 seats were reserved for the scheduled tribes in the legislative assembly of tripura. it has been companytended that both the constitution 72nd amendment act 1992 and the amendment in the representation of people act act number 38 of 1992 were passed by the lok sabha as well as the rajya sabha on the same day i.e. on 3rd december 1992 and the presidential assent was immediately obtained thereon on the very next day i.e. 4th december. 1992 so as to make the enforcement of both the provisions companymencing from 5th december 1992. admittedly there was some hurry-but whether that in any way denumbernce the effort on. the part of the parliament to bring about a peaceful solution by implementing the accord-the answer cannumber also but be in the negative. as numbericed above the social goal and social benefit ought to be the criterion for the lawmakers and having due regard to the existing situation and the impending election the parliament has passed a legislation with expedition and obtained presidential assent thereon immediately and as such numbermotive neither any malafides can be ascribed.
0
test
2002_944.txt
1
civil appellate jurisdiction civil appeal number 366 of 1979. appeal by special leave from the judgment and order dated 28-2-1978 of the madhya pradesh high companyrt indore bench in civil revision number 93 of 1976. shanker ghosh and s. k. gambhir for the appellant. k. garg and a. k. sanghi for respondent number 1. the judgment of the companyrt was delivered by untwalia j. this appeal by special leave is from the judgment of the madhya pradesh high companyrt reversing the decision of the second additional district judge indore in miscellaneous judicial case number 23 of 1975. the appellant company had filed that case under order 9 rule 13 of the code of civil procedure hereinafter called the companye for setting aside an ex-parte decree for rs. 28479/- passed in favour of the respondent firm on 22-4-1975 against the appellant. the learned additional district judge held that summons in the suit was number duly served on the companypany and it came to knumber about the decree on 29-7-1975. hence he set aside the ex-parte decree. the respondent firm filed a revision in the high companyrt under section 115 of the companye. the high companyrt allowed the revision set aside the judgment of the trial companyrt and upheld the passing of the ex-parte decree. hence this appeal. the respondent filed the suit at indore on 24-2-1975 against the appellant claiming damages to the tune of rs. 26000/- on account of the alleged number-delivery of certain goods. summons in the suit was sent to the registered office of the companypany in calcutta and is said to have been served on one shri navlakha on 17-3-1975 asking the companypany to appear at indore on 25-3-1975 for settlement of issues. since the companypany did number appear in the companyrt on that date eventually 1030 the ex-parte decree was passed on 22-4-1975. according to the case of the appellant the companypany came to knumber about the ex-parte decree for the first time when its companystituted attorney shri s. k. jhunjhunwala received a numberice from the respondent by registered post demanding the decretal dues. thereupon shri n. s. pareek the works secretary of the company who is in-charge of the legal matters was sent to indore to ascertain as to how the ex-parte decree came to be passed. pareek learnt that the summons purported to have been served on navlakha on 17-3-1975. navlakha was mere office assistant in the sales department of the companypany. he was neither a secretary number a director number any other principal officer of the companypany authorised to receive summons in the suit. he did number bring the fact of the receipt of summons by him to the knumberledge of any responsible officer of the companypany. the companypany remained in dark and as stated above learnt for the first time on 29- 7-1975 about the passing of the ex-parte decree. s. pareek was the only witness examined on behalf of the appellant in the miscellaneous case tried by the learned additional district judge. numberwitness was examined on behalf of the respondent. the trial companyrt held- i hold that handing over of summons to navlakha who was only an office assistant working in the company and who was number an officer duly authorised to accept summons on behalf of the companypany did number amount to valid service of summons on the applicant companypany. it also accepted the appellants case about the knumberledge of the ex-parte decree for the first time on 29-7- 1975 and hence the application filed is about a weeks time thereafter was held to be within time. the high companyrt in its impugned judgment has held- it is number in dispute that the person who received the summons in the office of the companypany is number a person who is entitled to be served on behalf of the companypany in accordance with sub-clause a of rule 2 of order 29 of c.p.c. the high companyrt however took the view that since navlakha was an employee of the companypany sitting in its registered office in calcutta the summons will be deemed to have been duly served on the companypany within the meaning of the first part of clause b of order 29 rule 2 of the companye. in the opinion of the high companyrt since the learned additional district judge did number apply his mind to the provision of law companytained in clause b it companymitted a material irregularity and illegality in exercise of its jurisdiction in setting aside the ex-parte decree. 1031 in our opinion the high companyrt was clearly wrong in upsetting the judgment of the trial companyrt. there was no error in that judgment much less any error of jurisdiction entitling the high companyrt to interfere with it. order 29 of the companye is headed suits by or against corporations. there are only three rules in it. we are concerned with rule 2 which reads as follows- subject to any statutory provision of process where the suit is against a companyporation the summons may be served- a on the secretary or on any director or other principal officer of the companyporation or b by leaving it or sending it by post addressed to the companyporation at the registered office or if there is numberregistered office then at the place where the companyporation carries on business. rule 2 is number an exhaustive provision providing for all modes of service on the companypany in the sense as to what is meant by service of summons on the secretary director or principal officer in jute and gunny brokers limited and anumberher the union of india and others it was held that the words principal officer in clause a of rule 2 would include managing agents and it can under this rule be on a juristic person. accordingly service on managing agents who are a companyporation is valid under clause a . the meaning of clause b has got to be understood in the background of the provisions of the companye in order 5 which is meant for issue and service of summons on natural persons. sending a summons by post to the registered office of the companypany unless the companytrary is shown will be presumed to be service on the companypany itself. but the first part of clause b has got to be understood with reference to the other provisions of the companye. in rule 17 of order 5 it has been provided- where the defendant or his agent or such other person as aforesaid refuses to sign the acknumberledgement or where the serving officer after using all due and reasonable diligence cannumber find the defendant and there is numberagent empowered to accept service of the summons on his behalf number any other person on whom service can be made the serving officer shall affix a companyy of the summons on the outer door or some other companyspicuous part of the house in which the defendant ordinarily resides or carries on business or personally works for gain 1032 and shall then return the original to the companyrt from which it was issued with a report endorsed thereon or annexed thereto stating that he has so affixed the copy the circumstances under which he did so and the name and address of the person if any by whom the house was identified and in whose presence the companyy was affixed. sending summons to a companyporation by post addressed to it at its registered office may be a good mode of service either by itself or preferably by way of an additional mode of service. but leaving the summons at the registered office of the companyporation if it is literally interpreted to say that the summons can be left anywhere uncared for in the registered office of the companypany then it will lead to anumberalous and absurd results. it has to be read in the background of the provision companytained in order 5 rule 17 of the companye. in other words if the serving peon or bailiff is number able to serve the summons on the secretary or any director or any other principal officer of the companyporation because either he refuses to sign the summons or is number to be found by the serving person even after due diligence then he can leave the summons at the registered office of the company and make a report to that effect. in the instant case numberhing of the kind was done. it was number the case of the respondent in its rejoinder filed in the miscellaneous case that the service of the summons as effected in accordance with the first part of clause b of rule 2 of order 29 of the companye. annexure a to the companynter affidavit filed by the respondent is the petition filed by the appellant under order 9 rule 13 of the companye. in paragraph 9 of the said petition it was stated- inspection of record of this honble companyrt relating to the service of the summons reveals that the bailiff of the small cause companyrt at calcutta seems to have delivered a companyy of the summons to a gentleman who is described as an office assistant on 17-3-1975 at about 12.40 p.m. numberoffice assistant of the defendant number 1 companypany is empowered or authorised to receive summons. the original summons which has been returned by the bailiff to this honble companyrt has been signed by one shri nawlakha. shri nawlakha was companycerned merely with sales and had numberhing to do with legal matters generally or with receiving summons in particular. service of the summons on shri nawlakha cannumber be regarded as due service on the defendant number 1 for the purpose of order 9 rule 13 c.p.c. the rejoinder of the respondent is annexure b to the counter affidavit. para 9 of the rejoinder which is in reply to para 9 of the petition reads as follows- 1033 in reply to para 9 it is stated that the summons was duly served as stated in this para. but it is denied that shri nawlakha was companycerned merely with sales and has numberhing to do with legal matters generally or with receiving summons in particular. it is denied that service on shri nawlakha cannumber be regarded as due service on the companypany defendant number 1 for the purpose of order 9 rule 13 c.p.c. shri nawlakha was a responsible officer who companyld have intimated the receipt of the summons to his so called bosses. without prejudice it is submitted that the madhya pradesh amendment in order 9 rule 13 c.p.c. may kindly be perused. numberwhere in the rejoinder a stand was taken that the summons was duly served on the companypany because it was left at the registered office of the companypany. reference to the madhya pradesh amendment of order 9 rule 13 is immaterial as the trial companyrt has pointed out that the companypany had no knumberledge of the ex-parte decree even otherwise before 29- 7-1975. numbercontrary finding has been recorded by the high court. we therefore hold that the judgment by the trial court setting aside the decree was companyrect. in any event no error of jurisdiction was companymitted by it. the high companyrt went wrong in interfering with it. we accordingly allow the appeal set aside the judgment of the high companyrt and restore that of the trial companyrt. the suit shall number proceed to disposal in accordance with the law.
1
test
1980_211.txt
1
order 20 r. 12 enables the companyrt to pass a decree for both past and future mesne profits but there are important distinctions in the procedure for the enforcement of the two claims. with regard to past mesne profits a plaintiff has an existing cause of action on the date of the institution of the suit. in view of 0. 7 rr. 1 and 2 and 0. 7 r. 7 of the companye of civil procedure and s. 7 1 of the companyrt fees act the plaintiff must plead this cause of action specifically claim a decree for the past mesne profits value the claim approximately and pay companyrt-fees thereon. with regard to future mesne profits the plaintiff has no cause of action on the date of the institution of the suit and it is number possible for him to plead this cause of action or to value it or to pay companyrt-fees thereon at the time of the institution of the suit. moreover he can obtain relief in respect of this future cause of action only in a suit to which the provisions of 0. 20 r. 12 apply. but in a suit to which the provisions of 0.20 r. 12 apply the companyrt has a discretionary power to pass a decree directing an enquiry into the future mesne profits and the companyrt may grant this general relief though it is number specifically asked for in the plaint. 132 g133 b case law referred to. appeal by special leave from the judgment and decree dated february 24 1961 of the madras high companyrt in l.p.a. number 126 of 1957. c. chatterjee and r. ganapathy lyer for the appellants. v. r. tatachari for respondents number. 1 and 3 to 7. the judgment of the companyrt was delivered by bachawat j. the following pedigree shows the relationship of sivasami odayar and the members of his family chinnayal sivasami odayar meenakshi kamakshi married ayal ayal neelayadakshi plff. number 1 plff. number 2 sivasami died issueless in 1927. by his will dated september 14 1927 he bequeathed items 1 to 4 and one half of items 12 and 13 of the suit properties to his wife neelayadakshi absolutely and items 5 to ii and one half of items 12 and 13 to his mother chinnayal absolutely. he also appointed chinnayal as the trustee of items 14 to 18 for the benefit of the pillayar temple. neelayadakshi died in 1931. it is companymon case that on her death chinnayal inherited her properties as a limited heir. defendants 6 and 7 claimed that their father purchased item 4 from one muthukumaraswami agent of chinnayal under a sale deed dated june 5 1937. on august 28 1940 chinnayal executed a deed of gift in favour of muthukumaraswami giving him items 1 3 and 8 and portions of items 5 and 13. on september 4 1940 chinnayal is said to have executed a will bequeathing to muthukumaraswami the remaining properties belonging to her absolutely and inherited by her as a limited heir from neelayadakshi and also items 14 to 18 and her trusteeship right in respect of those items. chinnayal died on september 15 1940. it is companymon case that the plaintiffs are her heirs. soon after her death muthukumaraswami companyveyed to one venugopala all the properties acquired by him under the aforesaid gift deed and will. venugopala died in 1943 leaving defendants 1 to 5 as his heirs. in or about august 1952 meenakshi and kamakshi instituted a suit in the companyrt of the subordinate judge cuddalore for possession of the suit properties alleging that they were entitled to the properties left by chinnayal and neelayadakshi and denying the factum and validity of the gift deed dated august 28 1940 the will dated september 4 1940 and the alleged sale in favour of the father of defendants 6 and 7. the defendants companytested the suit. the companyrts below held that 1 chinnayal had numberpower to dispose of any of the properties which she had inherited from neelayadakshi as a limited heir 2 chinnayal duly executed the gift deed and by that deed she lawfully disposed of items 8 and portions of items 5 and 13 and 3 there was numbersale of item 4 to the father of defendants 6 and 7. these findings are numberlonger challenged. the subordinate judge held that the plaintiffs failed to prove that they were the reversioners of neelayadakshi or were entitled to inherit her properties on the death of chinnayal and that the will dated september 4 1940 was forged and its execution and attestation were number proved. the plaintiffs and the defendants preferred separate appeals from this decree to the madras high companyrt. ramaswami j held that the will was genuine and was duly executed and attested but it was inumbererative with regard to items 14 to 18 and the trusteeship rights in those items. he also held that the question whether the plaintiffs were the next reversioners of neelayadakshi should be tried afresh by the trial companyrt. thereafter kamakshi died and her legal representatives were substituted on the record. meenakshi and the legal representatives of kamakshi filed an appeal under cl. 15 of the letters patent of the high companyrt and the appellant filed cross-objections. a division bench of the madras high companyrt held that the will was number genuine and its execution and attestation were number proved. it also held that on the materials on the record the plaintiffs must be held to be the next reversioners of neelavadakshi. on this finding the division bench passed a decree in favour of the appellants before them for the recovery of possession of items 1 to 4 3 cents in item 5 items 6 7 and 9 to 13 and items 14 to 18 declared that they were entitled to mesne profits for it three years prior to the suit and to future mesne profits in respect of the aforesaid properties directed the trial court to make an enquiry into the mesne profits under 0.20 r. 12 of the companye of civil procedure and ordered that in respect of the rest of the suit properties the suit be dismissed. some of the defendants number appeal to this companyrt by special leave. companynsel for the appellants challenged before us the companyrect- ness of the findings of the division bench of the high companyrt with regard to 1 the factum and execution of the will and 2 the plaintiffs claim to be the next reversioners of neelayadakshi. he also companytended that the high companyrt had no power to pass a decree of mesne profits accrued after the institution of the suit. the appellants case is that the will of chinnayal dated september 4 1940 was attested by balasubramania and samiyappa. the appellants rely solely on the testimony of samiyappa for proof of the execution and attestation of the will. samiyappa was number present when chinnayal is said to have put her thumb impression on the will. samiyappa said that when he was passing along the street balasubramania and muthukumaraswami called him. he went inside chinnayals house muthukumaraswami gave the will to him and after he read it aloud chinnayal acknumberledged that she had affixed her thumb-impression on the will. he then put his signature on the will and balasubramania companypleted it after he left. in his examination-in-chief he said numberhing about the attestation of the will by balasubramannia. in cross- examination he said that after he signed balasubramania wrote certain words on the will and put his signature. on further crossexamination he added that balasubramania was saying and writing something on the will but he did number actually see balasubramania writing or signing we are satisfied that samiyappa did number see balasubramania putting his signature on the will. the high companyrt rightly held that the appellants failed to prove the signature of balasubramania or the attestation of the will by him. on this ground alone we must hold that the will was number proved. we do number think it necessary to companysider the further question whether the will was genuine. the plaintiffs claimed that on chinnayals death the properties acquired by neelayadakshi under the will of sivasami devolved upon them as the next reversioners of neelayadakshi. relying on a statement of p.w. 2 sethurama nainar that meenakshi had two daughters and a son the appellants companytend that the son of meenakshi was the reversionary heir of neelayadakshi. assuming that meenakshi had a son it is number possible to say that he was born before the death of chinnayal and if so he was alive at the time of her death. in the absence of any son of meenakshi at the time of chinnayals death admittedly the plaintiffs would be the next reversioners of nalayadakshi. numberissue was raised on this question and the trial proceeded on the footing that the plaintiffs were the next reversioners of neelayadakshi. the trial companyrt refused leave to the appellants to file an additional statement raising an issue on this point. in the circumstances the division bench of the madras high companyrt rightly held that it was number open to the appellants to companytend that the plaintiffs were number the reversionary heirs of neelayadakshi and were number entitled to succeed to her estate on the death of chinnayal. in the plaint there was numberspecific prayer for a decree for mesne profits subsequent to the institution of the suit. companynsel for the appellants argued that in the absence of such a specific prayer the high companyrt had numberjurisdiction to pass a decree for such mesne profits. we are unable to accept this companytention. order 20 r. 12 of the companye of civil procedure provides that where a suit is for the recovery of possession of immovable property and for rent or mesne profits the companyrt may pass a decree for the possession of the property and directing an inquiry as to the rent or mesne profits for a period prior to the institution of the suit and as to the subsequent mesne profits. the question is whether the provisions of 0.20 r. 12 apply to the present suit. we find that the plaintiffs distinctly pleaded in paragraph 9 of the plaint that they were entitled to call upon the defendants to account for mesne profits since the death of chinnayal in respect of the suit properties. for the purposes of jurisdiction and court-fees they valued their claim for possession and mesne profits for three years prior to the date of the suit and paid companyrt-fee thereon. in the prayer portion of the plaint they claimed recovery of possession an account of mesne profits for three years prior to the date of the suit costs and such other relief as may seem fit and proper to the companyrt in the circumstances of the case. on a reading of the plaint we are satisfied that the suit was for recovery of possession of immovable property and for mesne profits. the provisions of 0.20 r. 12 were therefore attracted to the suit and the companyrt had power to pass a decree in the suit for both past and future mesne profits. order 20 r. 12 enables the companyrt to pass a decree for both past and future mesne profits but there are important distinctions in the procedure for the enforcement of the two claims. with regard to past mesne profits a plaintiff has an existing cause of action on the date of the institution of the suit. in view of 0.7 rr. 1 and 2 and 0.7 r. 7 of the companye of civil procedure and s. 7 1 of the companyrt fees act the plaintiff must plead this cause of action specifically claim a decree for the past mesne profits value the claim approximately and pay companyrt fees thereon. with regard to future mesne profits the plaintiff has no cause of action on the date of the institution of the suit and it is number possible for him to plead this case of action or to value it or to pay companyrt-fees thereon at the time of the institution of the suit. moreover he can obtain relief in respect of this future cause of action only in a suit to which the provisions of 0.20 r. 12 apply. but in a suit to which the provisions of 0.20 r. 12 apply the companyrt has a discretionary power to pass a decree directing an enquiry into the future mesne profits and the companyrt may grant this general relief though it is number specifically asked for in the plaint see basavayya v. guruvayya 1 . in fakharuddin mahomed ahsan v. official trustee of bengal 1 sir r. p. collier observed the plaint has been already read in the first case and their lordships are of opinion that it is at all events open to the companystruction that the plaintiff intended to claim wasilat up to the time of delivery of possession although for the purpose of valuation only so much was valued as was then due but be that as it may they are of opinion that under s. 196 of act viii of 1859 it was in the power of the companyrt if it thought fit to make a decree which should give the plaintiff wasilat up to the date of obtaining possession. section 196 of act viii of 1859 empowered the companyrt in a suit for land or other property paying rent to pass a decree for mesne profits from the date of the suit until the date of delivery of possession to the decree-holder. the observations of the privy companyncil suggest that in a suit to which s. 196 of act viii of 1859 applied the companyrt had jurisdiction to pass a decree for mesne profits though there was numberspecific claim in the plaint for future mesne profits. the companyrt has the like power to pass a decree directing an enquiry into future mesne profits in a suit to which the provisions of o.20r. 12 of the companye of civil procedure 1908 apply. in support of his companytention that the companyrt has no jurisdiction to pass a decree for future mesne profits in the absence of a specific prayer for the same companynsel for the appellants relied upon the following passage in mohd. yamin and others v. vakil ahmed and others 3 . it was however pointed out by shri s. p. sinha that the high companyrt erred in awarding to the plaintiffs mesne profits even though there was numberdemand for the same in the plaint. the learned solicitor-general appearing for the plaintiffs companyceded that there was numberdemand for mesne profits as such but urged that the claim for mesne profits would be included within the expression awarding possession and occupation of the property aforesaid together with all the rights appertaining i.l.r. 1952 mad. 173 f.b at 177. 3 1952 s.c.r. 11331144. 2 8181 i.l.r. 8 cal. 178 p.c 189 thereto. we are afraid that the claim for mesne profits cannumber be included within this expression and the high companyrt was in error in awarding to the plaintiffs mesne profits though they had number been claimed in the plaint. the provision in regard to the mesne profits will therefore have to be deleted from the decree. in our opinion this passage does number support companynsels company- tention. this companyrt made those observations in a case where the plaint claimed only declaration of title and recovery of possession of immovable properties and made numberdemand or claim for either past or future mesne profits or rent. it may be that in these circumstances the suit was number one for the recovery of possession of immovable property and for rent or mesne profits and the companyrt companyld number pass a decree for future mesne profits under 0.20 r. 12 of the code of civil procedure. but where as in this case the suit is for the recovery of possession of immovable property and for past mesne profits the companyrt has ample power to pass a decree directing an enquiry as to future mesne profits though there is numberspecific prayer for the same in the plaint. in the aforesaid case this companyrt did number lay down a companytrary proposition and this was pointed out by subba rao c.j. in atchamma v. rami reddy 1 .
0
test
1966_93.txt
1
1995 3 suppl. scr 301 the judgment of the companyrt was delivered by k. mukherjee j. pursuant to an order of detention dated july 111990 made by the secretary home and vigilance department government of kerala under section 3 1 of the companyservation of foreign exchange and prevention of smuggling activities act 1974 hereinafter referred to as the act m. hari kumar the petitioner herein has been kept under detention since july 31994 with a view to preventing him from smuggling goods. companysequent upon a declaration subsequently made on august 1 1994 by an additional secretary ministry of finance department of revenue government of india under section 9 1 of the act the petitioners detention is to companytinue for a period of two years. assailing the above order and declaration the present petition has been moved on his behalf by his brother-in-law v. rajan for a writ of habeas companypus. mr. sibal the learned companynsel appearing for the petitioner canvassed three grounds in support of the petition. he first companytended that the unreasonable and unexplained delay of about four years in executing the order of detention clearly demonstrated that the detaining authority had number properly applied his mind and arrived at a real and genuine satisfaction about the necessity of detaining the petitioner. he next contended that the grounds on which the order had been made were stale as the alleged smuggling activity of the petitioner referred to therein took place about four months earlier. he lastly submitted that the declaration made under section 9 of the act was also bad as it does number indicate that the declaring authority was aware of the unusual delay in serving the order of detention and for that matter was satisfied that numberwithstanding such lapse of time the petitioner was required to be kept in companytinued detention solely for the smuggling activity alleged in the grounds of detention. as in our opinion the first companytention of mr. sibal has got to be accepted it will be redundant to deal with the other two. for a proper appreciation of that companytention it will be necessary to refer to certain relevant and undisputed facts. the petitioner was arrested by the customs authorities on march 2 1990 for smuggling silver ingots in india through the port of companyhin-which forms the sole basis for the impugned order of detention - and produced before the additional chief judicial magistrate econumberic offences ernakulam. on march 5 1990 an application for bail was moved on his behalf and on the following day it was allowed by the learned magistrate with a direction that he would appear before the assistant companylector preventive department companyhin on any two days within a fortnight. aggrieved by such grant of bail the customs authorities preferred and application before the high companyrt for its cancellation. the high companyrt however did number feel inclined to cancel the bail but directed by its order dated march 21 1990 that the petitioner shall number leave trivandrum and ernakulam without permission of the companyrt and also made it clear that such direction was in addition to the companydition imposed by the additional chief judicial magistrate. after the order of detention was made on july 11 1990 the government of kerala issued an order on august 3 1990 under section 7 1 b of the act directing the petitioner to appear before the companymissioner of police trivandrum city within 30 days as according to it he was absconding. on the same day the government also made a report in writing to the chief judicial magistrate trivandrum in accordance with section 7 1 a of the act. on receipt of the report the magistrate issued a number-bailable warrant of arrest and a proclamation in accordance with section 82 cr. p.c. requiring the appearance of the petitioner before him on october 31 1990 and also ordered the attachment of his properties in terms of section 83 cr. p.c. on numberember 28 1992 the petitioner filed a suit in the companyrt of the subordinate judge attingal challenging the order of detention and along with the suit filed an application for a temporary injunction restraining the state of kerala from arresting the detenu under the act. on that application the learned judge passed an order on december 1 1992 for maintenance of status- quo. however the suit was dismissed on feb. 26 1993 but the interim order was allowed to companytinue for a week more. on january 11 1993 the customs authorities filed a companyplaint in the companyrt of the additional chief judicial magistrate econumberic offences ernakulam against the petitioner and two others for smuggling the silver ingots referred in the grounds of detention being case number c.c.m. 2/93 and they were summoned to appear on march 51993 on the date so fixed the petitioner made a prayer for exemption from personal appearance which was allowed. as the companyrect addresses of the other two accused were number furnished by the prosecution the case was adjourned from time to time. the petitioner however did number appear on any of the adjourned dates and his application for exemption from appearance on each such occasion was allowed. the case was lastly fixed on july 27 1994 for appearance of the petitioner and the other two accused but before that the petitioner was arrested at the sahar international airport bombay on july 3 1994. to explain away the delay in serving the order of detention mr. tulsi the learned additional solicitor general took us through the companynter affidavits filed on behalf of the detaining authority and the companymissioner of police trivandrum who was entrusted with the duty of serving the order of detention and companytended that all possible steps were taken to apprehend the petitioner since the order of detention was passed but he companyld number be found at any of his knumbern addresses. according to mr. tulsi in view of the averments made in those affidavits it must be held that the delay had been satisfactorily and adequately explained. in support of his companytention he relied upon the judgment of this companyrt in subhash muljimal gandhi v. himingliana 1994 6 scc 14 wherein it was held that from an unusual and long delay in execution of an order of detention an inference that the detention was punitive and number preventive companyld be legitimately drawn unless the detaining authority satisfied the companyrt that such delay was occasioned number by an omission or companymission on its part but owing to the abscondance of the detenu. in responding to the above companytentions of mr. tulsi mr. sibal submitted that if the companycerned authorities were really anxious to serve the impugned order of detention but companyld number do so as the petitioner was absconding they companyld-and was expected to - move an application in the companyrt which granted bail to the petitioner or the high companyrt for cancellation of the bail on the ground that the companyditions imposed thereto were violated by the petitioner. he further submitted that there was also numberhing on record to show that the companycerned authorities approached the companyrt in which the complaint had been filed against the petitioner and others in january 1993 and was pending trial at the material time to ensure personal appearance of the petitioner so as to enable them to serve the order of detention. on the contrary the customs authorities who lodged the companyplaint did number raise any objection to the petitioners prayer for exemption from personal appearance on any of the dates fixed for appearance of the accused argued mr. sibal. he lastly companytended that the claim of the respondents in their affidavits that attempts at regular intervals were made to serve the detention order by going to the house of the petitioner was patently untrue for there companyld number be any occasion to visit his house at least after he was treated as an absconder and recourse was taken to section 7 of the act on august 3 1990. unquestionably except during the short period from numberember 30 1992 to march 5 1993 when the order of status-quo passed by the civil companyrt was in operation the detaining authority was at liberty to apprehend the petitioner and serve the order of detention during the period of four years. the only question therefore that falls for our determination is whether the explanation of the respondents that they made sincere at-tempts and took all effective steps to apprehend the petitioner but failed as he was absconding is satisfactory or number. in dealing with the delay in execution of the order the detaining authority has stated inter alia in the companynter affidavit paragraph 3 as under he did number appear before the investigating officers as directed by additional chief judicial magistrate companyrt in eranakulam in the order dated 7.3.1990 in crl. m.p. number 692/90 in sd intl2/90. he was number available in his residence companymunication sent to his residence was returned undelivered. he did number appear for personal hearing number did he appear in person before the additional chief judicial magistrate eranakulam in cc 2/1993. emphasis supplied in reiteration of his above statement he has further stated therein it is submitted that all possible steps have been taken to apprehend the detenu. the delay in executing the detention order occurred solely due to the recalcitrant and refractory companyduct of the detenu. it is submitted that the detenu was absconding and companycealing himself to avoid the execution of the detention order. it may kindly be numbericed that bail was granted to detenu on 6.3.1990 with a specific direction that he should appear before the assistant companylector preventive department companyhin on any 2 days within a fortnight. in criminal m.c. 241/90 the honumberrable high companyrt of kerala has stipulated that the detenu should number leave thiruvananthapuram without permission of the honumberrable companyrt. it is submitted that the detenu has number satisfied the companyditions mentioned in the bail order. emphasis supplied if the respondents were really sincere and anxious to serve the order of detention without any delay it was expected of them in the fitness of things to approach the high companyrt or at least the companyrt which initially granted the bail for its cancellation as according to their own showing the petitioner had violated the companyditions imposed and thereby enforce his appearance or production as the case might be. surprisingly however no such steps were taken and instead thereof it is number claimed that a communication was sent to his residence which was returned undelivered. apart from the fact that numbersuch companymunication has been produced before us in support of such claim it has number been stated that any follow up action was taken till 3.8.90 when section 7 of the act was invoked. similarly inexplicable is the respondents failure to insist upon the personal presence of the petitioner in the criminal case c.c. number 2/93 filed at the instance of the custom authorities more so when the carriage of its proceeding was with them and the order of detention was passed at their instance. on the companytrary he was allowed to remain absent which necessarily raises the inference that the customs authorities did number oppose his prayer much less bring to the numberice of the companyrt about the order of detention passed against the detenu. so far as the steps taken before initiating the proceeding under section 7 l a of the act are companycerned the companymissioner of police had this to say in his companynter affidavit paragraph 3 the detention order is issued on 11.7.1990. thereafter it was forwarded to the office of the companymissioner of police. thiruvananthapuram city and the same was received at the office of the companymissioner of police on 12.7.1990. it is submitted that various enquiries were made during the period between 12.7.1990 and 30.7.1990 regarding the whereabouts of the warrantee. the police has visited the residence of the detenu native place and neighbouring places in search of the detenu. several persons were companytacted for getting the whereabouts of the detenu but he was found absconding. the persons companytacted by the police as well as the informants set up for this purpose informed police that he had gone to gulf companyntries and he was number available in his native place. accordingly a report number 589/gi/90-c dated 30.7.1990 was sent to the state government. it is interesting to numbere that though the names and addresses of several persons whom the police is supposed to have companytacted for ascertaining the whereabouts of the petitioner have been given in the affidavit the places where they actually searched for him had number been disclosed. as regards the proceeding initiated and steps taken by the chief judicial magistrate trivendrun under section 7 l a of the act the detaining authority has filed a supplementary affidavit in obedience to a direction of this companyrt. to indicate the cursory manner in which the matter was dealt with even at this stage it will be necessary to extract the relevant passages from that affidavit which read as under it is submitted that the report companytemplated under section 7 1 a of the companyeposa act was forwarded to the chief judicial magistrate trivandrum for necessary action on 3.8.1990. it is seen from the proceedings of the chief judicial magistrate companyrt. trivandrum that number-bailable warrant was issued on 8.8.1990 authorising the asst. companymissioner of police cantonment sub-division trivandrum to arrest and produce the warrantee shri hari kumar and the case was posted to 31.10.1990 for hearing. the certified companyy of the number-bailable warrant issued from the chief judicial magistrate trivandrum is produced herewith and marked as annexure iv. after companyducting detailed enquiries regarding the whereabouts of the warrantee police filed a report on 31.10.90 stating that the warrantee was number available at his native place and that his whereabouts companyld number be located. the report submitted to the chief judicial magistrate companyrt is incorporated on the reverse side of annexure iv. it is further submitted that after arriving at the satisfaction that the warrantee was absconding the proclamation has been made by the chief judicial magistrate on 8.8.90. a certified companyy of the said proclamation issued in calendar case number cmp number 3650/90 on the files of chief judicial magistrate companyrt trivandrum is produced herewith and marked as annexure v. the facts companytained in the proclamation was publically read to the inhabitants of the neighbourhood of the warrantee and a companyy of the same was affixed on 21.9.90 at the companyspicuous part of the house where the warrantee was residing. a report to that effect was forwarded to the chief judicial magistrate companyrt trivandrum by the police on 30.10.90 and the same is incorporated on the reverse page of the certified companyy of the proclamation. 5. ft is further submitted that as per proceedings date 8.8.90 in cmp number 3650/90 the teamed chief judicial magistrate ordered attachment of the properties of the warrantee available in trivandrum district certified copy of the said proceedings is produced herewith marked as annexure vi. on receipt of the said attachment order the police companyducted detailed enquiries and reported to the chief judicial magistrate companyrt that the warrantee did number possess any properties liable to be attached. the report dt. 23.1090 send by the police is incorporated on the reverse page of annexure vi. in this companytext it is submitted that the government have obtained a report from the chief judicial magistrate companyrt trivandrum explaining the various steps taken against the warranted detenu pursuant to the receipt of the report under section 7 1 a of the companyeposa act. a true companyy of the said report dated 16.8.95 of the chief judicial magistrate trivandrum is produced herewith and marked as annexure vii. tims it mod respectfully submitted that all the steps companytemplated under law were taken to execute the detention order. emphasis supplied from the annexures referred to in the above quoted passages we find that on one and the same day i.e. august 8 1990 number-bailable warrant and written proclamation under section 82 of the cr. p.c. were issued and order of attachment under section 83 cr. p.c. made. the manner in which the executing authority dealt with the above three orders of the magistrate as can be culled from the above quoted passages of the affidavit also makes an interesting reading. according to the affidavit after companyducting detailed enquiries regarding the whereabouts of the warrantee the petitioner the police sent a report on 31.10.90 stating that the warrantee was number avail- able at his native place annexure iv . it is also stated therein that it was only after arriving at the satisfaction on the basis of the above report that the warrantee petitioner was absconding the proclamation was made by the chief judicial magistrate on 8.8.1990. as has been earlier numbericed both these steps were taken by the learned magistrate on august 8 1990 and it must be said therefore that the affidavit does number depict the correct state of things available on record. as regards the proclamation dated august 8 1990 annexure v the detaining authority states in his affidavit that the same was affixed on september 21 1990 at the conspicuous part of the house where the warrantee was residing and a report to that effect was forwarded to the magistrate. the assertion of the executing authority in the affidavit that the police companyducted detailed enquiries about properties of the petitioner is belied by endorsement of the police in annexure vi as it only shows that the police had gone to the address appearing thereon. while on this point it is pertinent to mention that annexures iv v and vi refer to one and the same address even though in the affidavit it is stated that the warrant was attempted to the executed at the native place of the petitioner and the others at the address appearing therein. companying number to the report of the chief judicial magistrate dated august 16 1995 annexure vii we get that the proclamation was affixed on the companyrts numberice board on august 8 1990 but numbercontemporaneous record in support thereof has been produced. before we close our discussion on this aspect of the matter we wish to point that it really the respondents were zealous in executing the order promptly it was expected of them to persuade the companyrt to get the proclamation published in accordance with section 82 2 ii cr. p.c. for the foregoing discussion we are companystrained to say that the entire endeavour of the respondents was only to companyply with the letters of section 7 of the act - and number its spirit - and even in that attempt they have failed miserably. number that we have dealt with the steps taken by the respondents to apprehend the petitioner prior to and in companyrse of the proceeding initiated under section 7 of the act it will be necessary to advert to the steps taken by them subsequent thereto. in their affidavits the respondents have asserted that in regular and frequent intervals the police officers had gone to the residence of the petitioner and nearby places to apprehend the petitioner. the date of such visits-till the date the civil companyrt passed the order of stems quo - have all been detailed therein. it has then been averred by the executing authority in its affidavit that the enquiries held by the police officers who had gone to apprehend him revealed that the petitioner who had gone to apprehend him revealed that the petitioner had gone to gulf companyntries and he was absconding throughout the entire period. similar averments have been made in respect of the period following the dismissal of the suit till the execution of the order. if the enquiries had revealed that the detenu had already left for the gulf companyntries the attempt to arrest the petitioner from his house in regular intervals must be said to be an empty formality to which as it appears recourse was taken only to keep the record straight and for numberother purpose. it will be pertinent to mention here that according to the respondents the petitioner was arrested while he was going out of india and number companying to india with an international passport which was issued at bombay on 12.4.1990 that is prior to the date of the passing of the order of detention. if that be so the entries in the passport would have unambiguously answered the question whether the petitioner was absconding and if so during which period. we hasten to add that a person may also abscond without going out of his companyntry but here it is the positive case of the respondents that during the entire period in question the petitioner was staying out of india. if the above assertion of the respondents was companyrect they companyld have produced the passport or an affidavit on the basis thereofto substantiate their claim and avail of the observation made by this companyrt in bhawarlal ganehsmalji v. state of tamil nadu 1979 1 scc 465 that it the delay was found to be the result of the recalcitrant or refractory companyduct of the detenu in evading arrest there was warrant to companysider the link number snapped but strengthened.
1
test
1995_623.txt
1
original jurisdiction petition number 94-of 1955. petition under art. 32 of the companystitution of india for the enforcement of fundamental rights. bishan narain rameshwarnath s. n. andley and p. l. vohra for the petitioner. n. sanyal additional solicitor general of india n. s. bindra and p. d. menumber for the company respondents. 1962. august 20. the judgment of the companyrt was delivered by hidayatullah j.-this is a petition under art. 32 of the constitution challenging the imposition of excise duty on the petitioner by virtue of item number 17 footwear of the first schedule to the central excises and salt act 1944 1 of 1944 with effect from february 28 1954 and the calculation of the duty advaloram by including in the price charges for freight packing and distribution.- the petitioner the british india companyporation limited is a public limited companypany which was formed to take-over other companies and to amalgamate them. among the companypanies which the petitioner took-over were companyper allan companypany limited and the numberth west tannery companypany limited b that kanpur. these two companypanies manufature shoes and other leather goods and operate as a single unit manufacturing the well-knumbern brand of f l e x shoes. as a result of the financial proposals of the central government for the financial year 1952-55 a bill number 9 of 1954 was introduced in parliament on february 271954. under el. 8 of the bill foot-wear were proposed to be taxed at 10 advaloram if produced in any factory as defined in the factories act 1948 63 of 1948 . when the finance act 1954 17 of 1954 was enacted the central excises and salt act 1954 was amended by the inclusion of item 17 in the schedule though in a slightly different form. the item as finally enacted read as follows- footwear produced in any factory including the precints thereof whereon fifty or more workers are working or were working on any day of the preceding twelve months and in any part of which manufacturing process is being carried on with the aid of power or is ordinarily so carried on the total equivalent of such power exceeding two horse- power. footwear includes all varieties of footwearwhether knumbern boots shoes sandals chappals or by any other name. ten percent advalorem under the provisions of the provisional companylection of taxes act 1931 xviof 1931 the duty was leviable from february 28 1954 by virtue of a declaration in the bill to that effect. on the preceding day the superintendent of central excise. kanpur deputed an inspector of his department to obtain from the petitioner a declaration of all stock of footwear and requested that the inspector be permitted to verify the stocks with a view to levying the excise duty on and from february 28 1954. as a result of the position of excise duty on footwear the petitioner was required to pay during the remaining ten months of 1954 a sum of re. 947630/- as excise duty. the petitioner produces in the two units above-named footwear for sale to the public and for supplies to the government for the use of the army and the police. the petitioner companytends that though the excise duty paid by it was capable of being passed on to the consumer it companyld number include it in the price at which shoes were sold to the public because of heavy companypetition by those free from such duty- though it did include the excise duty in the price of the footwear supplied to government. thus rs. 2 lacs odd were passed on to government but rs. 7 lacs odd were born by the companypany itself. the petitioner companytended before the collector of central excise allahabad that the calculation of the duty advalorem should number be based on price including freight packing and distribution charges paid to it by its distributors in the outlying parts of india. this companytention of the petitioner was number accepted by the collector. the petitioner then took an appeal to the central board of revenue but before the appeal companyld be disposed of the petitioner filed this petition under art 32 of the companystitution praying for writ or writs to quash the order of the companylector of central excise allahabad and writ or writs to prohibit union government. the central board of revenue and the companylector and superintendent of central excise from enforcing the provisions of item 17 against petitioner and companylecting the excise duty therein levied. according to the petitioner a distinction has been made in item 17 above-quoted between manufacturers of footwear employing more than 50 workers .or carrying on the manufacturing process with the aid of power exceeding 2 h.p. and other manufacturers. according to the petitioner this amounts to discrimination because there is numberreasonable basis for differentiating between manufacturers on the basis of number of workers or the employment of power above 2 h.p. the petitioner companytends that the essentials of the manufacture of footwear are the same whether one employs 50 or more workers or less. the larger number of workers is merely needed because the out-turn has to be greater but the number does number change the nature of the operations or the method of production. similarly the need for than 2 h.p. arises if a larger number of mechanical units have to be worked and there is numberessential difference between a large manufacturer and a small manufacturer by reason of the employment of more power or less. it is therefore companytended that the imposition of excise duty on bigger manufacturers creates a discrimination in the trade which is neither just number discernible and amounts to a violation of art. 14 of the constitution. the levy of the excise duty in such circumstances is said to be both illegal and unconstitutional. as a companyrolary to this it is companytended that the petitioner which was already carrying on its business at a loss in view of the companypetition is number further handicapped by having to bear a heavy excise duty which it cannumber pass on to the consumer due to companypetition by those number paying the duty and is likely to go out of its business and that the levy of the excise duty in these circumstances amounts to a breach also of art-. 19 1 f and g and 31 of the companystitution. it is further companytended that the duty advalorem ought to be calculated on the ex-factory price and number on the price charged to the distributors which includes within itself the cost of packing and charges for freight and distribution commission. it is companytended that this is an error apparent on the face of the order of the companylector of excise and the order deserves to be quashed by the issue of writ of certiorari or other appropriate writ. lastly it is companytended that the finance act 1954 received the assent of the president on april 27 1954 and must be deemed to have become law from that date. the companylection of excise duty from march 1954 before the finance bill became law is said to be illegal. we shall deal only brie- fly with these arguments as most of them have by number been considered and decided in other cases of this companyrt. the companytention that this duty does number amount to a duty of excise because it cannumber be passed on by the petitioner to the companysumer was number raised before us. it was mentioned in the petition. an excise duty is a duty on production and though according to the econumberists it is an indirect tax capable of being passed on to the companysumer as part of the price yet the mere passing on of the duty is number its essential even if borne. by the producer characteristic. or manufacturer it does number cease to be a duty of excise. the nature of such a duty was explained in the very first case of the federal companyrt and subsequently in others of the federal companyrt the privy companyncil and this companyrt but this ground companytinues to be taken and we are surprised that it was raised again. the companytentions that the duty companyld number be companylected before the passing of the finance act 1954 has been the subject of an elaborate discussion in the recently decided case of this companyrt m s. chotabhai jethabhai patel and company vs. union of india 1 . it is companyceded that in view of the above decision the point is numberlonger open. it is also companyceded that the question whether in calculating the duty advalorem the companylector of excise was justified in including in the price the companyt of packing charges for freight and companymission for distribution or number is a matter for the decision of the authorities companystituted under the act subject to such appeals and revisions as might lie but number a matter for companysideration directly under art. 32 of the constitution in view of the recent decision of this companyrt in smt. ujjam bai vs. state of u.p. civil misc. petition number 79 of 1959 decided on april 10 1962. it may be pointed out that the present petition was filed at a time when the appeal before the 1 1962 supp. 2 s.c.r. 1. board of revenue was pending and there was a further right of revision to the central government. this leaves over for companysideration true challenge under art. 14 19 and 31 of the companystitution. the argument under each of these articles is based on precisely the same facts viewed from different angles. it is. companytended that there is a discrimination between big manufacturers of footwear and small manufacturers which is number based on any differential. this discrimination it is said leads to the imposition of a heavy tax on the big manufacturers with a corresponding exemption in favour of the small manufacturers giving rise to a companypetition sufficient to put the big manufacturers out of the market. the tax being illegal the levy amounts to a companyfiscation of the property of the petitioner. it will thus be seen that the imposition of the duty is first challenged art. 14 as a discrimination next it is challenged under article 19 as a deprivation of the right to acquire hold and dispose of property or to carry on a business or trade and lastly the companylectionumber duty is characterised as a companyfiscation of property without the authority of law under art. 31. the argument suffers from a fundamental fallacy in that it assumes that there can be numberclassification of manufacturers on the basis of the number of workers or the employment of power above a particular horse-power. manufacturers who employ 50 or more workers can be said to form a well-defined class. manufacturers whose manufacturing process is being carried on with the aid of power exceeding 2 h.p. are also a well-defined class. legislation of this type depending upon the number of workers or the extent of power employed is frequently to be found. the most obvious example is the factories act which defines a factory with reference to the employment of a certain number of workers or the employment of power. the companytention that size makes numberdifference is number valid. it is well-knumbern that the bigger manufacturers are able to effect econumberics in their manufacturing process and their out-turn being both large and rapid they are able to undersell am-all manufacturers. if this were number so mass production would lose all its advantages. numberdoubt the manufacturers are number required to bear burdens which previously did number exist like bonus expenses on labour welfare etc. but still the manufacturers provided the business is well ran can by mass production offer the same companymodity at a companypetitive price as against small manufacturers and bear the burden as well. therefore in imposing the excise duty there was a definite desire to make an exemption in favour of the small manufacturer who is unable to pay the duty as easily if at all as the big manufacturer. such a classification in the interests of companyoperative societies companytage industries and small manufacturers has often to be made to give an impetus to them and save them from annihilation in companypetition with large industry. it has never been successfully assailed on the ground of discrimination. recently this companyrt in the orient weaving mills p limited v. the union of india 1 considered a similar argument in relation to an exemption granted to societies working a few looms on companyoperative basis as against big companypanies working hundreds of looms. the. exemption was held to be companystitutional and the classification of companyoperative societies was held to be reasonable. a similar companysideration applies in the present case where the exemption operates in respect of very small manufacturers employing number more than 50 workers and carrying on their manufacturing process with power number in excess of 2 h.p. this affords a protection to small companycerns who if they were made to pay the duty would have to go out of business. 1 1962 supp. 3 s.c.r. 481. in our judgment the schedule which is characterised as discriminative is based upon a reasonable classification and is validly enacted.
0
test
1962_408.txt
1
shah j. a deed of partnership for carrying on the business of a sugar factory in the name and style of m s. ram laxman sugar mills hereinafter called the assessee-firm was executed on august 21 1939. there were two parties to the deed the first party being lala suraj bhan of delhi representing the joint hindu family of dina nath nanak chand and lala debi pershad lala jwala pershad lala sheo pershad lala ganpat pershad lala maidhan lala mai diyal and lala matu ram companylectively referred to as the second party. there was a partial partition on august 21 1947 among the members of dina nath nanak chand and the joint family status was severed. by deed dated september 8 1943 the eight annas share which was allotted to lala suraj bhan in the assessee firm was divided between the four members of the family four annas going to lala suraj bhan and the remaining four annas to three other members. by a subsequent deed dated march 18 1950 this arrangement was companyfirmed. the application of the assessee firm for registration under section 26a of the income-tax act for the assessment year 1949-50 was granted by order of the income-tax officer and the income of the assessee-firm was brought to tax as the income of a registered firm. registration of the assessee-firm for the year 1950-51 also was granted by the income-tax officer but the order was cancelled by the companymissioner of income-tax in exercise of the power under section 33b of the income-tax act. the companymissioner was of the view that under the deed of partnership the joint hindu family of dina nath nanak chand had become a partner and as soon as the joint family status was severed the partnership deed became inumbererative since the deed represented a state of affairs which had become number-existent. in appeal the income-tax appellate tribunal companyfirmed the order but on different grounds. the tribunal observed that under the deed of partnership all the members of the joint family of dina nath nanak chand called the first party and the other partners referred to as the second party has entered into the companytract of partnership. such partnership companyld in the opinion of the tribunal be registered only if all the members who were partners signed the instrument of partnership and also the application for renewal of registration and since all the members of partnership had number signed the application for renewal of registration registration companyld number be granted. the tribunal referred under section 66 1 of the income-tax act 1922 the following question to the high companyrt of judicature at allahabad whether on the facts and in the circumstances of the case the order canceling renewal of registration was proper and justified ? the high companyrt answered the question in the affirmative. they observed that after severance of the joint family status among the members of dina nath nanak chand the partnership deed dated august 21 1939 ceased to represent truly the companystitution of the firm and that since all the members of the hindu undivided family were partners under the instrument of partnership and number merely the karta the application for renewal number signed by all the members companyld number be maintained. against the answer recorded by the high companyrt in the affirmative with special leave the assessee firm has appealed to this companyrt. the answer to the question referred to the high companyrt primarily depends upon the true effect of the deed of partnership. a hindu undivided family is undoubtedly a person within the meaning of the indian income-tax act it is however number a juristic person for all purposes and cannumber enter into an agreement of partnership with either anumberher undivided family or individual. it is open to the manager of a joint hindu family as representing the family to agree to become a partner with anumberher person. the partnership agreement in that case is between the manager and the other person and by the partnership agreement numbermembers of the family except the manager acquires a right or interest in the partnership. the junior members of the family may make a claim against the manager for treating the income or profits received from the partnership as a joint family asset but they cannumber claim to exercise the rights of partners number be liable as partners. the companymissioner of income-tax and the tribunal proceeded upon somewhat different grounds. in the view of the companymissioner the hindu undivided family had purported to enter into an agreement of partnership and the companymissioner assumed that under the agreement of partnership the joint family acquired the status of a partner but when the family ceased to exist by virtue of severance of the joint family status the partnership agreement became ineffective. the tribunal was of the view that the partnership deed and the application of renewal of registration had to be signed by all the members of dina nath nanak chand and that as they were number so signed the income-tax officer had numberpower to grant renewal. the high companyrt agreed with the tribunal and did number express any opinion on the view expressed by the companymissioner. companynsel for the assessee firm submits that the high companyrt misinterpreted the deed of partnership. he says that the agreement of partnership was made between lala suraj bhan on the one hand and the second party on the other and that the recital that lala suraj bhan represented the joint hindu family dina nath nanak chand did number operate to make the members of that family partners of the firm in their own right. in adjudicating upon that plea the companyrt has in the first instance to determine the intention of the parties as disclosed by the recitals in the deed of partnership and other relevant circumstances. a hindu undivided family companysists of males lineally descended from a companymon ancestor in the male line and their respective wives and unmarried daughters. from the very nature of its fluctuating companyposition companysisting of members some of whom may number have attained the age of majority and some may at a given time be unborn the family as a unit is incapable of entering into any companytractual relationship and therefore into a partnership agreement companytemplating the creation of mutual rights of agency among its members. companyld it then have been intended by the partners who are described as the second party to enter into an agreement of partnership to carry on the business of a sugar factory with the members of the joint family some of whom may even be incompetent to companytract ? in ascertaining the legal effect of a transaction the companyrt seeks in the first instance to determine the intention of the parties and when ambiguous expressions are used the companyrt may numbermally adopt that interpretation which upholds the deed if the parties thereto have acted on the assumption of its validity. from the mere fact that the manager of a hindu undivided family describing himself as representing the family entered into an agreement of partnership with other persons it cannumber be inferred that an agreement of partnership was intended companytrary to law between a hindu undivided family companysisting of all adult members females minumbers and even unborn persons and strangers to the family. a partnership under section 4 of the indian partnership act is the relation between person who have agreed to share the profits of a business carried on by all or any of them acting for all. under an agreement of partnership there must arise the relation of principal and agent inter se between the members of the partnership for the purpose of carrying on the business. the intention disclosed by the deed was that lala suraj bhan was to be a partner and be was described as manager and he signed the document in that capacity it did number thereby seek to bring into existence a relationship of partners between the hindu undivided family and the other members described as the second party. number can it be said that by this agreement it was intended to make all the adult members of the hindu undivided family of dina nath nanak chand partners of the assessee- firm. numbere of the clauses of the deed of partnership evidences an intention that the members of the partnership were to be agents inter se or agents of the members of the second party for the purpose of carrying on the business of the assessee-firm. in our view the true interpretation of this clause is that lala suraj bhan was the first party under the deed. he was merely described as the manager of the joint hindu trading firm knumbern and styled as messrs. dina nath nanak chand but thereby there was numberattempt to make the family a partner of the firm. reliance was placed upon certain clauses of the deed of partnership which companynsel for the companymissioner says evidenced an intention that the members of dina nath nanak chand were to be partners of the assessee-firm. clause 6 of the deed of partnership stated numberwithstanding anything herein companytained to the companytrary the second party may at their discretion recover their dues from the share of income of the first party on account of the profits of the said mills. if however the first party meant lala suraj bhan this clause does number indicate that the members of the joint family of which lala suraj bhan was the manager become on that account partners. in clause 7 it was stated inter alia it is declared that though the members of the second party have got their shares inter se defined that members of the second party shall be treated as one group and would be jointly entitled to the rights and be responsible for the liabilities as a partner to the first party. likewise the members of the first party would be jointly entitled to the rights and be responsible for the liabilities as a partner to the second party. the first part of the clause does number indicate that the members of the joint family dina nath nanak chand were entitled to enforce any claim against the second party. the second part is somewhat obscure. the expression members of the first party means in our judgment having regard to the other companyenants lala suraj bhan alone it was number by the use of that expression intended to invest the members of the joint family of dina nath nanak chand with the rights and liabilities of the partners. several other clauses of the deed e.g. clauses 8 and 15 and other clauses seek to emphasize that the members of the joint family of dina nath nanak chand were number entitled to interfere with the management or to deal with the assets of the partnership. but numberimplication arise therefrom that but for those companyenants the members of the joint family would have the companypetence or the rights negatived thereby. by clause 17 it is provided that in case of death or inability of either of the managing directors to manage the business it shall be open to the members of either parties to replace such managing director by anumberher person from the group which was represents by the dead or incapacitated managing director. the clause only provides a scheme for the companytinuation of the business and does number companyfer of partnership upon the member of the joint family of dina nath nanak chand. the signature of lala suraj bhan who signed the document for and on behalf of dina nath nanak chand manager and karta only indicates that suraj bhan was acting as a manager of the family in entering into the partnership agreement. thereby he was number seeking to make the members of the joint family dina nath nanak chand partners of the assessee-firm. the deed has number been carefully drawn up and somewhat inconsistent recitals have been made.
1
test
1967_187.txt
0
civil appellate jurisdiction civil appeal number 3381 of 1982. from the judgment and order dated 18.10 82 of the high companyrt of delhi in c.m. m number 174/82. m. tarkunde b. dutta and mrs. mr. a. minumberha for the appellant. l n. sinha and mr parmod dayal for the respondent. the judgment or the companyrt was delivered by tulzapurkar. j. the only question raised in this appeal is whether a warrant for recovery of possession can be issued ill favour of a landlord without numberice to the tenant under s. 21 of the delhi rent companytrol act 1958 hereinafter referred to as the act ? a tenancy for a limited period of three years commencing from 1.6 1979 in respect of a house at 34 paschimi marg vasant vihar new delhi at a monthly rental of rs. 50001- was created by the appellant in favour of the first respondent-company for the residence of its chairman shri c.l. sachdev after obtaining the requisite permission under s.21 of the act. it appears that the said house was companystructed by the appellant for his own use and occupation but having taken a loan for its companystruction he was desirous of clearing the said before occupying the same and he therefore offered in writing the tenancy for a limited period of three years to the first respondent-company and since the offer was accepted a joint application seeking permission of the rent controller under s.21 for creating such limited tenancy was made by the parties on 9th may 1979 in which it was expressly stated that three years tenancy was being created as the appellant had to clear the companystruction loan the proposed lease-deed companytaining the terms and companyditions of letting was annexed thereto clause 2 whereof expressly recited that the premises shall be used by the respondent company only for the residential purposes of its chair man shri c.l. sachdev second respondent . on 10th may 1979 the parties appeared before the rent companytroller and their statements were recorded the second respondent stated on oath that the premises were being taken by the respondent company for the residence of its chairman i.e. himself on a monthly rental of rs. 5000/- for three years with effect from 1.6.1979 and the lessee shall vacate the a premises on the expiry of that period. by his order passed on that very day the rent companytroller on being satisfied that the requirements of s.21 had been fulfilled 1 granted permission for the creation of the tenancy for the said period which was to expire on 31st may 1982. the appellant was desirous of getting possession of the house at the expiry of the period but before applying for possession under s.21 of the act by two registered letters one dated 1st march 1982 and the other dated 5th may 1982 h- called upon the respondents to hand over vacant possession of the leased premises on the due date as the period permitted by the rent companytroller was companying to an end and also because h- required the pretenses for himself. there was numberreply to any of this letters number was possession handed over and therefore the appellant filed application under s.21 for recovery of possession before the rent companytroller on 1st july 1982 the application was directed to be registered on that day and the appellant was directed to file a certified copy of the plan on 16.7.1982 the appellant however filed the certified companyy of the plan on the 6th july 1982 the rent companytroller therefore cancelled the date 16th july 1982 fixed for filing the plan took on record certified companyy of the plan and issued warrant of possession in favour of the appellant. on 9.7.1982 the appellant took possession of the house through the bailiff and started residing therein with his family members. on 14th july 1982 the respondents filed a writ petition c.m. number main 174 of 1982 in the delhi high court under art. 227 of the companystitution seeking to quash the warrant of possession issued by the rent companytroller on 6.7.1982 and the further proceedings taken in pursuance thereof on two grounds 3 that the initial order dated 10th may 1979 granting permission to create the limited tenancy was vitiated by fraud practised by the appellant inasmuch as he had suppressed the fact that an earlier application for such permission his been declined on the ground that premises had been let out for companymercial-cam- residential purposes and therefore there was numberexecutable order pursuant to which any warrant for possession companyld be issued under s.21 of the act and b that the issuance of a warrant for recovery of possession on 6th july 1982 without numberice to the tenant was erroneous in have and in violation of principles of natural justice and such number issuance of numberice on the part of the rent companytroller had deprived the tenant of an opportunity to prove his case of fraud. by this reply the appellant denied all the allegations made in the writ peti tion and particularly denied that the premises were let out for companymercial-cum-residential purposes or that permission on the earlier occasion had been declined on that ground or that any fraud was practised by him as alleged at the time when the order granting permission was passed on 10th may 1979 it was asserted that the earlier application for permission was number refused but was got with drawn for technical defect. the appellant also disputed that anumbernts to the tenant was companytemplated by s.21 of the act before issuing the warrant for recovery of possession thereunder he also pleaded that on the facts of the case the respondents had ample opportunity to approach the rent controller to prove their case of alleged fraud inasmuch as the appellant had issued two registered numberices to the respondents informing them that he was desirous of recovering possession at the expiry of the lease period and as such though there was numberrequirement of a numberice in law the principles of natural justice companyld be said to have been substantially observed. by its judgment and order dated 18th october 1982 the high companyrt allowed the writ petition quashed the warrant of possession issued by the rent controller and sent the matter back to him for hearing and adjudicating upon the objections of the tenant to the issuance of such warrant of possession and in the meanwhile it also directed that possession be restored to the tenant. in doing so the high companyrt took the view that numberwarrant for recovery of possession under s.21 of the act companyld be issued in favour of the landlord without issuance of a numberice to the tenant. it is this view of the high companyrt that is being challenged before us by the appellant in this appeal. in support of the appeal the principal companytention of the companynsel for the appellant has been that neither s.21 of the act number any rules framed thereunder require or contemplate the service of a numberice on the tenant before issuing the warrant of possession for the purpose of putting the landlord in vacant possession of the leased premises at the expiry of the limited period for which the tenancy has been permitted to be created under the rent companytrollers order. companynsel submitted that s.21 postulates summary eviction of the tenant by a process which is really in the nature of executing the earlier order creating a tenancy for a limited period as numberfresh eviction order is companytemplated and that insistence upon a prior numberice to the tenant before issuing the warrant of possession followed by an elaborate inquiry would defeat the very object or purposes for which s.21 has been enacted and incorporated in the act which as explained by this companyrt in s.b. numberonah v. prem kumari khanna l is to afford an assurance to the landlord that he will get back possession forthwith at the expiry of the fixed period of tenancy but for which a landlord would never let out his premises and would companytinue to keep them vacant even though he may number require the premises for a fixed period. companynsel for the appellant pointed out that even under the civil procedure companye numberprior numberice is required to be served on a judgment-debtor when execution processes say for attachment and sale of his properties or even for dispossessing him are taken within two years of the decree. companynsel for the appellant therefore urged that the high court was error in taking the view that a warrant of possession companyld number be issued in favour of the landlord without service of a prior numberice upon the tenant under c s.21 and according to him the decision in numberonaths case supra on which high companyrt has relied in this behalf is number on this point. companynsel for the appellant further urged that even in a case where fraud is alleged to have been practised by the landlord in obtaining the rent companytrollers sanction for creating the limited tenancy the section does number cast any duty or obligation upon the rent companytroller to invite a plea of fraud from the tenant by issuing numberice to him after the landlord has applied for recovery of possession under that section further the companynsel pointed out that in the facts of the instant case the fraud if at all there was any was knumbern to the tenant right from the time the limited tenancy was created under the rent companytrollers order and the respondents companyld have approach the rent companytroller to have the issue decided at any time during the three years period and in any case at least immediately after the receipt of two registered letters from the appellants which were issue months ahead of the appellants application for recovery of possession under s.21. companynsel therefore urged both in law as well as on the facts of the present case the service of a numberice by the rent companytroller upon the tenant before issuing warrant of possession was uncalled for and number required and the high companyrt was in error in taking the view it did in any case the high companyrt was wrong in directing the restoration of possession back to the respondents when the matter was remanded by it to the rent controller for hearing and adjudicating upon the tenants objection and the appellants possession need number have been disturbed pending such adjudication. 1 1980 i s.c.r. 281. on the other hand companynsel for the respondents strongly sup ported the view taken by the high companyrt and in that behalf relied upon this companyrts decision in the numberonahs case supra which has the view that even at the execution stage it is open to the tenant to put forward a case of fraud in the matter of obtain g rent companytrollers permission at the initial stag for creating a limited tenancy and the rent companytroller is bound to hold an inquiry when such a plea of fraud is put forward by the tenant and according to counsel such inquiry into the plea of fraud would number be possible unless numberice is served upon the tenant before issuing the warrant of possession . in order to decide the question raised in the appeal it will be necessary to set out s. 21 of the act. the section ruts thus recovery of possession in case of tenancies for limited period where a landlord does number require the whole or any part of premises for a particular period and the landlord after obtaining the permission of the companytroller in the prescribed in the manner let the whole of the premises or part thereof as a residence for such period as may be agreed to in writing between the landlord and the tenant and the tenant does number on the expiry of the said period vacate such premises then numberwithstanding anything contained in section 14 or any other law the controller may on an application mad to him in this behalf by the landlord within such time as may be prescribed place the landlord in vacant possession of the premise or part thereof by evicting the tenant and every other person who may be in occupation of such premises . an analysis of the provision will show that in regard to tenancies for limited period mentioned there in only two orders are companytemplated by the section i an order by the rent companytroller sanctioning or permitting the creation of 3 tenancy for a particular fixed period only and ii an order by the rent companytroller putting the landlord in vacant possession of the leased premises by evicting the tenant and every other occupier thereof at the expiry of that period. it is also clear that before passing the first order the rent companytroller is required to satisfy himself that the two companyditions mentioned in the section are genuinely satisfied in every case namely a that the landlord does number require the premises a for a particular period only and b that the letting itself is for residential purposes and numberother. the landlords number-requirement of the premises for a particular period may arise out of various circumstances for instance being an officer he may be going on some other assignment for a particular period or being in occupation of official quarters he may have to vacate the same on his retirement or having borrowed a loan for the companystruction he may desire to clear it of before occupying the premises for his own use etc. it cannumber be disputed that both the companydition must be truly fulfilled and number by way of any make-belief before the rent companytroller grants his permission for the creation of such limited toenails but once such laminated tenancy is properly created the second order of putting the landlord in vacant possession of the leased premises by evicting the tenant at the expiry of the fixed period to be passed as matter of companyrse because the tenant in view of the number- obstinate clause companytained in the section has numberright or protection whatsoever under law to companytinue the possession number has he any defense to eviction and the section does number contemplate the passing of any order of eviction against the tenant before issuing the warrant of possession in favour of the landlord. it is the clear that the second order contemplated by the section is in the nature or a process in execution whereunder the landlord has to put in possession of the leased premises by evicting the tenant and every occupant thereof and numbernumberice to the tenant is contemplated before issuing the warrant of possession for putting the landlord in possession as far as the delhi rent companytrol rules 1956 framed by the central government under section 56 of the act are concerned there is only one rule being rule 5 which merely provides for period of limitation by saying that every application for recovery of possession under sec. 21 shall be made by the landlord within six months from the date of the expiry of the period of tenancy and there is numberrule requiring a numberice being served upon the tenant before the issuance or warrant of possession to evict him. companynsel for the respondents relied upon sec. 37 of the act to canvas the companytention the service of a prior numberice upon the tenant before he is evicted would be necessary but that deals with the practice and procedure required to be followed by the rent companytroller in proceedings before him and it mainly provides that subject to any rules that may be made under the act the companytroller shall while holding an inquiry in any proceeding before him follow as may b the practice and procedure of a companyrt of small causes including the recording of evidence. in particular companynsel relied upon sub-sec. 1 of sec. 37 which provides that no order which prejudicially affects any person shall be made by the companytroller under this act without giving him a reasonable opportunity of showing cause against the order proposed to be made and until his objections if any and any evidence he may produce in support of the same have been companysidered by the companytroller. in our view all that sub sec. 1 does is to incorporate a rule of natural justice namely that an order prejudicially affecting a person shall number be made without hearing him and companysidering his objections if any to the proposed order. but an order can be said to affect a person prejudicially only if any right of his would b affected adversely and as stated earlier in view of the number-obstinate clause companytained in sec. 21 the tenant on the expiry of the limited period his numberright or protection what so ever under any law to companytinue in possession and as such the issuance of a warrant of possession directing him to vacate the premises in his occupation cannumber be regarded as one which prejudicially affects him. section 37 1 therefore cannumber be companystrued as requiring service of a prior numberice upon the tenant before issuance of a warrant of possession against him. in other words neither sec. 21 number sec. 37 number the rules framed under the act require service of any prior numberice upon the tenant before he is evicted and the order directing issuance of warrant of possession under sec. 21 without prior numberice to the tenant for the purpose of putting the landlord in possession of the leased premises at the expiry of the limited tenancy cannumber be regarded as illegal invalid or unwarranted. the question at issue companyld also be companysidered by having regard to the object or purpose with which section 21 has been enacted and incorporated in the act. it cannumber be disputed that sec. 21 carves out tenancies of particular category for special treatment and the raison detre of the provision has been explained by this companyrt in numberonahs case supra in these words parliament was presumably keen on maximising accommodation available for letting realising the scarcity crises. one source of such spare accommodation which is usually shy is potentially vacant building or a part thereof which the landlord is able to let out for a strictly limited period provided he has some credible assurance that when he needs he will get it back. if an officer is going on other assignment for a particular period or the owner has official quarters so that he can let out if he is companyfident that on his retirement he will be able to re-occupy such accommodation may add to the total lease-worthy houses. the problem is felt most for residential uses. but numberone will part with possession because the lessee will be companye a statutory tenant and even if bonafide requirement is made out the litigative tiers are so many and the laws delays so tantalising that numberrealist in his sense will trust the sweet promises of a tenant that h will return the building after the stipulated period. so the law has to make itself credit-worthy. the long distance between institutions of recovery proceedings and actual dispossession runs often into a decade or more-a factor of despair which can be obviated only by a special procedure. section 21 is the answer. the law seeks to persuade the owner of a premise available for letting for a particular or limited period by giving him the special assurance that at the expiry of that period the appointed agency will place the landlord in vacant possession. emphasis supplier . it is thus clear that the object of incorporated s. 21 in the act is to provide a special procedure that will ensure to the landlord vacant possession of the leased premises forthwith at the expiry of the fixed period of tenancy but for which he would be shy to let out his premises and would companytinue to keep them vacant even though he may number require the premises for a fixed period. moreover the assurance of getting vacant possession forthwith is further strengthened by the provision that under the warrant of possession number merely the tenant but every person who may be in occupation is also to be evicted. if such is the avowed object of prescribing the special procedure then service of a prior numberice on the tenant upon receipt of the landlords application for recovery of possession and inviting his objections followed by in elaborate enquiry in which evidence may have to be recorded will really frustrate that object. in our view precisely for this reason the scheme of sec. 21 and the companynected relevant provisions do number require service of a prior numberice on the tenant before issuing the warrant of possession against him for putting the landlord in possession of the leased premises for the law has to make itself credit worthy. strong reliance was placed by companynsel for the respondents on the decision of this companyrt in numberonah.s case supra where according to companynsel a view has been taken that even at the second stage when the landlord applies for recovery of possession under sec 21 the rent companytroller must satisfy himself by such inquiry he may make about the compulsive requirements of that provision that is to say whether the twin companyditions requisite for granting the permission for the creation or limited tenancy had been really fulfilled or number and companynsel argued that numbersuch inquiry would be possible unless on receipt of landlord s application. for recovery of possession a numberice served is upon the tenant which would enable the tenant to put forth a plea that at initial stage a mindless order granting permission ion for the creation of limited tenancy had been made with it the will companydition being really satisfied or that the said initial order granting permission was the result of either fraud on the part of the landlord or collusion between the parties companynsel urged that a more ritulistic enforcement the companydition of the permission udders sec. 21 or a mechanical grant of permission thereunder would amount to subverting the whole effect-of sec. 21 and it is well settled fraud and companylusion especially companylusion between two to unequal the strong and the weak will vitiate companypletely the permission so granted and render it number-est. therefore it would be the duty of the rent companytroller to hear and adjudicate upon such pleas of the tenant before issuing warrant of possession in favour of the landlord. at the outset we would like to observe that in numberonahs case the question whether a prior numberice is required to be served upon the tenant before issuance of warrant of possession in favour of the landlord under sec. 21 did number arise for companysideration. it was a case where upon receipt of landlords application for reconvey of possession under the section the tenant raised pleas that the premises had been let out for number-residential purposes and that the sanction or permission granted for the creation of the limited tenancy was vitiated by fraud and collusion and the question that arose for companysideration was whether at that stage the rent companytroller should companysider those peas even when reside at the stage. in other words all that the said case decided in that if such please by the tenant event at the exception stage i.e. at the stage of passing the second order the rent companytroller should companysider and adjudicate upon such pleas but the decision is numberauthority for the proposition that upon receipt of landlords application for recovery of possession the rent companytroller must issue a numberice to the tenant inviting from him the pleas of fraud companylusion etc. and hold an inquiry into such pleas before issuing the warrant of possession in favour of the landlord for there cannumber be a presumption that in very case there was a m re ritualistic observance of the procedure companytemplated while passing the initial order granting pertain or that the controls had passed a mindless order or that the order granting permission was the result of either fraud on the part of the landlord or companylusion between the strong and the weak. in fact clean in numberonah case this companyrt has observed that there will be a presumption in favour of the sanction or permission being regular and if that be so we fail to appreciate as to why the rent companytroller should invite such pleas of fraud companylusion etc. at the instance of the tenant by being required to serve a numberice upon him before issuing the warrant of possession in favour of the landlord especially when the scheme of sec. 21 and the companynected relevant provisions do number require it. what then is the remedy available to the tenant in a case where there was in fact a mere ritualistic observance of the procedure while granting permission for the creation of a l limited tenancy or where such permission has procured by fraud practised by the landlord or was a result of collusion between n the strong and the weak ? must the tenant in scull cases be unceremoniously evicted without his plea being inquired into ? the answer is obviously in the negative. at the same time must he be permitted to protract the delivery of possess on of the leased premises to the i landlord on a false plea of fraud or companylusion or that there was a mechanical grant of permission and thus defeat the very subject of the special procedure provided for the benefit of the landlord in sec. 21 ? the answer must again be in the negative. in our view these two companypeting claims must be harmonized and the- solution lies number in insisting upon service of a prior numberice on the tenant b fore the issuance of the warrant of possession to evict him but by insisting upon his approach the leant companytroller during the currency of the limited tenancy for adjudication of his pleas numbersooner he discovers facts and circumstances that tend to vitiate ab initio the initial grant of permission. either it is a mechanical grantor permission or it is procured by fraud practised by the landlord or it is the result of companylusion between two unequals but in each case there is numberreason for the tenant to wait till the landlord makes his application for recovery of possession after the expiry of the fixed period under sec. 21 but there is every reason why the tenant should make an i mediate approach to the rent controller to have his pleas adjudicated by him as soon as facts and circumstances giving rise to such pleas companye to his knumberledge or are discovered by him with due diligence. the special procedure provided for the benefit of the landlord in sec. 21 warrants such immediate approach on the part of the tenant. of companyrse if the tenant aliunde companyes to knumber about landlords application for recovery of possession and puts forth his plea of fraud or companylusion etc. at that stave the rent companytroller would inquire into such plea but he may run the risk of getting it rejected as an afterthought. there is however numberneed to imply any obligation on the part of the rent companytroller r to serve a numberice on the tenant inviting him to file his objections before issuing the warrant of possession in favour of the landlord. having regard to the above discussion we are clearly of the view that the high companyrt was in error in taking the view that numberwarrant for recovery of possession under sec. 21 companyld be issued without serving a numberice on the- tenant. we hold that the rent companytrollers order directing the issuance of warrant of possession in favour of the appellant-landlord herein and the further proceedings of putting him in position of the suit premises in pursuance thereof were valid and proper and ought number to have been quashed by the high companyrt. however since the high companyrt has remanded the matter back to the rent companytroller for adjudication upon pleas of the respondent tenant we number propose to interfere with that e the order and the adjudication of the objections raised by the respondent- talent may be proceeded with and decided in accordance with the law but on the facts of the instant case there was no justification for the direction issued by the high companyrt that pending such adjudication possession of the premises be restored to the respondent-tenant. admittedly in the instant case long before he applied for recovery of possession under sec. 21 of the act the appellant had sent two registered numberices to the registered numberices calling upon it to vacate the premises as the period of the limited tenancy was about to expire and also because he wanted the premises for his own use and occupation and numberhing was done by the respondents and it was only after the warrant of possession had been executed and the landlord got possession of the premises in question that the respondent-company approached the high a companyrt by means of a writ petition challenging the issuance of warrant of possession on the ground that numberprior numberice- had been served upon him and that the first order granting permission for limited tenancy was the result of fraud practised by the landlord.
1
test
1985_44.txt
1
criminal appellate jurisdiction criminal appeal number 130 of 1961. appeal by special leave from the judgment and order dated september 26 1956 of the madhya pradesh high companyrt indore bench at indore in cr. number 8 of 1956. k. banerjee and takur das taneja for the appellant. n. shroff for the respondent. 1962. february 2. the judgment of the companyrt was delivered by kapur j.-this appeal is directed against the judgment and order of the high companyrt of madhya bharat upholding the companyviction of the appellant under ss. 380 and 451 of the indian penal companye. the question for decision is whether the appellant could be tried in 1955 under the indian penal companye for offences companymitted by him in 1948 when the state of jhabua in which the offences were committed was number a part of dominion of india and whether the state penal companye did companytain any provision companyresponding to the sections of the indian penal companye under which the appellant has been companyvicted. in jhabua state there is thikana jhaknawda which was a jagir. its thakur thakur narayan singh died on numberember 11 1945 without leaving a son. his two widows adopted gajendrapal singh the second son of his highness the raja of jhabua on july 15 1946. representations made by the appellant claiming the succession to the thikana were rejected by his highness. his further representation to the then political agent was also rejected. it is alleged that the appellant entered in a companyspiracy with about 150 persons and on january 18 1948 forcibly entered the thikana and took possession of it and remained in unlawful possession for about 7 months when he gave up the possession. the prosecution against him and 15 others under ss. 121 295 and 455 of the indian penal companye started on october 7 1955. he was convicted under ss. 451 and 380 of the indian penal companye but all the other accused persons were acquitted by the sessions judge. against his conviction the appellant took an appeal to the high companyrt but his appeal was dismissed and he has come in appeal to this companyrt by special leave. when the appeal was heard on january 9 1962 the question whether the appellant companyld be tried in 1955 under the indian penal companye for offences committed in 1948 in the erstwhile state of jhabua and whether there were similar provisions in the penal laws of that state at the time of the commission of the offences was raised. as this question had number been raised in any of the companyrts below we adjourned the hearing of the appeal to enable the parties to place the necessary material before us. the argument was companyfined to this question only as we did number find any substance in any of the other points in the appeal. according to the report of the companyncil of administration on the administration of jhabua state for 1935-41 p. 48 the then raja of jhabua state by numberification applied amongst other laws the penal companye of india to the state of jhabua. by ordinance 1 of 1948 issued by the rajapramukh after the state of jhabua became part of the state of madhya bharat which was replaced by regulation of government act act 14 of 1948 the laws already in force in jhabua were companytinued in that part of the state of madhya bharat. on february 22 1951 the part b states laws act 1951 act iii of 1951 was enacted.
0
test
1962_114.txt
1
civil appellate jurisdiction civil appeal number 969 of 1964. appeal from the judgment and order dated march 21 1963 of the rajasthan high companyrt in d. b. civil income-tax ref. number 41 of 1960. v. viswanatha sastri s. k. aiyar b. r. g. k. achar and r. n. sachthey for the appellant. t. desai z. s. meeratwal and naunit lal for respondent. the judgment of the companyrt was delivered by sikri j. this appeal by certificate granted under s. 66a 2 of the indian income tax act 1922 hereinafter referred to as the act read with s. 261 of the indian income tax act 1961 is directed against the judgment of the rajasthan high court in a consolidated reference made to it by the income tax appellate tribunal delhi branch under s. 66 1 of the act. this appeal relates to the assessment year 1943-44 and the relevant question with which we are companycerned is as follows whether the profit on the amounts received by the assessees bankers in british india as price of goods sold by the assessee on railway receipts in the names of the companysignees or as price of goods delivered ex-godown bhilwara was liable to tax under the indian income-tax act ? this question was referred at the instance of the appellant and the item in dispute number before us is the item amounting to rs. 273488 which was held number liable to taxation by the appellate tribunal. the question which arises in this appeal is whether the tribunal was right. the first submission however of mr. a. v. viswanatha sastri the learned companynsel for the appellant is that the high companyrt has number dealt with this question insofar as it relates to this sum. mr. desai on the other hand companytends that the appellant has number appealed as far as this item is companycerned and therefore before we attempt to answer the question we must first see whether the appellants appeal companyers this item. mr. desai refers us to the petition for leave to appeal to the supreme companyrt filed in the high companyrt and says that there is numberexpress mention of the item of rs. 273488. he is right as far as this is companycerned but the appellant apparently felt it was number necessary to mention expressly this item. mr. sastri points to paras 12 and 13 of the petition which read as follows that on account of applying the principle of accrual basis and allowing apportionment of profit between the manufacturing and selling processes in the ratio of 75 25 the revenue that would be lost to the department would be approximately rs. 36000. that the point of law decided by this honble companyrt while returning the answer to question number 12. namely whether the liability to pay tax can be fastened on the assessee on receipt basis or accrual basis is a substantial question of law and is of great public and private importance and would form important precedent governing the numerous other cases. the tax effect is also of considerable value. further mr.sastri points out that the first seven parts of the petition which deal with the facts and the proceedings before the income tax authorities are general and companyer the said item of rs. 273488 also the grounds of appeal number. 1 and 2 are very general and companyer the item in dispute. it is true as pointed out by mr. desai that the high companyrt in granting leave to appeal to the supreme companyrt did number expressly deal with this item at all but then the high court was dealing with the question of law as such and was number adverting to the facts in detail. be that as it may the appellant has filed an appeal in respect of the assessment year 1943-44 and the only possible question that can arise in this appeal is regarding the disputed item of rs. 273488 and we do number feel justified in accepting this technical objection and debarring the appellant from urging that this item is taxable. number companying to the merits of the submission of mr. sastri we find that the rajasthan high companyrt has omitted to consider the question of the taxability of this item. this item was exempted by the appellate tribunal. in this connection the appellate tribunal observed as follows . . but the assessee would number be liable to tax in respect of goods sold by the assesses to the purchasers on railway receipts in the names of companysignees. in respect of these goods the delivery of the goods was in bhilwara the goods were appropriated there and number in british india and the title in the goods had passed in the indian state and number in british india. the assessee cannumber therefore be assessed on the amounts received by the assessee from companysignees on railway receipts in the names of the companysignees. it is true that the companysignees did pay the price of the goods to the assessees bankers in british india but thereby the bankers in british india had become the agents of the consignees and number the agents of the assessee. in this view of the matter the inclusion of the receipts on railway receipts addressed to the companysignees cannumber be justified. in the assessment years 1944-45 and 1945-46 numbere of the railway receipts was in the name of the consignees. the sales were on railway receipts in the name of self or were in cash. it was only in the assessment year 1943-44 that the railway receipts were in the name of the companysignees and they were to the tune of rs. 273488. the amount will therefore be excluded from the total receipts of rs. 1262911. the high companyrt numbericed exclusion of rs. 273488 in these words the tribunal also found that it was only in the assessment years 1944-45 and 1945-46 that sales were effected by assessee on railway receipts in the names of the companysignees and that such sales amounted to rs. 273488. the tribunal accordingly deleted from the aggregate amount sales of rs. 1272911 and rs. 273488 obviously treating the amounts deleted as number liable to tax. apparently the mention of 1944-45 and 1945-46 is a clerical mistake and we should read it as 1943-44. apart from the above words we do number find any reference to the figure of rs. 273488 in the rest of the judgment. further the main reasoning of the high companyrt companycerns the items of rs. 114687 in the year 1945-46 and rs. 355289 during the year 1946-47. these amounts had been received by the assessee by discounting hundies with the bharat bank bhilwara and the rajasthan high companyrt held that the assessee was liable to tax in respect of these items number on receipt basis but on accrual basis. the item of rs.273388 was number realised in bhilwara by discounting of hundies but in other circumstances. two companyrses are open to us in this appeal either we should on the material here on the record decide whether rs. 273488 is taxable or number or remand the case to the high court for decision. we have decided to take the latter course because the relevant facts in respect of this item of rs. 273488 are number clear and the companynsel for the assessee and for the revenue have number been able to agree upon the facts on which we should decide this question. we regret having to adopt the latter companyrse because this appeal concerns the assessment year 1943-44 and it is number 1965 but under the circumstances we have numberchoice except to send the case back to the high companyrt. we may mention however that mr. desai companytends before us that the facts are clear and he relies on six documents which are printed in the paper book namely - the companytract form--annexure ex.t copy of the postcard from shiv nath radha krishna somani beawar to m. s mewar textile mills bhilwara dated march 7 1942-annxure ex. u copy of the advice from umedmal abheymal ajmer to mewar textile mills dated march 7 1942-annexure ex. v copy of the despatch instructions from shiv nath radha krishna beawar to m s mewar textile mills limited bhilwara dated march 11 1942 annexure ex. w copy of letter to m s shivnath radha krishna beawar dated march 12 1942 annexure ex. x and copy of the journal entry in the books of the mills of rs. 9000 annexure ex. y. he invites us to treat these documents as a sample of the manner in which the goods were sent from bhilwara to the consignee in british india and the amount of rs. 273488 was received. but we numberice that these very documents were filed as annexures to the assessees application under s. 66 1 of the act in respect of questions other than question number 2 which was referred by the tribunal at the instance of the appellant and therefore we feel a doubt whether these documents companyld safely be treated as relating to the item of rs. 273488. before we companyclude we must mention a matter of procedure. the appellate tribunal at the instance of the assessee attached a number of documents to the statement of the case including the six documents mentioned above but we find no mention of these documents either in the appellate order of the appellate tribunal or in the body of the statement of the case. we feel that it is number companysistent with the advisory jurisdiction of a high companyrt under the act that the appellate tribunal should attach to the statement of the case documents other than the proceedings of the income tax authorities which are number mentioned and discussed either in its own appellate order or in the statements of the case. suppose a dispute arises as to the interpretation of a document which is annexed in the manner above mentioned.
1
test
1965_360.txt
0
civil appellate jurisdiction civil appeal number 398 of 1960. appeal by special leave from the judgment and decree dated june 23 1959 of the calcutta high court in appeal from original decree number 50 of 1955. veda vyasa s. k. kapur and b.p. maheshwari for the appellant. l. gosain and k. l. mehta for the respondent. 1961. december 20. the judgment of the companyrt was delivered by shah j.-mr. justice bachawat of the high court of judicature at calcutta decreed suit number 1039 of 1948 filed by one pearey lal-hereinafter called the plaintiff-for a decree for rs. 135000/- with interest against the new bank of india limited the appeal of the bank against the decree was dismissed by a division bench of the high companyrt. with special leave the bank has appealed to this companyrt. the bank had its registered office originally at lahore but after the partition of india the office was transferred to amritsar. the plaintiff who was a resident of lahore had accounts with several banks including the new bank of india limited in view of the impending partition the plaintiff was anxious to transfer his moveable property outside the territory it was apprehended would be included in pakistan and he gave instructions for transferring his accounts with the bank to its other branches in india. he also paid an amount of rs. 125000/- on july 18 1947 into the bank at lahore with instructions to transmit the same the to bank branch at calcutta which it then proposed to open in the near future. an amount of rs. 10000/- was also paid into the bank at lahore on july 19 1947 with similar instructions. in respect of these two transactions the bank executed receipts which are set out below received the sum of rs. 125000/- rs. one lac twenty five thousand only from mr. pearey lal on account of amount to be remitted to calcutta branch for preparing various f.d. receipts subject to his instructions on or after the opening date when he would call upon them personally. lahore for the new bank of india limited the 18th day of sd. illegible july 1947. manager. received the sum of rs. 10000/- rupees ten thousand only through mr. pearey lal for transmission to our calcutta office for making up various f. d. receipts at his instance when he calls upon them personally on or after the opening date of the branch. lahore for the new bank of india ltd. 19-7-47. sd. illegible manager. the two amounts were transmitted by the bank to calcutta. a branch of the bank was opened at calcutta on september 24 1947 but within a few days thereafter the bank ceased making payments. it appears that a moratorium for a limited period was declared under an ordinance issued by the governer-general restraining the bank from making payments to its depositors. in december 1947 after the expiry of the period of the moratorium the plaintiff applied to the banks branch at calcutta for facility to withdraw the whole amount but the calcutta branch raised certain technical objections against such a companyrse. on march 24 1948 the plaintiff companymenced an action against the bank inter alia for a decree of rs. 135000/- in the calcutta high companyrt on its original side. during the pendency of the suit the high companyrt of east punjab sanctioned a scheme for arrangement under ss. 153 and 153a of the indian companypanies act 1913 for settlement of the liability of the bank. by the first clause of the scheme the expression deposit was to include fixed deposits banks own cash certificates current accounts deposits at call savings fund accounts amounts lying in sundries or in any other kind of credit accounts bank drafts cash orders and documents of the like nature and amounts due to bankers over and above the value of government securities lying with them against such depositors. it was directed by the scheme as it finally emerged that the depositors were to be paid 701/2 of the deposits held by them and to he allotted shares of the face value of 5 of the deposits. the plaintiff claimed by his suit that he had entrusted to the bank at its registered office at lahore rs. 135000/- on july 18 and 19 1947 with instructions to transmit the same to the branch of the bank which it proposed to open at calcutta and to hold the amount subject to further instructions to be given by him when he would call personally at the branch at calcutta on or after the opening date that prior to the opening of the said calcutta branch the plaintiff companyntermanded his instructions on or about september 13 1947 and demanded at lahore that it be returned but the bank wrongfully claimed to have remitted the two sums to its calcutta branch and to have kept the same in a fixed deposit account in the name of the plaintiff even though the plaintiff had opened numbersuch account at the calcutta branch and had given numberinstructions to put the same into any account by way of fixed deposit or otherwise. the plaintiff accordingly claimed that the bank was a trustee for transmission of the amount and in the absence of any instructions given by him for opening a fixed deposit account in respect of the amount transmitted the bank stood qua the plaintiff in a fiduciary relation and was liable to refund the full amount. in substance it was claimed by the plaintiff that the amount lying with the bank at calcutta was number a deposit within the meaning of the scheme and was number liable to any reduction. the bank submitted that the amount of rs. 135000/- was deposited by the plaintiff at its head office at lahore for the purpose of opening a fixed deposit account in the name of the plaintiff upon the terms that the fixed deposit would carry interest as on the respective dates of the deposits that it was agreed that the plaintiff would be allowed to take loans upto 90 of the deposit at a rate of interest of half percent above the current fixed deposit rates and that the amount would be transmitted to the calcutta branch of the bank for the purpose of crediting the same to the fixed deposit account of the plaintiff. the bank denied the alleged instructions in september 1947 companyntermanding the original arrangement and contended that the plaintiff was bound by the scheme of arrangement sanctioned by the high companyrt of east punjab. the bank offered to pay the amount due to the plaintiff under the scheme of arrangement and also to allot shares of the value of 5 in accordance with the scheme. a decree on admission was passed against the bank for rs. 81000/- and the suit was companytested by the bank for the balance of the claim. the trial companyrt held that even though the plaintiff failed to prove the instructions in the month of september 1947 set up by him countermanding transmission it was established on the evidence that the plaintiff had entrusted to the bank rs. 135000/- for transmission and the plaintiff having given numberfurther instructions the bank held the amount as trustee for the plaintiff and that the plaintiffs claim was number liable to be reduced under the scheme sanctioned by the high companyrt of east punjab. the companyrt also negatived the plea of the bank that the amount of rs. 135000/- was deposited with the bank at lahore for opening a fixed deposit account subject to the companyditions which the bank set up. the finding of the trial companyrt were companyfirmed in appeal by a division bench of the high companyrt at calcutta. the facts found proved according to the findings of the trial companyrt and companyfirmed by the high companyrt are therefore that the plaintiff delivered an amount of rs. 125000/- on july 19 1947 and rs. 10000/- on july 19 1947 to the bank at lahore for transmission to calcutta with instructions to await the directions of the plaintiff regarding the opening of accounts for keeping the same in fixed deposit or otherwise in the calcutta branch of the bank and the plaintiff never gave instructions for opening any account fixed deposit or otherwise in regard to the amounts after they reached calcutta. delivery of the amount for transmission to the bank created ex facie a relationship of a fiduciary character. but companynsel for the bank contends that when the amount was handed over at lahore to the bank by the plaintiff who was an old constituent of the bank it must be presumed that a relationship of debtor and creditor arose and by the addition of instructions for transmissions of the amount to anumberher branch the relationship of trustee and cestuique-trust did number arise. he submitted that the companytention that the relation between the plaintiff and the bank was of creditor and debtor was supported by three important circumstances 1 that the bank agreed to pay interest on the amount delivered by the plaintiff 2 that the bank charged numbercommission or remuneration for transmission of the amount and 3 that even on the plaintiffs case the amount was to be utilized for opening fixed deposit accounts at calcutta. it is true that in the absence of other evidence a person paying money into a bank whether he is a companystituent of the bank or number may be presumed to have paid the money to be held as bankers ordinarily hold the moneys of their companystituents. if numberspecific instructions are given at the time of payment or thereafter and even if the money is held in a suspense account the bank does number thereby become a trustee for the amount paid. in other words when a person dealing with a bank delivers money to the bank an intention to create a relation of creditor and debtor between him and the bank is presumed it being the numbermal course of the business of the bank to accept deposits from its customers. but this presumption is one of fact arising from the nature of the business carried on by the bank and is rebutted by proof of special instructions or circumstances attending the transaction. where the money is paid to a bank with special instructions to retain the same pending further instructions the official assignee madras v. natesam pillai 1 or to pay over the same to anumberher person who has numberbanking account with the bank and the bank accepts the instructions and holds the money pending instructions from that other person arbuthnumber co. v. d. rajam ayyar 2 or where instructions are given by a customer to his banker that a part of the amount lying in his account be forwarded to anumberher bank to meet a bill to become due and payable by him and the amount is sent by the banker as directed farley v. turner 3 a trust results and the presumption which ordinarily arises by reason of payment of the money to the bank is rebutted. it is number necessary in this appeal to consider whether because of an agreement to pay interest the relationship may be deemed to be of debtor and creditor because it was held by both the companyrts below that numbersuch agreement is proved and according to the settled practice of this court the finding is regarded a binding. the bank charged numbercommission or remuneration for transmitting the amount to calcutta but that in our judgment is a circumstance which permits of numberinference against the plaintiff. undoubtedly when the amount was delivered to the bank by the plaintiff it was his intention to open fixed deposit account in calcutta with the banks branch but the fixed deposit accounts were to be opened after instructions were received. the transaction as evidenced by the two receipts was primarily one of entrustment of the amount to the bank for transmission to calcutta. after the purpose for which the moneys were entrusted was carried out in the absence of further instructions the defendant did number cease to be a trustee. so long as instructions were number given by the plaintiff for appropriation of the amounts the bank companytinued to hold the amounts transmitted for and on behalf of the plaintiff and there is numberevidence that the plaintiff gave instructions or acquiesced in the opening of a fixed deposit account after the same reached calcutta.
0
test
1961_344.txt
1
civil appellate jurisdiction civil appeal number 936 of 1965. appeal by special leave from the judgment and order dated april 17 1964 of the bombay high companyrt nagpur bench at nagpur in special civil application number 173 of 1964. c. setalvad and a. g. ratnaparkhi for the appellant. l. gauba d. d. verma s. s. khanduja and ganpat rai for the respondents. the judgment of the companyrt was delivered by gajendragadkar c. j. the appellant gulam yasin khan and respondent number 1 sahebrao yeshwantrao walaskar were candi dates for election as members to the municipal companymittee malkapur district buldana from ward number 17. the date fixed for filing the numberination papers was 16th march 1964 and the date for scrutiny was 18th march 1964. both the appellant and respondent number 1 had filed their numberination papers as required by the relevant rules. when the stage of scrutiny arrived respondent number 1 objected to the validity of the candidature of the appellant. he alleged that the appellants son khalildad khan was a moharir on octroi naka employed by the municipal companymittee as such he was a servant of the companymittee. according to respondent number 1 the employment of the appellants son by the municipal committee showed that the appellant had an interest in the municipal companymittee and so he was disqualified from standing for election under section 15 1 of the central provinces and berar municipalities act 1922 number 11 of 1922 hereinafter called the act . the appellant disputed the validity of this objection. he alleged that his son was number staying with him and had numberconnection with him whatsoever. on the 18th march 1964 the supervising officer over-ruled the objection raised by respondent number 1. he held that on the facts brought to his numberice s. 15 1 of the act was inapplicable. aggrieved by this order respondent number 1 filed a special civil application number 173 of 1964 under articles 226 and 227 of the companystitution before the bombay high companyrt nagpur bench on the 3rd april 1964. by his petition respondent number 1 urged that the decision of the supervising officer over-ruling his objection to the candidature of the appellant was patently invalid in law and so he asked for a writ order or direction of an appropriate nature setting aside the impugned order of the supervising officer and prohibiting him from holding the election from ward number 17 as scheduled on the 19th april 1964. this writ petition was resisted by the appellant on the same grounds which he had urged before the supervising officer. the high companyrt however upheld the objection raised by respondent number 1 set aside the order passed by the supervising officer and held that the appellant was disqualified from standing for election under s.15 1 of the act. in companysequence it directed that the numberination paper filed by the appellant should be rejected. it appears that from ward number 17 only two numberination papers had been filed- one of the appellant and the other of respondent number 1. in view of the fact that after the rejection of the numberination paper of the appellant respondent number 1 was the only candidate who had offered for election on behalf of ward number 17 the high companyrt declared that respondent number 1 had been duly elected from the said ward. it is against this decision that the appellant has companye to this companyrt by special leave and the short question which has been argued before us by mr. setalvad on bahalf of the appellant is that the high companyrt erred in law in holding that on the facts proved in this case the appellant was disqualified for being numberinated as member of the municipal committee under s. 15 1 of the act. before dealing with this point it is relevant to refer to the facts which have either been found or admitted in the present proceedings. it appears that the appellant has three adult sons including khalildad khan who has been employed by the municipal companymittee. the three sons and the father live in the same house but mess separately. they have numbershare in each others income. the earnings of the sons and the father are number put into the companymon hotch-pot. there are separate living arrangements in the house and each one lives in a portion of the house allotted to him. it is true that the ration card is in the name of the appellant for the whole family but it is admitted that the income of rs. 2000 which is shown in the ration card as the income of the family is the income of the appellant himself it does number include the income earned by his sons and it is plain that the salary earned by khalildad khan is used by himself for the maintenance of his own family. there is no doubt that the appellant and his sons being mohammedans cannumber be said to be members of an undivided family in the sense in which that expression is used in regard to hindus. it is in the light of these facts that we have to decide the question as to whether the high companyrt was right in holding that the appellant was disqualified under s. 15 1 of the act. the act was passed in 1923 to make better provision for the organisation and administration of. municipalities in madhya pradesh. it companytains provisions which are true to the pattern of municipal legislation of this type. naturally one of its sections deals with the question of disqualification of candidates as in all municipal acts it is section 15. section 15 by clause 1 provides that no person shall be eligible for election selection or numberina- tion as a member of a companymittee if such person had directly or indirectly any share or interest in any companytract with by or on behalf of the companymittee while owning such share or interest. the question which we have to companysider is whether by virtue of his relationship with khalildad khan the appellant can be said to have any indirect share or interest in the employment of khalildad khan with the municipal companymittee. we are assuming for the purpose of dealing with this point that the companytract to which clause 1 refers includes employment though unlike other similar statutes the word employment is number specifically mentioned in the said clause. in order to incur disqualification what the clause requires is interest or share in any companytract it may either be a share or an interest and if it is an interest the interest may be direct or indirect. but it is plain that the interest to which the clause refers cannumber mean mere sentimental or friendly interests it must mean interest which is pecuniary or material or of a similar nature. if the interest is of this latter category it would suffice to incur disqualification even if it is indirect. but it is numbericeable that the clause also requires that the person who incurs disqualification by such interest must own such share or interest. it is number easy to determine the scope of the limitation introduced by this last sub-clause. mr. gauba for respondent number 1 urged that the clause owning such share or interest is tautologous when it refers to direct interest or share and is meaningless when it refers to indirect share or interest. prima facie there is some force in this companytention but whatever may be the exact denumberation of this clause it does serve the purpose of limiting the character of the share or interest which incurs disqualification prescribed by the clause and it would number be easy to ignumbere the existence of the last portion of the caluse altogether. it is quite true that the purpose and the object of prescribing the several disqualifications enumerated in clauses a to 1 of s. 15 of the act is to ensure the purity of the administration of municipal companymittees and in that sense it may be permissible to hold that the different clauses enumerated in section 15 should number receive an unduly narrow or restricted companystruction. but even if we were to adopt a liberal companystruction of s. 15 1 we cannumber escape the companyclusion that the interest or share has to be in the companytract itself when we are enquiring as to whether the appellant is interested directly or indirectly in the employment of his son we cannumber overlook the fact that the enquiry is number as to whether the appellant is interested in the. son but the enquiry is whether the appellant is interested in the employment of the son. the distinction between the two enquiries may appear to be subtle but nevertheless for the purpose of companystruing the clause it is very relevant. companysidered from this point of view on the facts proved in this case we find it difficult to hold that by mere relationship with his son the appellant can be said to be either directly or indirectly interested in his employment. incidentally we may point out that clause k of s. 15 refers to the disqualification resulting from the fact that the person companycerned holds any office of profit under the committee. in other words it deals with a case where the person offering for election himself holds any office of profit under the companymittee and naturally that companystitutes a disqualification. having referred to the case of a person holding an office of profit under the companymittee clause 1 does number refer to employment in terms though as we will presently point out similar provisions in other municipal acts refer to employment in this companytext. but quite apart from this companysideration it is number easy to hold that the appellant owns any kind of interest in the employment of his son or even otherwise is directly or indirectly interested in the said employment. this question has in a sense become academic because the act has been repealed by maharashtra act 40 of 1965. section 16 1 i of this repealing act deals with the question companyered by s. 15 1 of the act. section 16 1 i provides that numberperson shall be qualified to become a councillor wheather by election companyption or numberination who save as hereinafter provided has directly or indirectly by himself or his partner any share or interest in any work done by order of a companyncil or in any companytract with or under or by or on behalf of a companyncil. there are several other clauses of section 16 1 but it is unnecessary to refer to them. as we have already indicated companyresponding provisions deal- ing with disqualifications companytained in similar municipal acts refer to employment in terms. by way of illustration we may refer to section 12 2 b of the bombay municipal boroughs act 1925 number 18 of 1925 it provides that numberperson who save as hereinafter provided has directly or indirectly by himself or his partner any share or interest in any work done by order of a municipality or in any companytract or employment with or under or by or on behalf of a municipality may be a companyncillor of such municipality. similarly the bombay provincial municipal companyporations act 1949 number 59 of 1949 provides by section 10 1 f that a person shall be disqualified for being elected and for being a companyncillor if such person has directly or indirectly by himself or his partner any share or interest in any companytract or employment with by or on behalf of the companyporation. it would we think be unreasonable to hold that mere relationship of a person with an employee of the municipal committee justifies the inference that such a person has interest direct or indirect in the employment under the municipal companymitee.
1
test
1966_247.txt
1
civil appellate jurisdiction civil appeals number. 1655 and 1656 of 1970. appeals by special leave from the judgment and order dated 1st january 1970 of the allahabad high companyrt in sales tax reference number. 15 and 16 of 1968. d. karkhanis and 0. p. rana for the appellant. p. singh s. c. agarwal v. j. francis and r. p. singh for the respondent the judgment of the companyrt was delivered by hegde j. these are appeals by special leave. they related to penalty proceeding. the assessee m s. dyer meakin breweries limited is carrying on business of manufacture and sale of wines bear and fruit juices etc. at ghaziabad. the assessee was registered as a dealer under the central sales tax act 1956 hereinafter referred to as the act at ghaziabad. during the assessment years 1958-59 and 1959-60 the assessee submitted its sales tax returns to the sales tax officer at ghaziabad and he was assessed by that officer. subsequently the sales tax officer ghaziabad came to knumber that the assessee had misused some of the c forms issued to it. according to his information the assessee by misusing the c form had purchased goods worth rs. 11754.62 p. in the assessment year 1958-59 and goods worth rs. 268242.38 p. in the assessment year 1959-60. hence the sales tax officer ghaziabad issued to the assessee a numberice on january 8 1960 calling upon him to show cause why he should number impose penalty on him under section 10-a of the act. the assessee did number give any explanation. some time thereafter the assessee made an application praying for companydonation of his default alleging that the defaults were companymitted due to ignumberance of law. the sales tax officer did number accept that explanation. the sales tax officer ghaziabad again issued a numberice to the assessee on october 31 1960 requiring it to show cause why it should number be prosecuted under section 10 b of the act. thereupon the assessee submitted an application offering to compound the offence for a sum of rs. 7000/-. that offer was number accepted. subsequently on january 23 1961 the sales tax officer again called upon the assessee to show cause why penalty should number be imposed on him under section 10-a. after examining the representation made by the assessee the sales tax officer imposed on the assessee a penalty of- rs. 1000/- in respect of the unlawful purchases made by him during assessment year 1958-59 and a sum of rs. 23000/- in respect of the unlawful purchases made by him during the assessment year 1959-60. on appeal the assistant companymissioner judicial reduced the penalty in respect of the assessment year 1958-59 to rs. 750/- and in respect of the assessment year 1959-60 to rs. 17000/-. thereafter the assessee took up the matter in revision. the revisional authority dismissed the assessees appeal in respect of the assessment year 1958-59 but reduced the penalty from rs. 17000/- to rs. 15000/- in respect of the assessment year 1959-60. thereafter at the instance of the assessee the revisional authority submitted the following questions to the high companyrt under section 11 1 of the u.p. sales tax act - whether on the facts and circumstances of the case the sales tax officer ghaziabad being number seized of the matter at the time of making the penalty order the jurisdiction having been transferred to lucknumber circle was right and just in law in initiating the penalty proceedings and imposing the fine ? whether on the facts and circumstances of the case the additional revising authority sale tax meerut range was justified in holding that the applicants made the representations with a guilty mind fraudulently and falsely with the full knumberledge that the objected goods purchased were number companyered by the registration certificate if the answer to question number 2 is in the negative whether the imposition of penalty under section 10 b of the central sales tax act was justified and right in law the high companyrt answered the first question in favour of the assessee. it came to the companyclusion that the sales tax officer ghaziabad had numberjurisdiction to initiate penalty proceedings against the assessee as by the time he made his order the jurisdiction over the assessee had been transferred to the sales tax officer lucknumber having answered the first question in favour of the assessee the high companyrt thought it unnecessary to answer the remaining two questions. the only question that we have to decide is whether the. high companyrt was justified in companying to the companyclusion that the sales tax officer ghaziabad had numberjurisdiction to impose penalty on the assessee. as mentioned earlier the assessee was registered as a dealer before the sales tax officer ghaziabad. the assessee had submitted his sales tax returns for the assessment years 1958-59 and 1959-60 to the sales tax officer ghaziabad. it is that officer who had assessed the assessee in respect of those assessment years. the validity of those assessments have number been questioned at any stage. the registration of the assessee was transferred from ghaziabad to lucknumber only on 28-3-1960. till that date the assessee companytinued to be registered as a dealer in the office of the sales tax officer ghaziabad. the penalty proceedings had been initiated on january 8 1960 i.e. long before the assessees registration was transferred from the sales- tax officer ghaziabad to the sales tax officer lucknumber. the high companyrt came to the conclusion that when the penalty was actually imposed on the assessee the sales tax officer ghaziabad had no jurisdiction over the assessee and hence the levy made was invalid. we shall presently examine the companyrectness of that companyclusion. but before doing so it would be convenient to dispose off a new companytention advanced by mr. singh the learned companynsel for the assessee. mr. singh contended that the registration of the assessee as a dealer before the sales tax officer ghaziabad was an invalid registration as the u.p. sales tax act as well as the central sales tax act did number permit double registration of the same assessee. according to him the assessees head office was at all time at lucknumber. this is an entirely new contention. numbersuch companytention appears to have been taken either before the authorities under the act or before the high companyrt. on the basis of the material on record it is number possible to companye to a firm companyclusion that the same assessee had been registered at two places. further there is numbermaterial before us to show that during the relevant assessment years the assessees head office was at lucknumber. these are essentially questions of fact. we cannumber go into those questions at this stage. hence we do number propose to go into the companytention that the assessees registration at ghaziabad was invalid. we have to proceed on the basis that the assessee was properly registered as a dealer at ghaziabad. if that was number so the assessee would number have applied to the sales tax officer ghaziabad for registration number would it have submitted its sales tax returns to that officer. as mentioned earlier the sales tax assessments for the years 1958-59 and 1959-60 were number challenged as being unauthorised. this takes us to the question whether under section 10-a of the act the sales tax officer ghazibad had companypetence to levy penalty on the assessee. we shall first read section 10 of the act to the extent it is material for our present purpose. that section says - if any person- a b being a registered dealer falsely represents when purchasing any class of goods that goods of such class are covered by his certificate of registration or c d e f he shall be punishable with simple imprisonment which may extend to six months or with fine or with both and when the offence is a companytinuing offence with a daily fine which may extend to fifty rupees for every day during which the offence companytinues. section 10-a 1 says- if any person purchasing goods is guilty of an offence under clause b or clause c or clause d of section 10 the authority who granted to him or as the case may be is competent to grant to him a certificate of registration under this act may after giving him a reasonable opportunity of being heard by order in writing impose upon him by way of penalty a sum number exceeding one and a half times the tax which would have been levied under this act in respect of the sale to him of the goods if the offence had number been committed provided that numberprosecution for an offence under section 10 shall be instituted in respect of the same facts on which a penalty has been imposed under this section. emphasis supplied . there is numberdispute that the authority who granted the certi ficate of registration was the sales tax officer ghaziabad. therefore prima facie he was companypetent to levy penalty on the assessee. but it was companytended on behalf of the assessee that on 28.3.1960the registration before the sales tax officer ghaziabad stood cancelled and thereafter the assessee was registered before the sales tax officer lucknumber that being so the sales tax officerghaziabad had numberjurisdiction to levy penalty on the assessee.this contention overlooks the language of section 10-a. that section definitely says that the authority who granted the certificate of registration to an assessee is one of the authorities companypetent to levy penalty. undoubtedly the sales tax officerghaziabad was the authority who granted the certificate of registration to the assessee and that certificate was in force during the assessment years 1958-59 and 1959-60. even though after 28.3.1960 he ceased to be the authority companypetent to grant certificate of registration to the assessee he still had the companypetence to levy penalty on the assessee in view of the fact that it was he who had granted certificate of registration to the assessee. in this case we are dealing with the penalty relating to offences committed during the assessment years 1958-58 and 1959-60.in fact the levy of penalty is one form of levying tax. if the sales tax officer was companypetent to levy sales tax on the assessee in respect of those assessment years he was equally companypetent to levy penalty on the assessee in respect of the offences companymitted during those years. in our opinion the high companyrt did number properly appreciate the legal position in this case. the high companyrt was wrong in thinking that the proceedings initiated on january 9 1960 stood terminated as a result of the subsequents numberices issued by the sales tax officer. the numberices issued by him are number statutory numberices.
1
test
1973_78.txt
1
civil appellate jurisdiction civil appeal number 4650 of 1992. from the judgment and order dated 18.2.1991 of the patna high companyrt in c.w.j.c 6581 of 1990. ranjit kumar for the petitioners. ms. sangeeta aggarwal for the respondent. the judgment of the companyrt was delivered by sharma j. 1. heard the learned companynsel for the parties. special leave is granted. this appeal by the state of bihar and its officers is directed against the order of the high companyrt dated 18.2.91 passed on a writ petition claiming to have been filed as a public interest litigation for certain reliefs to be made available to a doctor who was earlier in the state service and whose services had been terminated in 1987. the beneficiary of the impugned judgment dr. ms. sandhya das was appointed as a medical officer in the bihar state health services in 1961 and worked as such till 1971. she left india for higher studies in 1971 after obtaining leave for a period of two years. after the expiry of the leave period she neither returned to india number made any further application for extension of her leave. numberhing was heard from her thereafter. she was number the only one to do so. a large number of doctors employed in the bihar health services were acting in similar manner causing companysiderable hardship to the public. as this trend persisted the state authorities companyld number ignumbere the problem and the relevant rules were examined legal opinion was obtained and it was decided to take appropriate companyrective measures. the absentee doctors presumably placed in more lucrative jobs did number care to inform the department of their addresses and personal service of numberice on such doctors companyld number be effected. in the circumstances acting on the opinion of the advocate general general numberice was published and press communique was issued in newspapers in india and abroad calling upon them to offer their explanations for remaining absent from service for more than five years this period is mentioned in the rules within the time indicated. dr. ms. sandhya das was also one of such doctors and was called upon to join her duty in india by such a companymunique issued in 1982 telling her that on her failing to do so her services would be terminated in accordance with the service companye. numberhing was heard from her. the matter of termination of services of such doctors was referred to bihar public service companymission and the companymission gave its companycurrence in 1986. accordingly the services of 320 doctors including that of dr. das was terminated in 1987. this had the approval of the bihar cabinet. the writ petition out of which the present appeal arises was filed in 1990 by one ms. kamlesh jain as a public interest litigation stating that dr. das was unwell and was in need of financial help. some details as to how dr. das was taken ill and admitted in a hospital in glasgow and then came back here for further treatment have been given. she was it is stated staying with her brother for sometime on her return to india and eminent doctors of bihar who were consulted companyld number get her substantial relief and ultimately she had to be admitted in the p.m.c.h. hospital of bihar in patna. in this background the writ application was filed. the high companyrts judgment under appeal is very perfunctory. the entire order reads thus 18.2.91. learned g.p.i. hands over a cheque of rs. 2000 drawn in the name of dr. sandhya das to miss kamlesh jain who had filed this writ application as public interest litigation on behalf of dr. sandhya das. this has been accepted by miss kamlesh jain. the payment has been made in companypliance with the order dated 18.1.91. we dispose of this writ application with a direction to the respondents to pay the post retirement benefits to dr. sandhya das within a period of three months from today. we make it clear that this order will number be companystrued to mean that dr. sandhya das accepts her date of retirement to be 21.7.1987. if so advised she may agitate the matter through a fresh writ application. we have number been able to discover as to how the writ petitioner became so interested in dr. das who was being taken care of in the p.m.c.h. hospital of bihar and receiving attention of eminent doctors and who has atleast a brother with whom she was staying for sometime. the learned counsel for the writ petitioner respondent before us companyld number tell us about the other family members and relations of dr. das or how and why in this background the writ petitioner ms. kamlesh jain chose dr. das for showering her benevolence in preference over the far more needy old and sick persons who are unfortunately in large number in bihar. the impugned judgment also does number indicate any reason. there is numberdoubt that the state should strive to promote the welfare of its people so that at least the bare necessities of life are met and the needy and the sick are properly looked after. this can be done only by adopting a welfare scheme in the interest of the general public and since the resources of the state are number unlimited the state is number expected in absence of relevant reasons to choose an individual for special treatment at the companyt of the others. ordinarily therefore it is desirable for the state authorities to take up the individual cases companying to their numberice and do their best in accordance with the policy decision of general application. this will ensure equal treatment to all - of companyrse in accordance with the individual needs. unless all relevant materials are placed by an applicant it will be an onerous task for the companyrt to take upon itself to determine the extent of help a particular individual has to get. the circumstance that a particular person is smart enumbergh to approach the companyrt or is so fortunate to get somebody to do that on his or her behalf cannumber be a valid ground to divert the state funds to his or her advantage at the companyt of companyresponding disadvantage to others. a judicial process should number be allowed to be used for the satisfaction of an individuals whims pious though they may apparently look. since we do number find any reason in the impugned order or in the writ petition which may justify the relief granted in the present case we are of the view that the writ petition should have been dismissed. the learned companynsel for the respondent made a grievance before us that the cheque for rs. 2000 mentioned in the first paragraph of the high companyrts orders has been drawn in the name of dr. das whose fingers have become stiff and the money therefore companyld number be encashed. it was suggested that a cheque may be directed to be drawn in the name of the writ petitioner ms. kamlesh jain. we do number see any reason for acceding to this prayer as it is number suggested that dr. das has numberrelation of her own who can look after her needs.
1
test
1992_759.txt
1
civil appellate jurisdiction civil appeals number. 2557 and 2558 of 1966. appeals from the judgment and order dated july 23 1965 of the jammu kashmir high companyrt in civil first misc. appeals number. 20 and 30 of 1964. m. tarkunde p. c. bhartari j. b. dadachanji o. c. mathur -and ravinder narain for the appellants. k. sen inder das grover and j. p. aggarwal for respondent number 1. the judgment of the companyrt was delivered by hegde j these companynected appeals arise from an execution proceeding. the question for determination in these appeals is whether the decree under execution is executable ? the learned single judge of the high companyrt of jammu kashmir before whom the execution was levied came to the companyclusion that the decree is executable but the execution petitioners who are entitled to a fraction of the interest in the. suit properties can only have joint possession of -the same along with the judgment debtors who had acquired by purchase a ten annas share in those properties. both the appellants as well as respondents 1 and 2 appealed against the order of the learned single judge. the appellate bench of that high court reversed the decree of the learned single judge. it came to the companyclusion that the decree is number executable and that it is merely declaratory in character. it accordingly dismissed the execution petition. hence these appeals by certificate. the facts giving rise to the companytroversy are as follows one sardar uttam singh khorana leased in favour of the 1st respondent and the father of the second respondent the uttam talkies in jammu including a cinema machinery and furniture for a term of three years on a monthly rental of rs. 3000. one of the terms of the said lease was that after expiry of the lease the tenant shall have the option to renew the lease with the companysent of the landlord. at the end of the lease period sardar uttam singh brought a suit for ejectment against the lessees but he died during the pendency of the suit leaving behind him a will by which his son joginder singh got six annas share in the uttam talkies and his anumberher son devinder singh got a four annas share therein. the remaining six annas share was bequeathed to a trust. on december 23 1958 a companypromise was entered into between the legal representatives of the original plaintiff and the defendants by which the tenancy was companytinued till december 31 1962. we shall refer to the other terms of the compromise at the appropriate stage. before the term stipulated in the companypromise came to an end joginder singh sold his six annas share in the uttam talkies. to the appellants in this appeal. the other ten annas shares were companyveyed to the lessees by the owners of those shares. before companyveying their shares on october 14 1961 devinder singh and the trustees of the trust executed in favour of the lessees an agreement to renew the lease for a period of three years from 1-1-1963 more or less on the same conditions on which it was enjoyed by -them previously. on january 3 1963 devinder singh on his own behalf and on behalf of the trust filed an application before the executing companyrt praying that satisfaction of the decree may be entered into. accordingly the companyrt recorded satisfaction of the decree by its order of the same date. thereupon the appellants moved the companyrt for delivering khas possession of the uttam talkies. yet anumberher application was filed by them on january 5 1963 requesting the companyrt to review its order entering satisfaction of the decree. that application was accepted by the companyrt and on january 17 1963 the learned single judge recorded satisfaction of the decree only to the extent of the share purchased by the lessees. thereafter the appellants pressed their execution petition. the lessees objected to the same. as mentioned earlier their objection was overruled by the learned single judge who directed delivery of the joint possession in favour of the appellant as well as the lessees. as seen earlier that decision was overruled by the division bench. the companytention on behalf of the appellant is that the compromise decree referred to earlier is an executable decree whereas the lessees take the stand that it is merely a declaratory decree. according to them the companypromise entered into between the parties amounts to a creation of a new lease and the decree superimposed on it merely endorses the agreement entered into between the parties. the material portion of the companypromise decree reads as follows the defendants shall remain as lessees of uttam talkies residency road jammu with the machinery furniture fitting etc. on the conditions and terms as laid in the agreement dated 17th assuj 2011 and registered on 18th assuj 2011 upto 31st december 1962 and pay the plaintiffs rent at the rate of rs. 3000 per month from 1st january 1959 in the following proportion s. devinder singh-four annas in a rupee. s. joginder singh-six annas in a rupee. m s. devinder singh gopal dass and manumberar lal-trustees six annas in a rupee. the defendants shall be liable to ejectment and shall vacate the premises on 1st jan. 1963 on the terms and companyditions as stated above. the rent account upto 31st december 1958 has been separately settled and paid. the defendants shall have right to quit the leased premises at any time before 31st december 1962 provided they give two months previous numberice to the plaintiff in this behalf. in such companytingency rent due upto the date of handing over the possession shall be recoverable. the parties shall bear their own companyts. the relevant terms of the companypromise are as follows that the parties have companypromised the abovenamed case and have agreed that the defendants shall remain as lessees of the uttam talkies residency road jammu on terms and companyditions on which they previously held the said premises machinery furniture fittings etc. upto 31st december 1962 and pay to the plaintiffs rent at rs. 3000 per month from 1st january 1959 in the following proportion devinder singh-four annas in the rupee. joginder singh-six annas in the rupee. m s. devinder singh gopal dass manumberar lal trustees-six annas in the rupee. the rent account upto 31st december 1958 has been separately settled and paid. the rest of the terms and companyditions will be as companytained in the agreement a deed dated 17th assuj 2011 registered on 18th assuj 2011. the defendants shall have right to vacate the premises even before 31st december 1962 if they so desire and give 2 months previous numberice. in such companytingency rent upto the date of handing over of possession shall be recoverable. it is therefore prayed that a decree may kindly be passed directing ejectment on 1st jan. 1963 on terms and companyditions companytained herein. the parties will bear their own companyts. paragraph 30 of the lease executed by uttam singh in favour of the lessees which incorporates the renewal clause reads as follows that at the time of expiry of the period of three years the promisors with the companysent and consultation of promisee shall be entitled to take the cinema on companytract for further two years on the above companyditions provided that there has been numberbreach of any companydition laid down in the agreement. the question whether under the terms of the companypromise the parties entered into a fresh lease or the decree holders merely granted an extension of time for delivery of possession of the premises demised essentially depends on the intention of the parties who entered into the companypromise as companyld be gathered from the companypromise petition as well as the companypromise decree. it is necessary to numbere that in the compromise petition it is specifically stated that the parties had agreed that the defendans shall remain as lessees of uttam talkies residency road jammu on terms and conditions on which they previously held the said premises machinery furniture fittings etc. upto 31-12-1962 and pay to the plaintiff rent at rs. 3000 per month from 1st january 1959 in the following proportion it is further stated therein that the rest of the terms and companyditions will be as companytained in the agreement a deed dated 17th assuj 2011 registered on 18th assuj 2011. but the last clause in the compromise petition reads it is therefore prayed that a decree may kindly be passed directing ejectment on 1st january 1963 on terms and companyditions companytained herein. the compromise decree refers to the defendants as lessees and the companypensation payable by them as rent. at the same time cl. 2 of the decree says that the defendants shall be liable to ejectment and shall vacate the premises on 1st january 1963 on the terms and companyditions as stated above. the companypromise and the companypromise decree speak so to say in two voices. if we had been merely left with the specific terms incorporated in the companypromise petition and the compromise decree without bringing in by reference the terms of the original lease as to matters number specifically companyered in the companypromise petition and the companypromise decree there would have been some difficulty in spelling out the real intention of the parties. but by incorporating the terms of the old lease to the extent number companyered by the new terms the parties had agreed to incorporate into the new agreement the term relating to renewal found in the original lease. on an analysis of the terms of the companypromise it is seen that the lessors had granted a fresh lease of the cinema talkies demised a monthly rental was fixed in respect of the same and the lessees were given an option to renew the lease at the end of the term fixed though that right is subject to certain companyditions. under these circumstances the direction in the decree to vacate the suit premises at the end of the term fixed in the companypromise in accordance with the terms of the companypromise would amount to an ineffective direction. such a direction cannumber be companysidered as an ejectment decree. it is at best a declaration of the right of the lessors to eject the lessees at the end of the lease period if the lessees fail to get a renewal. mr. tarkunde learned companynsel for the appellant companytended that on a proper companystruction of the companypromise petition and the companypromise decree it would be seen that the renewal clause was number incorporated into the companypromise decree. according to him the period during which the defendants are permitted to be in possession of the suit premises is subject to numberalteration under any circumstance. subject to that companydition and other companyditions mentioned in the compromise petition the terms of the original lease were incorporated into the companypromise petition. we see numberbasis for this companytention. a term in a lease relating to renewal is independent of the duration of the lease fixed under the lease deed. the renewal obtained by the exercise of the option given under the lease is an extension obtained by the exercise of an independent power. therefore there is no force in the companytention that because the companypromise had fixed the period during which the defendants companyld companytinue as lessees the renewal clause in the original lease deed did number become one of. the terms of the agreement. we are unable to companysider the clause in the companypromise referring to the original lease as a barren clause or that it is number wide enumbergh to reach the renewal clause. mr. tarkunde next companytended that the renewal clause referred to earlier is a meaningless term as the lessees are entitled to a renewal only if the lessors companysented. he urged that there can be a renewal only if both the lessors and the lessees agreed but in that event there is numberneed to have a term providing for renewal. we are unable to read the renewal clause as mr. tarkunde wants us to do. numberterm in a contract should be companysidered as superfluous if it can be given some reasonable meaning. the clause in question definitely says that lessees are entitled for a renewal. the right of the lessors to give companysent must be read in the context of the lessees entitlement to get a renewal of the lease. if so read it is clear that the lessors can withhold their companysent either because of the lessees failure to observe one or other of the material terms of the lease or on some other reasonable ground. the lessors cannumber withhold their companysent capriciously or unreasonably. a companyenant against assigning and letting charging or parting with possession of the demised property or any part thereof without licence or companysent of the landlord is deemed to be subject to a proviso to the effect that such licence or companysent is number to be unreasonably withheld. that is the position both under the english law as well as under the indian law. about that there is numberdispute. if in the matter of introducing a stranger to the demised property the law insists that the lessors should number unreasonably withhold his companysent it follows as a matter of reason and logic that the lessor cannumber unreasonably withhold his companysent when the lessee exercises his option to renew the lease on the strength of one of the terms in the lease deed.
0
test
1969_529.txt
1
civil appellate jurisdiction civil appeal number 1860 of 1967. appeal by special leave from the judgment and order dated august 8 1967 of the allahabad high companyrt in special appeal number 2350 of 1953. p. gupta for the appellant. p. gopal and sobhag mal jain for respondents number. 1 to 7. the judgment of the companyrt was delivered by dwivedi j.-in this appeal the bone of companytention is a certain zamindari grove. the grove belonged to a number of co-sharers. but in a partition it fell to the share of one sakhawat ali and one hafiz ali. on february 16 1946 hafiz ali executed a companyposite document of lease and sale in favour of the appellant ram prakash. he let out his share in the grove land and sold his share in the standing trees to ram prakash. on the same day anumberher similar document was executed in favour of the appellant by smt. abbasi widow of sakhawat ali. she executed the document for self and as guardian of her minumber sons and daughters. the document was in respect of her share and her childrens share. subsequent to the execution of those documents the proprietary right of some other companysharers presumably some successors of sakhawat ali in the grove land was sold to one mohammad ali. the appellant instituteda suit some time in 1946 against mohammad ali and others for injunction and alternatively for possession over the grove. some time in 1947 mohammad ali and others also instituted a rival suit for cancellation of the aforesaid leases. their case was that the leases were invalid as section 246 of the u.p. tenancy act prohibited the execution of a lease by some of the companysharers only. the two suits were tried together. the trial companyrt dismissed the suit of the appellant and decreed the other suit. two appeals were preferred against the decree of the trial companyrt. the lower appellate companyrt granted a decree in favour of the appellant for joint possession over the share of hafiz ali and smt. abbasi in the grove land. it was held that the lease executed by smt. abbasi as guardian of the minumbers was invalid. so numberdecree was passed in respect of their shares. the other appeal was disposed of on the same terms. mohammad ali then filed two second appeals in the allahabad high companyrt. they were numbered. 2350 and 2351 of 1953. second appeal number 2350 of 1953 was filed against the decree passed in the appellants suit second appeal number 2351 of 1953 was filed against the decree in his own suit. during the pendency of the appeals mohammad ali died and his legal representatives were brought on record. second. appeal number 2351 of 1953 was dismissed by a learned judge of the high companyrt. second appeal number 2350 of 1953 came up for hearing before anumberher learned judge. the appeal was allowed with respect to the lease of grove land and dismissed as regards the sale of trees. hence this appeal by special leave. we agree with the learned judge that after the companymencement of the u.p. zamindari abolition and land reforms act hereinafter referred to as the act the appellant has no subsisting interest in the grove land. section 18 1 of the act provides that all lands in possession or held or deemed to be held by an intermediary as an intermediarys grove on the date immediately preceding the date of vesting shall be deemed to be settled by the state government with such intermediary. section 2 12 of the act defines an intermediary as a proprietor under-proprietor sub- proprietor thekedar permanent lessee in avadh permanent tenure-holder of an estate or part thereof. section 2 13 defines intermediarys grove as grove land held or occupied by an intermediary as such. as the grove in dispute was an intermediarys grove mohammad ali and others who were intermediaries on the relevant date became its bhumidars. the lessee of an intermediarys grove land is number an inermediary because he does number fall within the definition of the word intermediary. numberother provision of the act gives him any kind of interest in the intermediarys grove land. accordingly the appellant gets numberright in the grove land in dispute. the scheme of the act is to create new rights in place of old rights. the old rights are dead and gone after the companymencement of the act. vide rana sheo ambar singh v. allahabad bank limited allahabad 1 and jamshed jahan begam and others v. lakhan lal and others . the decision of the high companyrt in second appeal number 2351 of 1953 cannumber operate as res judicata in this appeal. second appeal number 2351 of 1953 arose out of the suit instituted by mohammad ali and others. that suit was for cancellation of the leases on the ground that they were made in contravention of the provisions of s. 246 of the u.p. tenancy act the question whether the zamindari abolition and land reforms act gave any rights to the appellant in the grove land in dispute companyld number be and was in fact number considered in that appeal. in that appeal the material 1 1962 2 s. c. r. 441. 2 1970 2 s. c. r. 566. issue was whether the leases were void. the argument on be- half of mohammad ali and others in second appeal number 2350 of 1953 number is that assuming that the leases are valid the lessee has numbersubsisting right in the grove land after the enforcement of the act. as the grove is land companyered by the act it will be governed by the provisions of the act and number by the provisions of the transfer of property act. we have already held that the appellants lessee rights came to an end on the companymencement of the act.
0
test
1973_114.txt
1
civil appellate jurisdiction civil appeals number. 153 and 154 of 1960. appeals by special leave from the award dated february 51959 of the industrial tribunal bombay in reference t. number 212 of 1958. d. vimadalal s. n. andley and j. b. dadachanji for the appellant in c. a. number 153/60 and respondent in c.a. number 154/60. c. setalvad attorney-general for india and janardan sharma for the respondents in c.a. number 153/ 60 and appellants in c.a. number 154/60. 1960. december 9. the judgment of the companyrt was delivered by wanchoo j.-the only question raised in these two appeals by special leave is about the quantum of bonus to be paid to the workmen hereinafter called the respondents by voltas limited hereinafter called the appellant for the financial year 1956-57. the dispute between the parties was referred to the adjudication of the industrial tribunal bombay. the appellant it appears had already paid 4 1/2 months basic wages as bonus for the relevant year but the respondents claimed it at the rate of six months basic wages subject to the minimum of rs. 250 per employee. the tribunal went into the figures and after making the relevant calculations came to the companyclusion that the available surplus worked out according to the full-bench formula justified the grant of bonus equal to five months basic salary it therefore ordered payment of this amount excluding the amount already paid. the appellant in its appeal claims that the tribunal should have allowed numberhing more than what the appellant had already paid the respondents in their appeal on the other hand claim that they should have been allowed six months bonus. the principles on which bonus has to be calculated have already been decided by this companyrt in the associated cement companies limited v. their workmen 1 and the only question that arises for our companysideration is whether the tribunal in making its calculations has acted in accordance with those principles. this leads us to the companysideration of various points raised on behalf of the parties to show that the tribunal had number acted in all particulars in accordance with the decision in the associated cement companypanies case 1 . we shall first take the points raised on behalf of the appellant. the first point raised is that the tribunal was wrong in number allowing a sum of rupees one lac paid as contribution to political fund as an item of expense. it is urged that this is a permissible item of expense and therefore the tribunal should number have added it back in arriving at the gross profits. we are of opinion that the tribunal was right in number allowing this amount as expenditure. in effect this payment is numberdifferent from any amount given in charity by an employer and though such payment may be justified in the sense that it may number be against the articles of association of a companypany it is numberetheless an expense which need number be incurred for the business of the companypany. besides though in this particular case the donation companysidering the circumstances of the case was number much it is possible that permissible donations may be out of all proportion and may thus result in reducing the available 1 1059 2 s.c.r. 925. surplus from which low paid workmen are entitled to bonus. we are therefore of opinion that though the law or the rules of the companypany may permit the appellant to pay such amounts as donations to political funds this is number a proper expense to be deducted when working out the available surplus in the light of the full bench formula. the tribunals decision therefore on this point must be upheld. the second companytention of the appellant relates to deduction of what it calls extraneous income. this matter has been considered by this companyrt in the tata oil mills company limited v. ite workmen and others 1 and what we have to see is whether in accordance with the decision in that case the appellants claim for deducting certain amounts as extraneous income is companyrect. learned companynsel for the appellant has pressed four items in this companynection. the first item relates to a sum of rs. 3.47 lacs. it is said that this was number the income of the year and therefore should number have been taken into account in arriving at the gross profits. the exact position with respect to this item is number clear and in any case learned companynsel for the appellant appearing before the tribunal companyceded that the amount companyld number be deducted from the profits. in view of that companycession we are number prepared to allow the deduction of this amount as extraneous income. the second item is a sum of rs. 1.76 lacs in respect of the rebate earned on insurance by the appellant with other companypanies by virtue of its holding principal agency. obviously this is part of the insurance business of the appellant and the work in this connection is entirely handled by the insurance department of the appellant as such the tribunal was right in number allowing this amount as extraneous income. the third item is a sum of rs. 3-33 lacs being gain on foreign exchange transactions. these transactions are carried on in the numbermal companyrse of business of the appellant. as the tribunal has rightly pointed out if there had been loss on these transactions it would have certainly gone to reduce the gross profit if there is a profit it has to be taken into account as 1 1960 1 s.c.r. 1. it has arisen out of the numbermal business of the appellant. the tribunal was therefore right in number allowing this amount as extraneous income. the last item is a sum of rs. 9.78 lacs being companymission on transactions by government agencies and other organisations with manufacturers abroad direct. it seems that the appellant is the sole agent in india of certain foreign manufacturers and even when transactions are made direct with the manufacturers the appellant gets company- mission on such transactions. the tribunal has held that though the transactions were made direct with the foreign manufacturers the respondents were entitled to ask that the commission should be taken into account inasmuch as the respondents serviced the goods and did other work which brought such business to the appellant. it seems that there is numberdirect evidence whether these particular goods on which this companymission was earned were also serviced free by the appellant like other goods sold by it in india. we asked learned companynsel for the parties as to what the exact position was in the matter of free service to such goods. the learned companynsel however companyld number agree as to what was the exact position. it seems to us that if these goods are also serviced free or for charges but in the same way as other goods sold by the appellant in india the respondents are entitled to ask that the income from companymission on these goods should be taken into account. as however there is no definite evidence on the point we cannumber lay down that such commission must always be taken into account. at the same time so far as this particular year is companycerned we have to take this amount into account as the appellant whose duty it was to satisfy the tribunal that this was extraneous income has failed to place proper evidence as to servicing of these goods. a claim of this character must always be proved to the satisfaction of the tribunal. in the circumstances we see numberreason to interfere with the order of the tribunal so far as this part of its order is companycerned. two other points have been urged on behalf of the appellant with respect to the interest allowed on capital and on working capital. the tribunal has allowed the usual six per cent on capital and four per cent on working capital. the appellant claimed interest at a higher rate in both cases. we agree with the tribunal that there is no special reason why any higher rate of return should be allowed to the appellant. this brings us to the objections raised on behalf of the respondents. the main objection is to a sum of rs. 4.4 lacs allowed by the tribunal as income-tax which is said to be with respect to the previous year. it appears that there is a difference between the accounting year of the appellant and the financial year. in the particular year in dispute there was an increase in the rate of tax which resulted in extra payment which had to be paid in this year. in these special circumstances therefore the tribunal allowed this amount and we see numberreason to disagree. next it is urged that the tribunal had allowed a sum of rs. 4.76 lacs for making provision for gratuity as a prior charge. this is obviously incorrect as this companyrt has pointed out in the associated cement companypanies case 1 that numberfresh items of prior charge can be added to the full-bench formula though at the time of distribution of available surplus such matters as provision for gratuity and debenture redemption fund might be taken into account. this disposes of the objections relating to the accounts. two other points have been urged on behalf of the respondents. they are with respect to 1 salesmen and 2 apprentices. the tribunal has excluded these two categories from the award of bonus made by it. the respondents companytend that they should also have been included. we are of opinion that the decision of the tribunal in this behalf is companyrect. so far as salesmen are companycerned the tribunal has examined the relevant decisions of other tribunals and has companye to the companyclusion that salesmen who are given companymission on sales are number treated on par with other workmen in the matter of bonus. it has also been found that the clerical work done by salesmen is small and incidental to their duty as such salesmen have 1 1959 s.c.r. 925. therefore been held number to be workmen within the meaning of the industrial disputes act. the tribunal has pointed out that the companymission on an average works out at about rs. 1000 per mensem in the case of salesmen and therefore their total emoluments are quite adequate. besides the salesmen being paid companymission on sales have already taken a share in the profits of the appellant on a fair basis and therefore there is numberjustification for granting them further bonus out of the available surplus of profits. as for the apprentices the tribunal has held that there is a definite term of companytract between them and the appellant by which they are excluded from getting bonus. besides as the appellant has pointed out the apprentices are merely learning their jobs and the appellant has to incur expenditure on their training and they hardly companytribute to the profits of the appellant. the view of the tribunal therefore with respect to apprentices also is companyrect. we number turn to calculation of the available surplus according to the decision in the associated cement companies case 1 . the gross profit found by the tribunal will stand in view of what we have said with respect to various items challenged by either party. the chart of calculation will be as follows- in lacs gross profits rs. 109.97 less depreciation 3.28 balance 106.69 less income-tax 51.15 per cent. 54.20 balance 52.49 less dividend tax wealth tax etc. 7.50 balance 44.99 less return on capital at 6 per cent. 13.20. balance 31.79 less return on working capital at 4 per cent. 1.66 available surplus 30.13. 1 1959 s.c.r. 925. out of this the tribunal has allowed five months basic wages as bonus to the respondents which works out at rs. 16.80 lacs. in the circumstances it cannumber be said that the award of the tribunal is number justified.
0
test
1960_340.txt
1
wanchoo j. these five appeals have companye before this companyrt on certain cases granted by the high companyrt of kerala. they raise companymon question of law and will be dealt with together. one of the appeals number 262 arises out of a writ petition by the karanavan of a muslim mopla tarwad in the district of numberth malabar governed by the marumakkathawam law. the other four appeals arise out of writ petitions by karanavans of hindu undivided families in malabar and companyhin. these five writ petitions challenged the companystitutionality of the wealth-tax act number 27 of 1957 hereinafter referred to as the act and prayed for the quashing of the wealth-tax assessments made in these cases. there are certain differences of facts in the five petitions but we do number propose to refer to those differences as we propose to companyfine ourselves to the attack on the companystitutionality of the act. the main companytentions of the respondents before the high companyrt with respect to the companystitutionality of the act were two-fold namely - 1 that parliament was number companypetent to include hindu undivided families in the charging section 3 of the act in view of the provision in entry 86 of list 1 of the seventh schedule to the companystitution and 2 that the provision relating to hindu undivided families was discriminatory and denied equal protection of laws and was therefore hit by article 14 of the companystitution. the high companyrt held on the first question that parliament was companypetent to include hindu undivided families in section 3 of the act. on the second question the high companyrt held that though the companytention under article 14 had number been taken in the petitions before it in the form in which it was presented at the time of argument it was open to it to go into the question in view of certain adjournments granted to the parties in this companynection and also in view of the fact that the matter had been fully argued before it by learned companynsel for the parties. eventually the high companyrt said that the issue as to discrimination had been fully argued on both sides and the department had sufficient opportunity to meet the objection under article 14 and it therefore finally proceeded to companysider the same. the main companytention under this head before the high companyrt was that the act though it subjected hindu undivided families to a tax under section 3 thereof made numberprovision for muslim mopla tarwads which were also undiv we have companye to the companyclusion that these cases must be remanded to the high companyrt for further companysideration after giving parties an opportunity to place full facts in companynection with the application of article 14 before it.
1
test
1964_14.txt
1
civil appellate jurisdiction civil appeal number 240 of 1961. appeal from the judgment and decree dated numberember 21 1958 of the punjab high companyrt at chandigarh in regular first appeal number 266 of 1951. b. agarwala and a. n. goyal for the appellant. v. viswanatha sastri o. p. malhotra and mohan behari lal for the respondent. 1963. february 11. the judgment of the companyrt was delivered by das gupta j.-the respondent a partnership firm carrying on business as companymission agents in the town of khanna in punjab brought the suit out of which this appeal has arisen against the appellant firm for recovery of rs. 17615/10/- claimed to be due to it on account-of the purchases and sales made on behalf of the appellant firm. between december 1946 and february 3 1947 7600 bags of companyton seeds were according to the plaint purchased by the respondent on behalf of the appellant firm at various rates out of which 5300 bags are said to have been sold by it on behalf of the appellant firm between the dates of january 2 1947 and february 3 1947. thus on february 3 1947 2300 bags of cotton-seeds were left on its hands. id may 1947 the market for companyton seeds was falling and so the respondent firm asked the appellant either to remove the goods within 48 hours on payment of the full price or pay something more by way of margin and informed them that otherwise the goods would be sold as numberreply was received these 2300 bags were sold on may 24some at the rate of rs. 11/11/16 per maund and the rest at the rate of rs. 11/12/- per maund. apart from these transactions in companyton-seeds the respondent firm according to the plaint also purchased 100 bales of companyton of which 50 bales were also sold on behalf of the appellant firm so that after february 14 1947 50 bales of companyton purchased by the appellant firm were lying with the respondent. these 50 bales were also sold by the respondent on may 24 1947 at the rate of rs. 27/12/- per maund as the appellant took numberaction when the respondent asked them either to take away these bales on payment of the price or to put in more money by way of margin. on the accounts it was said rs. 15556/10/- remained due to the plaintiff firm from the defendant firm. the suit was brought for the recovery of this amount together with interest. in companytesting the suit the appellant while admitting trade relations with the plaintiff firm disputed the correctness of the accounts. the plaintiffs case about the purchase of companyton-seeds and companyton bales and the fact that 2300 bags of companyton seeds and 50 bales of companyton purchased by it remained with the plaintiff firm was also denied. - it was also urged that the transactions were wagering contracts and so void in law that they being forward transactions were prohibited by law and further that the plaintiff firm was number a registered firm under the indian partnership act and therefore the suit did number lie. the trial companyrt rejected all the companytentions in law and accepted the plaintiffs story as regards the transactions but held as regards the accounting on a companysideration of the evidence that the plaintiffs were bound to give credit to the defendants for the sale of 2300 bags of companyton-seeds at the companytract rate of rs. 14/5/- per maund even though these were actually sold at a lower rate and that the debit for the purchase of 2300 bags would be calculated at the rate of rs. 13/8/- and rs. 13/10/- per maund the rates at which they were actually purchased even though they were agreed to be purchased at the rate of rs. 14/5/- per maund on february 3 1947. the price of 2300 bags of companyton seeds and 50 bales of companyton on the final sale was directed to be credited in favour of the defendant at the market rate on may 28 1947. other directions as regards calculations of incidental charges and interest were also given. the companyrt appointed an advocate as companymissioner for-the purpose of calculating the amount due after ascertaining the market price. after companysideration of the report submitted by the commissioner the learned judge passed a final decree in favour of the plaintiff for s. 9749/3/9 with proportionate costs. against this decree both the plaintiff and the defendant appealed to the high companyrt of punjab. in the defendants appeal it was companytended that the suit was number properly entertained as the plaintiff firm was number registered under the indian partnership act 1932. it was also urged that the transactions were illegal being forward transactions in cotton and edible oil-seeds and thus prohibited by law. both these companytentions were rejected by the high companyrt. two other minumber points which were taken before the high companyrt and were rejected by it have number been repeated before us. in the plaintiffs appeal it was urged that the trial court had erred in its directions as regards the debits and credits for 2300 bags of companyton seeds for the purchases and sales on february 23 1947. the high companyrt accepted the plaintiffs companytention in part and held that the plaintiff was entitled to an extra amount of rs. 3244/12/-. in the result the high companyrt dismissed the defendants appeal but allowed the plaintiffs appeal to the extent that the decretal amount was increased by rs. 3244/12/- thus making the decree one for rs. 12694/. on the strength of the certificate granted by the high court under art. 133 1 a of the companystitution the defendant firm has preferred the present appeal. the appellants first companytention is as in the companyrts below that the suit should have been dismissed altogether. two grounds of law are urged in support of this. the first is based on the requirement of s. 69 2 of the indian partnership act. it is numberlonger disputed that the firm was registered by the registrar of firms punjab on august 16 1946 under the indian partnership act 1932 as it stood on that date. that was an order made before the partition of india took place. the entire province of punjab was then within british india there was one registrar for the entire province and it is number disputed that registration made by the registrar whose office was at lahore was up to august 14 1947 good registration for the whole of what was then british india. the appellant companytends that as soon as the partition of india took place that registration caused to be effective for that part of the old british india which became the dominion of alia and it so companytinued to be ineffective for this 1000 entire area also after the companystitution of india came into force. it is argued that the registrar of the punjab within his office at lahore ceased to be a registrar under the indian act when on the partition of india lahore became part of a foreign companyntry. so it is said the registration became the registration of a foreign companyntry and thus ceased to be a registration for india. in our opinion this argument is wholly unsound. once there was registration under the indian partnership act that registration in our opinion companytinues to operate as registration under that act and companytinues to be effective-in other words valid registration in the eye of law as administered in india so long as the registration is number cancelled in accordance with law. in companying to this companyclusion we have number overlooked the fact that difficulties may in certain circumstances arise as regards the recording of alterations in the firm name or its principal place of business s. 60 numbering of closing and opening of branches s. 61 numbering of changes in the name and address of partners s. 62 recording of changes on dissolution of a firm and recording withdrawal of a minumber from the firm s. 63 rectification of mistakes in the register s. 64 and amendment of register by order of court s. 65 by the fact of the register on whom duties are laid by these sections in companynection with the above matters being number at lahore that is outside india. we have number thought it necessary however to investigate in the present case as to what arrangements have been made to companye with these difficulties. for it is clear to us that the presence of such difficulties cannumber in any way change the legal position that registration that was good registration under the indian act does number cease to be good registration under the same act. so long as it is number cancelled in accordance with law. this view of law was taken by the bombay 1001 high companyrt in bombay companyton export import company v. bharat savodaya mill company 1 and is in our opinion the only possible view. it is unnecessary for us to companysider for the purpose of the present appeal whether such a registration would be effective registration in an area which was outside british india at the time of the registration and on that we express numberopinion. for his next legal companytention viz. that the transactions were prohibited by law mr. aggarwala argued first that forward companytracts in companyton as also oil seeds were prohibited by the orders made in 1943 under the defence of india rules and these prohibitions remained effective up to the date of the companytracts in the present case by virtue of s. 5 of the essential supplies temporary powers act 1946 act xxiv or 1946 . that these were forward companytracts is number disputed. it does appear that forward companytracts in cotton and in oil-seeds including companyton seeds were prohibited by the companyton options forward companytracts and prohibition order 1943 of may 1 1943 and oilseeds forward companytracts and prohibition order 1943 of may 29 1943 respectively. tile defence of india rules under which these orders were made had however ceased to be in force long before the date of the companytracts in the present case. unless therefore the prohibition orders were kept alive by some other provision of law the present transactions would number be hit by the prohibitory orders. to show that they had been kept alive mr. aggarwala relied on s. 5 of the essential supplies temporary powers ordinance 1946 and the same section of the essential supplies temporary powers act 1946 by which it was replaced. the section is in these words continuance in force of existing until other provisions are made under this i.l.r. bom. 1952 1351. 1002 ordinance any order whether numberified or number made by whatever authority under rule 80-b or sub-rule 2 or sub-rule 3 of rule 81 of the defence or india rules in respect of any matter specified in s. 3 which was in force immediately before the companymencement of the ordinance shall numberwithstanding the e xpiration of the said rules companytinue in force as far as consistent with this ordinance and be deemed to be an order made under s. 3 and all appointments made licences or permits granted and directions issued under any such order and in force immediately before such companymencement shall likewise companytinue in force and be deemed to be made granted or issued in pursuance of this ordinance. the act companytinued the same phraseology. these provisions of the ordinance or the act are however clearly of numberassistance to mr. aggarwalas arguments. it is clear that before the order made under rule 81 of the defence of india rules companytinues in force numberwithstanding the expiration of the defence of india rules it is necessary that the order must be in respect of any matter specified in s. 3. section 3 empowers the central government to make various orders but only in companynection with essential commodities. numberorder can therefore be companysidered to be in respect of any matter specified in s. 3 unless it is in respect of an essential companymodity. essential companymodity is defined in s. 2 to mean any of the following classess of companymodities i foodstuffs ii cotton and woollen textiles iii paper iv petroleum and petroleum products v spare parts of mechanically propelled vehicles vi companyl vii iron and steel and mica foodstuffs was also defined thus foodstuffs shall include edible oilseeds and oils. companyton seed is an oilseed but it cannumber be for a moment be suggested that itis 1003 fit for human companysumption. so clearly it is number an oilseed which is edible. mr. aggarwala as a last resort argued that what edible oil seed means is a seed from which edible oil can be prepared. such an argument has only to be mentioned to deserve rejection. the phrase edible oil-seed can never mean what the learned companynsel suggests and can and does mean only an oil seed which is edible as an oil. seed. companyton-seed number being edible falls outside the class of edible oil-seed and so is number foodstuff within the meaning of s. 2 of the ordinance or the act of 1946. the companyton seeds order of 1943 which has been mentioned above is therefore number in respect of a matter specified in s. 3 of the ordinance or the act and so was- number kept alive by s. 5. the companyton order has also number been kept alive for raw companyton is number one of the articles included in the definition of essential companymodity in s. 2. it may -be added that s. 5 companytinues only such previous orders as are consistent with the new law and clearly as companyton and cotton-seeds are number included in the definition of essential commodity any previous order with respect to them will be inconsistent with the new order and cannumber companytinue under s. 5. mr. aggarwala drew our attention to a numberification by the central government dated on numberember 4 1949 by which cotton seed was excluded from the operation of the oilseeds forward companytracts prohibition order 1943 by omitting it from the schedule to the order mr. aggarwala rightly contends that such exclusion would be unnecessary unless as a result of s. 5 of the essential supplies temporary powers act 1946 the oilseeds order had remained alive tin to numberember 1949. we do number knumber what led the central government to make this numberification. it is number improbable that a question having arisen before the government whether or number forward -contracts in companyton seeds companytinued to be prohibited in view of the provisions 1004 of s. 5 of the ordinance or the act as mentioned above the government thought it proper to put the matter beyond doubt by making the numberification excluding companyton seeds altogether from the schedule to the prohibition order. it is unnecessary for us to investigate the circumstances under which the order was made. for the fact that government thought that the effect of s. 5 was to keep alive the oilseeds forward companytracts prohibition order 1943 is number relevant at all. for the reasons mentioned earlier we are clearly of opinion that s. 5 cannumber have that effect. mr. aggarwalas companytention that the forward companytracts in companyton- seeds which are the subject matter of the present litigation were prohibited by law has therefore numbersubstance. this brings us to the question whether the high companyrt erred in allowing the plaintiff s appeal in increasing the amount decreed by rs. 3244/12/-. it appears that before the high companyrt it was urged on behalf of the plaintiff that there had been a clerical error in preparing the statement. ex. p-8 an extract from the saudabahi-in that the purchase price and sale price for the transactions of february 3 1947 was shown as rs. 14/5/-and rs. 14/8/-instead of the correct figures which were according to saudabahi rs. 13/5/-and rs. 13/8-. it is obvious that this mistake would number affect the result as the difference between the credit entry and the debit entry for these transactions would remain the same. what the trial companyrt did was that it took the sale price for february 3 transaction to be rs. 14/5/- as shown in ex. p-8 but for the purchase price which had to be debited against the defendant it rejected the figure of rs. 14/8/- shown in ex. p-8 but took the figure of rs. 19/8/-and rs. 13/10/- as shown in the plaintiffs account book. it seems to us likely that the arrangement between the parties was that the debits and credits in the running account should be on the basis of the rate at which the purchases and sales were 1005 actually made and number at the rate mentioned in the saudabahi. this is clear from the fact that for both the sale and the purchase the account book shows the actual rates at which the purchases and sales were made the purchase price being at the rate of rs. 13/8/- and rs. 13/10/- per maund and sales being at the rate of rs. 13/5/- and rs. 13/7/- per maund . it is difficult to understand why the trial judge though making the debits against the defendant at the lower rate of actual purchase thought it fit to accept the saudabahi rate for the sale. if for both debits and credits the actual rates at which the pur- chases and sales were effected are accepted it is clear that the tria companyrts direction had resulted in crediting the defendant with rs. 3244/12/-more than what was the correct figure. the high companyrt was therefore right in increasing the decretal amount by this sum of rs. 3244/12/-. it may be pointed out that if the actual rates of purchases and sales in respect of these transactions of february 3 1947 for 2300 bags of companyton-seeds are rejected and the saudabahi rates according to ex. p-8 of rs. 14/5/- for the sale and rs.
0
test
1963_36.txt
0
civil appellate jurisdiction civil appeals number. 112 to 116 of 55. appeals from the judgment and order dated december 141951 of the madras high companyrt in aao 210 of 1946 c. m. ps. number. 3273 and 3274 of 1946 aao 661 of 1946 and aao 49 of 1947 respectively arising out of the judgment and order dated january 28 1946 of the subordinate judge devakottah in 1. a. number 18 of 1945 in o. s. number 91 of 1941. v. viswanatha sastri k. parasaran and m.s.k. aiyangar for the appellants. rajah iyer r. rangachari and r. ganapathy iyer for the respondent. 1959. numberember 13. the judgment of the companyrt was delivered by gajendragadkar j.-these five appeals arise from a partition suit o.s. number 91 of 1941 filed by the respondent subramanian chettiar against his brother ct. a. ct. nachiyappa chettiar and his four sons appellants 1 to 5 respectively in the companyrt of the subordinate judge of devakottai and they have been brought to this companyrt with a certificate granted by the high companyrt of madras under art. 133 of the companystitution. the principal appeal in this group is civil appeal number 112 of 1955 and the questions which it raises for our decision relate to the validity of the award made by the arbitrators to whom the matters in dispute between the parties were referred pending the present- litigation. it would however be companyvenient at the outset to state broadly the material facts leading to the suit and indicate the genesis and nature of the five respective appeals. the appellants and the respondent belong to the nattukottai chettiar companymunity and their family which is affluent had extensive money-lending business in burma. chidambaram chettiar the father of appellant 1 and the respondent died on august 20 1926. at the time of his death the respondent was an infant 6 years of age. appellant 1 had already been associated with his father in the management of the business and on his fathers death he became the manager of the family and took charge of its affairs and business. on september 6 1941 the respondent gave numberice to appellant 1 calling upon him to effect a partition and to render accounts of his management and the properties of the family. this demand was number companyplied with and so the respondent instituted the present suit on september 24 1941. according to the plaint the assets of the family companysisted of immoveable properties in india which was then described as british india and in pudukottai an indian state. these consisted of items number 1 to 12 and item number 13 respectively in sch. a. the jewels and moveables belonging to the family were set out in sch. b whereas two money-lending firms which the family owned and companyducted at minhla and sitkwin in burma were set out in schs. d and e respectively. the plaint further alleged that chidambaram chettiar had entered large amounts belonging to the family in the names of the members of the family in what are called thanathu maral accounts and these amounts were invested in various firms or lent to several individuals. the total of these investments came to about rs. 1500000 described in sch. c. the assets thus described in schs. ic id and e included immoveable properties in burma and the respondent claimed alia if-share in all of them. it appears that the family had endowed several properties in favour of charities and they were described in sch. f. the respondent claimed that in effecting partition between the parties a scheme should be framed for the management of the said respective charities. according to the respondent appellant i had in the companyrse of his management manipulated accounts and had in fact misappropriated large amounts and so he claimed an account from appellant 1. that in brief is the nature of the claim made by the respondent in his plaint. at the date of the suit appellants 3 to 5 were minumbers and they were represented by appellant 1. it appears that a written statement was filed by appellant 1 for himself and as guardian of his minumber sons in which the relationship of the respondent and his half-share to the family properties were admitted. several companytentions were however raised with reference to the properties available for partition. it was alleged that items number. 10 and 11 in sch. a were dedicated to charity and as such number divisible and that item number 3 was being used as a school. the written statement referred to some more properties which had number been included in the plaint though they were liable to partition. in regard to the jewels and moveables it was contended that several items number belonging to the family and some number even in existence bad been shown in the said schedule. it was also alleged that some of the jewels shown in the said schedule belonged to the several appellants as their separate property. then as regards the thanathu maral accounts the appellants gave a detailed history of the amounts and their investments. it was admitted that the said amounts belonged to the family though the investments had been made in the names of the different members of the family. it was however urged that the total value of the assets enumerated in sch. c would be only rs. 900000 and number rs. 1500000 as alleged by the respondent. the respondents case that appellant i had manipulated accounts and misappropriated family funds was denied and it was urged that for the purpose of partition the assets of the family as they stood on the date of the partition should be taken into account. the appellants also pleaded that the court had numberjurisdiction to divide the immoveable properties situated in burma. according to them there was a special practice obtaining among the families of the nattukottai chettiar companymunity according to which appellant i was entitled to a decent remuneration for the management of the joint family business and properties. according to anumberher custom pleaded by the appellants it was alleged that provision had to be made for future seermurais for the unmarried daughters of the family. broadly stated these were the pleas raised by appellants 1 and 3 to 5. appellant 2 who was a major filed a separate written statement generally adopting the written statement filed by appellant 1 nevertheless he put the respondent to the strict proof of the allegations made by him in the plaint in support of his claim. in reply to the companytentions thus raised by the appellants the respondent filed a reply. in this statement he pleaded inter alia that there was a custom amongst the companymunity for a member of the joint family to set up a separate family after marriage and that monies drawn by him thereafter would be entered in a separate account called pathuvazhi and that at the time of the partition the amounts appearing in the said account would be debited to the said member. the respondent claimed that account should be made in accordance with this custom in affecting the partition of the family. on these pleadings the learned trial judge framed fifteen issues. it appears that an attempt was made by the parties to have their disputes referred to arbitration and in fact a reference was made on april 6 1943 but this attempt proved abortive and the suit was set down for hearing before the companyrt and the hearing actually companymenced on december 11 1943. meanwhile on december 6 1943 appellant 2 filed an application under 0. 8 r. 9 of the code of civil procedure for permission to file an additional written statement. this application was numbered as i. a. number 988 of 1943. it would be relevent to refer to the plea which appellant 2 sought to raise by this application. he alleged that the deceased chidambaram chettiar bad set apart on march 25 1925 two sums of money of rs. 210251-4-0 each separately in the name of the respondent and appellant i so as to vest the same in them forthwith and he urged that these amounts and their accretions were number the properties of the family liable to partition in the suit. this application was opposed by the respondent. on december 14 1943 the trial judge dismissed the said application on the ground that it sought to raise a new and inconsistent plea and that had been really inspired by appellant 1. on december 29 1943 the learned judge delivered his judgment in the suit and it was followed by a preliminary decree. against this decision three appeals were preferred before the high companyrt of madras. a. s. number 115 of 1948 was filed by appellant 2 and number 199 of 1944 by appellants 1 3 to 5 whereas a. s. number 499 of 1944 was filed by the respondent. it appears that under his appeal number 115 of 1944 appellant 2 made an application for stay of further proceedings before the companymissioner c.m.p. number 1402 of 1944 . on this petition the high companyrt ordered that there was numberneed to stay all proceedings before the companymissioner and that it would be enumbergh if the passing of the final decree alone was stayed. as a result of this order interim stay which had been granted ex parte was vacated. after the final order on this application was passed the companymissioner companymenced his enquiry but before the enquiry companyld make any progress the parties decided to refer their disputes for arbitration. accordingly on july 18 1944 a joint application was filed by the parties before the trial judge requesting him to refer to the arbitration of mr. ve. rm. ar. ramanathan chettiar of kandanumberr and rm. an. s. rm. chellappa chettiar of kothamangalam all matters in dispute in the suit and all matters and proceedings companynected therewith . an application under 0. 32 r. 7 was also filed since three of the parties to the dispute were minumbers. on july 21 1944 the trial companyrt allowed the said application and certified that the proposed reference was for the benefit of the minumbers and so referred the matters in dispute in the suit and all matters and proceedings companynected therewith for determination by the two arbitrators named by the parties. the arbitrators then began their proceedings and made an interim award on august 1 1944. it was followed by their final award on december 61944. this award was filed in the trial companyrt. on january 3 1945 the appellants filed a petition i. a. number 18 of 1945 under ss. 30 and 31 of the indian arbitration act hereinafter called the act . by this petition the appellants urged that the award should be set aside on the grounds enumerated by them in the petition. their case was that the reference to arbitration had been brought about by companyrcion and undue influence that the arbitrators had number held any proper chettiar enquiry and that they were partial and biased. thus the award was sought to be set aside on the ground that the reference was bad and that the arbitrators were guilty of misconduct. the validity of the award was- also challenged on the ground that both the reference and the award were invalid because they companytravened the principle of private international law that companyrts in one companyntry would have numberjurisdiction to adjudicate on title to immoveable property situated in a foreign companyntry or to direct its division the reference and the award dealt with immoveable properties in burma and so they were invalid. the appellants further companytended that the reference to arbitration was opposed to the orders passed by the high companyrt in c.m.p. number 1402 of 1944 and as such it was invalid. this application was resisted by the respondent. he traversed all the allegations made by the appellants and claimed that a decree in terms of the award should be passed. at the hearing of this petition numberoral evidence was led by the parties they were companytent to base their case on the documents produced on the record and on points of law raised by them. the trial judge rejected the appellants case about the alleged misconduct of the arbitrators. he also found that there was numbersubstance in the companytention that the reference was the result of undue influence or companyrcion. he was satisfied that the arbitrators had made a proper enquiry and that the award was number open to any objection on the merits. he however held that the reference to the arbitrators which included matters in dispute in the suit companyprised questions of title in relation to immoveable properties in burma and so it was without jurisdiction and invalid. in his opinion the reference also included the dispute relating to the sums of rs. 210251-4-0 which had been entered in the thanathu maral accounts of appellant 1 and the respondent and that this part of the reference companytravened the order passed by the high companyrt in c.m.p. number 1402 of 1944. he thus upheld these two contentions raised by the appellants and set aside the reference and the award. it was against this order that the respondent preferred c.m.a. number 210 of 1946. the high companyrt has allowed the respondents appeal. it has confirmed the findings of the trial companyrt in respect of the pleas raised by the appellants as to the misconduct of the arbitrators and as to the invalidity of the reference on the ground that it was the result of companyrcion and undue influence. it has however reversed the companyclusions of the trial companyrt that the reference and the award were invalid inasmuch as they related to immoveable properties in burma and companytravened the stay order passed by the high companyrt. the high companyrt has companystrued the order by which reference was made to the arbitrators in the present proceedings as well as the award and has held that they are number open to be challenged on either of the two grounds urged by the appellants. it was also urged before the high companyrt that the order of reference was invalid because under s. 21 of the act the trial companyrt was number companypetent to make the reference this companytention has been negatived by the high court. in the result the high companyrt has found that the reference and the award were valid and it has directed that a decree should be passed in terms of the award. it is against this decision that civil appeal number 112 of 1955 arises and as we have already mentioned the questions which it raises relate to the validity of the award on which the two companyrts have differed. before we deal with the merits of these points however we may indicate how the other appeals arise. in a. s. number 115 of 1944 filed by appellant 2 before the high companyrt the appellant presented miscellaneous application m.p. number 2374 of 1946 under 0. 23 r. 3 for an order that the interim award ex. p. 15 passed by the arbitrators which had been signed by all the parties in token of their consent should be treated as a companypromise and a decree passed in accordance with it under 0. 23 r. 4. the high court has observed that in view of its decision in c.m.a. number 210 of 1946 it was really unnecessary to pass any order in this appeal but it thought that since the matter was likely to go 28 in appeal to this companyrt it would be better to make a formal order and direct that a decree in terms of the sayinterim award should be drawn under 0. 23 r. 3. against this decision the appellants- have preferred civil appeal number 116 of 1955 in this companyrt. the appellants had made a similar application in a. s. number 199 of 1944 and it was numbered as c.m.p. number 3273 of 1946. the high companyrt has allowed this application for similar reasons and its decision has given rise to civil appeal number 115 of 1955. in the trial companyrt the appellants had filed two similar applications under 0. 23 r. 3 but they had been rejected by the trial companyrt these orders had given rise to two appeals in the high companyrt c.m.a. number 661 of 1946 and c.m.a. number 49 of 1947. the high companyrt has allowed these appeals and has ordered that a decree in terms of companypromise should be passed under 0. 23 r. 3. against the orders thus passed by the high companyrt in these two appeals civil appeals number. 113 and 114 of 1955 have been filed in this court. that is the genesis and nature of the four subsidiary appeals in the group. we will number revert to the points which arise for our decision in the principal civil appeal number 112 of 1955. the first ground on which the validity of the reference and the award is challenged is based on the assumption that the reference involved the determination of the title to immoveable properties situated in burma and or that the award has actually determined the said question of title. the appellants companytend that there can be numberdoubt that courts in this companyntry have numberjurisdiction to determine questions of title in respect of immoveable properties in foreign companyntries or to direct a division thereof. this position is number and cannumber be disputed. the rule of law on this subject has been thus stated by dicey the companyrts of a foreign companyntry have numberjurisdiction to adjudicate upon the title or the right to the possession of any immoveable property number situate in such companyntry. 1 it is also urged that where a companyrt has numberjurisdiction to determine any diceys companyflict of laws 6th ed. pp. 141 and 348. matter in companytroversy such as the question of title in respect of the foreign immoveable property it has no jurisdiction to refer it for the determination of the arbitrators. this position also is number and cannumber be disputed. the appellants further argued that if the reference includes properties over which the companyrt had jurisdiction as well as those over which it had no jurisdiction the whole of the reference becomes invalid and in such a case it is number permissible to separate the invalid part of the reference from that which is valid. the correctness of this companytention is disputed by the respondent but for the purpose of the present appeal the respondent is prepared to argue on the assumption that even this companytention is well-founded. the respondents case is that neither the reference number the award purports to deal with any immoveable property in burma and so the challenge to the validity of the reference and the award on the legal points raised by the appellants cannumber succeed. it is therefore necessary to examine the reference and the award and decide whether the factual assumption made by the appellants in urging their legal grounds against the validity of both the reference and the award is justified. in dealing with this question it is necessary first to ascertain the scope of the request made by the parties when they applied to the trial companyrt for reference of their dispute to arbitration. in their application ex. p. 12 the parties have briefly indicated the nature of the respondents claim and have stated that the dispute between the parties was then pending before the high companyrt in the form of three appeals preferred by them then it is averred that appellants 3 to 5 are minumbers but it is added that the proposed reference was for their benefit and so anumberher application had been separately made for the companyrts sanction to the said reference in respect of the said minumbers. the parties desire and agree said the application that all matters in dispute in this suit and all matters and proceedings companynected therewith should be referred to the unanimous decision of the two named arbitrators. they had also agreed that they would abide by the unanimous decision of the arbitrators and that the arbitrators should be empowered to partition the properties of the joint family between the parties and if necessary also by payment of monies to equalise the shares and to take the. necessary accounts and to decide all matters in dispute between them including companyts. the parties had further agreed to produce their own papers and companyies before the arbitrators and that if the arbitrators needed any further papers accounts or documents which had been filed in companyrt they should be authorised to require the commissioner to send them to the arbitrators. it is on this application that the companyrt made the order that all matters in dispute in this suit and all matters and proceedings connected therewith be referred for determination to the two named arbitrators the question which arises for our decision is what was the scope and extent of the matters thus referred to arbitration ? in other words did this order of reference include the respondents claim for a share in the immoveable properties in burma ? the appellants companytend that the order of reference includes number only all matters in dispute in the suit but also all matter- and proceedings companynected therewith and their case is that these clauses are wide enumbergh to include the respondents claim for a share in the immoveable properties in burma. there is numberdoubt that the latter clause refers to matters and proceedings companynected with the suit but the appellants companytention can be upheld only if it is shown that the respondents claim for a share in the properties in burma was companynected with the suit or was a part of the matters companynected with it at the material time. what then was the nature and extent of the dispute between the parties at the material time? let us examine the pleadings of the parties the issues framed by the trial court the decision of the trial companyrt on them and ascertain the nature and extent of the subsisting dispute between them which was pending in the high companyrt in the three respective appeals. there is numberdoubt that in his plaint the respondent had claimed a share in the immoveable properties in burma. in regard to this claim his allegation was that with the aid of the advances made by the family firms in burma and of those in the accounts described as thanathu maral accounts lands and other properties had been purchased and they formed part of the assets of the firms and the thanathu maral accounts. the written statement filed by appellant 1 admitted that there were thanathu maral transactions during the lifetime of chidambaram chettiar and that all sums taken from the family assets though invested for the sake of convenience in the name of one or the other member of the family belonged to the family and had been treated as family assets. according to the appellants however the extent of the thanathu maral transactions had been exaggerated by the respondent. on the whole the written statement clearly admitted that the branches of appellants 1 to 5 on the one hand and of the respondent and his son on the other are entitled to a half-share each but they pleaded that the said shares have to be allotted only after making some provisions out of the joint family funds for the payments of the future seermurai etc. due to the unmarried daughters in the family. they also companytended that the companyrt had numberjurisdiction to divide the immoveable properties in burma though it was admitted that the respondent was entitled to the relief in respect of the division of the family assets as set forth in the written statement. this written statement was adopted by appellant 2 though in a general way be denied the allegations in the plaint which had number been expressly admitted by him in his written statement. it would thus be seen that the respondents share in the family properties was number in dispute number was his share in the properties in burma seriously challenged. the only plea raised in respect of the latter claim was that the companyrt bad numberjurisdiction to deal with it. this state of the pleadings in a sense truly reflected the nature of the dispute between the parties. it is companymon ground that the family is a trading family and there companyld be numberdoubt that the assets of the family were partible between the members of the family. it was on these pleadings that the trial judge framed fifteen issues and set down the case for hearing. at this stage appellant 2 wanted to go back upon his written statement by making further and additional pleas. that is why he filed an application ex. p. 3 a for leave to file an additional written statement. as we have already mentioned this application was rejected by the trial court but for our present purpose it is relevant to consider the pleas which he wanted to raise by this additional statement. he wanted to companytend that the amounts set apart in favour of appellant 1 and the respondent respectively by their father remained invested distinctly and separately during his lifetime and that in law they ought to be taken to be separate properties belonging to the two respective branches. in other words the plea thus sought to be raised was that by reason of the investment of the amounts in the names of appellant 1 and the respondent respectively the said amounts companystituted the individual and separate monies of the respective persons and became the separate properties of their branches. appellant 2 thus raised a companytention about the character of the amounts invested by the deceased chidambaram chettiar in the two names of his sons respectively and in that sense the issue which he sought to raise was in regard to the character of the amounts themselves. it had numberdirect reference to any immoveable properties in burma. since the trial companyrt refused to allow appellant 2 to raise this additional plea he proceeded to try the issues already framed by him and as we have already indicated he held that he had numberjurisdiction to deal with immoveable properties in burma and appointed a companymissioner to make an enquiry in pursuance of the preliminary decree. the preliminary decree in terms excluded from its operation the immoveable properties in burma as well as in the indian state of pudukottai. in the proceedings before the commissioner parties agreed that the properties in burma and pudukottai should be left out of account and so numberdispute appears to have been raised before him that the accounts of the firms in burma should be taken by him. in the appeal filed by the respondent against this preliminary decree he did number challenge the decision of the trial companyrt that he had numberjurisdiction to deal with immoveable properties out of british india. his appeal raised some other points which it is unnecessary to mention. this fact is very significant. it shows that the respondent accepted the finding of the trial companyrt and did number want the high companyrt to companysider his claim for a share in the excluded properties. in the appeal preferred by appellant 2 he had urged inter alia that the trial companyrt should have allowed him to raise the additional pleas and it appears that he had also raised a point that the trial companyrt bad numberjurisdiction to direct a division of the moveable properties of the firms in burma. the grounds taken by appellant 2 in his memo leave numbermanner of doubt that numbere of the pleas which he sought to raise before the high companyrt had any reference to immoveable properties in burma. it is therefore clear that in numbere of the three appeals pending before the high court was it urged by any party that the immoveable properties in burma should be brought within the scope of the partition suit. the application made by the parties for arbitration to which we have already referred has deliberately set out the pendency of the three appeals in the high companyrt at the material time in order to furnish the background for determining the extent and nature of the dispute which was sought to be referred to arbitration. the respondents claim for a share in the properties outside india had been negatived by the trial companyrt and the decision of the trial court had become final because it was number challenged by the respondent and so there can be numberdoubt that the said claim was- outside the purview of the dispute which was then pending between the parties in the high companyrt. it was number and companyld number have been intended to be a matter in dispute in the suit between the parties or any matter and proceedings companynected therewith. therefore we are satisfied that the high court was right in companying to the companyclusion that the reference did number include any claim with regard to the immoveable properties in burma. it is however urged that the reference did include the points raised by appellant 2 in his appeal before the high companyrt and that numberdoubt is true. but what is the effect of the said grounds raised by appellant 2 ? as we have already pointed out the said grounds did number raise any question about immoveable properties in burma. they merely raised a dispute about the character of amounts invested by the deceased chidambaram chettiar in the names of appellant 1 and the respondent respectively. it was a dispute in regard to monies or moveables and so appellant 2 was driven to companytend that the trial companyrt had numberjurisdiction to deal with such moveables. this companytention is obviously without substance and has number been raised either in the companyrts below or before us. the only argument raised is that the reference included claims in regard to immoveable properties in burma and this argument cannumber be supported on the ground of the pendency of the appeal by appellant 2 before the high court because even if the said appeal was allowed it companyld have numberreference to any immoveable properties in burma. thus the attack against the reference on the ground that it included immoveable properties in burma must fail. does the award deal with the said immoveable properties in burma ? that is the next question which falls to be considered. -if it does it would be invalid number only because it purports to deal with foreign immoveable properties but also for the additional reason that it is in excess of the terms of reference. at the hearing of the present appeals in this companyrt mr. viswanatha sastri for the appellants attempted to criticise the decision of the arbitrators on several grounds but we did number allow him to raise any companytentions against the merits of the award because both the companyrts below have rejected the appellants objections in that behalf and in view of their companycurrent findings it would number be open to the appellants to raise the same points over again. that is why we would confine ourselves to those portions of the award which according to the appellants show that the arbitrators divided the immoveable properties in burma and pudukottai. in regard to the properties in pudukkottai this is what the award says in paragraph 3 the plaintiff and the defendants shall enjoy them in equal halves as under marukkal kuttu. in proportion to their respective shares. the plaintiff shall pay one-half of the taxes and the defendants 1 to 5 the other half. since the aforesaid property has been situate in pudukottai state it has number been divided on the good and bad qualities of the soil if it is necessary the plaintiff and the defendants shall have it divided in equal halves later on when required. in regard to the properties in burma paragraph 1 of the award recites that after companymunications are restored in burma the plaintiff and the defendants have to divide the firms in burma at the places minhla and sitkwin belonging to them and the lands godowns homes gardens and the properties items bank deposits jewels movables all assets etc. and the subsequent income attached thereto into two halves and the plaintiff has to take one half and the defendants the other half . paragraph 2 adds that since both the parties have agreed to divide the movable properties attached to the said shop later on the arbitrators had number divided them. the award has also stated that the sale deeds at alagapuri and relating to the lands attached to the said firms have been divided into two lots and for the purpose of safe custody two lists knumbern as schs. a and b have been prepared and both parties have signed the lists. later on at the time of division of the said lands firms and assets all the documents shall be companylected together and the parties shall take the documents relating to their respective shares. the arbitrators then dealt with the additional plea sought to be raised by appellant 2 and in substance they refused appellant 2 permission to raise that plea because they thought that having regard to the companyduct of the parties it was futile to raise such a plea. that is why they directed that the plaintiffs branch and the defendants branch have shares in all the amounts and they added that their companyduct fully justified the said conclusion and the parties agreed to it. it is these portions of the award on which the appellants based their companytention that immoveable properties in pudukottai and burma have been dealt with by the arbitrators. in our opinion this companytention is number well- founded. what the arbitrators have done is to divide the properties which were then the subject-matter of the dispute between the parties and having done so they have indicated what the legal position of the parties would be in respect of the properties outside the dispute. in appreciating the effect of the words used in the award we must bear in mind that the arbitrators were laymen number familiar with the technical significance of legal expressions and so we must read the relevant clauses as a whole with a view to determine what in effect and substance they intended to decide. number take the recitals in the award to the pudukottai properties. the award expressly states that the properties had number been divided by them and that the plaintiff and the defendants shall have them divided when so required. all that the award says is that since the parties had separated and the properties in suit before the arbitrators had been actually divided by metes and bounds the two branches shall enjoy the pudukottai properties in equal halves. this clause in the award cannumber be said to divide the said properties or even to determine their shares in them. the shares of the parties in the said properties were admitted and so the award merely says that as divided members they will hold and enjoy the properties half and half. similarly in regard to the properties in burma the award expressly states that the said properties had number been divided and it merely refers to the true legal position that they would be enjoyed by the two branches half and half. the arrangement proposed by the arbitrators in respect of the immoveable properties in burma is very significant. they merely asked the parties to hold the documents of title half and half for safe custody and they have added that when the parties decide to divide the properties all the documents would have to be brought together and a partition made according to law. that again is an arrangement dictated by companymonsense and cannumber be said to amount to a decision in any way. it is number as if the award declares the shares of the parties in respect of the properties. what it does is numbermore than to state the true and admitted legal position of the parties rights in respect of the said properties. in this companynection it would be useful to refer to the observations made by viscount dunedin in bageshwari charan singh v. jagarnath kuari 1 . in that case the privy council was called upon to companysider the question about the admissibility of a petition which was relied upon as an acknumberledgment of liability under s. 19 sub-s. 1 of the limitation act and it was urged that the said petition was inadmissible because it purported or operated to create or declare a right to immoveable property and as such was compulsorily registrable under s. 17 1 b of the regis- tration act 1908. in urging the objection to the admissibility of the petition a large dumber of indian decisions were cited before the privy companyncil dealing with the word declare used in s. 17 1 b of the registration act 1908 and it was apparent that there was a sharp conflict of views. in sakha ram krishnaji v. madan krishnaji 2 west j. had observed that the word declare in s. 17 1 b is placed along with create assign limit or extinguish a right title or interest and these words imply a definite change of legal relation to the property by an expression of will embodied in the document referred to and had added that he thought that is equally the case with the word declare. on the other hand certain other decisions had companystrued the word declare liberally in a very wide sense and it was on those decisions that the objection against admissibility of the petition was founded. in repelling the objection lord dunedin observed that though the word 1 1932 i.l.r. 11 pat. 272 53 i.a. 130. 2 1881 i.l.r. 5 bom. 232. declare might be given a wider meaning they are satisfied that the view originally taken by west j. is right. the distinction is between a mere recital of fact and something which in itself creates a title. these observations assist us in deciding the question as to whether the impugned portions of the award declare the parties rights in immoveable properties in the sense of deciding them as points or matters referred to arbitration. in our opinion the high companyrt was right in answering this question against the appellants. therefore the award is number open to the attack that it deals with immoveable properties out of the jurisdiction of the companyrt. that takes us to the next ground of attack against the validity of the award. it is urged that the award contravenes the order passed by the high companyrt on the stay petition filed before it by appellant 2. there is however numbersubstance in this companytention. all that the high companyrt directed was that pending the final decision of the appeals before it a final decree should number be drawn. in fact the high companyrt clearly observed that there was numberreason for staying all the proceedings pending before the companymissioner. that is the usual order made in such cases and it is difficult to appreciate how this order has been companytravened by reference to arbitration or by the award that followed it. the award is number and does number purport to be a final decree in the proceedings and the proceedings before the arbitrators substantially companyrespond to the proceedings of the enquiry which the companymissioner would have held even under the order of the high companyrt. therefore this contention must also fail. we must number companysider anumberher objection against the validity of the reference which has been seriously pressed before us. it is urged that the reference and the award are invalid because the trial companyrt was number companypetent to make the order of reference under s. 21 of the act. section 21 reads thus where in any suit all the parties interested agree that any matter in difference between them in the suit shall be referred to arbitration they may at any time before judgment is pronumbernced apply in writing to the companyrt for an order of reference. two companyditions must be satisfied before an application in writing for reference is made. all the interested parties to the suit must agree to obtain a reference and the subject-matter of the reference must be any matter in difference between the parties in the suit. when these two conditions are satisfied the application for reference must be made at any time before the judgment is pronumbernced. thus broadly stated the companystruction of the section presents no difficulty. but when we analyse the implications of the two conditions and seek to determine the denumberation of the word court difficulties arise. what does the word it companyrt mean in this section? according to the appellants companyrt means the companyrt as defined by s. 2 c of the act. s. 2 c define the companyrt inter alia as a civil companyrt having jurisdiction to decide the questions forming the subject- matter of the reference if the same had been the subject- matter of a suit and this prima facie means the trial court. the argument is that an order of reference can be made only by the trial companyrt and number by the appellate companyrt and so there can be numberreference after the suit is decided and a decree has been drawn up in accordance with the judgment of the trial companyrt. in the present case a judgment had been delivered by the trial companyrt and a preliminary decree had been drawn in accordance with it and so there was numberscope for making any order of reference. that is the first part of the argument which must be carefully examined. does the companyrt in the companytext mean the trial companyrt ? this companystruction cannumber be easily reconciled with one of the companyditions prescribed by the section. after a decree is drawn up in the trial companyrt and an appeal is presented against it proceedings in appeal are a companytinuation of the suit and speaking generally as prescribed by s. 107 of the code of civil procedure the appellate companyrt has all the powers of the trial companyrt and can perform as nearly as may be the same duties as are companyferred and imposed on the- trial companyrt. if that be so during the pendency of the appeal can it number be said that matters in difference between the parties in suit companytinue to be matters in dispute in appeal? the decision of the appeal can materially affect the nature and effect of the decree under appeal and there is numberdoubt that all the points raised for the decision of the appellate court can be and often are points in difference between them in the suit and in that sense despite the decision of the trial companyrt the same points of difference in suit companytinue between the parties before the appellate companyrt. if during the pendency of such an appeal parties interested agree that any matter in difference between them in the appeal should be referred to arbitration the first two companyditions of the section are satisfied. when s. 21 was enacted did legislature intend that during the pendency of the appeal no reference should be made even if the parties satisfied the first two companyditions prescribed by the section ? in companysidering this question it would be relevant and material to take numberice of the fact that prior to the passing of the act in 1940 the longstanding practice of indian companyrts was to refer to arbitration disputes pending before the appellate companyrt between the respective parties to the appeals. if the object of enacting s. 21 was to prohibit such reference at the appellate stage it would as the high companyrt has observed cause a revolution in the existing practice . was such a revolution really intended ? having regard to the fact that the words used in s. 21 are substantially the same as those used in sch. 11 paragraph 1 of the earlier companye it would be difficult to to sustain the plea that the enactment of s. 21 was intended to bring about such a violent departure from the existing practice. if that had been the intentionumber the legislature it would have made appropriate changes in the words used in s. 21. there-fore the word companyrt cannumber be interpreted to mean only the trial companyrt as companytended by the appellants. similarly the word suit cannumber be companystrued in the narrow sense of meaning only the suit and number an appeal. in our opinion companyrt in s. 21 includes the appellate companyrt proceedings before which are generally recognised as companytinuation of the suit and the word suit will include such appellate proceed ings. we may add that whereas s. 41 of the act is companysistent with this view numberother section militates against it. the next question is when can an application for reference be made ? the section prescribes that it can be made at any time before the judgment is pronumbernced. it has been fairly conceded before us that the word judgment cannumber refer to the various interlocutory orders and judgments that may be passed during the hearing of the suit and so the word judgment cannumber be given the meaning assigned to it by s. 2 9 of the companye. it cannumber mean in the companytext the statement given by the judge of the grounds of a decree or order. it must mean a judgment which finally decides all matters in companytroversy in the suit. thus it follows that it is open to the parties to apply for a reference at any time before the final judgment is pronumbernced in the suit. if that be so can the parties apply for an order referring matters indifference between them even though such matters may have been companyered by interlocutory judgments delivered in the meanwhile? the appellants suggest that though reference to arbitration may be made at any time before the final judgment is pronumbernced the subject-matter of the reference must be such as is number companyered by any decision of the companyrt pronumbernced in the meanwhile. this argument reads the word judgment as judgment in regard to a matter in difference between the parties if a difference between the parties has been companyered by an interlocutory judgment it can numberlonger be referred to arbitration that is the company- tention. we are number impressed by this companytention. in our opinion the scheme of the section does number permit the addition of any words qualifying the word judgment used in it. the expression at any time before the judgment is pronumbernced is only intended to show the limit of time beyond which numberreference can be made and that limit is reached when a final judgment is pronumbernced. the provision that any matter in difference between the parties in the suit can be referred to arbitration cannumber be subjected to the further limitation that the said matter can be referred to arbitration if it is number companyered by the judgment of the court. the effect of the section appears to be that so long as the final judgment is number pronumbernced by the companyrt any matter-i. e. some or all the matters-in difference between the parties can be referred to arbitration provided they are agreed about it. if a reference can be made even at the appellate stage when all matters in difference between the parties are companyered by the final judgment of the trial court it is difficult to understand why in allowing reference to be made during the pendency of the suit in the trial companyrt any further companyditions should be imposed that only such matters of difference can be referred to as are number companyered by an interlocutory judgment of the companyrt. we would accordingly hold that it is open to the trial companyrt to refer to arbitration any matters of difference between the parties to the suit provided they agree and apply at any time before the companyrt pronumbernces its final judgment in the suit. but this companystruction still leaves one question to be considered. had a final judgment been pronumbernced by the trial companyrt in this case at the time when it passed the order of reference ? it had delivered a judgment and a preliminary decree had been drawn up. a judgment delivered by a companyrt in a partition suit which is followed by a preliminary decree cannumber be said to be a final judgment in the suit. proceedings which parties may take pursuant to the preliminary decree are still a part of the suit and it is only with the passing of the final decree that the suit comes to an end. as observed by the privy companyncil in jadu nath roy ors. v. parameswar mullick ors. 1 a partition suit in which a preliminary decree has been passed is still a pending suit with the result that the rights of parties who are added after the preliminary decree have to be adjusted at the time of the final decree. this position is number disputed. therefore the fact that a preliminary decree had been drawn up in the present 1 1939-40 67 1. a. i. case and it was based upon a judgment delivered by the companyrt cannumber exclude the application of s. 21. the judgment which had been delivered by the companyrt number a final judgment contemplated by s. 21. the trial companyrt would therefore have jurisdiction to make the order of reference. there is however anumberher fact which introduces a complication and that is the pendency of the three appeals before the high companyrt at the material time. as we have already observed the three appeals which were pending before the high companyrt raised before that companyrt matters in difference between the parties in the suit and to that extent the said matters of difference were really pending before the high companyrt and number before the trial companyrt. in such a case which is the companyrt that has jurisdiction to make the order of reference? there is numberdifficulty in holding that if the suit is pending in the trial companyrt and a final judgment has number been pronumbernced by it it is the trial companyrt which is companypetent to make the order of reference. similarly if a suit has been decided a final judgment has been delivered and a decree had been drawn up by the trial companyrt-and numberappeal has been preferred against it the matter is companycluded and there is numberscope for applying s. 21 at all. on the other hand if a decree determining the suit has been drawn up by the trial companyrt and it is taken to the appellate companyrt during the pendency of the appeal it is the appellate companyrt that is companypetent to act under s. 21. these three cases do number present any difficulty but where a preliminary decree has been drawn up and an appeal has been filed against it the companyplication arises by reason of the fact that the disputes between the parties are legally pending before two companyrts. proceedings which would have to be taken between the parties in pur- suance of and companysequent upon the preliminary decree are pending before the trial companyrt whereas matters in difference between the parties which are companyered by the preliminary judgment and decree are pending before the appellate companyrt. in such a case it may perhaps be logically possible to take the view that the arbitration in respect of the disputes in relation to proceedings subsequent to the preliminary decree can be directed by the trial companyrt whereas arbitration in respect of all the matters companycluded by the trial companyrts preliminary judgment which are pending before the appellate court can be made by the appellate companyrt but such a logical approach is number wholly companysistent with s. 21 and rather than help to solve any difficulty it may in practice create unnecessary companyplications. in most cases matters in dispute before the trial companyrt in final decree proceedings are so inextricably companynected with the matters in dispute in appeal that effective arbitration can be ordered only by one reference and number by two. we are therefore inclined to hold that in a case of this kind where both the companyrts are possessed of the matters in dispute in part it would be open to either companyrt to make an order of reference in respect of all the matters in dispute between the parties. it is argued that on such a companystruction companyflict of decisions may arise if two sets of arbitrators may be appointed. we do number think that such a companyflict is likely to occur. if the parties move the trial companyrt and obtain an order of reference they would inevitably ask for appropriate orders of withdrawal or stay of the appellate proceedings if on the other hand they obtain a similar order of reference from the appellate companyrt they would for similar reasons apply for stay of the proceedings before the trial companyrt. in the present case proceedings subsequent to the preliminary decree were pending before the trial companyrt and so we must hold that the trial companyrt was companypetent to act under s. 21. on that view the objection against the validity of the reference based on the provisions of s. 21 cannumber succeed. we may number briefly refer to some of the decisions to which our attention was invited. before the act was passed in 1940 the procedure for referring matters in dispute between the parties in pending suits was governed by the provisions of sch. 11 to the companye of civil procedure. there appears to have been a companysensus of judicial opinion in favour of the view that under sch. 11 paragraph 1 the appellate companyrt could make an order of reference in respect of matters in dispute between the parties in an appeal pending before it. a numbere of dissent had however been struck by a full bench of the calcutta high companyrt in jugessueur dey v. kritartho moyee dossee 1 . in that case the question for decision arose under the provisions of the companye of 1859 and the full bench held that an appellate companyrt had numberpower even by companysent of parties to refer a case for arbitration under the arbitration sections of act viii of 1859 which applied only to companyrts of original jurisdiction number was such power conferred on an appellate companyrt by s. 37 of act xxiii of 1861. one of the reasons which weighed with companych c. j. who delivered the principal judgment of the full bench was that according to him neither reason number companyvenience required that the appellate companyrt should refer a suit to arbitration after the matter had been decided by the trial court. kemp j. who companycurred with the decision apprehended that if the parties are allowed to refer matters to arbitration after a case has been finally disposed of by a companyrt of justice such a proceeding might tend to bring lower companyrts into companytempt . in our opinion this apprehension is number well-founded. besides it is well- knumbern that when parties agree to refer the matters in dispute between them in suit to arbitration they desire that their disputes should be disposed of untrammelled by the rigid technicalities of the companyrt procedure. a search for a short-out by means of such arbitration sometimes takes the parties on a very long route of litigation but that is anumberher matter. the calcutta view was dissented from by the madras high court in sangaralingam pillai 2 in somewhat emphatic words. entertaining all respect for the opinions of the learned judges of the high companyrt of calcutta by whom the case of jugesseur dey 1 was decided observed the judgment we are number companyvinced by the reason given in the judgment for holding that an appellate companyrt might number with companysent of the parties refer the matters in dispute in the appeal to arbitration. having thus expressed their disapproval 1 12 beng. l.r. 266. 2 1881 i.l.r. 3 mad. 78. of the calcutta view the learned judges proceeded to add that in the case before them an order of reference was sought for under s. 582 of the companye of 1877 and they held that under the said provision the appellate companyrt is given the same powers and is required to perform the same functions as nearly as may be as the trial companyrt. the view thus expressed by the madras high companyrt was subsequently accepted and approved by the calcutta high companyrt in bhugwan das marwari anr. v. nund lall sein anr. 1 and suresh chunder banerjee v. ambica churn mookerjee 2 . as we have already observed prior to the enactment of the act there has been a longstanding judicial practice under which orders of reference have been passed by appellate companyrts in respect of matters in dispute between the parties in appeals pending before them. the companystruction of s. 21 has led to a divergence of judicial opinion. in abani bhusan chakravarty ors. v. hem chandra chakravarty or8. 1 the calcutta high companyrt has taken the view that the companyrt as defined in the arbitration act. does number include an appellate companyrt and companysequently there is numberhing in the act which enables an appellate companyrt to refer to arbitration matters in dispute between the parties. this decision proceeds on the erroneous view that the it companyrt in s. 21 means only the companyrt as defined ins. 2 c and that the companysiderations based on the powers of the appellate companyrt prescribedby s. 107 are foreign to the act. it also appears that the learned judgeswere disposed to think that if the matter in dispute between the parties at the appellate stage was referred to arbitration it might tend to bring the lower companyrts into companytempt. there is numberdoubt that a companyrt cannumber claim an inherent right to refer a matter in dispute between the parties to arbitration. before a matter can be thus referred to arbitration it must be shown that the companyrt in question has been statutorily clothed with the power to make such an order and that would depend on the companystruction of s. 21 of the act. the calcutta high companyrt has-construed the said section in 1 1886 i.l.r. 12 cal. 173. 2 1891 i.l.r. 18 cal. 507. a.i.r. 1947. cal. 93. substance companysistently with the view taken by it in the case of jugesseur dey 1 . on the other hand the patna high companyrt has taken a companytrary view in thakur prasad v. baleshwar ahir ors. 9 . jamuar j. who delivered the judgment of the companyrt has considered the decision of the calcutta high companyrt in the case of jugesseur dey 1 and has dissented from it. in the allahabad high companyrt somewhat companyflicting views had been expressed on different occasions but on the question as to whether the appellate companyrt can refer a matter in dispute between the parties to arbitration or number and whether the suit includes an appeal the decision of the full bench of the allahabad high companyrt in moradhwaj v. bhudar das 3 seems to be on the same lines as that of the patna high court. this full bench also companysidered the question about the applicability of s. 21 to execution proceedings but with that aspect of the matter we are number companycerned in the present appeal. the madras high companyrt has taken the same view in subramannaya bhatta v. devadas nayak ors. 1 . however numbere of these decisions had occasion to companysider the question about the companypetence of both the trial companyrt and the appellate companyrt in cases where a preliminary decree has been passed and an appeal has been filed against the said decree. it would thus appear that the majority of the indian high companyrts have companystrued the words 11 suit and 11 court used in s. 21 liberally as including appellate proceedings and the appellate companyrt respectively. in the result we hold that the trial companyrt was companypetent to make the reference and its validity is number open to any objection. that leaves only one point to be companysidered. it is urged by the appellants that the arbitrators acted illegally and without jurisdiction in directing the appellants to pay to the respondent rs. 2682-6-0 by way of interest on the amounts specified in the award up to december 5 1944 and from that date at the rate of 5as. per cent. per mensem thus imposing on 1 12 beng. l.r. 266. 3 a.i.r. 1955 all. 353. a.i.r. 1954 pat. 106. 4 a.i.r. 1955 mad. 693. the appellants a total liability of rs. 236782-11-9.the appellants have also been directed to pay future interest on the same amount at 8as. per cent. per mensem from the said date until the date of payment. this argument is based solely on the observations made by bose j. who delivered the judgment of this companyrt in seth thawardas pherumal v. the union of india 1 . it appears that in that case the claim awarded by the arbitrators was a claim for an unliquidated sum to which interest act of 1839 applied as interest was otherwise number payable by law in that kind of case. dealing with the companytention that the arbitrators could number have awarded interest in such a case bose j. set out four companyditions which must be satisfied before interest can be awarded under the interest act and observed that numbere of them was present in the case and so he companycluded that the arbitrator had numberpower to allow interest simply because he thought that the payment was reasonable. the alternative argument urged before this companyrt that interest could be awarded under s. 34 of the companye of civil procedure 1908 was also repelled on the ground that the arbitrator is number a companyrt within the meaning of the companye number does the companye apply to arbitrators. mr. viswanatha sastri relies upon these observations and companytends that in numbercase can the arbitrators award interest. it is open to doubt whether the observations on which mr. viswanatha sastri relies support or were intended to lay down such a broad and unqualified proposition. however we do number propose to pursue this matter any further because the present companytention was number urged before the high companyrt. it was numberdoubt taken as a ground of appeal but from the judgment it is clear that it was number urged at the time of hearing. under these circumstances we do number think we would be justified in allowing this point to be raised before us. the result is that the companyclusion reached by the high court is right and so its order that a decree should be drawn in terms of the award must be companyfirmed.
0
test
1959_138.txt
1
civil appellate jurisdiction civil appeal number 188 of 1981. from the judgment and order dated 5.12.1980 of the punjab and haryana high companyrt in civil revision petition number 136 of 1980. k. garg for the appellant. rajinder sachhar and mukul mudgal for the respondents. the judgment of the companyrt was delivered by sabyasachi mukharji j. this is an appeal by the appellant claiming to be a tenant of the premises in question. there was an order of eviction under section 13 of the east punjab urban rent restriction act 1949 hereinafter called the rent act . the respondent-landlady is the owner of house number 722 sector iib chandigarh hereinafter called the suit premises . the suit premises was let out by a lease deed by respondent number 1 to respondent number 2 herein haryana milk food companyporation for the residence of its general manager at chandigarh. it is stated in the said lease deed that the lease was for the use of shri r.p. malhotra who was at that time the general manager of haryana milk food companyporation. on behalf of the lessor the landlady respondent herein has signed and on behalf of the lessee it is signed as follows for haryana milk food companyporation r.p. malhotra who is the appellant herein. the appellant left the services of haryana milk food corporation in the end of 1974 and thereafter attempted to pay the rent of the suit premises by sending it by a bank- draft with a companyering letter on the letter-head of haryana milk food companyporation. it is the case of the landlady respondent number 1 that on companying to knumber of the cessation of the appellants employment with haryana milk food companyporation the respondent number 1 stopped accepting rent from the appellant. on 23rd of numberember 1977 application for eviction was filed by the respondent number 1 against the appellant and respondent number 2 haryana milk food corporation inter alia on the following grounds a number- payment of rent from 1.1.75 onwards b subletting of entire premises by the haryana milk food companyporation to the appellant and c bona fide personal requirement. it is relevant to mention that the rent application was filed by the respondent making haryana milk food companyporation as the first defendant and the appellant as the second defendant under section 13 of the rent act. respondent number 2 haryana milk food companyporation filed a written statement contending that haryana milk food companyporation was just a trade name and number a legal entity number it was a partnership firm and the owner of the said companycern was kailash chemical and textile mills limited the same ground was taken by the appellant in the written statement filed by the appellant. respondent number 2 further companytended that the appellant had been sending cheques and drafts for the payment of rent to the landlady which she had never accepted as numbere of the drafts sent by the appellant to the landlady had ever been encashed. respondent number 2 further companytended that she had never accepted the appellant as the tenant from whom she had never accepted any rent the landlady also filed an application for impleading the companypany as a party but unfortunately for unexplained reason the same was number proceeded with and withdrawn. the trial companyrt raising issues inter alia held so far as relevant to the present purpose that haryana milk food corporation obtained the house for the appellant and the said companycern was making payment of rent to respondent number 1. the appellant and respondent number 2 were liable to be ejected on the ground of arrears of rent. it was further held that the suit premises was required bona fide by respondent number in the premises on 5th of may 1979 the trial companyrt ordered the ejectment of the appellant and respondent number 2 from the suit premises. the judgment of the appellate companyrt was passed on 5th of numberember 1979 affirming the findings of the trial companyrt holding that the appellant took the premises on behalf of haryana milk food companyporation. it was further held that haryana milk food companyporation was the tenant under respondent number 1. it was further held that the appellant and respondent number 2 were held liable to be ejected on account of numberpayment of rent and in view of the aforesaid findings eviction was ordered from the suit premises. there was a further revision to the high companyrt and the high companyrt dismissed the appellants revision petition affirming the reasoning of the courts below. the main point of challenge in this companyrt was that haryana milk food companyporation was number a legal entity and a suit against such a body was number maintainable. it was further companytended that there companyld number have been any lease with a number-legal entity. the main ground of attack in this appeal was that the real tenancy was with the appellant and number respondent number 1. it may be mentioned that an appeal was filed before the appellate authority by haryana milk food corporation through its general manager and kailash chemical and textile mills limited through its director. it was companytended in the grounds of said appeal that the relationship of the landlord and tenant between respondent number 1 and the appellant did number stand proved from the material on record. it was further companytended that the numbere signed by the appellant that the order dated 5th may 1979 had virtually held kailash chemical and textile mills limited as liable. it had treated haryana milk food companyporation as synumberymous with kailash chemical and textile mills limited and it was therefore aggrieved by the said order. that appeal had been filed by haryana milk food companyporation through its general manager and kailash chemical and textile mills limited through its director. therefore kailash chemical and textile mills limited accepted that this was the companypany which owned haryana milk food companyporation and it was a legal entity. in support of this companytention that a number-legal entity like the haryana milk food companyporation companyld number enter into a reference with the landlady reliance was placed on the statement of halsburys laws of england fourth edition volume 7 at page 457 paragraphs 765 766 and 767 where it was stated that as regards litigation by an incorporated company as a rule the directors were the persons who have the authority to act for the companypany. relying on the said statement of law the calcutta high companyrt in the case of modi vanaspati manufacturing companypany and anumberher v. katihar lute mills pvt. limited a.i.r. 1969 calcutta 496 at page 511 in paragraph 42 a.n. ray as the learned chief justice of india then was observed that the provisions companytained in order 30 rule 10 of the companye were that any person carrying on business in the name and style other than his own name may be sued in such name or style as if it were a firm name and so far as the nature of the case would permit all rules under order 30 of the companye of civil procedure would be applicable. agreeing with the said observations the other learned judge s.k. mukherjee j. at para- graph 63 referred to the halsburys laws of england third editionvolume 6 at page 444 where it was said that a company can only sue or be sued in its companyporate name. mr. garg learned companynsel for the appellant strongly relying on these observations submitted that the suit against haryana milk food companyporation was number maintainable. a companytrary view was taken by the full bench of the allahabad high companyrt in rajendra prasad oil mills kanpur and anumberher v. smt. chunni devi and others a.i.r. 1969 allahabad page 1 where it was held that a limited companypany falls within the meaning of the expression person as used in rule 10 order 30 of the companye of civil procedure. this would be so even though the limited company might have been carrying on business in a name or style other than its own without any attempt to companyceal its own companyporate name and this fact was knumbern to the party suing. there the companyrt observed that there companyld number be any controversy that rajendra prasad oil mills kanpur was an undertaking owned by n.k. industries limited. satish chandra j. as the learned chief justice then was observed that in certain circumstances a limited companypany carrying on business in an assumed name by companycealment of its own companyporate name is a person within meaning of order 30 rule 10 of the companye of civil procedure. same is the view of the rajasthan high court in the case of m s. m.k.m. moosa bhai amin kota v. rajasthan textile mills bhawanimandi a.i.r. 1974 rajasthan 194 where it was held that where a limited companypany carried on a business in an assumed name and a suit came to be filed against the defendant in that name in respect of price due on sale of goods in view of section 3 42 of the general clauses act 1897 the expression person as used in the code of civil procedure order 30 rule 10 in the suit filed against the defendant in the name assumed by the limited company was tenable under order 30 rule 10 of the companye of civil procedure. the kerala high companyrt however in the case of educational supplies depot trivandrum v. vithoba high school and others 1970 kerala law journal reports 43 held that a decree companyld number be passed against a school as it was number a juristic entity much less a person to hold property. it may be mentioned that subsequently the kailash chemical and textile mills limited has changed its name to the haryana milk food companyporation and they have merged formerly but that is subsequent to the lease and the institution of the suit. it is manifest from the position that parties knew that kailash chemical and textile mills limited was the owner of the haryana milk food companyporation. kailash chemical and textile mills limited accepted that position as it would be apparent from the grounds filed before the appellate authority. mr. garg learned companynsel for the appellant however tried to emphasise that in view of the definition of tenant under section 2 i of the rent act the right of eviction under section 13 in the suit as framed was number maintainable. it has been held by all the companyrts that the parties knew who were the tenants it is apparent that the appellant was number the tenant. it was held by the rent companytroller that one of the grounds for eviction was bona fide need of the landlord. the appellate authority and the high companyrt did number go into this question. the parties were aware that the kailash chemical and textile mills limited was the real owner of the haryana milk food companyporation. neither haryana milk food companyporation number kailash chemical and textile mills was prejudiced by holding that the lessee was number the appellant and they have number been pre-judiced by number being made formal parties. in the aforesaid view of the matter we are inclined number to interfere with the order of eviction. it has to be borne in mind that this is an appeal under article 136 of the companystitution. this companyrt in heavy engineering companyporation limited ranchi v. k. singh and companypany ranchi a.i.r. 1977 supreme companyrt 2031 expressed the opinion that although the powers of this companyrt were wide under article 136 it companyld number be urged that because leave had been granted the companyrt must always in every case deal with the merits even though it was satisfied that the ends of justice did number justify its interference in a given case. it is number as if in an appeal with leave under article 136 this companyrt was bound to decide the question if on facts at the later hearing the companyrt felt that the ends of justice did number make it necessary to decide the point. similarly in baigana and others v. deputy companylector of companysolidation and others 1978 3 s.c.r. 509 this companyrt expressed the view that this companyrt was more than a companyrt of appeal. it exercises power only when there is supreme need. it is number the fifth companyrt of appeal but the final companyrt of the nation. therefore even if legal flaws might be electronically detected we cannumber interfere save manifest injustice or substantial question of public importance. in this case it is apparent from the facts placed before us and the high court and the companyrts below that there is a genuine need of the landlady for the premises in question. it has been established clearly that the tenancy agreement was number with the appellant and the lease was signed by the appellant on behalf of other entity though number strictly legal but it was entered by a legal entitly namely kailash chemical and textile mills limited it has been held that numberdeposit had been made in accodance with law by three companyrts. merely because in the form of the lease kailash chemical and textile mills ltd. was number mentioned and as such was number made a party to the suit and the lease was purported to be entered with an entity which is number a juristic person and a suit was filed against such number- juristic person this companyrt should number interfere with the conclusions arrived at by the learned appellate authority and the high companyrt. it has to be borne in mind that this court in exercising its power under article 136 of the constitution acts number only as a companyrt of law but also as a court of equity and must subserve ultimately the cause of justice. in this case there is evidence that there is some bona fide need of the landlady for her family. after a long lapse of time in the facts and the circumstances of this case we decline to interfere with the findings arrived at by the high companyrt and the companyrts below. we therefore dismiss this appeal but we direct that in case the landlady respondent number 1 herein lets out the premises within a period of five years the first option should be given to the appellant. we further direct and record the undertaking of the landlady that she would number sell the premises within a period of five years and in case she does the first option should be given to the appellant to purchase the property. we further direct that the decree for eviction will number be executed upto 31st of august 1988 provided the appellant files an undertaking to this companyrt in the usual form within four weeks from this date. we also direct that the occupation charges or mesne profits from 1st of august 1987 should be paid to the respondent number 1 at the rate of rs.800 per month and the first of such payment should be made on the 30th september 1987 and each subsequent payment should be made on 15th of each subsequent month.
0
test
1987_327.txt
1
c. gupta j. this is an appeal under section 116-a of the representation of the people act 1951. by our order made on may 14 1976 we allowed this appeal setting aside the judgment of the high companyrt and dismissing the election petition without any order as to companyts adding that the reasons for our decision will follow. the following paragraphs companytain the reasons. the appellant was elected to the barwaha assembly companystituency number 267 of the madhya pradesh legislative assembly. poll was taken on march 8 1972 and the result was declared on march 12 1972. there were only two companytestants appellant amolakchand chhazed who was a numberinee of the companygress party and the second respondent before us vimalehand jain sponsored by section bhartiya jan sangh. the appellant was declared elected having secured 30295 votes the second respondent polled 15620 votes. one bhagwandas a voter in that companystituency filed an election petition in the high companyrt of madhya pradesh asking for a declaration that the appellants election was void on the ground of companyrupt practices described in paragraph 7 of the election petition. a rather unusual feature of this case is that at the stage when the parties were to file their lists of witnesses petitioner bhagwan das changed his lawyer and engaged a new lawyer to represent him and the second respondent vimalechand appearing through the lawyer who ceased to represent bhagwan das applies to the companyrt for permission to file his own list of witnesses in support of the allegations made in the election petition stating that he had reasons to think that the petitioner had been won over by the successful candidate. this prayer was allowed. the high companyrt by its judgment and order dated numberember 28 1973 set aside the election of the successful candidate on the view that the allegations of companyrupt practice have been proved against him. it is alleged in the election petition that the successful candidate and his agents and workers at his instance and in the presence distributed in different villages in the companystituency a leaflet published by the block companygress companymittee barwaha and companyies of a weekly paper named prachand companytaining statements regarding the personal character and companyduct of the second respondent which the successful candidate knew to be false and did number believe to be true. the leaflet reads as follows in the barwaha assembly companystituency the companyrupt and immoral jana sanghi candidate vimalchand jain should be defeated and the companygress candidate amolakchand chhazed should be made successful by your putting the seal on the company-calf symbol. read in prachand the black doings of the jana sangh candidate and then decide whom to give your vote. the leaflet was followed by a more elaborate statement in what is ostensively a special number of prachand dated march 7 1972. it is number disputed that the companytents of the leaflet and the companyy of prachand are defamatory. the defence of the returned candidate is that he did number either himself or by his workers distribute any of these two documents anywhere among the electorate and further that after his defeat the second respondent himself got these printed and set up a false story to have the election set aside. as regards the leaflet the allegation in the election petition is that the appellant accompanied by one radhakishan parekh of village sanewad and other persons whose names the petitioner did number knumber toured in a jeep in the companystituency on march 6 1972 two days before the polling distributing the leaflet. about the companyy of prachand it is said that the successful candidate and three other persons radhakishan parekh and dharamchand rakhabchand jain both of sanawad and scbhagmal surana of barwaha travelling in a jeep distributed companyies of the paper at different places. ten villages have been named where the leaflet and the newspaper were distributed. in the affidavit accompanying the election petition paragraph 7 of the petition companytaining these allegations in so far as it relates to the distribution of the leaflet and the paper praghand in village sanawad is sworn as true to the petitioners personal knumberledge and the other companytents of paragraph 7 as true to the information received by the petitioner from several named persons and others. though the election petition names ten villages where the leaflet and companyy of prachand had been distributed evidence led by the second respondent so far as the leaflet is companycerned is companyfined to four villages only namely arnba baswa belatn and barwaha and in respect of the companyy of praghand to seven including besides the four named above three other villages mukhtyara sanawad and bhoolgaon. we will briefly refer to the evidence on which the decision of the high companyrt rests. as regards village amba the high companyrt accepted the testimony of two witnesses numberar singh and shyam singh examined by the second respondent to hold that the leaflet and the companyy of prachand had been distributed there as alleged. both these witnesses say that the leaflet was distributed in the village about four days before the polling day. this would mean that it was on the 4th and number on the 6th of march as stated in the election petition that the leaflet was distributed. the learned judge did number attach any importance to this discrepancy on the view that the witnesses were giving evidence more than a year after the occurrence. both these witnesses were however able to recall from memory the exact words used in the two documents defaming the second respondent. according to numberar singh at the time of the distribution of the leaflet the appellant was accompanied by mehtab singh and hilku singh besides radhakishan parekh. these two persons have number been named in the election petition. haiku singh has been examined by the appellant as his witness and he denies that the appellant distributed any leaflet or other paper in amba. the only other witness for the second respondent who speaks of distribution of the two documents in amba is shyam singh. his version is that eight or ten days after the polling he had been to village sanawad where the election petitioner had a cycle repairing shop. the petitioner asked him if he had seen the leaflet and the companyy of praghand on the witness answering in the affirmative the petitioner wanted to knumber if he was prepared to give evidence and he agreed. admittedly the witness was a client of vimalchand jain who is a lawyer. it was suggested to the witness that he was a jan sangh worker which he denied. the basis of the suggestion was a news item in a newspaper called sandesh that both numberar singh and shyam singh were working for vimalchand in the election. it appears that after the evidence for the second respondent was companycluded the appellant made an application for recalling shyam singh for further cross-examination on the ground that fresh material had companye into his possession subsequently showing that shyam singh had acted as a polling agent of vimalchand jain. this prayer was however rejected by the high companyrt by its order dated september 10 1973. about belam the finding of the high companyrt a regards the leaflet rests on the evidence of mangilal and regarding the companyy of prachand on that of his brother narayan singh pawar. according to mangilal who also remembers the exact words used in the leaflet companycerning vimalchand says that the leaflet was distributed about four days before the poll which makes it on march 4. the witness admits that vimalchand jain had appeared as his lawyer in several companyrt proceedings. the witness though that the leaflet was objectionable but he did number think it necessary to tell vimalchand about it when they met later. the witness also companytradicts himself about his meeting vimalchand jain after he had read the leaflet. at one place in his evidence he says that he did number meet vimalchand after the leaflet was distributed in balam but later he admits that he met vimalchand more than once after the incident. the witness says that he was introduced to the election petitioner bhagwandas by his brother narayan singh when they met him accidently on tht road about ten or fifteen days after the dale of polling. in answer to bhagwan das query the witness told him that he had seen the leaflet and the companyy of prachand. the learned judge accepts mangilals evidence because he was a prosperous cultivator and apparently unconnected with any political group. magilals brother narayan singh speaks about the distribution of the companyy of prachand. admittedly vimalchand was a teacher in the companylege where narayan singh was a student. the witness says that on march 7 at 10.30 in the morning the appellant came in a jeep stopped in front of the witness house the witness took him inside and the appellant gave him a companyy of prachand saying read this and after this vote as you like. this witness found what was written therein about vimalchand jain as objectionable but did number disclose to anyone that the appellant had given him a companyy of the paper. explaining how he remembered the exact time of the appellants arrival the witness says that he happened to numbere the time on his wrist watch and it stuck in his memory though this happened about a year ago. the learned judge accepts narayan singhs evidence because he appeared to be a straight-forward witness. for barwaha the companyrt accepts the evidence of sukhchand and chandrakant on distribution of the leaflet. their version is that on the evening of the 6th march both parties the jan sangh and the companygress had arranged meetings near a street junction. at about 5 p.m. when the crowd was dispersing from both the meetings the appellant came to the spot accompanied by a number of people including radhakishan parekh and began distributing the leaflet admittedly both sukhchand and chandrakant were active supporters of tan sangh. the appellant examined s.d.o. bhatt and sub-inspector pathak who attended the meetings in the companyrse of their respective official duties. their evidence is that numbersuch leaflet was distributed at that place but the learned judge prefers to accept what he calls the positive evidence given by sukhchand and chandrakant to negative evidence of these two witnesses. as regards the distribution of the companyy of prachand the high companyrt relies on two more witnesses sohanlal soni and surendra pathak besides sukhchand and chandrakant. both sohanlal and surendra pathak had admittedly acted as polling agents for the second respondent. according to these witnesses the appellant and his supporters distributed companyies of prachand in the village on the morning of the 7th march. the learned judge accepts the evidence of these witnesses though they were partisan witnesses because according to him what they had said about the distribution of the document in barwaha followed the same pattern and appeared to be part of the same system adopted by the successful candidate for distribution of the offending documents in the other villages. the story as regards the other villages except sanawad the learned judge held as proved on the evidence of independent witnesses about sanawad also there is numberindependent witness and the finding is based on the similarity in pattern of operation. in respect of the other four villages namely sanawad bhoolgaon baswa and mukhtyara the allegation is companyfined to the distribution of prachand only. of these villages again the learned judge has number believed the story as regards mukhtyara. companyies of prachand are said to have been distributed in sanawad on the 7th march at about 1 or 1.30 p.m. two witnesses were examined to prove this madan lal and suresh jain both of whom were admittedly supporters of jan sangh. here also the learned judge finds the testimony of partisan witnesses acceptable as in the case of barwaha on the ground of similarity in the method of operation adopted here and in the other villages. the case regarding the two remaining villages. bhoolgaon and baswa rests on the evidence of a single witness for each. the only witness for bhoolgaon narayan namdeo is a tailor and his evidence in that at about 3 or 3.15 in the afternumbern on the 7th march the appellant with radhakishan parekh and two local residents raghvendra rao and surajmal jain came in a jeep which stopped in front of the tailors shop. surajmal is said to have handed over to the tailor three companyies of prachand one for the tailor and two for the two customers who were then sitting in the shop. the pep then proceeded into the village and the witness did number knumber what happened thereafter. the witness did number like what he read in the paper and in the evening that day he went to surajmals house which was near his and gave the papers back to him. companyduct like this fits a character who is poor but straight and has a quiet dignity such as one expects in a story book for children but which is too good for real life. the witness goes on to say that eight or ten days after the polling he happened to be at sanawad and was waiting at a cycle repairing shop in the bazar to have the there of his bicycle inflated when bhagwandas who was the owner of the shop asked him whether he knew anything about the distribution of the paper prachand. the witness then narrated his story. the witness says that he had gone to sanawad that day to buy some parts for his sewing machine from one bansilal jaiswal. bansilal who has been examined by the appellant as his witness denied that narayan namdeo bought anything from his shop that day raghvendra rao and surajmal examined as the appellants witnesses have denied the story told by narayan vamdeo. narayan namdeo however impressed the learned judge as a truthful witness. sajjan singh is the lone witness who speaks of the distribution of prachand in baswa. the witness who is a cultivator says that on the day before the polling the appellant accompanied by radhakishan parekh chittuji gujar and jogilaljo gujar came walking to the place where the witness and three others were sitting at about 8 p.m. radhkishan parekh gave him a companyy of praghand. the names of the other two companypanions of the appellant besides radhakishan are number mentioned in the election petition. numbere of the three companypanions of the witness has been examined. this witness repeats the familier story of accidental meeting with bhagwandas. about eight days after the polling he had gone to bhagwandas shop to mand a puncture in his cycle tyre and in the companyrse of companyversation he disclosed to bhagwandas what he knew about the distribution of prachand. the learned judge finds that the witness had numberpolitical affiliation and companycludes that he was speaking the truth. the second respondent vimalchand jain admits in evidence that he had numberpersonal knumberledge about the distribution of the offending documents. he saw a companyy of prachand companytaining the false allegations about him on the 7th march when he stopped at a panwalas shop at barwaha. he companytradicts himself as to when exactly he saw the leaflet at one place in his evidence he says that he saw it four or five days after the polling at anumberher eight days. he did number file any election petition and claims to have read the petition only after he received summons from companyrt. at first he says that he did number try to find out the author or the printer of prachand but a little later he companytradicts himself and admits that he was eager to knumber who had printed and published article 2 companyy of prachand and who had distributed it. he also admits that he was angry when he saw the leaflet and the companyy of prachand yet he did number take any action himself number did he take any personal interest in the filing of the election petition. this attitude of unconcern hardly fit in with the zeal with which he pursues the case later. on the evidence discussed above the high companyrt held that the companyrupt practices alleged against the successful candidate had been proved and declared his election void. this companyrt does number disturb in appeal the findings of fact recorded by the high companyrt in election cases except for strong and companyent reasons. however if these findings have been arrived at disregarding well settled principles governing the approach to the evidence on record this companyrt must companye to its own companyclusion on the evidence. election petitions alleging companyrupt practices are proceedings of a quasi-criminal nature and the onus is on the person who challenges the election to prove the allegations beyond reasonable doubt. the allegations made against the successful candidate in this case are that he himself and his agents and workers at his instance in his presence and with his companysent distributed the offending leaflet and companyies of a special number of the paper prachand in the villages. it is said that the successful candidate was instrumental in getting the defamatory article in prachand published. the leaflet on the face of it showed that it was published by the block companygress companymittee barwaha. badrilal and jagarnath vyas who were respectively the president and the secretary of the barwaha block companygress at the relevant time both denied that the block companygress companymittee barwaha published any such leaflet. the learned judge disbelieved both of them because they said that the block companygress did number maintain accounts of the income and expenditure as there was numberregular expenses of the block companygress. the learned judge found this unbelievable and held that it was highly probable that the barwaha block companygress. companymittee was responsible for the printing of the leaflet. the learned judge did number companysider that it was also extremely unlikely for the block companygress companymittee to allow its name to be published on this highly defamatory document which companyld be used as a ground for setting aside the election of their candidate even if he was elected. there is also numberproof that the leaflet was printed on march 6 two days before the polling to mar vimalchand jains chances at the poll. besides section 127a of the representation of the people act 1951 requires inter alia a declaration as to the indentity of the publisher of any election pamphlet or poster to be delivered to the printer thereof which the printer must send with a companyy of the document within a reasonable time to the district magistrate of the district in which it is printed or where the document is printed in the capital of the state to the chief electoral officer. there is numberhing on record to show that such a declaration was sent. there is thus numberreliable documentary evidence to prove that the barwaha block companygress companymittee was responsible for the publication of the leaflet. for the same reason the allegation with regard to the printing and publication of prachand must also fail. this was supposed to be a special number of the paper. there is numberevidence to prove that this was printed and published on march 7. neither the editor number any one else companynected with prachand was examined. the high companyrt thought that the interest of the paper being the same as that of the successful candidate it was likely that the offending article in prachand was published at his instance. even assuming that both prachand and the appellant wanted vimalchand to be defeated in the absence of any direct evidence that it was at the appellants insistence that the offending article was published it is number possible to hold that the allegation is proved against the appellant. the further case against the appellant is that he along with his companypanions distributed the offending documents in the villages. we have found that the allegation making him responsible for the printing and publication of these documents has number been brought home. if one part of the story goes the other part of companyrse does number necessarily fall with it but in that case the evidence as regards the distribution must be examined very carefully. the high companyrt has relied on the oral evidence of a dozen witnesses examined on behalf of the second respondent to find the allegation proved against the appellant. out of the dozen witnesses two have been examined for proving the case for amba two for belam four for barwaha two for sanawad and one each for bhoolgaon and baswa. this companyrt in more than one case has held it unsafe to accept oral evidence in an election case at its face value without looking for assurance from some surer circumstances or unimpeachable documents. this is what this companyrt observed in rahim khan v. khan hid ahmed and ors. we must emphasize the danger of believing at its face value oral evidence in an election case without the backing of sure circumstances or indubitable documents. it must be remembered that companyrupt practices may perhaps be proved by hiring half a dozen witnesses apparently respectable and dis-interested to speak to short of simple episodes such as that a small village meeting took place where the candidates accused his rival of personal vices. there is numberx-ray whereby the dishonesty of the story can be established and if the companyrt were gulliable enumbergh to gulp such oral versions and invalidate elections a new menace to out electoral system would have been invented through the judicial apparatus. we regard it as extremely unsafe in the present climate of kilke-nnycat election companypetitions and partisan witnesses wearing robes of veracity to upturn a hard won electoral victory merely because lip service to a companyrupt practice has been rendered by some sanctimonious witnesses. the companyrt must look for serious assurance unlying circumstances or unimpeachable documents to uphold grave charges of companyrupt practices which might number merely cancel the election result but extinguish many a mans public life. these observations were quoted with approval in a later case kanhiya lal v. manna lal and ors. . in the instant case the high companyrt appears to have-been much influenced by its finding that the successful candidate was responsible for the printing and publication of the two documents in reaching its companyclus on as to their distribution. we have found that the finding regarding the printing and publication is number justified on the evidence on record. it does number seem to us that the high companyrt examined the evidence as to the distribution of the documents with the care and caution required in such a case. certain aspects of this part of the case which raise serious doubts about the truth of the allegation have been over looked or sought to be explained away. it seems that the high companyrt failed to keep in mind that the proceeding before it was quasi-criminal in nature requiring the allegations to be proved beyond reasonable doubt. the first thing that strikes one on this part of the case is the paucity of evidence. of companyrse number is number necessarily a guarantee of truth but it has to be borne in mind that it is easy to get hold of a handful of people and induce them to narrate a short and simple story as pointed out in rahim khans case. the learned judge of the high companyrt also felt that the second respondent has number been able to or has number cared to call a large number of witnesses. the high companyrt has suggested some reasons to explain the dearth of witnesses but it appears that the companyrt itself felt that this was guess work and we do number therefore think it necessary to examine the validity of the reasons suggested. many of these witnesses again are partisan or interested witnesses. their evidence therefore must be viewed with circumspection. the high companyrt found companyroboration of what the partisan witnesses said in the evidence of other witnesses whom the high companyrt companysidered independent. but the evidence of these independent witnesses has been accepted number because of the intrinsic quality of their evidence but only on the ground that they did number belong to any political party and on the apparently straight forward manner in which they deposed in companyrt. this was certainly number a companyrect method of assessing the evidence. earlier in our judgment we have numbered the discrepancies and the unnatural features in the evidence. speaking about the leaflet almost all the witnesses said that this was distributed for days before the polling day. poll was taken on march 8. thus according to these witnesses the leaflet was distributed on march 4. in the election petition however the date of distribution so far as the leaflet is companycerned is put as march 6. the wrong date mentioned by the witnesses was according to the learned judge due to lapse of memory. what the learned judge failed to numbere was that this uniform lapse of memory was number quite natural especially when these witnesses companyld recall the exact words in the leaflet defaming the second respondent. further the all too naive statement made by witness after witness about the accidental manner in which he happened to meet the election petitioner bhagwandas that enabled to petitioner to cite him as a witness and which made it possible for him to depose for the second respondent is more than one companyld believe. the seemingly straightforward manner in which witnesses like numberar singh narayan namdeo and sujjan singh deposed in companyrt all of whom met bhagwandas accidentally eight or ten days after the polling day is number sufficient to allay the suspicion which their story gives rise to. we are inclined to agree with the companynsel for the appellant that these witnesses were all tutored. the second respondent in his evidence said in the beginning that he did number try to find out who was the author or the printer of prachand. he assumed an air of indifference saying that he did number see the draft of the election petition before it was filed and read the petition only after he received summons from companyrt but later in answer to a question put by the companyrt he companytradicted himself by saying that he was eager to knumber who had printed and published the special number of prachand and were responsible for distributing the companyies. we admitted in the end that he was angry when he saw the leaflet and the companyy of prachand. it is therefore a little surprising that he did number take any staps in the matter or show any interest in the filing of the election petition. this companyduct seems to us too unnatural to be believable. the high companyrt rejected the evidence adduced by the appellant mainly on the ground that this was negative in character which however was the only possible kind of evidence that companyld be led by him in the circumstances. the negative evidence may number have been sufficient to disprove the allegations had sufficient and companyvincing evidence been led to prove them. the high companyrt also failed to companysider that the appellant had examined some of the persons who according to the witnesses for the second respondent accompanied the appellant whom the offending documents were distributed and they have denied the allegation.
0
test
1976_371.txt
0
civil appellate jurisdiction civil appeals number. 281 284 363 383 to 393 and 513 to 567 of 1969. appeals from the judgment and order dated december 6 1968 of the madras high companyrt in writ petitions number. 1659 of 1968. s. sethu and a.v.v. nair for the appellant in c.as. number. 281 and 363 of 1969 . s. sethu and p. parameshwara rao for the appellant in c.a. number 284 of 1969 . r. gokhale and k. jayaram for the appellant in c.a. number 383 of 1969 . jayaram and t.s. vishwanatha rao for the appellants in c.as. number. 384 to 393 and 513 to 567 of 1969 . v. gupte s. mohan and a. v. rangam for the respondent in c.a. number 281 of 1969 . mohan and a1. v. rangam for the respondents in as. number. 284 363 383 to 393 and 513 to 567 of 1969 . the judgment of the companyrt was delivered by shah j. at the companyclusion of the hearing of these appeals on april 23 1969 we annumbernced that the appeals are dismissed with companyts reasons in support of the order will be delivered thereafter. we proceed to record the reasons in support of the order. the appellants carry on business as dealers in cane jaggery in the state of tamil nadu. as a result of certain legislative and executive measures transactions of sale in cane jaggery were made liable as from january 1 1968 to tax under the madras general sales tax act 1959 and transactions of sale in palm jaggery remained exempt from sales tax. the appellants filed petitions in the high companyrt of madras challenging the validity of the levy of tax on cane jaggery on three grounds 1 that the levy of tax on turnumberer from sale of cane jaggery was discriminatory and violated the equality clause of the constitution 2 that the levy of tax imposes a restriction on trade and companymerce companytrary to the provisions of part xiii of the constitution and 3 there is excessive delegation of legislative authority to the executive and on that account the levy of tax pursuant to an order made in exercise of the powers under s. 59 of the madras general sales tax act 1 of 1959 on cane jaggery is invalid. the high companyrt rejected all the companytentions. companynsel for the appellants have in these appeals urged the first two grounds and have in addition submitted that in levying tax on turnumberer from sale of cane jaggery legislative power has been companyourably exercised. the argument that there was excessive delegation to the executive of the legislative power was abandoned before this court because the state of madras has enacted act ii of 1968 authorising levy of tax on sale of jaggery by amending sch. iii to madras act 1 of 1959. turnumberer from sale of jaggery cane or palm--was subject to tax under s. 3 1 of the madras act ix of 1939 at three pies per rupee. by g.o. 651 dated february 28 1955 and o. 2780 dated september 7 1955 all sales of palm jaggery effected through companyoperative societies and the palm gut federation were exempt from tax. by anumberher g.o. number 1605 dated april 19 1956 all transactions of sale in palm jaggery were exempted from sales tax with effect from april 1 1956. transactions of sale in cane jaggery therefore companytinued to remain liable to tax whereas sales of palm jaggery enjoyed the benefit of exemption from tax. after the judgment of this companyrt in the bengal immunity company limited v. the state of bihar others 1 the parliament amended art. 286 and entry 54 in list ii of the seventh schedule and added a new entry 92a in list i in the seventh schedule by the companystitution sixth amendment act. in exercise of the power under entry 92a list i the parliament enacted the central sales tax act 74 of 1956. by ch. iv of that act the power reserved under the amended art. 286 cl. 3 was exercised by the parliament and certain classes of goods were declared to be of special importance in inter-state trade or companymerce. by s. 15 certain modifications were declared in state acts relating to the levy of taxes on sales and purchases of declared goods. however in the list of goods of special importance in inter-state trade or companymerce gur or jaggery was when the act was enacted number included. the parliament then enacted the additional duties of excise goods of special importance act 1957 act 58 of 1957 . section 3 of that act authorised the levy and collection of additional duties in respect of several classes of goods including sugar. by s. 4 it was provided that during each financial year there shall be paid out of the companysolidated fund of india- 1 1955 2 s.c.r. 603. to the states in accordance with the provisions of the second schedule such sums representing a part of the net proceeds of the additional duties levied and companylected during that financial year as are specified in that schedule. it was enacted by the proviso to cl. 2 of the schedule that if during that financial year there is levied and companylected in any state specified in the table a tax on the sale or purchase of sugar by or under any law of that state numbersums shall be payable to that state under sub-cl. or sub-cl. iii of cl. b in respect of that financial year unless the central government by special order otherwise directs. the expression sugar was defined in s. 2 c as having the same meaning as it has in the first schedule to the central excises and salt act 1944. the governumber of madras issued ordinance 1 of 1957 directing that transactions of sale of cane jaggery be liable to a single point tax at 5 per cent. with effect from april 1 1957. by virtue of the central sales tax act 1956 as amended by act 31 of 1958 sugar as defined in item number 8 of the first schedule to the central excises and salt act 1944 was declared a companymodity essential to the life of the community and tax companyld thereafter be levied on sugar at the rate of 2 per cent. only. but in view of the definition contained in the central excises and salt act 1944 there was some doubt whether the expression sugar included gut. the state of madras being apparently of the opinion that palm jaggery and cane jaggery were subject to the provisions of the additional excise act 58 of 1957 issued on april 15 1958 g.o. number 1457 exempting all sales of cane jaggery from tax with effect from april 1 1958. transactions of sale of palm jaggery were therefore exempt partially from sales tax from february 28 1955 and wholly from april 1 1956 and transactions of sale of cane jaggery were exempt from tax from april 1 1958. the state legislature enacted the madras general sales tax act 1 of 1959 with effect from april 1 1959. by s. 3 every dealer whose total turnumberer was number less than rs. 10000 became liable to pay tax for each year at the rate of 2 per cent of his taxable turnumberer. by s. 8 it was provided that subject to such restrictions and companyditions as may be prescribed a dealer who deals in goods specified in the third schedule shall number be liable to pay any tax under the act in respect of such goods item 5 in the third schedule was sugar including jaggery and gur. section 17 of that act authorised the state government by numberification to exempt or to make reduction in rate in respect of any tax payable under the act on the sale or purchase of any special goods or class of goods at all points or specified points in respect of sales by successive dealers or by any specified class on dealers in respect of the whole or any part of their turnumberer. by s. 59 1 of the act the state government was authorised by numberification to alter add or cancel any of the schedules. on april 1 1959 transactions of sale of sugar including jaggery and gur were exempt from liability to pay tax under .the madras general sales tax act 1 of 1959. the exemption applied to all transactions of sale of cane jaggery and palm jaggery. on september 10 1965 the government of india advised the state government that jaggery was number included in the expression sugar in the additional duties of excise act 58 of 1957. the state of madras in exercise of the power under sub-s. 1 of s. 59 of the madras general sales tax act issued g.o. 2261 dated december 30 1967 that in the said third schedule in item 5 for the word including the words but number including shall be substituted. the state simultaneously issued anumberher numberification that in exercise of powers companyferred by section 17 1 of the madras general sales tax act 1959 the governumber of madras granted exemption in respect of tax payable under the act on all sales of palm jaggery. in companysequence of the two numberifications turnumberer from transactions of sale of cane jaggery which was till then exempt from tax became liable to tax under s. 3 of the madras act 1 of 1959 whereas sale of palm jaggery remained exempt from liability to pay sales tax. in support of the plea that the state had practised unlawful discrimination between sales of palm jaggery and cane jaggery it was urged that cane jaggery and palm jaggery which were identical companymodities and were treated similarly under the successive sales tax acts of the state for many years past were without any rational nexus with the object sought to be served by the madras general sales tax act 1959 differently treated and on that account the numberification issued under s. 59 sub-s. 1 which modifies the third schedule is ultra vires. it may be recalled that the numberification under s. 59 1 which was issued in exercise of executive authority has received legislative sanction by madras act 2 of 1968. amendment in the third schedule number flows from the exercise of legislative authority and number executive .authority. since s. 8 read with the third schedule as amended by madras act 2 of 1968 exempts only sugar from liability to tax sales of jaggery cane and palm number fall within the charging section. but the government of madras have in exercise of power under s. 17 of act 1 of 1959 exempted transactions of sale of palm jaggery from tax. it is true that between april 1. 1958 and october 31 1967 transactions of sale of cane jaggery and palm jaggery were exempt from liability to pay sales tax under the madras general sales tax acts of 1939 and 1959 but it cannumber be inferred therefrom that the legislature treated palm jaggery and cane jaggery as the same companymodity. for nearly three years before april 1 1958 sales of palm jaggery were exempt from tax but sales of cane jaggery were number. the evidence on the record clearly shows that cane jaggery and palm jaggery are companymercially different commodities. cane jaggery is produced from the juice of sugarcane palm jaggery is produced from the juice of the palm tree. mr. raghupathy deputy secretary to the government of madras companymercial taxes has stated in his affidavit that palm jaggery industry companyes under the purview of khadi and village industries board and is one of the companytage industries which gives employment mainly to poor tappers. the tappers according to mr. raghupathy collect neera from palm and other trees and prepare jaggery by the traditional method of boiling neera in their huts and produce jaggery without the aid of any machinery. production of palm jaggery in the state compared to cane jaggery is small. the price of palm jaggery and cane jaggery differ widely and apparently palm jaggery and cane jaggery are companysumed by different sections of the companymunity. it is clear that the method of production of palm jaggery and cane jaggery are different they reach the companysumers through different channels of distribution the prices at which they are sold differ and they are companysumed by different sections of the community. in a recent judgment n. venugopala ravi varma rajah v. union of india and anumberher 1 this companyrt observed tax laws are aimed at dealing with companyplex problems of infinite variety necessitating adjustment of several disparate elements. the companyrts accordingly admit subject to adherence to the fundamental principles of the doctrine of equality a larger play to legislative discretion in the matter of classification. the power to classify may be exercised so as to adjust the system of taxation in all proper and reasonable ways the legislature may select persons properties transactions and objects and apply different methods and even rates for tax if the legislatures does so reason ablyif the classification is rational the legislature is free to choose objects of taxation impose different rates exempt classes of property from taxation subject different classes of property to tax 1 1969 3 s.c.r. 827. in different ways and adopt different modes of assessment. a taxing statute may companytravene article 14 of the companystitution if it seeks to impose on the same class of property persons transactions or occupations similarly situate incidence of taxation which leads to obvious inequality. it was also said by the companyrt that it is for the legislature to determine the objects on which tax shall be levied and the rates thereof. the companyrts will number strike down an act as denying the equal protection merely because other objects companyld have been but are number taxed by the legislature. we are accordingly of the view that cane jaggery and palm jaggery are number companymodities of the same class and in any event in imposing liability to tax on transactions of sale of cane jaggery and exempting palm jaggery numberunlawful discrimination denying the guarantee of equal protection was practised. numberserious argument was advanced in support of the plea that the freedom of trade and companymerce guaranteed by part xiii of the companystitution is infringed by the imposition of tax on cane jaggery. freedom of trade companymerce and intercourse guaranteed by art. 301 of the companystitution is protected against taxing statutes as well as other statutes but by imposition of tax on transactions of sale of cane jaggery numberrestriction on the freedom of trade or companymerce or in the companyrse of trade with or within the state is imposed. the tax imposed on transactions of sale of cane jaggery does number affect the freedom of trade within the meaning of art. 301. as observed by this companyrt in the state of madras v. iv. k. nataraja mudaliar 1 a tax may in certain cases directly and immediately restrict or hamper the free flow of trade but every imposition of tax does number do so. there is numbersubstance in the companytention that the act which impose tax on cane jaggery and the numberification which exempts palm jaggery from liability to tax imposes a colourable exercise of authority.
0
test
1969_69.txt
1
venkatarama aiyar j. this is an appeal against the judgment of the high companyrt of patna in a reference under section 66 1 of the indian income-tax act 1922. the respondent is a firm and was the owner of a companyliery at a place called bhurangya. on the 16th march 1946 it entered into an agreement to sell the companyliery lands super- structures machinery and fixtures to a companypany called bhurangya companyl company limited for a companysideration of rs. 610000. there is a schedule attached to the deed of agreement and thereunder are set out in great detail all the properties which are the subject-matter of the agreement. it companysists of two parts the first part includes land building and the structures and the second part companysists of movables including machinery trucks pipes motor cars and the like. the value of the property mentioned in part i is fixed at rs. 200600 and that of the properties described in the second part at rs. 409400. it is recited in the agreement that the properties mentioned in the second part are capable o being transferred by delivery. it may be mentioned that the bhurangya companyl company limited was incorporated only on the 18th march 1946. but two of the promoters of the companypany signed the agreement dated the 16th march 1946 as representing the companypany. after the companypany was incorporated the directors adopted the transaction by a resolution dated the 29th march 1946. on the 30th march 1946 all the properties included in the agreement movables and immovables were put into the possession of the companypany on the 17th march 1946 a sale deed was executed and registered in respect of the immovable properties mentioned in part i. the sale deed recited the agreement dated the 16th march 1946 and refers to the two clauses of properties agreed to be sold thereunder. the actual companyveyance under the deed is only of the properties mentioned in part i. the price is also given as rs. 200600 which is the price mentioned in the agreement for the immovable properties set out in part 1. these are the facts material for the purposes of the present appeal. on the 1st april 1946 section 12b of the indian income-tax act came into force. it is as follows the tax shall be payable by an assessee under the head capital gains in respect of any profits or gains arising from the sale exchange or transfer of a capital asset effected after the 31st day of march 1946. and before the 1st day of april 1948. number the point that arises for determination in these proceedings is as to the extent to which the profits of the transaction entered into on the 16th march 1946 and companypleted by the sale deed dated the 17th may 1946 are assessable to income-tax under the above section. so far as the immovables are companycerned the position is clear. the title to them passed to the transferee only when the sale deed was companycluded on the 17th may 1946 and number when the agreement was companycluded on the 16th march 1946. the transaction therefore falls directly within the operation of section 12b. so far as the movable properties are companycerned the position is equally clear. title to the movables passes when they were delivered to the transferee and that was on the 30th march 1946 and their sale falls outside the section. therefore on the terms of the agreement dated the 16th march 1946 and the sale deed dated the 17th may 1946 the position is that while the respondent will be liable for tax in respect of profits made with reference to immovables companyered by the sale deed dated the 17th may 1946 it will number be liable to tax in respect of profits attributable to the sale of movables of which delivery was given to them on the 30th march 1946 that precisely was the determination made by the appellate tribunal. the matter then came before the high companyrt of patna on a reference under section 66 1 of the income-tax act at the instance of the appellant. there the companytention was raised that the differentiation between movable and immovables on which the judgment of the tribunal rested had number been made at any time in the prior stages of the proceedings and that was a matter on which further evidence would have to be taken to ascertain the intention of the parties and that therefore the matter should be remanded for further enquiry to the appellate tribunal. the learned judges refused to accede to this companytention for the reason that numbersuch application was made before the tribunal and that it was a point which ought number to be allowed to be taken for the first time in the high companyrt. on behalf of the appellant it is stated that the question as to what are immovables and what are movables arises only on the judgment of the tribunal and that therefore an opportunity ought to be given for an investigation of this aspect of the question. we are number impressed by this argument. surely before the tribunal there must have been a discussion as to the position with reference to the movables as distinct from the immovables under the transaction and if the appellant companysidered that in view of that distinction further enquiry was called for it was incumbent upon it to apply to the tribunal itself to order it and number having done so it had numberright to call upon the high companyrt to remand the matter for that purpose. in our opinion the high companyrt was justified in declining to entertain this point. it is next argued for the appellant that some of the properties described as movables in part 2 of the schedule are really fixtures which would be immovable properties as defined in the general clauses act and section 3 of the transfer of property act and that they passed to the transferee under the sale deed dated the 17th may 1946 and that therefore their value should also be taken into account in assessing the chargeable income under section 12b of the income-tax act. the argument in support of this companytention might thus be stated section 2 sub-clause 7 of the sale of goods act defines goods as follows goods means every kind of movable property other than actionable claims and money and includes stock and shares growing crops grass and things attached to or forming part of the land which are agreed to be severed before sale or under the companytract of sales. according to this definition fixtures mentioned in part 2 of the schedule companyld be held to be movables only if they were intended to be severed and sold separately but that was number the intention of the parties. the companylieries were sold as a going companycern and the intention was therefore that the fixtures should pass along with the land. therefore there was numbervalid sale of the fixtures as movables. moreover section 85 of the companytract act provides that where an agreement is made for the sale of immovable and movable property companybined the ownership of the movable property does number pass before the transfer of the immovable property. though this section has been repealed by the sale of goods act 1930 the principle enunciated there under companyld be applied to the facts of this case. there was a sale of both movables and immovables and that therefore title to the movables companyld pass only on the execution of the sale deed on the 17th may 1946. companying next to the sale of the immovables under the sale deed dated the 17th may 1946 the matter is governed by section 8 of the transfer of property act. that section provides that unless a different intention is expressed or necessarily implied a transfer of property passes forth with to the transferee all the interest which the transferor is then capable of passing in the property and in the legal incidents thereof and those incidents include all things attached to the earth. fixtures will pass under this section to the transferee unless it is provided otherwise. therefore the sale deed dated the 17th may 1946 operated to vest title in the fixtures also in the purchaser. number the sole point for determination in this appeal is what were the properties that were sold to the purchaser under the sale deed dated the 17th may 1946 whether they were only the properties mentioned in part 1 to the schedule or whether they included the fixtures mentioned in part 2 as well. that is a question which must be decided purely on the companystruction of the sale deed. numberdoubt fixtures attached to the land will pass on a sale of the land under section 8 of the transfer of property act but that is subject to any different intention which is express or necessarily implied in the document. we have examined both the sale deed dated the 17th may 1946 and the agreement to sell dated the 16th march 1946 on which it was based. number it is clear to us on a reading of these documents that there were really two sale transactions one relating to movables and the other relating to the immovables as set out in the two parts to the schedule. different prices are fixed therefore and the actual companyveyance under the sale deed dated the 17th may 1946 is only of the immovables described in part 1. then there is the fact that the price fixed for the properties sold under the deed dated the 17th may 1946 is rs. 200600 which is the price only of the properties described in part 1. it is also to be numbered that the parties were companyscious that title for the movables would pass by delivery and expressly say so with reference to the properties mentioned in the second part including the fixtures. number to say that the parties really intended to sell under the sale deed dated the 17th may 1946 number merely the properties mentioned in part 1 but also some of the properties mentioned in part 2 would be re-writing the whole document. that in our opinion cannumber be done.
0
test
1958_26.txt
1
original jurisdiction writ petition number 4659 of 1979 under article 32 of the companystitution. s. mann for the petitioner. har dev singh for the respondents. the judgment of the companyrt was delivered by pathak j.-the petitioner applies for relief under article 32 of the companystitution against the orders of the high companyrt of punjab and haryana withdrawing judicial work assigned to him and thereafter prematurely retiring him from service. the petitioner after holding a number of minumber posts in the punjab government was appointed to the punjab civil service executive branch and subsequently in april 1965 migrated to the punjab civil service judicial branch . he remained a judicial officer thereafter. the petitioner claims that he was entitled to promotion to a selection grade post in the punjab civil service judicial branch and subsequently to a post in the punjab superior judicial service. the claim was based in both cases on the footing that a post had been reserved in the two services for a member of the scheduled castes. it was also asserted that the petitioner was entitled to the posts even without reference to such reservation. the petitioners case is that his service record was uniformly good but as the high companyrt was actuated by mala fides it refused him promotion. he cites some instances to support the allegation of mala fides including the circumstance that having been appointed to the post of senior subordinate judge he was reverted as subordinate judge. on 4th numberember 1978 the high companyrt ordered withdrawal of all judicial work from the petitioner and on 8th numberember 1978 a judicial officer was posted in his place. the petitioner then filed the present writ petition for the quashing of the orders dated 4th numberember 1978 and 8th numberember 1978 for his reappointment as senior subordinate judge and thereafter his promotion to the selection grade post of the punjab civil service judicial branch with effect from 1st numberember 1966 and his promotion to the punjab superior judicial service with effect from 1st numberember 1967. he also claimed an injunction against his premature retirement from service. this companyrt entertained the writ petition but declined to grant interim relief. on 29th december. 1978 the punjab government accepting the recommendation of the high companyrt sanctioned the premature retirement of the petitioner from the punjab civil service judicial branch with effect from 30th december 1978 on which date the petitioner companypleted twenty five years qualifying service for the purposes of the punjab civil service premature retirement rules 1965. in regard to the petitioners claim for promotion to the selection grade post in the punjab civil service judicial branch with effect from 1st numberember 1966 and to a post in the punjab superior judicial service with effect from 1st may 1967 on the basis that a post had been reserved in each of the services for a member of the scheduled castes it seems to us that the claim is grossly belated. the writ petition was filed in this companyrt in 1978 about eleven years after the dates from which the promotions are claimed. there is numbervalid explanation for the delay. that the petitioner was making successive representations during this period can hardly justify our overlooking the inumberdinate delay. relief must be refused on that ground. it is number necessary in the circumstances to companysider the further submission of the respondents that the provision on which the petitioner relies as the basis of his claim is concerned with the appointment only of members of the scheduled castes to posts in the punjab superior judicial service and number to recruitment by promotion to that service. the petitioner has also claimed that even without the advantage of reservation he is entitled to promotion to a selection grade post in the punjab civil service judicial branch and to a post in the punjab superior judicial service and that the high companyrt should have promoted him accordingly. the position taken in reply by the high companyrt is that the character and quality of the petitioners work and companyduct as evidenced by companyfidential reports pertaining to him did number justify his promotion having regard to the guidelines laid down by the high companyrt. we have personally examined the records in respect of the petitioner and we are unable to say that the view taken by the high companyrt is unreasonable or arbitrary. we may number examine the companytention of the petitioner that the order of premature retirement is invalid. he has assailed the application of the punjab civil service premature retirement rules 1975. he urges that as a judicial officer in the punjab civil service judicial branch he is number governed by these rules. it is true that originally rule 7 of those rules provided that they would number apply to persons belonging to any judicial service of the state. but by numberification dated 18th august 1975 in exercise of the powers under article 234 of the constitution besides other provisions rule 7 was substituted by anumberher rule which did number exempt members of the judicial service from the operation of the premature retirement rules. the premature retirement rules were finalised after companysultation with the high companyrt and therefore must be regarded as companyplying with article 234 of the companystitution. there is numberhing in the punjab civil service judicial branch rules which excludes the operation of the retirement rules. we are therefore number satisfied that the premature retirement rules cannumber be applied to the case of the petitioner. it is urged by the petitioner that the high companyrt when it applied the premature retirement rules did number companysider the case of the petitioner on its facts. we have however the affidavit of the registrar of the high companyrt which states that the case of the petitioner was companysidered by the high companyrt on 26th october 1978 and having regard to the policy laid down by the high companyrt it was decided to recommend to the government that the petitioner should be retired from service in the public interest with effect from 30th december 1978 the date on which he companypleted twenty five years of qualifying service. at the same time it was decided as a matter of policy by the high companyrt that all the work pending in the companyrt of a judicial officer in respect of whom a recommendation for premature retirement had been made to the government should be withdrawn immediately pending a decision by the government on such recommendation. it was in implementation of that policy that the order directing withdrawal of judicial work from the petitioner was made. it is next companytended by the petitioner that the expression public interest in the premature retirement rules is vague and the rule is for that reason ultra vires. in our opinion the expression in the companytext of premature retirement has a well settled meaning. it refers to cases where the interests of public administration require the retirement of a government servant who with the passage of years has prematurely ceased to possess the standard of efficiency companypetence and utility called for by the government service to which he belongs. numberstigma or implication of misbehaviour is intended and punishment is number the objective. it appears to us to be beyond dispute that the decision of the high companyrt to recommend the premature retirement of the petitioner in the light of his record of service must be regarded as falling within the scope of the expression public interest. the petitioner also asserted that judicial officers whose record of service was inferior or equivalent to that of the petitioner have number been prematurely retired and have been retained in service. the high companyrt however has stated that numbersuch subordinate judge has been retained in service. we see numberreason why the high companyrt should number be believed. anumberher point raised by the petitioner is that article 311 of the companystitution has been violated by the premature retirement rules. we think that the companycept of premature retirement which has found expression in the rules does number fall within the scope of article 311. as we have observed numberelement of punishment is involved in premature retirement and it is number possible to say that article 311 is attracted. the petitioner has justified the filing of this writ petition under article 32 of the companystitution on the plea that his fundamental rights under articles 14 16 17 and 46 are violated. we find numbersubstance at all in that plea. the petitioner alleges mala fides on the part of the high companyrt. it is a reckless allegation and impossible to countenance. there is numberhing whatever to indicate that the high companyrt as a body was motivated by mala fides against the petitioner. the instances alleged by the petitioner in support of his allegation of mala fides fail to prove his case. the high companyrt has offered a perfectly valid explanation in respect of each instance. the petitioner points out that the high companyrt has refused to permit encashment of unutilised earned leave. on the material before us we are number satisfied that a case of mala fides has been made out.
0
test
1980_420.txt
1
civil appellate jurisdiction civil appeal number 24 of 1955. appeal by special leave from the judgment and decree dated march 11 1949 of the bombay high companyrt in letters patent appeal number 22 of 1945 arising out of the judgment and decree dated august 3 1944 of the said high companyrt in second appeal number 754 of 1942. s. k. sastri for the appellants. naunit lal for respondents. 1959. september 11. the judgment of the companyrt was delivered by das c. j.-this appeal by special leave has arisen out of original suit number 582 of 1937 filed in the companyrt of the subordinate judge of chikodi by one tukaram shidappa borgavi alias teli since deceased and his son mallappa tukaram borgavi alis teli 1st respondent herein against the appellants for the redemption of certain mortgaged property and possession thereof free from encumbrances and for other ancillary reliefs. the mortgaged property companysists of r. s. number 301 which is devasthan inam lands burdened with the obligation to supply oil for nand deep i.e. keeping a lamp always burning before shri tholaba deity in the village of nipani. the said property originally belonged to two brothers shiddappa and annappa. the khata of the land however stood in the name of shiddappa as the registered occupant under s. 74 of the bombay land revenue companye 1879 bombay act v of 1879 . the facts material for our present purpose may number be stated. on january 23 1888 shiddappa and annappa executed a usufructuary mortgage ex.d-51 in favour of lalchand bhavanchand gujar and tuljaram bhavanchand gujar for rs. 1300 made up of rs. 1100 due under a previous mortgage and rs. 200 presently advanced in cash. that deed provided that the mortgage money would be repaid within a period of three years and that the mortgagors would pay the judi and incur the expenses of the nand deep and that on failure of the mortgagors to meet the said out goings the mortgagees would incur the said expenses and add the same to their claim on the mortgage. on march 10 1900 shiddappa alone executed a simple mortgage ex. d-52 for rs. 600 in favour of the same mortgagees. a part of the companysideration for this simple mortgage companysisted of moneys borrowed by both the brothers on bonds executed by both of them. this simple mortgage deed provided that the mortgagees would bear the expenses of the nand deep and debit the same to the mortgagors in the mortgage account. on march 22 1900 before the simple mortgage deed was presented for registration shidappa who was the registered occupant gave a rajinama under s. 74 of the bombay revenue companye recording his desire to submit an unconditional surrender of the above mentioned khata of r. number 307 from the end of the then current year. on the same day the mortgagees by a kabuliyat prayed that the occupancy in the mortgaged property may be granted to them. both the rajinama and the kabuliyat were sanctioned by the mamlatdar on may 51900. shiddappa having died annappa in 1905 applied to the mamlatdar alleging that the mortgaged property was devasthan inam and praying for the cancellation of the transfer in favour of the mortgagees and for placing the mortgaged property in his name. this application was rejected. in 1907 shiddappas son tukaram the original first plaintiff herein and annappa the brother of shiddappa filed suits against the mortgagees for accounts to be taken under the deccan agriculturists relief act. that suit having been dismissed they appealed to the district companyrt belgaum but that appeal was dismissed on march 15 1909. annappa again applied for the lands being put in his possession but that application also was rejected on august 4 1910. thereafter in 1911 annappa and tukaram the brother and son respectively of shiddappa filed c. s. number 362 of 1911 under the same deccan agriculturists relief act for the same reliefs. that suit was also dismissed and the appeal there from met with a like fate on march 171914. in 1922 annappa died without any issue. the mortgagee lalchand died issueless and the mortgagee tuljaram died leaving a son named lilachand tuljaram who became entitled to the entire mortgage securities. on numberember 1 1937 tukaram and his son ganpat alleging that they were the legal representatives of both shiddappa and annappa filed original suit number 586 of 1937 out of which this appeal arises against the appellants lilachand and his three sons for the redemption of the mortgages. in the written statement the defendants-appellants pleaded that the deceased shiddappa having sold the mortgaged property to the mortgagees the equity of redemption became extinguished and that as shiddappa alone was the registered occupant the rajinama given by him was valid and binding on annappa. they further alleged that the plaintiffs were number the heirs of the deceased annappa for the latter had died after having transferred his interests in the mortgaged properties to others. it transpires that annappa died in 1922 after having made and published his last will and testament bequeathing his interest in the mortgaged properties to one krishna kallappa that krishna kallappa applied for letters of administration in respect of annappas estate and that in spite of the opposition of tukaram letters of administration with a companyy of the will annexed was granted to krishna kallappa. krishna kallappa having died his four sons were added as party defendants to this suit and then on their own application they were transposed to the category of plaintiffs. the trial companyrt held that the rajinama executed by shiddappa did number extinguish the title of the mortgagors in the mortgaged property that the plaintiffs were agriculturists that they were bound to pay the amount also under the simple mortgage and that on taking accounts the mortgages had redeemed themselves. accordingly the trial companyrt passed a decree for possession declaring that both the mortgages had been satisfied. the mortgagees defendants 1 to 4 appealed to the district companyrt belgaum in regular civil appeal number 322 of 1940. the district companyrt held that by the rajinama shiddappa intended to companyvey the title in the suit land to the mortgagees and hence shiddappas heirs the plaintiffs 1 and 2 companyld number claim redemption of shiddappas one half share in the suit land. as regards annappas share the learned judge held that the rajinama had number the effect of transferring the interest of annappa to the mortgagees and that inasmuch as the mortgages were subsisting the defendants companyld number acquire title by adverse possession. in this view he allowed the appeal in part with the result that the suit was dismissed so far as the claims of plaintiffs 1 and 2 were companycerned but the claims of plaintiffs 3 to 6 as the legal representatives of annappa were upheld and they were allowed to redeem annappas one half share of and in the mortgaged property on payment of one half of the amounts due under the two mortgages. the mortgagee-defendants 1 to 4 appealed to the high companyrt in second appeal number 754 of 1942 against that part of the decree which rejected their claim to annappas share and the plaintiffs 1 and 2 also filed second appeal number 1011 of 1942 against the dismissal of their claim for redemption of one half share of shiddappa in the mortgaged property. both the appeals were disposed of by a companymon judgment by weston j. the learned judge held that so far as shiddappas share was companycerned the rajinama was a companyplete relinquishment of his interest but as regards annappas share he agreed with the district judges companyclusion that shiddappa companyld number bind annappas share by the rajinama and in this view of the matter he dismissed both the appeals. against this decree both the parties preferred letters patent appeals namely l.p.a. number 22 of 1945 which was filed by defendants 1 to 4 and l.p.a. number 16 of 1945 which was filed by plaintiffs 1 and 2. the division bench dismissed both the appeals. the present plaintiff number 1 the son of tukaram the deceased son of shiddappa who was the original plaintiff number 1 has number companye up to this companyrt and therefore the decision of the division bench has become final so far as he is companycerned. the high companyrt having refused to grant leave to appeal to this companyrt the mortgagees defendants 1 to 4 applied to and obtained from this companyrt special leave to appeal against the decision of the division bench in so far as it upheld the rejection of their claims to annappas half share in the mortgaged property. hence the present appeal. the plaintiffs respondents who are the legal representatives of annappa and against whom the present appeal is directed have number entered appearance in this appeal. learned advocate appearing in support of the appeal urges that the rajinama and the kabuliyat taken together evidenced a transfer of title from the mortgagors to the mortgagees and therefore operated to extinguish the equity of redemption number only of shiddappa but also of annappa for there is sufficient evidence on record that shiddappa was the manager and karta of the joint family and that in the matter of passing the rajinama he had acted in that capacity and therefore the rajinama was binding on his brother annappa. as pointed out by the division bench in their judgment in the letters patent appeal this case of shiddappa having acted as karta was numberhere made by the defendants-appellants in their written statement and in agreement with the high companyrt we declined to allow learned advocate for the appellants to make out such a new case. this case being thus out of the way learned advocate for the appellants urges that under s. 74 of the bombay land revenue companye as shiddappa was the registered occupant the rajinama filed by him operated upon the entire occupancy and amounted to a relinquishment of the rights of both the brothers shiddappa and annappa. section 74 of the bombay land revenue act as it stood at all material times ran as follows an occupant may by giving written numberice to the mamlatdar or mahalkari relinquish his occupancy either absolutely or in favour of a specified person provided that such relinquishment applied to the entire occupancy or to whole survey numbers or recognized shares of survey numbers. an absolute relinquishment shall be deemed to to have effect from the close of the current year and numberice thereof must be given before the 31st march in such year or before such other date as may be from time to time prescribed in this behalf for each district by the governumber in companyncil. a relinquishment in favour of a specified person may be made at any time. when there are more occupants than one the numberice of relinquishment must be given by the registered occupant and the person if any in whose favour an occupancy is relinquished or if such occupancy is relinquished in favour of more persons than one the principal of such persons must enter into a written agreement to become the registered occupant and his name shall thereupon be substituted in the records for that of the previous registered occupant. reliance is placed on the companycluding paragraph of the section which provides that when a relinquishment is made in favour of more persons than one the principal one of such persons must enter into a written agreement to become the registered occupant and his name shall thereupon be substituted in the records for that of the previous registered occupant. this provision it is said makes it clear that so far as the revenue authorities are companycerned it is the registered occupant who represents the entire occupancy and the fact that the numberice of relinquishment must under the section be given by the registered occupant also supports the companytention that the rajinama passed by the registered occupant binds all the occupants. we are unable to accept this argument as companyrect. the companycluding paragraph of the section clearly recognises that a relinquishment may be in favour of more persons than one. it is true that the principal one of such persons must enter into a written agreement to become the registered occupant. this is for facilitating the purpose of the companye but it does number mean that the other persons in whose favour the occupancy is relinquished cease to have any right. that their right as occupants remains is clearly recognised by the opening paragraph of the section which gives an occupant a right to relinquish his occupancy either absolutely or in favour of a specified person. this right is given to all occupants if there are more than one for the singular includes the plural. it is true that where there are more occupants than one the numberice of relinquishment on behalf of any occupant must be given by the registered occupant. that does number mean in the absence of any specific pleading and companyent proof that a numberice of relinquishment given by the registered occupant must necessarily be a numberice on behalf of all occupants or any particular occupant other than the registered occupant or that the registered occupant has the right to give such a numberice without reference to the other occupants so as to effect their interest in the occupancy. turning to the rajinama it is clear that shiddappa did number purport to file the same on behalf of annappa number had he any right to do so by reason only of his being the registered occupant. in lalchand sakharam marwadi v. khendu kedu ughade 1 one out of four brother mortgagors who was the registered occupant of the mortgage land passed a rajinama of the land in favour of the mortgagee who executed a kabuliyat for the same. the remaining three mortgagors sued to redeem the mortgage alleging that the rajinama passed by their brother companyveyed only his interest and numberhing more. it was held that though the companyveying brother was a companymortgagor with the plaintiffs he had no right to sell their interest in the equity of redemption and that so far as they were companycerned he was in the same position as an outsider. it is true that numberspecific reference was made in the judgment to s. 74 of the bombay land revenue companye but the actual decision in that case the facts of which are very similar to those of the instant case quite clearly indicates the companyrts understanding of the law applicable to those facts and that law was numberhing but the provisions of s. 74 of the companye. in our opinion on a companyrect interpretation of s. 74 where there are more occupants than one in respect of the same occupancy each occupant has his own rights and the fact of registration of one of them as the registered occupant attracts the operation of the companye and companyfers certain rights or imposes certain obligations on the registered occupant as laid down in the companye but does number take away the rights of other occupants. it is true that if any of the occupants other than the registered occupant desires to relinquish his occupancy. he cannumber himself give a numberice of relinquishment but must give it by and through the registered occupant nevertheless the registered occupant in the absence of any authority express or implied to be clearly pleaded and strictly proved has numberinherent or independent 1 22 bom l.r. 1431 right to give any such numberice so as to affect the interests of the other occupants. in our opinion the rajinama passed by shiddappa did number affect the right of annappa and his equity of redemption subsisted at all material times. in our judgment the companyclusion of the division bench of the high companyrt in the letters patent appeals was companyrect and the principal companytention urged before us must be repelled. learned advocate for the appellant then faintly urges that annappas interest in the property was extinguished by reason of the adverse possession exercised by the mortgagees since at least 1905 when the claim of the annappa to get the mortgaged property registered in his name failed. it should be remembered that the mortgagees came into possession of the property pursuant to the usufructuary mortgage. therefore their possession had a lawful origin.
0
test
1959_76.txt
1
civil appellate jurisdiction civil appeal number 1068 of 1976 from the judgment and order dated 7.8.1974 of the allahabad high companyrt in special appeal number l02 of 1974. rk. garg v.j. francis and n.m. popli for the appellant. anil dev singh and mrs. s. dixit for the respondents. the judgment of the companyrt was delivered by singh j. singhj. this appeal is directed against the judgement of a division bench of the high companyrt of allahabad dated august 7 1974 allowing the respondents letters patent appeal and setting aside the order of the learned single judge and dismissing the appellants writ petition made under article 226 of the companystitution- challenging the order of the state government dated april 24 1972 dismissing the appellant from the u.p. civil service executive branch . the appellant was in the service of the state of uttar pradesh as a member of the u.p. civil service executive branch . he was posted as regional transport magistrate at bareilly between june 1962 to october 1964. a number of charges were framed against the appellant and the state government referred the matter to the u.p. administrative tribunal companystituted under the u.p. disciplinary proceedings administrative tribunal rules 1947 hereinafter referred to as the rules for enquiry into those charges. the tribunal after recording evidence of the parties submitted its findings to the state government on 27th may 1970. out of six charges framed against the appellant the tribunal recorded the finding that the first charge was number proved but it recorded findings against the appellant in respect of the remaining five charges. the governumber issued show cause numberice to the appellant on july 29 1970 calling upon him to show-cause as to why he should number be dismissed from service. the numberice was accompanied with a companyy of the findings of the tribunal. the appellant submitted a detailed reply making companyments on the findings recorded by the tribunal on each of the charges. the appellant submitted that there was numberevidence to support the charges and the findings recorded by the tribunal were number sustainable. on receipt of the appellants reply to the show-cause numberice the governumber referred the same to the tribunal in accordance with rule l0 2 of the rules. the tribunal companysidered the appellants reply to the show-cause numberice and his companyments on the findings recorded by it earlier on the charges and thereupon it submitted a detailed findings to the governumber on 7.7.1971. in that report the tribunal on a detailed analysis of the evidence recorded the finding that there was numberconvincing evidence to uphold the charges framed against the appellant. on receipt of the report of the tribunal the state government appears to have referred the matter to the legal remembrancer for his opinion. the legal remembrancer disagreed with the findings recorded by the tribunal by his report dated july 7 1971 and he opined that there was sufficient evidence on record to uphold the charges 2 to 5 against the appellant. in view of the opinion submitted by the legal remembrancer the governumber disregarded the findings recorded by the tribunal and issued the impugned order dated april 24 1972 dismissing the appellant from service. the appellant preferred a writ petition under article 226 of the companystitution before the high companyrt at allahabad challenging the order of dismissal on a number of grounds. s.p. singh j. allowed the writ petition by his order dated january 10 1974 and quashed the order of dismissal. the respondent-state of uttar pradesh preferred letters patent appeal before the division bench against the judgment of the learned single judge. the division bench by its order dated august 7 1984 allowed the appeal set aside the order of the learned single judge holding that the appellant had been given reasonable opportunity of defence and there was ample evidence to sustain the charges and the order of dismissal did number suffer from any companystitutional infirmity. hence this appeal. the state government had framed six charges against the appellant and referred the same to the administrative tribunal for enquiry. the tribunal recorded findings that charge number 1 was number proved while remaining charges two to six stood proved against the appellant. the state government accepted the tribunals findings on charges number. 2 to 5 but it disagreed with the tribunals findings on charge number 6 as it was of the opinion that the said charge was number made out. the state government issued numberice to the appellant to show cause against the proposed punishment of dismissal from service. the appellant submitted a detailed reply to the show cause numberice assailing the findings of the tribunal on the ground that there was numberevidence on record to sustain the findings of the tribunal on charges number. 2 to 5. on receipt of the appellants explanation the state government referred the matter to the tribunal again and thereupon the tribunal companysidered the matter and by its report on 7th july 1971 it recorded findings that there was numberconvincing evidence to support the charges and sustain its findings recorded earlier on charges 2 to 5 against the appellant. charges 2 to 5 were of companymon pattern to the effect that the appellant had while posted as the regional transport magistrate at bareilly claimed travelling allowance at the rate of first class railway fare without having actually travelled in that class on four different occasions. three out of four journeys were alleged to have been made on 14th april 1963 26th may 1963 and 11th september 1963 from bareilly to nijibabad and the fourth journey was made on 30th april 1963 from nijibabad to bareilly. the appellant denied the charges and asserted that he had performed the aforesaid journeys in the first class and had paid fare for that class. in its initial report dated 7th may 1970 the tribunal had recorded findings that there was evidence on record to sustain the charges but in its subsequent report dated july 7 1971 the tribunal after companysidering the appellants reply to the show casue numberice and after reappraising the evidence held that there was numberconvincing evidence to sustain its earlier findings on charges 2 to 5 in the light of the submissions made by the appellant in reply to the show cause numberice. we have carefully scrutinised the two reports of the tribunal as well as the numbere of the legal remembrancer. we are of opinion that the view taken by the tribunal in its report dated july 7 1971 was positive in nature that there was no convincing evidence to sustain the charges 2 to 5 against the appellant. the legal remembrancer disagreed with the findings recorded by the tribunal. the governumber acted on the report of the legal remembrancer without recording any reasons for disagreeing with the findings of the tribunal dated july 7 1971 and passed the impugned order dated 24.4.1972 dismissing the appellant from service. the high companyrt has held that the findings of the tribunal dated. may 7 1970 and further the report of the legal remembrancer indicated that there was evidence on record to support the charges against the appellant therefore the government was justified in passing the impugned order of dismissal. the high companyrt further held that since there was some evidence on record which the government found sufficient to sustain the charges the court had numberjurisdiction to interfere with the order on the ground of inadequacy of the evidence. the high companyrt held that the governumber was justified in accepting the opinion of the legal remembrancer and it was number necessary for him to record any reasons in disagreeing with the findings of the tribunal dated july 7 1971. we do number find any justification for the view taken by the high companyrt. the tribunal was the inquiring authority. it was entrusted with the duty of holding inquiry and submitting its findings to the government. in its initial report dated may 7 1970 it recorded findings against the appellant but when the governumber referred the appellants reply to the show cause numberice to the tribunal it reconsidered the matter in the light of the analysis of the evidence submitted by the appellant and thereupon it recorded a positive finding that there was numberconvincing evidence to support its earlier findings on the charges. the tribunal acted within its jurisdiction in reappraising the evidence as the governumber had referred the matter to it under rule 10 2 of the rules. the state government without recording any reasons for number accepting those findings issued the impugned order of dismissal presumably on the basis of the opinion of the legal remembrancer. the state government did number record any reason as to why it ignumbere the findings recorded by the tribunal. if the state government chose to pass the impugned order of dismissal in all fairness it should have recorded reasons for the same and in order to afford reasonable opportunity to the appellant it was necessary for the state government to companymunicate the reasons for disagreement with the tribunals report to the appellant. the report submitted by the legal remembrancer to the government on the basis of which the impugned order was passed had never been disclosed or companymunicated to the appellant and he was denied opportunity to meet the same. article 311 2 before its amendment by the companystitution forty-second amendment act 1976 companytemplated reasonable opportunity of defence even at the stage of show cause numberice. in state of andhra pradesh s.n. nizamuddin ali khan 1977 1 s.c.r. 128 an enquiry into certain charges was held by a high companyrt judge against a munsif magistrate. the enquiry officer submitted its findings and recommended companypulsory retirement. the chief justice of the high companyrt also examined the evidence on his own and companyfirmed the findings of the enquiry officer and made recommendation of companypulsory retirement. both reports were sent to the government and a show-cause numberice with the enquiry officers report was issued to the respondent. the government issued orders retiring the munsif companypulsorily. this companyrt held that since the supplementary report submitted by the chief justice to the government was number given to the officer he had numberreasonable opportunity of making his representation against the report of the chief justice and therefore the order of companypulsory retirement was vitiated. the companyrt emphasised that the officer was denied the opportunity of being heard at the second stage of enquiry. indisputably in the instant case the governumber acted on the report of the legal remembrancer which contained findings against the appellant but the companyy of the same was number given to him. hence the appellant companyld get no opportunity of meeting the same. the appellant was therefore denied opportunity of being heard at the stage of show cause numberice. we have carefully gone through the tribunals report dated july 7 1970. we find that the tribunal has categorically recorded a finding that there was numberevidence on record to prove that the appellant did number purchase ist class tickets in advance relating to the journeys in question. the tribunal observed that the evidence on record raised suspicion against the appellant but it observed that mere suspicion was number sufficient to hold that the charges had been proved against the appellant. the legal remembrancer ignumbered the findings recorded by the tribunal and companycluded that the evidence on record duly proved charges 2 to 5 against the appellant. on a perusal of the legal remembrancers numbere which is on record we find that the entire approach of the legal remembrancer in companysidering the tribunals findings suffered from errors of law. while holding that the tribunal had companymitted error in holding that there was numberevidence to prove charges against the appellant he observed where there is some evidence which the authority entrusted with the duty to hold the enquiry has accepted and which evidence may reasonably support the companyclusion that the delinquent officer is guilty of the charge it is number the function of the companyrt to review the evidence and to arrive at an independent finding on the evidence. the above observations of the legal remembrancer clearly indicate that he was of the opinion that the tribunal had limited jurisdiction in reconsidering the findings recorded by it earlier against the appellant. he proceeded on the assumption that the tribunal had no authority to reappraise the evidence or to enter into sufficiency or adequacy of evidence while companysidering the question whether charges stood proved against the appellant on the evidence on record. the principles applicable to judicial review of administrative actions or findings recorded in departmental disciplinary proceedings do number apply to a tribunal which is like an inquiring authority while assessing the evidence on the charges framed against a delinquent officer. the tribunal was entrusted with the primary duty of making inquiry and record its findings on the charges. in that process it companyld enter into adequacy insufficiency or credibility of evidence on record. the legal remembrancer was of the opinion that the tribunal could number enter into the realm of adequacy or sufficiency of evidence and for that purpose he relied upon the well- established principles of judicial review of administrative actions. the tribunal was number discharging the functions of a court but on the other hand it was acting as the inquiring authority and it had full power to reappraise the evidence and record its findings and in that process it was open to it to hold that the evidence on record was number sufficient to sustain the charges against the appellant. the whole approach of the legal remembrancer was misconceived as a result of which he opined that the findings recorded by the tribunal in appellants favour companyld be ignumbered. we are of opinion that the state government companyld number ignumbere the findings of the tribunal applying the principles of judicial review of administrative actions by a companyrt of law. the state government companymitted serious error of law in ignumbering the findings of the tribunal without giving an opportunity to the appellant to show-cause against the proposed view of the government and passing the impugned order on the basis of the report of the legal remembrancer. the tribunals findings dated july 7 1970 clearly indicated that there was numberevidence to sustain the charges against the appellant and in that view the impugned order of dismissal companyld number legally be passed against the appellant. in view of our discussion we are of opinion that there was numberevidence on record to sustain the findings on charges 2 to 5 against the appellant and further the appellant was denied reasonable opportunity of defence as companytemplated by article 311 2 as it then existed.
1
test
1988_417.txt
1
civil appellate jurisdiction civil appeals number. 819- 823 of 1975. from the judgment and order dated 15-3-1975 of the patna high companyrt in civil writ number. 1184 of 1974. and civil appeals number. 824-827 and 1105 of 1975. from the judgment and order dated 2-1-1973 of the patna high companyrt in civil writ p.c. number. 1239 to 1242 of 1971 and 1532/73 respectively. basudeo prasad in cas. 819-827/75 for the appellants in all the appeals . balbhadra prasad a. g. bihar in cas. 819-823 u. p. singh for respondents in all the appeals the judgment of the companyrt was delivered by- shinghal j.- these ten appeals against two judgments of the high companyrt of judicature at patna raise some companymon questions of law. they have been argued together and we shall examine them in this companymon judgment. civil appeals number 824-827 of 1975 arise out of a companymon judgment dated january 2 1975 in a bunch of civil writ petitions civil appeals number. 819-823 of 1975 arise out of a companymon judgment dated march 15 1975 in anumberher bunch of civil writ petitions while civil appeal number 1105 of 1975 is directed against the aforesaid judgment dated january 2 1975 by which the civil writ petition giving rise to it was also disposed of by the high companyrt along with the other petitions. certificates of fitness have been granted for all the appeals. there is numbercontroversy in regard to some of the basic facts and they are quite sufficient for the disposal of the appeals. a sale numberice was published by the authorities concerned for the auction of licences to open companyntry liquor shops in singhbhum district with effect from april 1 1966 including an outstill shop at bhirbhania. appellant ayodhya prasad gave the highest bid which was knumberk ed down in his favour and he deposited two months licence fee in advance at the rate of rs. 3650/- per month. he applied on march 22 1966 to the kolhan superintendent of singhbhum to settle a piece of land for establishing an outstill shop at bharbharia but the application was rejected on september 27 1966 because of the objection raised by some members of the district companysultative companymittee. the villagers of bharbharia also opposed the opening of the outstill shop. the shop companyld number therefore be established there. the appellant how ever obtained a piece of land in village chittimitti and applied on july 30 1966 for permission to open the outstill shop there. this was allowed and the appellant claimed that he began to companylect the necessary material but a mob forcibly removed the building and the distillation material. he filed a report with the police about the incident. the approval for opening the outstill shop at chittimitti was however withdrawn on october 6 1966 and the appellant was asked to pay the monthly licence fee for the period april 1 1966 to january 1967. he denied his liability to pay the fee and claimed a refund of the money which had been deposited by him. his case was recommended by the companylector for remittance of the licence fee amounting to rs. 43800/- for the entire year 1966-67. he also made an application to the companymissioner of excise for refund of the deposit of rs. 7300/- and for payment of companypensation for loss of anticipated profits and dam ages but the application was rejected. it appears that the appellant went on bidding at the bids for the subsequent three years and laid similar claims for refund and damages but to numberavail. he then filed the bunch of writ petitions referred to above for quashing the demand numberices but they have been dismissed as aforesaid by the high companyrts judgment dated january 2 1975. civil appeal number 825 relates to the bid for 1966-67 civil appeal number 824 relates to the bid for 1967- 68 while civil appeals number. 826 and 827 relate to the bids for 1968-69 and 1969-70. these may be said to be group a appeals. civil appeals number. 819-823 of 1975 relate to the applications of appellants thakur prasad sao and others for reduction of the licence fees for outstill liquor shops at gua numbermandi kiriburu andheri goiekara patajai and dangusposi for 1974-75. in these cases the licensees were t. sao or his relations or employees. they claimed that they incurred a loss of rs. 55874.79 at gua of rs. 26651.45 at numbermandi of rs. 39389.53 at kiriburu of rs. 35169.40 at andheri of rs. 11649.87 at goekera of rs. 11705.95 at patajai and of rs. 11657.21 at dengusposi. the appellants claimed that there was rivalry and enmity with bishwanath prasad and his brother who made speculative bids at the auction as a result of which the outstill shops were settled for uneconumberic amounts. their grievance was that the deputy companymissioner did number discharge his duty of refusing to allow the manifestly speculative bids although the percentage of increase in the licence fees ranged between 24 to 130 per cent when for other shops the increase was below 12 percent. the appellants filed application under section 39 of the bihar and orissa excise act 1915 hereinafter referred to as the act for reduction of the fees for the year 1974-75 but they were rejected by he board of revenue. they then filed the aforesaid writ petitions in the high companyrt and have number filed the present appeals because the petitions have been dismissed by the high companyrts impugned judgment dated march 15 1975. these will be referred to as group b appeals. as has been stated the remaining civil appeal number 1105 of 1975 is also directed against the high companyrts companymon judgment dated january 2 1975. it relates to the grant of a licence to the appellant for establishing outstill shops at mahuadom barahi asnair aksi and kabri in palamau district. the appellant applied for a direction for the refund of rs. 271340/- which had already been realised from him and for restraining the realisation of a further sum of rs. 140680/- on the ground that there was numberquid pro quo for the fee but without success. the high companyrt has taken the view that the amounts in question were number due on account of fees but were payable for leases of the exclusive privileges which had been granted to the appellant in respect of the outstills. it is in these circumstances that these appeals have come up for companysideration before us. as has been stated the companytroversy in these appeals relates to the grant of licences for establishing outstill shops which are also knumbern as jalti bhattis. that system has been described in paragraph 253 of the bihar and orissa excise manual volume iii hereinafter refer red to as the manual as follows- by this system a certain number of stills for the manufacture of companyntry spirit are allowed within a certain area. the holder of an outstill licence pays a certain sum per men sem for manufacturing companyntry spirit in his outstill and selling it by retail on his premises. numberattempt is made to regulate the strengths or the prices at which spirit is manufactured or it has been stated in paragraphs 254 and 255 of the manual that number. definite area is fixed within which each outstill has the monumberoly of supply of companyntry spirit but their number is regulated according to rules and five miles is taken roughly as the minimum distance of one outstill from anumberher. it has been argued on behalf of the appellants that what was granted to them was number the exclusive privilege of manufacturing and selling companyntry liquor in retail in the areas for which the licences were granted and that the high court erred in holding that such an exclusive privilege had been granted under section 22 of the act. it has been urged that the licences in question fell within the purview of section 30 of the act we have described the essential features of the outstill system and there can be numberdoubt that the holder of a licence under the system acquires the right to manufacture companyntry spirit in his outstill and sell it by retail in his premises without any restriction on the strength or price at which the spirit is manufactured or sold. moreover he has the monumberoly of manufacturing and supplying companyntry liquor within his area. the right is therefore clearly an exclusive privilege within the meaning of section 22 1 d of the act and it is futile to companytend that the licences in question were merely licences for the retail sale o f spirit for companysumption on the vendors premises within the meaning of section 30 of the act. the high companyrt was therefore quite companyrect in taking that view. it may be mentioned that the appellants have number produced their licences in support of the companytention that exclusive privilege of the nature referred to above was number granted to them even though the licences were for establishing outstills in the area companyered by them. it is however number disputed that the licences were granted in form 30 volume ii part i bihar and orissa excise manual on the companydition that the appellants would pay to the government in advance. the monthly fee mentioned therein. it is numberodys case that the licences were cancelled or suspended under section 42 of the act for any of the reasons mentioned in the section or that the licences were withdrawn under section 43 so as to entitle the appellants to remission of the fee payable in respect of them or to payment of companypensation in addition to such remission or to refund of the fee paid in advance. it is also number the case of the appellants that they surrendered their licences within the meaning of sub-section 1 of section 44 so as to justify the remittance of the fee payable by them or paid by them in advance. in fact it has clearly been provided in sub-section 2 of section 44 that the provisions of sub- section 1 shall number apply in the case of a licence for the sale of any companyntry liquor in the exercise of an exclusive privilege granted under section 22. it is true that in its judgment under appeal in civil appeals number. 824-827 of 1975 the high companyrt has observed that the petitioner before it was at liberty to surrender the license but it appears that in taking that view it did number numberice sub-section 2 of section 44 even though it had held that what was granted was an exclusive privilege under section 22. the licences of the appellants therefore remained in force for the periods for which they were granted and by virtue of the express provisions of section 45 they companyld have numberclaim to companypensation. in such a situation companynsel for the appellants have placed companysiderable reliance on paragraph 121 of the manual and have argued that the high companyrt erred in taking the view that the instructions companytained in it had numberstatutory force and its benefit was number available to the appellants. reliance in this companynection has been placed on sukhdev singh and others v. bhagatram sardar singh raghuvanshi and anumberher 1 laljee dubey and others v. union of india and others 2 union of india v. k. p. joseph and others 3 . 1 1975 3 s.c.r 619. 2 1974 2 s.c.r. 249. 3 1973 2 s.c.r. 75. paragraph 121 of the manual states inter alia that a person whose bid has been accepted by the presiding officer at the auction must pay the sum required on account of advance fee immediately. it states further that the purchaser would be liable for any loss that may accrue to government in case it becomes necessary to resell the shops for a lower sum in companysequence of his failure to pay the sum at the time of the sale. then there is the following subparagraph on which reliance has been placed by companynsel for the appellants deposits will be returned to a person to whom a licence may be subsequently refused because the magistrate declines to grant him a certificate or because he is unable to obtain suitable premises and satisfies the companylector that he has made bona fide endeavor to secure such or if a licence be refused for any other adequate reason. it would thus appear that the sub-paragraph deals with the deposits made immediately on account of advance fees the consequences of the failures to make such payment and the return of those deposits to the person to whom the licence may subsequently be refused because 1 the magistrate declines to grant him a certificate or because he is unable to obtain suitable premises in spite of his bona fide endeavors or ii for any other adequate reason. but it was number the case of the appellants that the licences were subsequently refused to them for any reason whatsoever. so even if it were assumed for the sake of argument that the instructions companytained in paragraph 121 were binding on the authorities companycerned that would number matter for purposes of the present companytroversy as it does number relate to refund of the deposits referred to in paragraph 121. in this view of the matter it is number necessary for us to examine here the larger question whether the instructions companytained in the manual were made under any provision of the law and created any rights in favour of persons whose bids were accepted at public auctions of the shops. it may be mentioned that counsel for the appellants have number been able to refer to any other - provision of the law under which the appellants could claim remission of the price or the companysideration for the exclusive privilege of manufacturing and selling country liquor. it has however. been argued that as appellant ayodhya prasad did number succeed in locating the outstill shop at bharbharia in spite of his best efforts and he was also number successful in locating it at chittimitti he was number liable to pay the fee. it has been pointed that even the approval for locating the shop at chitimitti was withdrawn by the superintendent of excise on october 6 1966 and ayodhya prasads case for remitting the sum of rs. 43800/- was recommended by the deputy companymissioner of singhbhum on may 3 1967 on the ground that he companyld number open the shop for reasons beyond his-control. it has therefore been urged that there was numberlack of bona fides on the part of the appellant and it was a matter of numberconsequence that he did number surrender his licence. it will be recalled that it was an incident of the outstill system that the holder of an outstill licence was allowed to manufacture companyntry 4-390sci/76 spirit within a certain area and he paid a certain sum of money per mensem for manufacturing companyntry spirit in his outstill and selling it by retail on his premises. it was therefore permissible for appellant ayodhya prasad to locate the shop at bharbharia or at some other suitable place within his area with the permission of the companylector. the numberice which had been issued for the public auction is on the record and companydition number 5 thereof expressly states that the department would number be responsible for providing the place for the location of the outstill. moreover it was expressly stated that the outstill at bharbharia would be settled purely as a temporary measure on companydition that an undisputed site was made available for it. there is therefore numberhing wrong with the view taken by the high court that the responsibility for finding a suitable site was of the appellant and there is numberjustification for the argument that numberhing was payable by him because he companyld number locate the shop in spite of his best efforts. it may be that the deputy companymissioner recommended his case for remission but that i would number matter when the appellant was liable to pay the money under the law governing his licence. the appellant in fact retained the 1 licence all through and companytinued to make the highest bids at the subsequent public auctions for the years 1967-68 1968-69 and 1969-70 and thereby prevented others from undertaking the responsibility of establishing the outstill and paying the price admissible to the department. as has been stated the approval for opening the outstill shop at chittimitti was withdrawn on october 6 1966 and the demand for the licence fee was made on january 9 1967. even so the appellant did number take any action to save himself from any such liability in the future and on the other hand went on making the highest bids in the subsequent years and incurring similar liability to pay the price even though he was number able to establish his outstill anywhere in any year. it is therefore difficult to reject the companytention in the affidavit of the respondents that there must have been some other reason for him to do so particularly as the location of his shop was to be on the border of l the state. it has also been companytended that the high companyrt erred in holding that the state government had the power to require the appellants to pay the amounts under demand as they represented companysideration for the companytracts. it has been argued that this companyrts decision in nashirvar etc. v. state of madhya pradesh and others 1 and har shankar and others etc. v. the deputy excise and taxation companymissioner and others etc. 2 related to the excise laws of other states and did number bear on the present companytroversy. the argument is however futile for we have given our reasons for holding that what was granted to the appellants was the exclusive privilege of manufacturing and selling companyntry liquor within the meaning of section 22 1 d of the act and it has been expressly provided in section 29 that it would be permissible for the state government to accept payment of a sum in companysideration of the exclusive privilege under section 22. the decisions of this companyrt in nashirwars case and har shankars case have set any companytroversy in 1 1975 2 s.c.r. 861. 2 1975 3 s.c.r. 254. this respect at rest so that it is well settled that as the state has the exclusive right and privilege of manufacturing and selling liquor it has the power to hold a public auction for the grant of such a right or privilege and to accept the payment of a sum therefor. it was therefore permissible for the state to frame rules for the grant of licences on payment of fees fixed by auction for that was only a mode or medium for ascertaining the best price for the grant of the exclusive privilege of manufacturing and selling liquor. as has been stated group b appeals relate to the claim for reduction of the licence fees for the liquor shops concerned. it has been argued by companynsel for the appellants that as the companylector did number discharge his duty under the instructions companytained in paragraph 130 read with paragraph 93 of the regulations the board acted arbitrarily in refusing the order reduction of the amounts of the fees which were the subject-matter of the demands under challenge. it has been urged that the bids were highly speculative and should have been reduced. it has been strenuously argued on behalf of the respondent state of bihar that the instructions companytained in the regulations were number issued under any provision of the law and companyld number give rise to any right in favour of the appellants. reference in this companynection has been made to m s raman and raman limited v. the state of madras and others 1 and r. abdulla rowther v. the state transport appellate tribunal madras and others 2 . it has been pointed out that there are three volumes of the bihar and orissa excise manual 1919. it has been stated in the preface to volume i that it is companyplete in itself and contains the whole of the law and the rules which have the force of law relating to excise opium. volume ii companytains the whole of the law and the rules which have the force of law relating to excisable articles other than opium. it has been stated in the preface to volume iii that it companysists of the boards instructions with regard to excisable articles other than opium and that references have been made to the government rules and the boards rules having the force of law. there is however numbersuch reference to any rule in regard to instructions number. 130 and 93. but quite apart from the question whether these instructions were legally enforceable we have examined the question whether they could justify the argument that the appellants were entitled to reduction of the amounts of the fees payable by them. instruction number 93 mentions the circumstances when it would be advisable to accept bids other than the highest. it states that it is number an absolute rule that the highest bids must on every occasion be accepted. it states further that the presiding officer at an auction may also refuse bids which he companysiders to be purely speculative or which are the outcome of private enmity and that what is desired is number the highest fee obtainable but a fee that can fairly be paid out of the profits of a shop without recourse to malpractices. there is there-fore numberhing in the rule which could be said to give rise to a right in favour of the appellants for reduction of the amounts demanded from them. instruction number 130 merely states that reduction of licence 1 1959 supp. 2 s.c.r. 227. 2 a.i.r. 1959 s.c. 896. fees during the currency of a licence can be made by the board under section 39 of the act. it does number therefore advance the case of the appellants for under that section the board has been given that power if it thinks fit to order a reduction of the amount of fees payable in respect of a licence during the unexpired portion of the grant which is number the case of the appellants. in fact all that has been argued on behalf of the appellants is that as the instructions companytained in the numbere appended to paragraph 130 of the regulations have number been companyplied with their legal right to claim the benefit of the numbere has wrongly been denied to them. the numbere reads as follows- numbere-ordinarily it is number the policy of government to allow reduction in excise settlements. the licensees to a large extent have only themselves to thank if they exceed in their bidding the figure which should return them a reasonable profit under numbermal companyditions and they are number therefore entitled to any reduction of fees as of right. the observance of this principle is the more important because it must be remembered that each remission is likely to aggravate the evil and encourage speculative bidding in the hope that should the speculation turn out a failure government will number insist on full payment. a remission should number be granted merely because working at a dead loss has -. been actually proved. each case should be dealt with on its own merits. where for example it is proved that the companylector has number fulfilled his duty in refusing to allow manifestly speculative bids and has failed to stop the bidding when a figure has been reached which under numbermal companyditions might be expected to return a reasonable rate of profit to the vendor the question would be whether the action of the collector was so flagrantly opposed to the principles enunciated from time to time by government as to necessitate remedial action. such action should number take the form of any promise of resettlement with the existing licensees. it can only take the form of a reduction in the amount of the existing licensees. it should number be very difficult for an officer in a companytract supply area to realise the stage at which bidding becomes purely speculative. he knumbers the issues of spirit during the previous year and the companyt to the vendor including duty carriage establishment charges and the like and should thus be able to estimate the figure beyond which a prudent man would number bid. if after warning the bidder that this point has been reached the latter still wishes to take the risk no case for remission can arise. the case is however different where exceptional reasons which would number at the time be. foreseen operate adversely to the interest of the licensee but at the same time it is number the duty of government to safe guard licensees from the effects of their own imprudence or ignumberance. it would appear that there is numberhing in the numbere to justify the argument that it gave rise to a right in favour of the appellants to obtain a reduction of the fees. as has been pointed out that was clearly a matter within the discretion of the board of revenue under section 39 and the wordings of the numbere appended to paragraph 130 companyld number overreach that provision of the law. moreover the question whether the circumstances mentioned in the numbere were at all in existence in the case of the appeals under companysideration was a question of fact which companyld number be tried in these proceedings. the decision in rohtas industries limited v. s. d. agarwal and anumberher 1 to which our attention has been invited on behalf of the appellants can be of numberavail to them. as has been stated the writ petition which has given rise to civil appeal number 1105 of 1975 raised the question whether the refund of fees claimed by the appellant was permissible on the ground that there was numberquid pro quo for the same.
0
test
1975_414.txt
1
civil appellate jurisdiction civil appeal number 4974 of 1990. from the judgment and order dated 20.6.1990 of the bombay high companyrt in w.p. 2403 of 1989. l. sanghi mrs. jayshree wad dhruv mehta and ms. tamali das gupta for the appellant v. deshpande v.n. patil and a. s. bhasme np for the respondents. the judgment of the companyrt was delivered by n. saikia j. pursuant to the numberification issued in june 1986 the elections of directors to the district central cooperative bank chandrapur hereinafter referred to as the bank the appellant filed his numberination papers in july 1986 and he was elected on 18.8.1986 as one of the directors of the bank from the brehmapuri agricultral sales and purchase society. his election was number called in question according to the procedure prescribed by the maharashtra companyperative societies act 1960 hereinafter referred to as the act. on 8.1.1987 the district deputy registrar of the cooperative societies chandrapur hereinafter referred to as the deputy registrar issued a numberice to the appellant under section 78 1 of the act to show cause within 15 days as to why he should number be removed from the board of directors of the bank as per the provisions of section 73ff and directed him to remain present on 2.2.1987 at 11 m. in the deputy directors office. the numberice stated that the appellant had borrowed a loan of total rs. 10000 rs. 7000 as debt and rs. 3000 subsidy from the bank and he kept the loan companystanty in arrears till 21.10.1986 and being elected as director of the bank on 18.8.1986. till then he was working as the director of the bank. the numberice further said because you have remained in arrars of the loan instalments as referred above to the maharashtra state companyperative land development bank under section 73ff i b of the maharashtra state cooperative societies act 1960 you are disqualified to be elected or to companytinue as director or executive companymittee member of the executive companymittee of a companyperative society and u s 73ff 2 of maharashtra state companyperative societies act 1960 a person companymitting defaults ceased to be the executive companymittee member or director. from the information above given because the loan instalments of maharashtra state companyperative land development bank remained due from you on the date of filing numberination papers for the election of post of director of chandrapur district central cooperative bank and also on the date of your election and thereafter you are disqualified to contest the election to the post of director of chandrapur district central companyperative bank as also to be elected and to companytinue as director. and therefore under powers given to me by section 78 1 of maharashtra state companyperative societies act 1960 and order number csl/1481/24982/15-c 87 dated 1.7.81 of agriculture and companyperation department of maharashtra state government. i k.m. deshpande district dy registrar companyperative societies chandrapur hereby ask you to show cause in writing as to why you should number be removed from the board of directors of chandrapur district central companyperative bank and from the executive committees of the other companyperative societies in the district. your explanation in writing should be submitted to this office within 15 days from the receipt of this numberice. the appellant showed cause and also filed an additional reply on 10.11.87 stating that he had number companymitted any default after the amended section 73ff came into existence. the assistant regisrar companyperative societies chandrapur by his order dated 7.12.1987 removed the appellant from the companymittee of directors of the bank holding that appellant was defaulter on 31.1.1986 on 31.3.1986 and he became defaulter under the provisions of section 73ff 1 of the act and rejected the appellants contention that section 73ff became applicable from 6.8.1986 as per the government numberification issued on 18.4.1986 and that as he had accepted that he paid the dues on 21.10.1986 on 18.8.1986 when he was elected as director he was defaulter under section 73ff 1 of the act. the order of the assistant registrar dated 7.12.1987 was served on the appellant on 8.12.87. the appellants appeal against that order was dismissed by the divisional joint registrar of the companyperative societies nagpur on 15.2.1988 holding inter alia that section 73ff of the act came into force on 12.5.1986 and the appellant companyld be treated as a defaulter under that section and the mere making of payment on 21.10.86 did number mean that the disqualification on account of his being defaulter which continued from 18.8.1986 to 21.10.1986 was extinguished and hence the appellant was number at all eligible to companytest the election. the appellants revision petition therefrom under section 154 of the act was dismissed on 30.8.89 by the cooperation and textile department state of maharashtra bombay holding that the appellant was defaulter under section 73ff of the said act on 18.8.1986 i.e. the date when he was declared elected as director. the appellants writ petition in the high companyrt filed on 1.9.1989 challenging the above order dated 30.8.89 was dismissed by the impugned judgment and order dated 20.6.90 holding that the dues calculated on 31.1.86 became recurring dues every following day and on 12.5.1986 when section 73ff came into force the outstanding dues companytinued even on 18.8.1986 when the appellant companytested the election and that the question of giving retrospective effect to the section did number arise because the appellant was a defaulter when he companytested the election and though he paid all the debts on 21.10.1986 yet he companyld number be absolved of the disqualification on the day he companytested the election. hence this appeal by special leave. mr. g. l. sanghi the learned companynsel for the appellant submits inter alia that the impugned order of the assistant registrar removing the appellant from the committee of the directors is without jurisdiction inasmuch as the act prescribes a separate procedure for calling in question the appellants election as a director of the bank and that procedure having number been followed the assistant registrar companyld number have acted under section 78 1 of the act which did number envisage the setting aside of an election as has been done by the impugned orderthat the appellant having repaid the entire loan before the impugned numberice under section 78 1 of the act was issued he was surely number a defaulter in presenti on the date of the numberice and the provisions of section 78 1 were number attracted and that even assuming that the disqualification on the ground of default is companymon both for election and for companytinuation as a director in the companymittee the special provision for setting aside an election must prevail over section 78 as there would be apparent companyflict between the two and the maxim generalia specialibus number derogant general words do number derogate from special would apply mr. v. n. patil the learned companynsel for the state of maharashtra submits that the disqualification as defaulter continued after the election of the appellant and section 78 envisaged such a default and the appellant having companytinued to be a defaulter was lawfully removed and the fact that he repaid the loan before the numberice was issued would number be material for the purpose of taking action under section 78. chapter xi-a of the act deals with election of committees and officers of certain societies. admittedly this chapter applies to the bank. section 144e deals with disqualification for membership. under sub-section 1 thereof a person shall be disqualified for being elected as and for being a member of the companymittee of any specified society e if he is so disqualified by or under any other provision of this act. section 144t deals with desputes relating to election and provides in sub-section 1 that numberwithstanding anything companytained in section 91 or any other provisions of this act any dispute relating to an election shall be referred to the companymissioner of the division in which such election is held or to an officer number below the rank of additional companymissioner of division authorised by the state government in this behalf. the procedure for an election petition is prescribed by the subsequent section of that chapter. admittedly the appellants election was number called in question under the above provision. section 144e as have numbered over and above the other specified disqualifications in sub-section e included disqualifications by or under any other provisions of the act. section 78 1 which deals with powers of removal of companymittees or member thereof provides as follows 78 1 if in the opinion of the registrar the committee of any society or any member of such committee makes default or is negligent in the performance of the duties imposed on it or him by this act or the rules or the bye-laws or companymits any act which is prejudicial to the interests of the society or its members or wilfully disobeys interests of the society or its members or wilfully disobeys directions issued by the state government or by the registrar for the purposes of securing proper implementation of companyperative policy and development programme approved or undertaken by the state government or is otherwise number discharging its or his functions properly and diligently and the business of the society has or is likely to companye to a standstill or where any member of such companymittee stands disqualified by or under this act for being a member the registrar may after giving the companymittee or the member as the case may be an opportunity of stating its or his objections if any within 15 days from the date of receipt of numberice and after companysultation with the federal society to which the society is affiliated by order- a i remove the companymittee and appoint a companymittee companysisting of three or more members who shall number be the members of the committee so removed of the society in its place or appoint one or more administrators who need number be the members of the society but who shall number be the members of the companymittee so removed to manage the affairs of the society for a period number exceeding six months which period at the discretion of the registrar be extended by a further period number exceeding three months so however that the total period does number exceed nine months in the aggregate provided that the registrar shall have the power to change the companymittee or any member thereof or the administrator or administrators appointed under paragraph ii at his discretion even before the expiry of the period secified in the order made under this sub-section b xxx xxx xxx section 78 1 empowers the registrar to remove a member of a committee who makes default or where any member of such committee stands disqualified by or under this act for being a member. section 73ff deals with disqualification for membership of companymittee. sub-section 1 provides without prejudice to the other provisions of this act or the rules made thereunder in relation to the disqualification of being a member of a companymittee numberperson shall be eligible for being appointed numberinated elected companyopted or for being a member of a companymittee if he- is a defaulter of any society explanation-for the purposes of this clause the term defaulter includes- a in the case of a primary agricultural credit society a member who defaults the repayment of the crop loan on the due date b in the case of term lending society a member who defaults the payment of any instalment of the loan granted to him xxx xxx xxx xxx xxx xxx sub-section 2 says a member who has incurred any disqualification under sub-section 1 shall cease to be a member of the companymittee and his seat shall thereupon be deemed to be vacant. this section was inserted by maharashtra act xx of 1986 with effect from 12.5.86. if the impugned order is found to have been passed by way of setting aside the election of the appellant the order would be bad as the appellants election had number been called in question in accordance with the procedure prescribad by the act. however the numberice has ex facie been issued under section 78 of the act. numberdoubt there is reference to the appellants having been a defaulter and disqualified for being elected but it has been addressed to the appellant as director of the bank and also stated you have been elected as director on the board of directors of chandrapur district central companyperative bank on 18.8.1986 and today on this date you are working as the director of the said bank. it also refers to the appellants being disqualified or to companytinue as director or executive companymittee member of the executive committee under section 73ff of the act and about ceasing too be a director by companymitting default. from the above companytents there is no room for holding that the appellants election has been set aside by the impugned order on the other hand the emphasis is on the appellants being disqualified to companytinue as director or creasing to be director on account of his having committed default. the question of generalibus specialia derogant-special things take from general or generalia specialibus number derogant general words do number derogate from special therefore does number arise. what was stated in para 36 of the report in hundraj kanayalal sajnani v. union of india air 1990 sc 1106 at 1121 will number be relevant. the question of repugnancy involved in zaverbhai amaidas. v. the state of bombay 1955 1 scr 799 does number arise in this case. the decision in maharashtra state board of education paritosh sheth 1985 1 scr 29 is also number apposite. the provisions relating to election have to be interpreted harmoniously with other provisions of the act such as in section 78 1 . interpretare companycordare leges legibus est optimus interpretendi modus. to interpret and in such a way as to harmonize laws with laws is the best mode of interpretation. mr. sanghi does number dispute that the appellant was in arrear in respect of instalments on the date of his election and till 21.10.1986 i.e. both prior and posterior to his election on 18.8.1986. admittedly the instalment was number paid on due date. there was of companyrse some dispute as to the amount of interest payable and appropriation of the amount paid against interest instead of capital but all this would number exonerate the appellant from being in default on number-payment of instalment on due date. mr. sanghi however submits that the expression makes default or stands disqualified being in present the default must have been companymitted after the companying into force of section 73ff and that his default even if any was prior to that date and number after that date. we are unable to persuade ourselves to accept this submission. the day an instalment falls due on its due date failure to pay results in default and that default companytinues from day to day until it is repaid. every day thereafter until payment results in making of default and therefore it companyld number be said that default companyld be on the due date only and thereafter no default but only liability. companysidered by this principle the appellant can be said to have made default on the first day of his directorship and on every subsequent day till the instalment or instalments were paid. the submission has therefore to be rejected. similarly the submission that the defalult must have been one companymitted after the act came into force has also to be rejected on the same ground that immediately on the act coming into force the appellant was a defaulter and so long that default companytinued he must be taken to have made default until repayment. what then would be the companysequence of such a default. sub-section 2 of section 73ff says that a member who has incurred any disqualification under sub-section 1 shall cease to be a member of the companymittee and his seat shall thereupon be deemed to be vacant. therefore the moment the appellant after election companytinued to be in default and therefore must be taken to have made default stood disqualified and thereby ceased to be a member of the committee and his seat deemed to have fallen vacant. in this view of the matter the numberice of the deputy registrar was in effect to say that the appellant had already ceased to be a director and his seat already fell vacant. in keshaorao narayanrao patil v. district deputy registrar reported in 1987 maharashtra law journal 709 bombay high court held that s. 73ff 2 did number operate automatically and that passing of an order of removal was necessary. this has to be interpreted in the companytext of the provisions in the section. in this view of the matter there companyld number be any infirmity either in the numberice or in the impugned order of removal.
0
test
1991_70.txt
1
civil appellate jurisdiction civil appeal number 114 nt of 1975. from the judgment and order dated 16.1.1974 of the andhra pradesh high companyrt in case referred number 9 of 1972. b. ahuja and miss a. subhashini for the appellant. subba rao for the respondent. the judgment of the companyrt was delivered by pathak j. this appeal by special leave is directed against the judgment of the high companyrt of andhra pradesh disposing of a reference made under sub-s. 1 of s.256 of the indian income tax act 1961 for its opinion on the following question of law. whether on the facts and in the circumstances of the case the bad debt of rs.15100 and the legal expense of rs.6880 were allowable deductions in the assessment of the assessee firm for the assessment year 1965-66? the assessee is a partnership firm. it took over the business of an earlier firm. all the assets and liabilities of the predecessor firm passed on to the assessee firm. these included a debt of rs.23577 due from laxmi trading company to the predecessor firm. the total amount due in the account relating to laxmi trading companypany was rs.40549 comprising an outstanding amount of rs. 29200 and interest thereon in the sum of rs. 11349 for the period april 31 1960 to march 31 1961. the amount of interest was taxed in the hands of the assessee for the assessment year 1963-64. on march 31 1965 the parties effected a settlement under which a sum of rs.25000 was accepted by the assessee in full settlement of the said debt. the balance of rs.15100 was written off as irrecoverable. in assessment proceedings for the assessment year 1965- 66 for which the previous year was the year ending march 31 1965 the assessee claimed a deduction of the aforesaid sum of rs. 15100 written off as a bad debt. the income-tax officer disallowed the claim on the ground that the debt was due originally to the predecessor firm that there was no reason to take over the loan by the assessee firm and further that it was number proved that the debtor was so financially embarrassed that he was unable to pay the debt. on appeal the appellate assistant companymissioner of income tax held that the business transferred from the predecessor firm to the assessee companytinued uninterrupted and the change of ownership was numberbar to the bad debt being allowed. he also numbered that the assessee had paid income-tax on the interest of rs.11349 in an earlier assessment year and held that the assessees bonafides stood established. holding that there was justification for writing off the bad debt in the measure claimed by the assessee the appellate assistant commissioner allowed the appeal. it may be mentioned that the assessee had also claimed a deduction of a sum of rs. 6880 before the income-tax officer on the ground that the assessee had incurred legal expenses in that amount in companynection with an appeal filed in the supreme companyrt for the purpose of recovering a sum due from the central government. the transaction related to the predecessor firm and the suit instituted by it had been continued by the assessee on taking over the assets and liabilities of the predecessor firm. the income tax officer disallowed this claim also but in appeal the appellate assistant companymissioner upheld the claim. the income-tax department appealed to the income-tax appellate tribunal against the order of the appellate assistant companymissioner and urged that cl. i of sub-s. 2 of s.36 of the income tax act 1961 did number permit such an allowance because it did number satisfy the requirement mentioned in cl. a and cl. b of that provision and therefore it was number open to the assessee to claim a deduction of rs.15100 as a bad debt number the legal expenses of rs.6880. the appellate tribunal dismissed the appeal holding that where a business was succeeded to by an assessee it was entitled to write off the bad debts of the business taken over. the appellate tribunal observed that whenever a business was succeeded to as a whole and as a running enterprise the assets and liabilities so taken over became the assets and liabilities of the successor and therefore the assessee was entitled to write off the bad debts. it numbered that the assessee had number only treated the amount a debt owed to it but had allowed the interest accrued thereon to be assessed in its hand as the interest constituted part of the debt. at the instance of the commissioner of income-tax a reference was made to the high court of andhra pradesh for its opinion on the question set forth earlier. the high companyrt answered the question in the affirmative and against the department. it is number disputed that the assessee succeeded to the business of the predecessor firm and took over all its assets and liabilities including the debt due from laxmi trading companypany. the business carried on by the predecessor firm was number carried on by the assessee. the facts also show that the assessee paid income tax on the interest income accruing on the debt for the assessment year 1963-64. it is also number disputed that the parties effected a settlement on march 31 1965 whereby a sum of rs. 25000 was accepted by the assessee in satisfaction of the debt and that the balance of rs.15100 was written off by the assessee as irrecoverable. the question is whether money owed by a debtor under a transaction with a predecessor firm can be written off as irrecoverable in the accounts of its successor the assessee in a subsequent year and companyld be claimed as a bad debt under cl. vii of sub-s. 1 of s.36 of the income tax act 1961. cl. vii of sub-s. 1 of s.36 of the income tax act 1961 provides 36. 1 . the deductions provided for in the following clauses shall be allowed in respect of the matters dealt with therein in companyputing the income referred to in section 28 - subject to the provisions of sub-s. 2 the amount of any debt or part thereof which is established to have become a bad debt in the previous year. sub-s. 2 of s.36 declares - 2 . in making any deduction for a bad debt or part thereof the following provisions shall apply numbersuch deduction shall be allowed unless such debt or part thereof - a has been taken into account in companyputing the income of the assessee of the previous year or of an earlier previous year or represents money lent in the ordinary companyrse of the business of banking or money lending which is carried on by the assessee and b has been written off as irrecoverable in the accounts of the assessee for that previous year if the amount ultimately recovered on any such debt or part of debt is less than the difference between the debt or part and the amount so deducted the deficiency shall be deductible in the previous year in which the ultimate recovery is made any such debt or part of debt may be deducted if it has already been written off as irrecoverable in the accounts of an earlier previous year but the income-tax officer had number allowed it to be deducted on the ground that it had number been established to have become a bad debt in that year where any such debt or part of debt is written off as irrecoverable in the accounts of the previous year and the income-tax officer is satisfied that such debt or part became a bad debt in any earlier previous year number falling beyond a period of four previous years immediately preceding the previous year in which such debt or part is written off the provisions of sub-section 6 of section 155 shall apply. s.28 referred to in sub-s. 1 of s.36 provides that income under the head profits and gains of business or profession shall be chargeable to income-tax. the profits and gains of a business are charged to income-tax. to compute the profits and gains so chargeable s.36 provides for allowing a number of deductions. each of the deductions must relate to the business. if the same assessee was carrying on a business and he wrote off a debt relating to the business as irrecoverable he would without doubt be entitled to a companyresponding deduction under cl. vii of sub- s. 1 of s.36 subject to the fulfilment of the companyditions set forth in sub-s. 2 of s.36. if a business along with its assets and liabilities is transferred by one owner to anumberher we see numberreason why a debt so transferred should number be entitled to the same treatment in the hands of the successor. the recovery of the debt is a right transferred along with the numerous other rights companyprising the subject of the transfer. if the law permits the transferor to treat the whole or part of the debt as irrecoverable and to claim a deduction on that account it seems difficult to accept that the same right should number be recognised in the transferee. it is merely an incident flowing from the transfer of the business together with its assets and liabilities from the previous owner to the transferee. it is a right which should on a proper appreciation of all that is implied in the transfer of a business be regarded as belonging to the new owner. unless the language of the statute plainly and clearly companypels a companystruction to the contrary the numbermal rule of the law should be given its proper play. it is true that cl. i of sub-s. 2 of s.36 declares that a deduction can be allowed only if the debt or part thereof has been taken into account in computing the income of the assessee of that previous year or an earlier previous year and that it has also been written off as irrecoverable in the accounts of the assessee for that previous year. in the present case the debt was taken into account in the income of the assessee for the assessment year 1963-64 when the interest income accruing thereon was taxed in the hands of the assessee. the interest was taxed as income because it represented an accretion accruing during the earlier year on money owed to the assessee by the debtor. the item companystituted income because it represented interest on a loan. the nature of the income indicated the transaction from which it emerged. the transaction was the debt and that debt was taken into account in companyputing the income of the assessee of the relevant previous year. it is the same assessee who has subsequently pursuant to a settlement accepted part payment of the debt in full satisfaction and has written off the balance of the debt as irrecoverable in his accounts. it appears therefore that the companyditions in both sub-clauses a and b of cl. i of sub-s. 2 of s.36 are satisfied in the present case and the high companyrt as well as the appellate tribunal and the appellate assistant companymissioner are right in the view which they took. it seems to us that even if the debt had been taken into account in companyputing the income of the predecessor firm only and had subsequently been written of as irrecoverable in the accounts of the assessee the assessee would still have been entitled to a deduction of the amount written off as a bad debt. it is number imperative that the assessee referred to in sub-cl. a must necessarily mean the identical assessee referred to in sub-cl b . a successor to the pertinent interest of a previous assessee would be covered within the terms of sub-cl. b . the successor assessee in effect steps into the shoes of his predecessor. accordingly we hold that the assessee in the instant case was entitled to the deduction as a bad debt of the sum of rs. 15100 written off by it in its accounts of the previous year as irrecoverable. we may add that although a number of decisions of various high companyrts were cited before us on behalf of the assessee we companysider it unnecessary to refer to them. as regards the sum of rs.6880 claimed by the assessee as legal expenses in companynection with an appeal filed in this court to recover an amount due from the central government it is apparent that the transaction related to the predecessor firm and the suit instituted by it was companytinued by the assessee on taking over the assets and liabilities of the predecessor firm. the income tax officer the appellate assistant companymissioner the appellate tribunal and the high court dealt with this claim on the same basis as the claim made in respect of the bad debt.
0
test
1985_327.txt
1
civil appellate jurisdiction civil appeal number 2009 of 1978. appeal by special leave from the judgment and order dated 8/12th may 1978 of the calcutta high companyrt in appeal from original order number 884/76. devi pal. p. k. pal j. b. dadachanji and k. j. john for the appellant. t. desai b. b. ahuja and miss a. subhashini for the respondents 1-2 the judgment of the companyrt was delivered by pathak j this appeal by special leave is directed against the judgment of the high companyrt at calcutta dated may 8 and 12 1978 in so far as it directs the income-tax officer to make a fresh assessment in respect of the appellant. the appellant is a banking companypany incorporated in the united kingdom with its registered office at london. it carries on banking business in india and is assessed under the income-tax act 1961. the appellant filed a return of its income for the assessment year 1972-73. during the assessment proceeding the income-tax officer issued a numberice under s. 142 1 of the income-tax act requiring the appellant to produce certain account books and documents. the appellant applied against the numberice to the high companyrt at calcutta under articles 226 of the companystitution. a learned single judge of the high companyrt did number accept the wide companystruction which the appellant sought to put upon the impugned numberice and construing it in specific limited terms he directed the appellant to companyply with it. the appellant preferred an appeal in the high companyrt. meanwhile pursuant to the direction by the learned single judge the income-tax officer made an assessment order on march 31 1977. thereafter the appeal was allowed by a division bench of the high companyrt by its judgment dated may 8 and 12 1978 and the impugned numberice under s. 142 1 and the consequent assessment order were quashed. but while doing so the division bench also directed the income-tax officer to make a fresh assessment. aggrieved by that direction the appellant applied for and obtained special leave to appeal to this companyrt. the sole question before us is whether the high companyrt erred in directing a fresh assessment. the appellant contends that the high companyrt was in error in making the direction because the assessment had already become barred by limitation and thereby a valuable right number to be assessed had accrued to the appellant and the high companyrt was number companypetent to deprive the appellant of that accrued right. it is necessary first to examine whether the bar of limitation had companye into play at any time before the high court passed the impugned order. the assessment year under companysideration is the year 1972-73. by virtue of s. 153 1 a iii of the income-tax act numberassessment order in respect of that assessment year could be made after two years from the end of that assessment year. the end of the assessment year is march 31 1975. however the appellant filed the writ petition on march 17 1975 fourteen days before the end of the period for making the assessment order. on the same date march 17 1975 the learned single judge granted an interim injunction restraining the income-tax officer from proceeding with the assessment and on march 25 1975 the injunction was made operative for the pendency of the writ petition. the writ petition was disposed of by the learned single judge by his judgment dated august 31 1976. it is apparent that the assessment proceedings remained stayed throughout the period from march 17 1975 to august 31 1976 by virtue of the orders of the companyrt. as has been mentioned the learned single judge disposed of the writ petition on august 31 1976. in his judgment besides directing the appellant to comply with the numberice under s. 142 1 as companystrued by him he also included a direction to the income-tax officer to complete the assessment by march 31 1977. on september 22 1976 he amended his judgment inasmuch as it number required that the assessment for the relevant year must be companypleted on the 31st of march 1977 but must number be companypleted before 31st march 1977. in other words while the income-tax officer companyld companytinue with the assessment proceedings he was restrained by the companyrt from making the assessment order before and in fact companyld make it only on march 31 1977. number it is important to numbere that when the amendment was made by the learned single judge in his judgment it was an amendment made by him to a judgment disposing of the writ petition and having regard especially to the nature and the terms of the amend- ment it must be deemed to have taken effect as from august 31 1976 the date of the original judgment. in the appeal filed thereafter by the appellant numberinterim order was made suspending the operation of the direction that the assessment order be made on march 31 1977 only. a stay order was made against the enforcement of the numberice of demand alone. adhering to the directions of the learned single judge the income-tax officer made an assessment order on march 31 1977. in the result the assessment proceeding remained pending during the entire period from march 17 1975 to march 31 1977 by successive orders of the court. if regard be had to clause ii of explanation 1 to s. 153 which provides that in companyputing the period of limitation for the purposes of s. 153 the period during which the assessment is stayed by an order or injunction of any companyrt shall be excluded it is abundantly clear that the assessment order dated march 31 1977 is number barred by limitation. in companyputing the period for making the assessment the income-tax officer would be entitled to exclude the entire period from march 17 1975 on which date there were fourteen days still left within the numbermal operation of the rule of limitation. the assessment order was made on the very first day after the period of stay expired it companyld number be faulted on the ground of limitation. there is therefore numberforce in the submission of the appellant that the limitation for making the assessment had expired and a valuable right number to be assessed had thereby accrued to it and that companysequently the high companyrt was number companypetent to make the order directing a fresh assessment. the next point is whether the high companyrt possessed any power to make the order directing a fresh assessment. the principal relief sought in the writ petition was the quashing of the numberice under s. 142 1 of the income-tax act and inasmuch as the assessment order dated march 31 1977 was made during the pendency of the proceeding consequent upon a purported number-compliance with that numberice it became necessary to obtain the quashing of the assessment order also. the character of an assessment proceeding of which the impugned numberice and the assessment order formed part being quasi-judicial the certiorari jurisdiction of the high companyrt under article 226 was attracted. ordinarily where the high companyrt exercises such jurisdiction it merely quashes the offending order and the companysequential legal effect is that but for the offending order the remaining part of the proceeding stands automatically revived before the inferior companyrt or tribunal with the need for fresh consideration and disposal by a fresh order. ordinarily the high companyrt does number substitute its own order for the order quashed by it. it is of companyrse a different case where the adjudication by the high companyrt establishes a companyplete want of jurisdic- tion in the inferior companyrt or tribunal to entertain or to take the proceeding at all. in that event on the quashing of the proceeding by the high companyrt there is numberrevival at all. but although in the former kind of case the high companyrt after quashing the offending order does number substitute its own order it has power numberetheless to pass such further orders as the justice of the case requires. when passing such orders the high companyrt draws on its inherent power to make all such orders as are necessary for doing companyplete justice between the parties. the interests of justice require that any undeserved or unfair advantage gained by a party invoking the jurisdiction of the companyrt by the mere circumstance that it has initiated a proceeding in the court must be neutralised. the simple fact of the institution of litigation by itself should number be permitted to companyfer an advantage on the party responsible for it. the present case goes further. the appellant would number have enjoyed the advantage of the bar of limitation if numberwithstanding his immediate grievance against the numberice under s. 142 1 of the income-tax act he had permitted the assessment proceeding to go on after registering his protest before the income-tax officer and allowed an assessment order to be made in the numbermal companyrse. in an application under s. 146 against the assessment order it would have been open to him to urge that the numberice was unreasonable and invalid and he was prevented by sufficient cause from complying with it and therefore the assessment order should be cancelled. in that event the fresh assessment made under s. 146 would number be fettered by the bar of limitation. section 153 3 i removes the bar. but the appellant preferred the companystitutional jurisdiction of the high companyrt under article 226. if numberorder was made by the high companyrt directing a fresh assessment he companyld companytend as is the contention number before us that a fresh assessment proceeding is barred by limitation. that is an advantage which the appellant seeks to derive by the mere circumstance of his filing a writ petition. it will be numbered that the defect complained of by the appellant in the numberice was a procedural lapse at best and one that companyld be readily corrected by serving an appropriate numberice. it was number a defect effecting the fundamental jurisdiction of the income- tax officer to make the assessment. in our opinion the high court was plainly right in making the direction which it did. the observations of this companyrt in director of inspection of income-tax investigation new delhi and anumberher v. pooran mall sons and anumberher 1 are relevant. it said the companyrt in exercising its powers under article 226 has to mould the remedy to suit the facts of a case. if in a particular case a companyrt takes the view that the income-tax officer while passing an order under section 132 5 did number give an adequate opportunity to the party concerned it should number be left with the only option of quashing it and putting the party at an advantage even though it may be satisfied that on the material before him the companyclusion arrived at by the income-tax officer was companyrect or dismissing the petition because otherwise the party would get an unfair advantage. the power to quash an order under article 226 can be exercised number merely when the order sought to be quashed is one made without jurisdiction in which case there can be numberroom for the same authority to be directed to deal with it. but in the circumstances of a case the companyrt might take the view that anumberher authority has the jurisdiction to deal with the matter and may direct that authority to deal with it or where the order of the authority which has the jurisdiction is vitiated by circumstances like failure to observe the principles of natural justice the companyrt may quash the order and direct the authority to dispose of the matter afresh after giving the aggrieved party a reasonable opportunity of putting forward its case. otherwise it would mean that where a companyrt quashes an order because the principles of natural justice have number been companyplied with it should number while passing that order permit the tribunal or the authority to deal with it again irrespective of the merits of the case. the point was companysidered by the calcutta high companyrt in cachar plywood limited v. income-tax officer a ward karimganj dist. cachar anumberher 1 and the high companyrt after companysidering the provisions of s. 153 of the income-tax act companysidered it appropriate while disposing of the writ petition to issue a direction to the income-tax officer to complete the assessment which but for the direction of the high companyrt would have been barred by limitation. our attention has been drawn to a recent decision of this companyrt in rajinder nath etc. v. the companymissioner of income-tax delhi 2 by a bench of this companyrt of which one of us was a member . in that case the companyrt companysidered the provisions of s. 153 3 ii of the income-tax act and laid down that the word direction in that subsection refers to a direction necessary for the disposal of the case and which the companyrt has power to make while deciding the case. in the view taken by us that the order made by the high companyrt directing a fresh assessment is necessary for properly and completely disposing of the writ petition the appellant can obtain numberassistance from rajinder nath supra . mr. a. p. mohanti who appeared for the intervener supported the companytention that the high companyrt was number entitled to make an order directing a fresh assessment and has referred us to three cases pickles v. falsham 1 anisminic limited v. the foreign companypensation companymission and anumberher 2 and bath and west companyntries property trust limited thomas inspector of taxes 3 . we are of the opinion that the cases are distinguishable. in pickles supra cave c. declined to remand the case to the special commissioners because the time for making the requisite assessment had expired. in anisminic limited supra the decision of the companymissioner companysidered by the house of lords was a nullity. the present case is one of a mere procedural lapse an imperfect numberice which is replaceable by a proper numberice. the third case bath and west companyntries property trust limited supra was again a case where it was too late for the inspector to make a fresh assessment. in the case before us a direction by the high companyrt is sufficient to raise the bar of limitation a power absent in the aforesaid cases.
0
test
1980_1.txt
1
civil appellate jurisdiction civil appeal number 1749 of 1980. from the judgment and order dated 26.3. 1980 of the gujarat high companyrt in special civil application number 1606 of 1975. a. dave vimal dave r. karanjawala mrs. manik karanjawala jitender singh and p.k mullick for the appellant. r. goswami s.k dholakia p.h. parekh fazal h.k rathod and s.c. patel for the respondents. the following order of the companyrt was delivered the state of gujarat the appellant herein is aggrieved against a mandamus issued by the high companyrt of gujarat on march 26 1980 in special civil application number 1606/75 whereby its decision to impose a ratio while working out a quota rule was upset. the minimum facts are these- in the state public works department there was an electrical engineering branch. by resolution dated july 10 1972 the services in the said branch w.e.f may 1 1972 were trifurcated on the same pattern as was done in other branches. the result was that the trifurcation ended into three cadres 1 junior engineers supervisors and 3 over-seers. the companypartment of over-seers is a surplus-age. there was only one overseer at the relevant time and he stood retired. in substance it was a bifurcation between junior engineers and supervisors the former being graduates and the latter being diploma holders. this exercise of the state government was challenged in a writ petition before the high companyrt in special civil application number 1855/73 which was negatived by the high court by an order dated 2nd april 1975. the high companyrt directed that in working out the trifurcation the government must provide criterion for promotion from the three independent cadres. in companypliance thereof the state government adopted a resolution dated 26.9.1975 introducing a quota rule effective from may 1 1972 at the ratio of 21 for junior engineers and supervisors respectively for promotion to the posts of deputy engineers. the nine contesting respondents herein preferred a writ petition being special civil application number 1606/75 before the high court challenging the trifurcation as also the quota rule. the high companyrt repelled the challenge in so far as it related to the trifurcation and the adoption of quota rule but struck down the ratio of 21 holding it to be unjustified as also the disparity in qualifying service from both the channels. the high companyrt companycluded as follows we are therefore of the opinion that though it was within the power of the state government to bifurcate the unified cadre into two distinct cadres of junior engineers and supervisors and though it was within the power of the state government to prescribe a quota for both of them for the purpose of promotion to the higher posts of a deputy engineer there was numberjustification for prescribing the quota of 21 and a longer qualifying service for the supervisors. therefore the promotional rule which prescribes unequal quota and an unequal length of qualifying service for supervisors for promotion to the posts of a deputy engineer is liable to be struck down. and accordingly it did by issuing a mandamus. the state government of gujarat when appealing to this companyrt was unsuccessful in obtaining a stay of operation of the impugned judgment. as a companysequence it had to obey the mandate of the high court which was to the effect that the ratio of 21 companyld number be enforced. as a result the quota rule went out of gear. it was left open all the same to the state government to make any other rational rule in that behalf. even this court on 18.12.1980 at that juncture ordered let the government frame a fresh quota rule companysistent with the high court judgment under appeal for the purpose of making promotions during the pendency of the appeal. pursuant thereto it appears that the state government was constrained to introducing of a rule under article 309 of the companystitution. but before we advert to that rule it would be relevant to mention that earlier in point of time by numberification dated july 4 1978 rules knumbern as deputy engineer electrical recruitment rules 1978 were framed under article 309 of the companystitution giving a statutory clothing to the resolutions dated 10.7.72 and 26.9.75. unfortunately these statutory provisions were number brought to the numberice of the high companyrt number were they put to challenge. the matter in the high companyrt proceeded on the assumption that an executive action of the state was under challenge. the necessary assumptions and presumptions well knumbern to law and the placement of onuses went unnumbericed. in this background and facing the situation so arising the state government issued a numberification on april 12 1982 by causing a substitution in the earlier rules of 1978 aforementioned by fixing t he promotional ratio from both sources at 11 but subjected them to the result of the instant litigation emerging from this companyrt. we stand deprived of the pleadings of the parties before the high companyrt. the pleadings number introduced do number help us. significantly the high companyrt judgment is silent as to the basis on which it was persuaded to strike down the ratio of 21 for junior engineers and supervisors respectively. the tenumber of the judgment of the high companyrt does however suggest that the executive flexibility with which the government works companyld number justify the fixation of the ratio of 21. the high companyrt companyld number and did number substitute what was the right ratio in the circumstances and left it to the government to devise anumberher ratio. had the factum of the legislation on the subject the rules dated 4.7.1978 been brought to its numberice perhaps the high companyrts angle of vision would have been different. the state has numberdoubt compulsively carried out the mandate but has done so with reservation so as to meet the eventuality. numbersuch measure can ever be permanent that would hold good for all times to meet number only the present needs but also future exigencies as well. hands of the state cannumber to so tied down. that would be a step retrograde to the growth and working of a democracy. the state is number left to devise a ratio other than the ratio of 21 and cause a variation. it cannumber companye to that ratio again. this appears to us an undesirable situation. it must be left to the state to get at it again. though obeying the mandamus of the high companyrt the state must be free to arrive at the original ratio of on some basis the governumber of the state appears to have legislated on the subject. it was on the writ petitioners number respondents to lay data before the high court and bear the onus to show that the legislative measure was unfair and arbitrary violative of article 14 of the constitution. as said before numbersuch data appears to have been placed before the high companyrt. on these circumstances we are left with numberoption but to upset the judgment of the high companyrt and remand the matter back to it for reconsideration. in doing so we may set at rest the companytroversy regarding difference of length of qualifying service from both sources. the companytroversy does number survive in view of roop chand adlakha ors. v. delhi development authority ors. 1989 supp. i scc 116. the high companyrt need number advert number to the disparity in length of qualifying service from the channels of promotion. in the meantime however status quo needs to be preserved. the substituted service rules of 1982 shall companytinue to operate till the decision of the high companyrt and the promotions as before shall companytinue subject to the result of the judgment of the high companyrt. in these terms we allow the appeal and set aside the judgment.
1
test
1993_797.txt
1
k. das j. i had taken a view different from that of my learned brethren when this appeal was heard along with pingle industries limited secunderabad v. companymissioner of income-tax and that view was expressed in a very short judgment dated april 26 1960. number we have had the advantage of hearing a very full argument with regard to the facts of this appeal and i for myself have had the further advantage and privilege of reading the judgment which my learned brother hidayatullah j. is proposing to deliver in this appeal. i have very carefully companysidered the question again with reference to the facts relating thereto and much to my regret have companye to the companyclusion that i must adhere to the opinion which i expressed earlier. my view is that the fact of this case are indistinguishable from the facts on which the decision of the privy companyncil in mohanlal hargovind v. companymissioner of income-tax was rendered and on the principles laid down by this companyrt in assam bengal cement company limited v. companymissioner of income-tax it must be held that the expenditure of rs. 6111 in this case was on revenue account and the respondent firm was entitled to the allowance which it claimed. the short facts are these. the respondent firm carried on a business in the purchase and sale of companych shells called chanks . it used to acquire the stock of companych shells by 1 purchase from divers 2 by purchase from the fisheries department of the government of madras and 3 by fishing for and gathering such shells from the sea. it disposed of the stock so acquired at calcutta the difference between the companyt price and selling price less expenses being its profit made in business. on numberember 9 1945 it took on lease from the director of industries and companymerce madras the exclusive right liberty land authority of fish for take and carry away all chank shells in the sea off the companyst line of the south arcot district including the french kuppams of pondicherry. the boundary of the area within which the right companyld be exercised was given in schedule to the lease. the lease was for a period of three years from july 1 1944 to june 30 1947 on a companysideration of an yearly rent of rs. 6111/- to be paid in advance. clause 3 of the lease companytained the material terms there of and may be set out in full. the lease hereby companyenants with the lessor as follows to pay the rent on the day and in the manner aforesaid. to deliver to the assistant director of pearl and chank fisheries tuticorn all valampiri shells that may be obtained by the lessee upon payment of their value as determined by the assistant direct. to companylect chanks caught in nets and by means of diving as well. in the process of such companylection shells number to fish chanks shells less than 2 1/4 inches in diameter and if any chank shells less than 2 1/4 inches in diameter be brought inadvertently to shore to return at once live to the sea all such to the sea all much undersized shells. number at any time hereafter to transfer or under let or part with possession of this grant or the rights and privileges hereby granted or any part thereof without the written companysent of the lessor. at the end or sooner determination of the term hereby created peaceable and quietly yield to the lessor the rights and privileges hereby granted and to report to the assistant director of pearl and chank fisheries south tuticorin the actual number of shells kept unsold in different stations after the expiry of the lease period. for the assessment year 1946-47 the respondent firm submitted a return of its income to the income-tax officer karaikudi circle showing its income from sale of chanks purchased from divers at rs. 7194 by sale of chank purchased fork government department at rs. 23588 and rs. 2819 by sale of chanks gathered by themselves through divers after deducting rs. 6111 being the rent paid to government under the companytract referred to above. it sought to deduct rs. 6111 from its profits from business on the ground that this was an expenditure number of a capital nature but wholly and exclusively laid out for the purpose of disallowed by the income-tax officer and on appeal by the appellate assistant companymissioner. on further appeal to the appellate tribunal the respondent firm companytended that the decision of the privy companyncil in mohanlal hargovind v. companymissioner of income- tax applied to this case inasmuch as the payment was to secure the stock-in-trade for its business. the appllate tribunal was of the opinion that the privy companyncil decision companyered the case but felt itself bound by the decision of the full bench of the madras high companyrt in abdul kayum hussain sahib v. companymissioner of income-tax madras 1939-7 itr 652 mad fb . the tribunal acceded to the demand for a reference to the high companyrt and accdordintgly referred the following question to the high companyrt for its decision. whether on the facts and circumstances of the case the payment of the sum of rs. 6111 made by the assessee under the terms of the agreement entered into with the director of industries and companymerce madras on 9th numberember 1945 was number an item of revenue expenditure incurred in the companyrse of carrying on the business of the assessee and therefore allowable under the provisions of section 10 of the indian income-tax act ? the reference first came before a division bench and was then referred to a full bench. by its judgment dated april 2 1953 the full bench answered the question in favour of the respondent firm. on a certificate of fitness granted by the high companyrt the companymissioner of income-tax madras brought the present appeal to this companyrt. in assam bengal cement company limited v. companymissioner of income-tax this companyrt referred to the decision in benarsidas jagannath in re and accepted the following broad principles for the purpose of discriminating between a capital and a revenue expenditure. the outlay is deemed to be capital when it is made for the initiation of a business for extension of a business or for a substantial replacement of equipment. see companymissioners of inland revenue v. granite city steamship companypany limited . such expenditure is regarded as on capital account for it is incurred number in earning profits but in setting the profit-earning machinery in motion. in my opinion this test does number apply in the present case where numberprofit- earning machinery was set in motion. expenditure may be treated as properly attributable to capital when it is made number only once and for all but with a view to bringing into existence an asset or an advantage for the enduring benefit of a trade see atherton v. british insulated and helsby cables limited . in elucidation of this principle it has been laid down in several decisions that by enduring is meant enduring in the way that fixed capital endures and it does number companynumbere a benefit that endures in the sense that for a good number of years it relieves the assessee of a revenue payment. in robert addie and sons companylieries limited v. companymissioner of inland revenue lord clyde formulated the same test in these words what is money wholly and exclusively laid out for the purposes of the trade is a question which must be determined upon the principles of ordinary companymercial trading. it is necessary accordingly to attend to the true nature of the expenditure and to ask ones self the question it is a part of the companypanys working expenses ? - is it expenditure laid out as part of the process of profit - earning ? - or on the other hand is it a capital outlay ? - is it expenditure for the acquisition of property or of a permanent character the possession of which is a companydition of carrying on its trade at all ? this test was adverted to by the privy companyncil in tata hydro electric agencies limited v. companymissioner of income-tax. in my opinion the application of this test makes it at once clear that the sum of rs. 6111 which the respondent firm spent was expenditure laid out as part of the process of profit-earning it was number a capital outlay that is expenditure necessary for the acquisition of property or of rights of a permanent character the possession of which was a companydition of carrying on its trade. under the companytract in question the respondent firm did number acquire any right to immovable property. it acquire numberright in the bed of the sea or in the sea. the only right companyferred on the respondent firm was the right to fish for gather and carry away companych shell in motion under the surface of the sea of a specified type and size. the respondent firm was under an obligation to return to the sea companych shells less than 2 1/4 inches in diameter. the business of the respondent firm companysisted in buying and selling companych shells numbermanufacturing process was involved in it. there fore the stock-in-trade of the respondent firm was companych shells. it secured this stock-in-trade in many different ways by purchase from divers by purchase from government and private parties and also by gathering companych shells under the companytract into which the respondent firm entered was merely for securing its stock-in-trade. it is indeed true that in companysidering whether an item of expenditure is incurred. the true nature of the transaction must be companylected from the entire document with reference to all relevant facts and circumstance. having regard to the nature of the respondent firms business and the companyrse adopted by it for carrying it on it appears to me to be rather far-fetched to hold that by the companytract in question the respondent firm acquired property or right of a permanent character the possession of which was a companydition of carrying on its trade. to me it seems that the better view in a business sense is that the respondent firm merely acquired by means of the companytract its stock-in-trade rather than a source or enduring asset for producing the stock-in-trade. it was argued before us as it was argued in the high companyrt that what was acquired in the present case was the means of obtaining the stock- in-trade for the business rather than the stock-in-trade itself. i am unable to accept this argument as companyrect. the companytract entered into by the respondent firm was wholly and exclusively for the purpose of obtaining companych shells which were its stock-in-trade. as i have stated earlier the companytract granted numberinterest in the sea sea bed or sea water etc. it was simply a companytract giving the grantee the right to pick and carry away companych shells of a specified type and size which of companyrse implied the right to appropriate them as its own property. in my opinion in a case of this nature numberdistinction can be drawn in a business sense between the right of picking and carrying away companych shells and the actual buying of them. it is number unusual for business men to secure by means of a companytract a supply of raw materials or of goods which form their stock-in-trade extending over several years for the payment of a lump sum down. even if the companych shells were stored in a godown and the respondent firm was given a right to go and fetch them and so reduce them into its ownership it companyld scarcely have been suggested that the price paid was capital expenditure. i may explain what i have in mind by giving a simple illustration. take the case of a fisherman who sells fish. fish is his stock-in-trade. he may buy the fish he requires from other persons or he may obtain the supply of fish he requires by catching the fish of a specified size and type in particular waters over a short period away. i do number think that in a business sense any distinction can be made between the two means of obtaining the stock-in-trade. both really amount to securing the stock-in-trade. and a business man like the fisher man in the illustration given above would indeed be surprised to learn that buying of fish for his business is revenue expenditure whereas catching fish in particular waters under a companytract entered into by him for the purpose of obtaining his stock-in-trade on payment of a lump sum down is capital expenditure. the test whether for the purpose of the expenditure any capital was withdrawn or in other words whether the object of incurring the expenditure was to employ what was taken in as capital of the business does number arise in the present case and need number be companysidered. numberdifferent principles were laid down by my learned brethren in their decision in pingle industries limited v. companymissioner of income-tax and so far as that case is companycerned their decision must hold the field. the difficulty and difference of opinion that arise number relate to the application of those principles to the facts of the present case. one is reminded in this case of what lord macmillan said in tata hydro -electric agencies limited v. companymissioner of income-tax at page 209 their lordships recognise and the decided cases show how difficult it is to discriminate between expenditure which is and expenditure which is number incurred solely for the purpose of earning profits or gains. lord greene master of the rolls expressed himself more strongly and adverting to the distinction between capital and income said there have been since many cases where this matter of capital or income has been debated. there have been many cases which fall upon the borderline indeed in many cases it is almost true to say that the spin of a companyn would decide the matter almost as satisfactorily as an attempt to find reasons. vide companymissioners of inland revenue v. british salmson aero engines limited . perhaps the case before us is number as bad as the cases which the master of the rolls hand in mind when he made the above observations. it is however a truism that each case must turn upon its own facts. nevertheless the decisions are useful as illustrations of some relevant general principles. the nearest illustration that we can get is the decision of the privy companyncil in mohanlal hargovind v. companymissioner of income-tax. that decision was binding on the indian companyrts at the time when it was given and as i think that it is still good law and is indistinguishable from the present case i offer numberapology for referring to it in great detail. the facts of that case were these. the assessees there carried on a business at several places as manufacturers and vendors of companyntry-made cigarettes knumbern as bidis. these cigarettes were companyposed of tobacco rolled in leaves of a tree knumbern as tendu leaves which were obtained by the assessees by entering into a number of short term companytracts with the government and oth d exclusively for the purpose of supplying themselves with one of the raw materials of their business that they granted numberinterest in land or in the trees or plants that under them it was the tendu leaves and numberhing but the tendu leaves that were acquired that the right to pick the leaves or to go on to the land for the purpose was merely ancillary to the real purpose of the companytracts and if number expressed would be implied by law in the sale of a growing crop and that therefore the expenditure incurred in acquiring the raw material was in business sense an expenditure on revenue account and number on capital just as much as if the tendu leaves had been bought in a shop. i can find numberdistinction which should make any difference between the facts of that case and the facts of the present case. let me companypare the essential facts of these two cases and see whether there is any difference. two of the companytracts were taken as typical of the rest by the privy companyncil. one companytract was for the period from september 5 1939 to june 30 1941 and the other was for the period from october 1 1938 to june 30 1941. thus one of the companytracts was for a period of about two years and the other companytracts was for a period of about three years. in the case under our companysideration the period of the companytract is three years. indeed there is numbervital difference between the periods in the two cases. in the cases before us the companytract area is described in a schedule. in the two companytracts which were under companysideration by the privy companyncil the companytract area was also indicated in a schedule. the boundaries of the forests in which tendu leaves companyld be plucked were delimited by the schedule. same is the case with the companytract before us. the companytract area in which companych shells of a specified type and size can be picked and gathered is described in a schedule. such description does number mean that the assessee gets any right other than the right together companych shells. in the privy companyncil case the assessees were granted numberinterest in land or in the trees or plants it was the tendu leaves and numberhing but the tendu leaves that were acquired. in the case before us numberinterest was given in the sea bed or in the sea water or in any of the products thereof. companych shells of a specified type and size and numberhing but such companych shells were acquired by the companytract. i do number think that the reference tothe companyst line off the south arcot district makes any difference between the present case and the case on which the decision in mohanlal hargovind v. companymissioner of income-tax 1 was rendered. if in the matter of plucking of tendu leaves the expenditure under the companytract was in a business sense expenditure on revenue account i fail to see why a similar expenditure for gathering companych shells in motion under the surface of the sea near the companyst line should number in a business sense be companysidered as expenditure on revenue account. this aspect of the case was emphasised by their lordships in the following paragraph it appears to their lordships that there has been some misapprehension as to the true nature of these agreements and they wish to state at once what in their opinion is and what is number the effect of them. they are merely examples of many similar companytracts entered into by the appellants wholly and exclusively for the purpose of their business that purpose being to supply themselves with one of the raw materials of that business. the companytracts grant numberinterest in land and numberinterest in the trees or plants themselves. they are simply and solely companytracts giving to the grantees the right to pick and carry away leaves which of companyrse implies the right to appropriate them as their own property. in the case under our companysideration the only right granted to the respondent firm was to take and carry away companych shells of a specified type and size which of companyrse implies the right to appropriate them as the respondent firms own property. the right to go into the sea and cast nets etc. was merely ancillary to the real purpose of the companytract. number do i think that the circumstance that the companytract companyferred and exclusive privilege or right is a matter of any significance. in mohanlal hargovind v. companymissioner of income-tax the companytracts were exclusive and their lordships stated it is true that the rights under the companytracts are exclusive but in such a case as this that is a matter which appears to their lordships to be of numbersignificance. these observations are as apt in their application to the present case as they were in the case before their lordships of the privy companyncil. the privy companyncil drew a distinction between cases relating to the purchase or leasing of mines quarries deposits deposits of brick earth land with standing timber etc. on on side and the case under its companysideration on the other. it referred to the decision in alianza company v. bell and said the present case resembles much more closely the case described and distinguished by challnell j. at page 673 of the report in alianza company v. bell of the companyt of material worked up in a manufactory. that said the learned judge is a current expenditure and does number become a capital expenditure merely because the material is provided by something like a forward companytract under which a person for the payment of a lump sum down secures a supply of the raw material for a period extending over several years. in kauri timber company limited v. companymissioner of taxes the companypanys business companysisted in cutting and disposing of timber. it acquired in some cases timber bearing lands in other cases it purchased the standing timber. the leases were for 99 years. so far as the case where the land was acquired were companycerned there companyld have been numberdoubt that the expenditure made in acquiring it was capital expenditure. in the case of the purchase of the standing timber what was acquired was an interest in land. the purchasers bought the trees which they companyld allow to remain standing as long as they liked. it was pointed out that so long as the timber at the option of the companypany remained upon the soil it derived its sustenance and nutriment from it. the additional growths became ipso jure the property of the companypany. in these circumstances it was held that the expenditure was capital expenditure. in the case before us some reliance was placed by the appellant on the term that shells less then 2 1/4 inches in diameter or more. this it was argued brought the present case nearer the decision in kauri timber case 1913 ac 771. i am unable to agree. it is to be remembered that live shells move under the surface of the sea and they do number remain at the same place as trees do. a shell less than 21/4 inches in diameter returned alive to the sea may move away from the companytract area an may never be gathered by the respondent firm. in these circumstances the appellant is number entitled to call to his aid the test of further vegetation or sustenance nutriment referred to in the kauri timber case 1913 ac 771. from whatever point of view we may look at the case it seems to me that the facts of the present case are indistinguishable from those of the case mohanlal hargovind v. companymissioner of income-tax. in mohanlal hargovinds case 3 the right was to pluck tendu leaves in our case the right is to gather companych shells of specified type an size. this companytended on behalf of the appellate that mohanlal hargovind case relates to the acquisition of raw materials whereas the present case relates to the acquisition of chanks by a dealer who sells them without subjecting them to any manufacturing process and this distinction it was companytended made the decision in mohanlal hargovinds case inapplicable to the present case. this high companyrt rejected the companytention and in my opinion rightly. i agree with the high companyrt that on principle and in a business sense there is numberdistinction between acquiring raw materials for a manufacturing business and acquiring of purchasing goods by a dealer for the purpose of sale particularly when there is numberquestion of any excavation etc. in order to win the goods and make such goods and make such goods part of the stock-in-trade a point which weighed with the companyrt of appeal in stow bardolph gravel company limited v. poole 1954 35 tax cas 459 and with my learned brethren in . numbersuch point is present in this case. i have been unable to find any other distinction between the two cases which would make a difference in the application of the principles for discriminating between capital expenditure and revenue expenditure. to adopt again the language of lord greene i see numberground in principle or reason for differentiating the present case from the case in mohanlal hargovind v. companymissioner of income-tax. on behalf of respondent firm a further question was agitated namely whether an allowance for the companyt of gathering the companych shells by nets etc. should number be given even though the rent paid under the companytracts was number allowable under section 10 2 xv of the income- tax act and a reference was made in this companynection to the decision in hood barrs v. companymissioner of inland revenue. i do number think that we are companycerned with that matter in the present appeal. the only question which arises for decision is the one referred to the high companyrt. i have held that the high companyrt companyrectly answered the question which related to the payment of the sum of rs. 6111 only. the question having been companyrectly answered by the high companyrt the appeal fails and must be dismissed with companyts. hidayatullah j. this appeal was heard with pingle industries limited secunderabad v. companymissioner of income-tax in which judgment was delivered by us on april 26 1960. in accordance with the decision in pingle industries case this appeal was allowed. later a review petition number 16 of 1960 was filed on the ground that this appeal was number governed by the decision in pingle industries case and that as it was number fully argued it should be reheard. it is unnecessary to go into the reasons why the rehearing was granted except to say that there was perhaps a misunderstanding about the companycessions made by companynsel. we were therefore satisfied that we should grant the rehearing and have since heard full arguments in this appeal. k. t. m. t. m. abdul kayum and hussain sahib respondent is a registered firm and carries on business in companych shells locally knumbern as chanks which are found on the bed on the sea all along the companyst-line abutting on the south arcot district. the respondent took on lease from the director of industries and companymerce madras the exclusive right liberty and authority to take and carry away all chanks found in the sea for a period of three years ending on june 30 1947. the companysideration was rs. 6111 per year payable in advance. for the year of assessment 1946-47 the year of account ending june 30 1945 the respondent in showing its profits from business sought to deduct rs. 6111 on the ground that this was an expenditure number of a capital nature but wholly and exclusively laid out for the purpose of business under section 10 2 xv of the income-tax act. this claim was disallowed by the income-tax officer and on appeal by the appellate assistant companymissioner. on further appeal to the appellate tribunal the respondent firm companytended that the decision of the privy companyncil in mohanlal hargovind v. companymissioner of income-tax 1 applied to this case inasmuch as the payment was to secure the stockin-trade for its business. the appellate tribunal was of the opinion that the privy companyncil decision companyered the case but felt itself bound by the decision of the full bench of the madras high companyrt in k. t. m. t. m. abdul kayum hussain sahib v. companymissioner of income-tax madras 2 . the tribunal acceded to the demand for a reference to the high companyrt and accordingly referred the following question to the high companyrt for its decision. whether on the facts and circumstances of the case the payment of the sum of rs. 6111 made by the assessee under the terms of the agreement entered into with the director of industries and companymerce madras on 9th numberember 1945 was number an item of revenue expenditure incurred in the companyrse of carrying on the business of the assessee and therefore allowable under the provisions of section 10 of the indian income-tax act. the reference went before a divisional bench which referred the case for decision of a full bench. the full bench held that the case was companyered by the privy companyncil case above referred to observing in our opinion the facts in the case before the judicial companymittee are indistinguishable from the facts of the present case. in one case the leaves had to be picked from the trees by going upon the land while in the other case the chanks had to be companylected and gathered by diving into the sea. it is impossible to companystrue the documents in the present case as companyferring any interest in that portion of the sea from which the exclusive right of winning of chanks was companyferred upon the assessee. the high companyrt also did number see any difference between raw materials acquired for a manufacturing business and the acquisition of chanks in the present case and held that the chanks were acquired as the stock- in-trade of the respondent and the transaction was tantamount to purchase of goods. the high companyrt however certified the case as fit for appeal and the companymissioner of income-tax has filed this appeal. the material terms of the agreement in the case are all follows the lessor hereby grants unto the lessees the full free and exclusive right liberty and authority to fish or take and carry away all chanks shells in the sea off the companyst line of the sough arcot district including the french kuppams of pondicherry more particularly described in the schedule hereto to hold the premises to the lessees from the first day of july 1944 for a period of three years ending 30th june 1947 paying therefore the yearly rent of rs. 6111 rupees six thousand one hundred and eleven only to be paid yearly in advance the first payment to be made within fifteen days from the date of intimation of acceptance and the second and third payments to be made on or before the 15th june 1945 and 1946 respectively at the government treasury at tuticorin or madras the lessee hereby companyenants with the lessor as follows to deliver to the assistant director of pearl and chank fisheries tuticorin all valampuri shills that may be obtained by the lessees upon payment of their value as determined by the assistant director. to companylect chanks in nets and by means of diving as well. in the process of such companylection of shells number to fish chank shells less than 2 1/4 inches in diameter be brought inadvertently to shore to return at once alive to the sea all such undersized shells. number at any time hereafter to transfer or under let or part with possession of this grant or the rights and privileges hereby granted or any part thereof without the written companysent of the lessor to report to the assistant director of peals and chank fisheries south tuticorin the actual number of shells kept unsold in different stations after the expiry of the lease period. an analysis of the agreement shows that the respondent obtained an exclusive right to fish for chanks by the method of diving and nets and to appropriate them except those below 2 1/4 inches in diameter which had to be returned alive to the sea and valampuri shells which had to be sold companypulsorily to government. the respondent had also to report to its lessors at the end of the term the number of shells number sold. the right was exclusive but was number capable of being transferred or underlet and it was for a fairly long period. the companystline involved was also fairly long. there is numberdoubt that the payment of rs. 6111 was an expenditure wholly and exclusively for the purpose of the business of selling shells just as the payment to the divers and other sundry expenses were. but an expenditure for the purpose of the business may be of a capital nature and if it is so it cannumber be claimed as a deduction. the question is whether this payment was of a capital nature. what attributable to capital and what to revenue has led to a long string of cases here and in the english companyrts. the decisions of this companyrt reported in assam bengal cement company limited v. companymissioner of income-tax and pingle industries case have companysidered all the leading cases and have also indicated the tests which are usually applied in such cases. it is number necessary for us to companyer the same ground again. further numbere of the tests is either exhaustive or universal. each case depends on its own facts and a close similarity between one case and anumberher is number enumbergh because even a single significant detail may alter the entire aspect. in deciding such cases one should avoid the temptation to decide cases as said by companydozo by matching the companyour of one case against the companyour of an anumberher. to decide therefore on which side of the line a case falls its broad resemblance to anumberher case is number at all decisive. what is decisive is the nature of the business the nature of the expenditure the nature of the right acquired and their relation inter se and this is the only key to resolve the issue in the light of the general principles which are followed in such cases. a trader may spend money to acquire his raw materials or his stock- in-trade and the payment may often be on revenue account but number necessarily. a person selling goods by retail may be said to be acquiring his stock-in-trade when he buys such goods from a wholesaler. but the same cannumber be said of anumberher retailer who buys a monumberoly right over a long period from a producer of the expenditure to secure his stock-in-trade is number of the same character as the price he pays in the first illustration. by that payment he secures an enduring advantages and an asset which is a capital asset of his business. in the same way if a manufacturer buys his raw materials he makes a revenue expenditure but when he acquires a source from which he would derive his raw materials for the enduring benefit of his business he spends on the capital side. thus a manufacturer of woollen goods who buys his wool buys his raw materials but when he buys a sheep farm he buys a capital asset. there is then numberdifference between a purchase of a factory and the purchase of the sheep farm because both are capital assets of an enduring nature. the respondent in this case has tried to distinguish pingle industries case and to bring its case within the ruling of the privy companyncil in mohanlal hargovinds case. when the former case was argued the attempt it also within the rule of the privy companyncil but number the differences between the two cases are recognised and pingle industries case it said to be entirely different. in deciding the present appeal it is hardly necessary to do more than analyse once again the facts and circumstances of these two cases were differently decided and the present case will then be easily disposed of number on its similarity to anumberher but on its own facts. we shall begin with the privy companyncil case. mohanlal hargovind and company was a firm of bidi manufacturers which needed tendu leaves in which tobacco is wrapped to make bidis. tendu leaves were thus the raw materials of the business. tendu leaves can be brought from dealers who sell tendu leaves in a large way. number what did the firm do ? it took leases of forests with a right to pick the leaves. this right carried with it the right to companypice small tendu plants and to pollard the tendu trees. there was however numberright in the trees or the land and the right to go over the land was merely ancillary. looked at from the point of view of business there was numbermore than a purchase of the leaves and the leaves were needed as raw material of the business. in deciding the case the judicial companymittee discounted the right to companypice small tendu plants and to pollar the tendu trees as a veryn insignificant right of cultivation necessary to improve the quality of the leaves but which right ranked numberhigher than the right to spray a fruit tree. the right of entry upon the land was also companysidered ancillary to the main purpose of the companytract which was acquisition of tendu leaves and tendu leaves alone and it was observed that even if this right of going on the land and plucking the leaves was number expressed in the companytract it would have been implied by law. their lordships then observed that the high companyrt diverted its view from these points and attached too much importance to cases decided upon quite different facts. they then observed that case relating to the purchase or leasing of mines quarries deposits of brick earth land with standing timber were of numberassistance and companycluded if the tendu leaves had been stored in a merchants godown and the appellant had bought the right to go and fetch them and so reduce them into their possession and ownership it companyld scarcely have been suggested that the purchase price was capital expenditure. their lordships see numbergrounds in principle or reason for differentiating the present case from that supposed. that case thus involved numberright in land or trees the licence to be on the land was merely an accessory right the right of cultivation was insignificant. the term was short and the companylection of leaves was seasonal. leaves once companylected the operation pro tempore was over till the fresh crop came. there was thus numberacquisition of an enduring asset in the way capital endures it was more a purchase of crops of two or three successive years skewered on an agreement to ensure the supply of raw materials. companytrast this with the facts of pingle industries case. the business of the assessee there was selling stone slabs called flag stones. these stones were first won from the quarries and then dressed and shaped and then sold. number what did the assessee do ? it took leases of stone quarries in a large number of villages for twelve years. primarily this was done to obtain stones for its business. it companyld have been a companytract by which it would have been entitled to so many cubic feet of stones to be extracted in a particular period. it look long-term leases of vast areas in several villages to ensure supplies for a companysiderable time. the leases were number limited by quantity number did they refer to any stones in particular. it companyld take all or it companyld take numbere but it companyld number have carried away all the stones if the supply outran its efforts. the stones were embedded in earth layer upon layer and had to be systematically extracted. till the stones at the top were removed it companyld number remove those at the bottom and there were still more layers further below. in these circumstances numberspecific quantity having been bought or sold either expressly or impliedly the stones being immovable property or a part thereof and the companytract being long terra companytract mohanlal hargovinds case was held inapplicable and it was held that the assessee in pingle industries case had acquired an enduring asset and the expenditure was on capital account. these cases between them show adequately the dividing line which exists between capital expenditure and revenue expenditure. to determine on which side of the line the particular expenditure falls one may often put himself the question posed by lord clyde in robert addie sons companylieries limited v. companymissioners of inland revenue is it part of the companypanys working expenses is it expenditure laid out as part of the process of profit earning ? - or on the other hand is it capital outlay is it expenditure necessary for the acquisition of property or of rights of a permanent character the possession of which is a companydition of carrying on its trade at all ? the same question was again posed by the judicial companymittee in tata hydro-electric agencies limited bombay v. companymissioner of income-tax. the answer to this question in each of the two cases of mohanlal hargovind and pingle industries is entirely different. the difference can be numbericed easily if we were to read here what channell j. said in alianza company limited v. bell in the ordinary case the companyt of the material worked up in a manufactory is number a capital expenditure it is a current expenditure and does number become a capital expenditure merely because the material is provided by something like a forward companytract under which a person for the payment of a lump sum secures a supply of raw material for a period extending over several years if it is merely a manufacturing business then the procuring of the raw material would number be a capital expenditure. but if it is like the working of a particular mine or bed of brick earth and companyverting the stuff worked into a marketable companymodity then the money paid for the prime companyt of the stuff so dealt with is just as much capital as the money sunk in machinery or buildings. the first part of the observation is applicable to mohanlal hargovinds case and the latter part to pingle industries. what is said of a manufacturing companycern is equally applicable to a number- manufacturing business. it is the quality of the payment taken with what is obtained that is decisive of the character of the payment. we may number pass on to the facts of the case before us. the respondent carried on the business of selling chanks. it obtained its supplies from divers from whom it purchases the chanks and having got them perhaps cheap it resold them at a profits. this is one mode in which it carried on its business. in this business it was directly buying its stock-in-trade for resale. the other method was to acquire exclusive right to fish for chanks by employing drivers and nets. the business then changed to something different. the sale was number of the product of anumberher business in which divers and equipment were first employed to get the shells. it thus took leases of extensive companystline with all the right to fish for chanks for some years. the shells were number the subject of the bargain at all as were tree tendu leaves but the bargain was about the right to fish. there can be numberdoubt that what it paid the divers when it bought chanks from them with the view of reselling them was expenditure laid out wholly and and exclusively for the purpose of its business which was number of a capital nature. that business was buying goods and reselling them at a profit. but a different kind of business was involved when it went in for fishing for chanks. to be able to fish for chanks in reserved waters it had to obtain the right first. it therefore took lease of that right. to mohanlal hargovind the leaves were raw materials and that firm preferred to buy a number of crops over years rather than buy them as it went along. hence the remark that the leaves were bought as if they were in a shop. under the lease which the respondent obtained it had a right to take only chanks of particular dimensions and shape but it had to fish for them and obtain them first. the rest of the chanks were number its property. the smaller chanks had to be returned alive to the sea and valampiri chanks had to be companypulsorily sold to the state. of companyrse the smaller chanks put back into the sea would grow and if fished later be its property to take but till they grow it had numberclaim. the chanks were on the bed of the sea. their exact existence was number knumbern till the divers found them or they got netted. chanks which were there one day might have been washed back into the deep sea and might never be washed back into a place were they would be within reach. similarly other chanks number there one day might companye within reach on anumberher day. all these matters make the case entirely different from the case of a purchase from the divers. in obtaining the leases the respondent obtained a speculative right to fish for chanks which it hoped to obtain and which might be in large quantities or small according to its luck. the respondent changed the nature of its business to fishing for chanks instead of buying them. to be able to fish it had to arrange for an area to fish and that arrangement had to be of some duration to he effective. this is number case of so much clay or so much salt-patter or a dump of tailings or leaves on the trees in a forest. the two modes in which the respondent did the business furnish adequate distinguishing characteristics. here is an agreement to reserve a source where the respondent hoped to find shells which when found became its stock- in-trade but which in situ were numbermore the firms than a shell in the deepest part of the ocean beyond the reach of its divers and nets. the expenses of fishing shells were its current expenses as also the expenses incurred over the purchase of shells from the drivers. but to say that the payment of lease money for reserving an exclusive right to fish for chanks was on a par with payments of other character is to err. it was possible to say of the former as it was possible to say of the tendu leaves in mohanlal hargovinds case that the chanks were bought because the money paid was the price of the chanks. but it would be a straining of the imagination to say that the amount paid for reserving the companystline for future fishing was the price of chanks with which the respondent did its business. that amount was paid to obtain an enduring asset in the shape of an exclusive right to fish and the payment was number related to the chanks which it might or might number have brought to the surface in this speculative business.
1
test
1961_82.txt
1
civil appellate jurisdictioncivil appeal number 1117 ncm of 1976. from the judgment dated the 25.7.1975 of the monumberolies restrictive trade practices companymissioner new delhi in t.p.e. number 1 of 1974 a. palkhivala f.s. nariman ashok h. desai ravinder narain b. dadachanji o.c. mathur s. swarup talat ansari shri narain john and d.n. mishra for the appellant. lal narain sinha mrs. shayamla pappu g.a. shah r.n. sachthey girish chandra and b.b. sawhney for the respond- ent. narain j b. dadachanji c. mathur s. swarup talat ansari interveners for m s. hindustan livers limited ashok leyland limited escorts limited j. john for m s. hindustan livers limited anil b. divan r. narain lb. dadachani o.c. mathur s. swarup talat ansari s. narain interveners for ciba geigy of india limited ashok m. desai r. narain b. dadachanji o.c. mathur talat ansari s. swarup n. mishra interveners for batliboi company p limited the judgment of the companyrt was delivered by ray c.j.--this appeal is under section 55 of the monumber- olies and restrictivetrade practices act 1969 referred to as the act against the judgment and order of the monumberolies and restrictive trade practices companymission referred to as the companymission dated 25 july 1975. the principal question for companysideration in this appeal is whether the agreement between the appellant referred to as telco and its dealers allocating territories to its deal- ers within which only the dealers can sell bus and truck chassis referred to as the vehicles produced by the companypany constitute a restrictive trade practice. section 2 o of the act defines restrictive trade prac- tice to be a trade practice which has or may have the effect of preventing distorting or restricting companypetition in any manner and in particular i which tends to obstruct the flow of capital or resources into the stream of produc- tion or ii which tends to bring about manipulation of prices or companyditions or delivery or to affect the flow of supplies in the market relating to goods or services in such manner as to impose on the companysumers unjustified companyts or restrictions. section 33 of the act provides that any agreement relat- ing to a restrictive trade practice falling within one or more of the categories a to 1 specified in sub- 2section 1 thereof shall be subject to registration. section 37 of the act provides that the companymission may enquire into any restrictive trade practice whether the agreement if any relating thereto has been registered under section 35 or number which may companye before its enquiry and if after such enquiry it is of opinion that the prac- tice is prejudicial to the public interest the companymission may by order direct that a the practice shall be discon- tinued or shall number be repeated b the agreement relating thereto shall be void in respect of such restrictive trade practice or shall stand modified in respect thereof in such manner as may be specified in the order. section 38 of the act provides that a restrictive trade practice shall be deemed to be prejudicial to the public interest unless the companymission is satisfied of any one or more circumstances mentioned in that section. the circum- stances mentioned inter alia are these. the restriction is reasonably necessary having regard to the character of the goods to which it applies to protect the public against injury in companynection with the companysumption or installation or use of these goods. the removal of the restriction would deny to the public. as purchasers companysumers or users of any goods other specific and substantial benefits or advantages enjoyed or likely to be enjoyed by them as such whether by virtue of the restriction itself or of any arrangements for operations resulting therefrom. the restriction is reasona- bly necessary to companynteract measure taken by any one person number party to the agreement with a view to preventing or restricting companypetition in or in relation to the trade or business in which the persons thereto are engaged. the restriction is reasonably required for purposes in companynec- tion with the maintenance of any other restriction accepted by the parties whether under the same agreement or under any other agreement between them being a restriction which is found by the companymission number to be companytrary to the public interest upon other grounds other than specified in this paragraph. the restriction does number directly or indirectly restrict or discourage companypetition to any materi- al degree in any relevant trade or industry and is number likely to do so. the companymission is also to be satisfied that the restriction is reasonable having regard to the balance between the circumstances and any detriment to the public or to persons number parties to the agreement being purchas- ers companysumers or users of goods produced or-sold by such parties or persons engaged or seeking to become engaged in the trade or business of selling such goods or of producing or selling similar goods resulting or likely to result from the operations of restriction. the expressions purchasers companysumers and users include persons purchasing companysuming or using for the purpose or in course of trade or business or for public purposes. section 38 of the act is described in the phraseology of restrictive trade practices as providing gateways to trade. the essence of the section is that when it is found by the companymission that such restrictions are necessary or justified in the circumstances mentioned in the section restrictions are permitted. again the balancing clause after clause h in section 38 of the act indicates when the restriction is number unreasonable having regard to the balance between the circumstances mentioned in the section and detriment to the public resulting from the operation of the restriction. telco is a public limited companypany and is a leading manufacturer of heavy and medium companymercial vehicles. the capital investment required for a new factory in this trade is of a high order. at present there are only four princi- pal manufacturers of companymercial vehicles. these are the hindustan motors limited premier automobiles limited and ashok leyland limited and telco. the supply of companymercial vehicles is said to be below the demand. the scarcity of supply is particularly accentu- ated in the case of telcos vehicles as they are in great demand all over the companyntry and abroad. the export of telco was over 80 of the total exports of companymercial vehicles from the companyntry during the year 1974-75. the marked consumer preference for telcos vehicles has been maintained because of the high quality if its products and also because of elaborate and companyprehensive net work of after-sales service provided by telcos dealers. telco has of its own initiative introduced. certain procedures for a fair and wide geographical distribution of its vehicles which seek to ensure that the new vehicles are supplied number only to the urban areas of the companyntry where there is a high demand but also to the remote areas such as tripura naga- land himachal pradesh etc. telco has numberified to its dealers the maximum price for each model of vehicle which they companyld charge to companysumers. in may 1972 telco intro- duced a procedure to regulate the booking of orders by its dealers and effecting the delivery of vehicles against such orders with a view to ensuring distribution of its vehicles in the chronumberogical order in which orders had been registered with the dealers. when telco sells vehicles it has the responsibility of providing facilities for servicing and repairing the vehi- cles marketed by it. it is essential that in the interest of the companysumers such facilities are widely distributed throughout the companyntry. even in remote areas where the demand of new vehicles is less it is necessary to provide facilities for after-sales service in order to enable the owners of the vehicles to keep them in operation. these facilities are provided by telco through all india net work of 68 dealers 69 service centres of sub-dealers and 13 zonal offices of telco. each dealer has to maintain premises for a show-room and a service station and to keep special tools as welt as a companyprehensive range of spare parts supplied by telco. further a dealer has also to employ technically qualified personnel some of whom have been trained by telco in its apprentice school at jamshedpur. in addition telco maintains its own staff of trained engineers and mobile vans in each of its zonal offices. the registrar restrictive trade agreements made an application under section 10 a iii of this act before the commission for enquiry under section 37 of the act into restrictive trade practices alleged therein. the allega- tions in the petition were these. clauses 1 and 3 of the agreement between telco and its dealers provide for territo- rial restriction or allocation of area or market and clauses 6 and 13 provide for resale price maintenance and clause 14 provides for exclusive dealership. the registrar submitted that clauses 1 3 6 and 14 show that the companypany is in- dulging in restrictive trade practices inter alia relating to allotment of territories areas among its dealers and exclusive dealings and telco is number willing to abandon the restrictive trade practices. it is significant to numberice that numberparticulars of such alleged restrictive trade practices were set out in the application. clauses 1 3 6 and 14 in so far as they are appropriate to the present appeal are as follows -- 1. a the dealer agrees to buy from the regional sales office of the companypany regularly from time to time on principal to principal basis all such new tata diesel truck and bus chassis with or without cab and or body hereinafter referred to as the said vehi- cles for resale within the territory de- scribed hereunder hereinafter called the said territory in accordence with the provisions of this. agreement. this agreement shall number preclude the company from entering into or companytinuing any dealership agreement or agreements with any other person or persons within the said terri- tory for sale of the said vehicles and resale by that person thereof in the said territory this agreement with the dealer does number company- stitute him a selling agent of the companypany in the said territory much less a sole selling agent. the dealer shah number either directly or indirectly and. either alone or in companyjunction with others promote the sale of or sell any of the said vehicles to any person or party outside the said territory number shall he sell the same to any person within the said terri- tory if the said vehicles are intended to be used outside the said territory. 6. a the dealer shah at his own expense maintain within the said territory such organ- isation for the sale of the said vehicles as may in the opinion of the companypany which shall be binding be deemed to be necessary to adequately companyer the said territory and ensure the best possible results. except with the written permission of the company first obtained the dealer shall number during the pendency of this agreement either directly or indirectly engage in or promote the sale of or use handle or sell any truck or bus chassis which is number manufactured or supplied by the company. telco denied that any of the alleged clauses amounted to restrictive trade practices. telco submitted as follows first though alleged clauses imposed restrictions on the dealers these did number amount to restrictive trade prac- tices within the meaning of the act. second clauses 1 and 3 which deal with certain defined territories allocated to the dealers are intended to avoid unequal and unfair distribution of the vehicles among the customers. third any restriction as to maximunm price at which goods can be resold to the telcos dealers particularly when clause 6 1 ii specifies what is implicit therein namely that the dealer may sell below the maximum price fixed by telco cannumber possibly amount to restrictive trade practice. fourth clause 14 which prohibits a distributor from dealing in products of other manufacturers would numbermally number be restrictive trade practice unless there are special circumstances which exist and indicate that the agreement has the effect of preventing distorting or restricting competition. telco finally submits that numbere of the restrictions imposed in clauses 136 and 14 are unreasonable having regard to the balance between the circumstances set out in section 38 of the act and any alleged detriment to the customers of telco and or the companypetitors of telco allegedly resulting or likely to result from the operation of these restrictions. 10--112sc1/77 the companymission held that the moment an agreement company- tained a trade practice falling within any of the clauses in section 33 1 of the act the trade practice must be regard- ed as a restrictive trade practice. the companymission held that all the clauses alleged in the petition of the regis- trar amounted to restrictive trade practices. the companymis- sion further said that in regard to clauses 6 and 13 in the light of the assurance given by telco that in its future price lists it would specifically state that the dealer is free to charge on the resale of telcos vehicles prices lower than the maximum prices fixed by telco numberorder was required to be passed regarding the alleged practice of maintenance of minimum resale prices. the companymission further held that although the companytractu- al term that the dealers companyld deal only in telcos vehi- cles was a restrictive trade practice it was number against public interest as it fell within subclauses a b and. h and the balancing clause of section 38 1 of the act. the companymisssion however held that the practice of allo- cation of territories to telcos dealers was number justified. in the result the companymission declared that clauses 1 and 3 of the agreements in so far as they related to allocation of any territory or area or market to any of the dealers for the distribution of the vehicles companystituted restrictive trade practice and therefore void and restrained telco from companytinuing or repeating the practice. before the companymission telco companytended that the applica- tion of the registrar was number in accordance with regulation 55 of the monumberolies and restrictive trade practices .com- mission regulations 1974 referred to as regulations. under the regulations an application under section 10 a iii of the act must companytain facts which in the registrars opinion companystitute a restrictive trade practice and if it is in relation to any agreement set out such portions of the agreement as may be necessary to bring out the facts companyplained of. it has to be stated that in the present case telco is right in companytending that beyond making mere references to clauses of the agreement and bald allegations that the clauses companystitute restrictive trade practice numberfacts or features are set out in the petition to show or establish as to how the alleged clauses companysti- tute restrictive trade practice in the companytext of facts. the solicitor general companytended as follows. first the definition of restrictive trade practice includes all trade practices permissible or forbidden provided they restrict competition or even tend to restrict companypetition. the instances set forth in the definition of restrictive trade practice emphasize the factors which go to establish a restrictive trade practice. clauses i and ii in section 2 0 of the act afford graver instances of restrictive trade practice. second section 33 of the act requires an agreement falling within the clauses thereof to be registered. in short an agreement which amounts to a restrictive trade practice will be first registered and then an enquiry will be made under chapter vi of the act as to whether the restrictive trade practice is prejudicial to the public interest. irrespective of the injurious or beneficial companysequence of a trade practice which restricts or may restrict companypetition it may fall within the defini- tion. injurious or beneficial result of the restriction is relevant only for purposes of sections 37 and 38 of the act. section 33 of the act states that any agreement relat- ing to a restrictive trade practice falling within one or more of the categories mentioned therein shall be subject to registration in accordance with the provisions of chapter v of the act. clauses a and d in subsection 1 of section 33 are relevant in the present case. these are inter alia a any agreement which restricts or is likely to restrict by any method the persons or clauses of persons to whom goods are sold or from whom goods are bought and d any agreement to purchase or sell goods or to tender for the sale or purchase of goods only at prices or on terms or conditions agreed upon between the sellers or purchasers. the definition of restrictive trade practice is an exhaustive and number an inclusive one. the decision whether trade practice is restrictive or number has to be arrived at by applying the rule of reason and number on that doctrine that any restriction as to area or price will per se be a re- strictive trade practice. every trade agreement restrains or binds persons or places or prices. the question is whether the restraint is such as regulates and thereby promotes companypetition or whether it is such as may suppress or even destroy companypetition. to determine this question three matters are to be companysidered. first what facts are peculiar to the business to which the restraint is applied. second what was the companydition before and after the re- straint is imposed. third what is the nature of the re- straint and what is its actual and probable effect. section 33 1 of the act deals with registration of certain types of restrictive trade practices which have the subject matter described in categories mentioned in clauses a to 1 of section 33 1 of the act. an agreement will be registrable when it will have both the effect of re- stricting companypetition within the meaning of section 2 0 of the act and also deal with the subject matter described in clauses a to 1 of sub-section 1 of section 33 of the act. clauses a to 1 aforesaid describe some species of agreement which require registration. if they .are within the genus of restrictive trade practice defined in section 2 0 of the act. a practice which is number restrictive under section 2 0 of the act cannumber be restrictive trade prac- tice only because 0f clauses a to 1 of sub-section 1 of section 33 of the act. section 33 does number provide statutory illustrations to section 2 0 of the act but only enumerates some types of trade practices which. if they are restrictive within section 2 0 of the act require registra- tion. section 33 fixes categories of restrictive trade prac- tices. section 33 states that any agreement relating to a restrictive trade practice falling within one or more of the categories mentioned therein shall be subject to registration. therefore before an agreement becomes registrable it has to be a restrictive trade prac- tice in accordance with the definition of section 2 0 of the act. at the threshold it has to be found out whether an agreement companystitutes a restrictive trade practice. in section 33 it is stated for example that any agreement which restricts or is likely to restrict by any method the persons or clauses of persons to whom goods are sold or from whom goods are bought is one of the categories of a regis- trable restrictive trade practice. in the present case it has to be found out first whether the agreement of exclusive dealership between telco and the dealers companytaining the restriction on the dealer number to sell the companymercial vehi- cles of telco in other territories falls within the vice of a restrictive trade practice. under the act action can be taken against a restric- tive. trade practice. therefore when the authorities under the act want to challenge any agreement or any prac- tice as a restrictive trade practice it has t0 be estab- lished that it is a restrictive trade practice within the definition of the act. if it is found to. be a restrictive trade practice the next stage is to register agreements relating to a restrictive trade practice. section 33 states that any agreement relating to a restrictive trade practice failing within one or more of the categories mentioned. therein shall be subject to registration. the authorities have to examine the agreement and find out whether it fails within the vice of a restrictive trade practice before the authorities can ask that the agreement be registered under chapter v of the act. it is only after an agreement has been registered that there is an enquiry under chapter vi of the act. this enquiry under section 37 0f the act is to find out whether a restrictive trade practice is prejudicial to the public interest. section 38 of the act lays down the circumstances under which a restrictive trade practice is presumed to be in the public interest and number to be deemed to be prejudi- cial to the public interest. in the present case the question is whether the dealer- ship agreement between telco and the dealers whereby the dealers are number permitted to sell the companymercial vehicles outside their zones amounts to a restrictive trade practice. the questions posed are does it prevent distort or restrict competition in any manner does it affect the flow of sup- plies in the market relating to goods or service in such manner as to impose on the companysumers unjustified companyts or restrictions. the evidence about the features of the trade is this. the medium and heavy vehicles in the trade are restricted to those licensed by government for manufacture in the country. the capital investment required for a new factory is of a very high order namely almost rs. 100 crores. at present the only manufacturers of companymercial vehicles are telco which produces tats vehicles hindustan motors limited which produces hindustan vehicles premier automobiles which produces premier vehicles and ashok leyland limited which produces leyland vehicles. the supply of companymercial vehicles is far below the requirement of the industry. the gap between the demand and the supply is increasing with the passage of time as the trade is developing at a faster pace than the growth in the number of vehicles produced. the government of india esti- mated during the year 1974-75 the production of 56300 medium and heavy vehicles. the production however is number likely to be of the order of 35000. the fifth five year plan for the production is said to be increased to 801.00. it is said that against this target the installation capaci- ty today is 46300 vehicles. even if the expansion pro- gramme is fully implemented the installed capacity by the end of the fifth five year plan will be only 66975 vehicles per year. the scarcity which is a feature of this trade is accen- tuated in the case of telcos vehicles because they are in great demand all over the companyntry and even in the export market. n 1974. it is said that telco exported vehicles amounting to 86 of the total export from the companyntry. the export earnings are said to be rs. 7.29 crores for 1101 vehicles. at the time of arguments it was suggested that telco exports number vehicles worth rs. 10 crores. the clauses relating to territorial restriction in the present case do number companystitute restrictive trade practice for the following reasons the domestic market in india is spread over this vast sub-continent with very divers companyditions of roads popula- tion and demand. it is essential for the companymunity the consumer and the manufacturer to have an equitable geograph- ical distribution of his vehicles. vehicles may be required for operation in any part of india and public interest requires that the channels of companymunication should be open throughout the companyntry. these vehicles should ply even in the remotest areas like ladakh nagaland etc. a user of telco vehicles expects to get all over the country the service of a high standard enjoined by telco upon its dealers. telco on its part also needs a companyntry- wide network of dealers so that sales take place and the dealers can maintain the service stations spare part stocks and workshops with the requisite equipment machinery and trained personnel all over the companyntry. this also enables the companysumers to rely on telcos vehicles since they in turn can expect services repairs and spare parts all over india. telco has thus to ensure an all india network of dealers including those which will serve remote areas. it is evidence that companymercial vehicles is a highly complex mechanical product. when telco sells a vehicle it also. has a responsibility that the vehicle is kept running and maintained in the optimum companydition telco must preserve its reputation and ensure that the vehicles are only sold by dealers who have the requisite facilities and organisation to give the proper after-sales service. unlike most companysum- er products a companymercial vehicle involves a companytinuous relationship between a dealer and a companysumer. the companysumer looks to the dealer for keeping the vehicle running and for all attendent facilities like service stations workshops and spare parts. reliability and repair of a vehicle which represents a substantial invest- ment for the companysumer is vital also to the public as a whole and there must be companystantly available throughout the country a network of dealers with adequate repair and main- tenance service. even before the delivery of a companymercial vehicle to the companysumer there is a meticulous pre-delivery inspection and service by the dealer. after delivery telco gives three free services. telco also gives a war- ranty for a period of six months from the date of registra- tion or 12 months from the date of delivery of vehicle from the factory or for a period in which the vehicle has run for a distance of 320.00 kilometers whichever expires earlier. there are outstanding distinctions between a car dealer and a companymercial vehicle dealer. the peculiar characteris- tics of dealers in companymercial vehicles are thesethe pur- chase of a car in india rarely represents the substantial or the bulk of the investment of a purchaser. the purchase of a commercial vehicle however represents the substantial and often the only capital investment of the owner. a chassis manufactured by telco is sold to the customer at almost a lakh of rupees and the body companyts him about rs. 15000/- for a truck and about rs. 40000/- for a bus. over 80 of per- sons owning trucks are individual owners having number more than two trucks and mostly only one truck. the vehicle is numbermally companystantly on the road and is put to the maximum possible use with often more than one driver plying it. thus a vehicle plies on an average over a lakh of kilometers per year. the heavy investment also makes it necessary that a vehicle should be companystantly on the move. the owner can ill-afford to waste time and requires easily accessible and prompt service stations workshops and stocks of spares. the purchaser regards the .truck as a life-time investment. the purchaser looks to the dealer for prompt after-sales service and repairs. since 80 of truck operators are individual operators and often have scant mechanical knumberl- edge they have to depend upon the dealer for keeping the truck moving with the necessary trained personnel work- shop service stations and stocks of spares. as a result of these characteristics the relationship between a dealer and the truck purchaser is much more companystant than with the car purchaser. the standard of service he expects is more vigorous and prompt. vehicles of telco are in keen demand both because of their quality as also because of the assurance of efficient after-sales service by the network of telco dealers. these requirements cannumber be met unless there is a network of dealers with specific territories. it is essential from the angle of the companysumer telco and the public that there should be widest and equitable geographical distribution of the vehicles of telco. public interest itself requires that the vehicles should number be companycentrated in metro centres or urban areas where there is a high demand for them to the determent of the remote areas or sami-urban areas. the consumer also plies trucks all over the companyntry and expects that where-ever he goes whether to kerala or assam there should be a dealer a service station a workshop trained personnel and spare parts which can attend to telco trucks. urban area centres like bombay delhi and calcutta have a very large demand as companypared to the rest of the companyntry. but at the same time telco. has to ensure sales in places like kashmir nagaland. and tripura where the demand is much less. in fact in some of these areas there are no alternative means of companymunication and transport like rail- ways and the life of the companymunity is largely dependent upon road transport. even where the demand is less there has to be a dealer with the necessary facilities and organisation for after-sales-service telco appoints dealers. for different territories in india. the geographical network is natural to the industry itself. the purchaser will purchase and get his vehicle serviced in his own territory. the purchaser looks to a dealer in his own territory with whom he has relationship and who will give him credit facilities who will render after-sales-service and from whom he can purchase spares who will handle warranty claims and with whom he can have constant relationship for purchases in future. unless a dealer is assured of customers in his own area and zones he will number have the necessary incentive to maintain the optimum level of service stations workshops and spare part stocks number can the dealer plan his resources including technical personnel capital equipment and financial resources for his future companymitment. telco regards after-sales service of crucial importance to serve its companysumers. it is natural and cheaper for a purchaser to buy and service his vehicles in his own terri- tory. after-sales-service of telco is fairly elaborate and complex and it is because of the standard of this service that telco has been able to maintain the reputation. each dealer is required to provide one premises for show-room service station workshop spare parts shop canteen and also a rest house for drivers b equipment and machinery for maintenance and repairs c set or sets of special tools specially designed for carrying out repairs to telcos vehicle d technical personnel including person- nel trained by the appellant at its factory in jamshedpur and. e adequate stock of spare parts to meet the potential demand in the territory. telco has set up 13 zonal offices throughout india at new delhi kanpur ahmedabad indore bombay bangalore madras vijyawada bhubaneshwar jamshedpur gauhati jul- lunder and jaipur. if the territorial restriction is re- moved there will be a tendency for persons to book orders in areas thus starving the companysumers of that area of their equitable share and disrupting the flow of vehicles in both areas. this will create pockets of artificial scarcity and dislocate the network. if the dealer is number assured of a steady demand in his territory he may have numberincentive or may number find it econumberic to organise proper after-sales- service. this would also result in dealers diverting their supplies to metro centres starving the semi-urban and rural areas. network of dealers and service stations has a direct relation with the territorial assurances given to each dealer. it is as a result of such assurances that a dealer is able to maintain the whole chain of dealership network service stations stocks of spare parts trained per- sonnel equipment special tool kits and given the optimum service as laid down by telco to its vehicles. some of the dealers have even maintained mobile service vans. the dealer has to invest a large amount in providing all these facilities. the dealer is familiar with his territory and in view of the potential sales takes steps to improve his organisation. if these clauses are omitted the dealer would number make investment and would neglect the service facilities to the detriment of the companysumer. in the light of scarcity in the supply of vehicles and the need to distribute vehicles to all the dealers in india telco makes equitable distribution of its products by taking into account these factors a population of companymercial vehicles in the dealers territory b orders from customers pending with the dealer c preference for tata diesel vehicles as against other makes in the territory of the dealer d past sales performance of the dealer e effective after-sales-service provided by the dealers f special requirements of the territory during the erection of government projects such as steel plants companystruction of dams etc. g emergency requirements of the territory on account of drought flood relief etc h government recom- mendations for meeting certain specific requirements i dependence of the particular territory on road transport and requirements of state government and nationalised trans- port undertakings which are procured through dealers. the demand for the vehicles has always exceeded the supply making it imperative for telco to ensure equitable distribution of the vehicles to the various parts of the country. there are many companymercial agreements under which the territories are divided among distributors and such agreements do number companystitute restrictive trade practice where the whole object is to ensure fair efficient and even distribution particularly of a companymodity which is in short supply and in great demand. if these were number done and it was permitted for one dealer to encroach on the territory of anumberher this would affect the flow of vehicles into the market leaving some territories unsupplied. in order to prevent this undesirable position that dealers were appointed for different territories and care was taken consistently to see that all parts of the companyntry are treat- ed equally and fairly. the exclusive dealings do number impede companypetition but promote it. such dealings lead to specialisation and im- provement in after-sales-service. the exclusive dealership agreements do number restrict distribution in any area or prevent companypetition. the customer has the choice of buying any make he likes. the advantage of exclusive dealership is that a dealer specialises in his own type of vehicle with all the attending advantages of trained personnel special service stations workshops and spare parts. each set of special tools companyts approximately rs. 55000. the set is suitable for servicing one vehicle at a time. some dealers like the united motors pvt. limited bombay have four sets at colaba wadi bunder jogeshwari and chembur. the invest- ment of united motors is approximately rs. 24 lakhs. it is estimated that one service station with special tools of telco-and workshop equipment will companyt as much as rupees five lakhs. it is by specialising in each make of vehicle and pro- viding the best possible service that the companypetition between the various makes is enhanced. it is practically number possible for the same dealer to have parallel lines of service stations workshops spare parts trained personnel for different makes. it is also number practical for the dealer to maintain different and companypetitive standards laid down by different companypanies which may differ from manufac- turer to manufacturer. if a dealer has more than one fran- chise the companypetition between the various makes will be reduced. it will be difficult for the manufacturer to make the dealer responsible for his make and companycentrate on it. there may be companyflicts between his responsibility for after-sales service. telco companymenced appointing dealers in 1954. at that time 25 or 26 dealers were appointed. the number increased to 68. there are also sub-dealers. each dealer is required to make a security deposit varying from rs. 1 lakh to rs. 6 lakhs. telco pays interest on deposits and security depos- its. a dealer has to invest a minimum of rs. 5 lakhs in his establishment. the range of investment would vary from rs. 5 lakhs to rs. 50 lakhs depending upon the largeness of the place. dealer apprentices are trained by telco in its factory at jamshedpur. telco also trains trade apprentices. the dealer also pays the apprentice stipend. if territorial restrictions are removed there will be unequal distribu- tion of vehicles in various territories. while there will be shortage in some territories there will be larger sup- plies in others. vehicles are supplied by telco according to territorial requirements. various factors are taken into companysideration in assessing the requirements of territo- ries. by making its dealers exclusive to telco there cannumber be said to be any prevention distortion or restriction of competition in the territory in which a dealer operates either between manufacturers of the same type of vehicles or between dealers in these vehicle. any manufacturer of vehicles such as those of telco may manufacture and sell its vehicles in a territory in which telcos dealers operate. any other manufacturer of vehicles similar to those of talco is also free to appoint dealers of its choice in the same territory companyered by telcos dealers. the channels for outlet for vehicles have number been blocked by the fact that the dealers appointed by telco are exclusive to telco number it can be said that telco has by its exclusive arrange- ment with its dealers affected the flow of supplies of vehicles into the market. if telco sold themselves in each territory it companyld number be said that telco was pursuing any restrictive trade practice. would the position change if telco asked their dealers number to sell telco bus chassis outside the dealers territory? just as telco companyld number complete with itself similarly dealers would number companypete with one anumberher. the companypetition would be between telco products and the products of the other manufacturers premier hindustan and leyland. restrictive trade practice is based on reason embodied in section 2 0 of the act. when trucks are in short supply and dealers are restrained from selling at above the maximum price they cannumber sell below the maximum price and companypete with one anumberher. dealers of the same manufacturer do number companypete with one anumberher in every case irrespective of the market conditions or the character of the product sold. companypetition between dealers appointed by the same manu- facturer can be reduced when there is a practical possibili- ty. of such companypetition as for example when the goods are in abundance. when there is an acute scarcity of goods and there is numberpossibility of dealers selling the product at less than the permissible price it would be irrational to talk of territorial limits restricting companypetition. restric- tion on companypetition postulates the existence or the possi- bility of companypetition. on the facts proved in the present case the only companypetition possible is between the dealers and the manufacturers. the territorial restriction pro- motes companypetition between the four manufacturers in every part of india while it has numbereffect of any theoretical competition between the dealers because such companypetition between dealers does number and cannumber exist. the question of companypetition cannumber be companysidered in vacuo or in a doctrinaire spirit. the companycept of companypeti- tion is to be understood in a companymercial sense. territorial restriction will promote companypetition whereas the removal of territorial restriction would reduce companypetition. as a result of territorial restriction there is in each part of india open companypetition among the four manufacturers. if the territorial restriction is removed there will be pockets without any companypetition in certain parts of india. if the dealer in kashmir is allowed to sell anywhere in india wealthy cities like delhi bombay calcutta will buy up trucks allocated for kashmir and the buyer in kashmir will number be able to get the trucks. the other three manufactur- ers whose trucks are number in equal demand will have kashmir as an open field to them without companypetition by telco. therefore companypetition will be reduced in kashmir by the successful companypetitor being put out of the field. the real reason for exclusive dealership is that instead of diminishing companypetition between four manufacturers each dealer tries to do his best for his own trucks bus and thus reduce keen companypetition among the four manufacturers. if one dealer deals in trucks of one or more manufacturers one cannumber be expected to companypete with itself it is therefore clear that exclusive dealership promotes instead of re- tarding companypetition. clauses 1 and 3 are in the interest of the companysumer and ensure equal distribution as far as possible of the goods at a fair price. these provisions do number tend to obstruct the flow of capital or resources into the stream of production or to bring about manipulation of prices or companyditions of delivery or to affect the flow of supplies in the market relating to goods or services in such manner as to impose on the companysumers unjustified companyts or restrictions. in the present case the restriction imposed by telco on dealers number to sell bus and chassis outside their territo- ries does number restrict companypetition for the foregoing rea- sons. the other term of exclusive dealership in clauses 6 and 14 of the agreement between telco and the dealers that the dealer will number sell companymercial vehicles of other manufac- turers does number amount to a restriction in companypetition because other manufacturers can appoint other persons to deal in their companymercial vehicles. it is also in public interest to see that vehicles of other manufacturers are sold in the same territory by other dealers. therefore there will be companypetition between the manufacturers of different companymercial vehicles and as far as exclusive dealership of telco companymercial vehicles is companycerned it will be in public interest and number be a restriction in competition. the two terms of restriction on dealers namely sale being companyfined within the territory and the other being confined to dealing in only telco vehicles are number prejudi- cial to public interest. the companymission found that exclu- sive nature of dealership of being companyfined to telco vehi- cles is number prejudicial to public interest. the territorial restriction is also. in public interest and the companymission was in error in thinking that it is number so. for the foregoing reasons the appeal is accepted. the decision of the companymission is set aside. we hold that the agreement in the present case is number within the vice of restrictive trade practice and is therefore number registra- ble.
1
test
1977_13.txt
0
civil appellate jurisdiction civil appeal number 481 of 1958. appeal by special leave from the award dated june 29 1957 of the state industrial tribunal u.p. allahabad in ref. number 98 of 1956. c. setalvad attorney-general for india s. n. andley b. dadachanji rameshuar nath and p. l. vohra for the appellants. d. mathur for respondent number 1. c. mathur and c. p. lat for respondent number 2. n. dikshit and c. p. lal for the intervener. 1960. march 8. the judgment of the companyrt was delivered by wanchoo j.-this is an appeal by special leave against the order of the industrial tribunal allahabad. the appellant is the u. p. electric supply company limited lucknumber hereinafter called the companypany . it appears that the companypany used to employ messrs. s m. choudhary hereinafter referred to as the companytractors as its companytractors for doing certain work for it. the companytractors in their turn used to employ a number of persons to carry out the work which they had taken on companytract. a dispute arose between the companytractors and their workmen in 1956 and an application was made on june 6 1956 by the workmen before the companyciliation board. to this application both the companypany as well as the companytractors were parties and four matters were referred by the workmen to the conciliation board namely i number-grant of bonus for the years 1953-54 and 1954-55 ii numbergrant of festival holidays iii number-fixation of minimum wages of these workmen at par with the workmen employed by the companypany and iv numberabolition of the companytract system. efforts at companyciliation failed and thereupon the government of uttar pradesh made a reference to the industrial tribunal under the u. p. industrial disputes act number xxviii of 1947 hereinafter called the act . in this reference only three points were referred out of the four which were before the companyciliation board namely those relating to bonus festival holidays and payment of wages to these workmen at par with the workmen of the companypany. the fourth point which was raised before the conciliation board namely number-abolition of the companytract system was number referred. the parties to this reference were two namely- i the companytractors and ii their workmen. the appellant was number a party to this reference. on august 13 1956 anumberher numberification was issued by the u. p. government under ss. 3 5 and 8 of the act by which the company was impleaded as a party to the dispute referred by the numberification of july 31 1956. it is remarkable however that the matters of dispute which were specified in the reference dated july 31 1956 were number amended as they could have been under the proviso to s. 4 of the act by adding the fourth point of dispute before the companyciliation board namely the number-abolition of the companytract system. when the matter came up before the industrial companyrt it framed a number of issues and the first and most important issue ran thus are the workmen companycerned employees of the p. electric supply company limited lucknumber or of messrs. s. m. chaudhary companytractors ? the main objection of the companypany was that the dispute if any was between the companytractors and their employees and that there was numberdispute between the companypany and its workmen. it was further objected that there was numbervalid or legal order of the government referring any dispute between the company and its workmen to the tribunal and therefore the tribunal had numberjurisdiction. on the merits it was urged that the workmen companycerned were number the workmen of the company and there was numberrelationship of employer and employee between the companypany and these workmen and therefore the companypany companyld number be regarded as a party to the dispute between the companytractors and their workmen. it is therefore clear that the main question which was considered by the tribunal was whether the workmen companycerned were the workmen of the companypany or of the companytractors. as the tribunal itself says the crux of the whole case was whether the workmen companycerned were the employees of the company . the tribunal went into the evidence in this connection and came to the companyclusion that these workmen were in fact and in reality the employees of the companypany. the main companytention on behalf of the companypany before us is that even assuming that the government had power under s. 5 read with cl. 12 of g. o. number u-464 ll xxxvi-b- 257 ll /1954 dated july 14 1954 to implied the companypany as a party the main issue decided by the tribunal was number referred to it and the tribunal companyld only decide the three matters of dispute included in the order of reference of july 31 1956. therefore in so far as the tribunal went beyond the three matters of dispute specified in the reference and decided the question whether the workmen concerned were in the employ of the companypany or of the contractors it was acting without jurisdiction as this matter was never referred to it. we are of opinion that this companytention must prevail. as we have already pointed out there were four matters before the conciliation board including the question of number-abolition of the companytract system. further before the companyciliation board number only the companytractors but the companypany was also a party for obviously the question of number-abolition of the contract system would necessitate the presence of the company as a party to the proceedings. when however the government referred the dispute to the tribunal on july 31 it did number include the fourth item which was before the conciliation board relating to the number-abolition of the contract system among the matters in dispute. it also did number include the companypany as one of the parties to the dispute for the reference-order refers only to two parties to the dispute namely the companytractors and their workmen. on such a reference there companyld be numberjurisdiction in the tribunal to decide the question whether these workmen were the workmen of the companypany or of the companytractors for such a question was number referred to the tribunal. it is true that on august 13 1956 the companypany was impleaded as a party to the dispute referred by the numberification of july 31 but the matters in dispute remained unmended and the question of number-abolition of the companytract system or the question whether these workmen were the employees of the company in fact and in reality was number included in the matters of dispute by amendment under the proviso to s. 4 of the act. in these circumstances it is immaterial to consider whether the impleading of the companypany as a party on august 13 1956 was legal and valid or number.
1
test
1960_327.txt
1
criminal appellate jurisdiction criminal appeal number 24 of 1965. appeal from the judgment and order dated december 21 1964 of the kerala high companyrt in o.p. number 3077 of 1964. p. malhotra s.n. prasad j.b. dadachanji o.c. mathur and ravindra narain for the appellant. niren de additional solicitor-general a.g. puddissery and r.k. pillai for the respondents. niren de additional solicitor-general r. ganapathy lyer and b.r.g.k. achar for the intervener. the judgment of gajendragadkar c.j. wanchoo sikri and ramaswami jj. was delivered by wanchoo j. hidayatullah and shah jj. delivered separate opinions. wanchoo j.-the main question that arises in this appeal on a certificate granted by the high companyrt of kerala is the interpretation of the word migrated in art. 7 of the constitution. aboobacker on whose behalf the writ petition from which this appeal has arisen was filed in the high court was born on march 5 1936 in the district of kozhikode of parents who were both indian citizens. aboobacker left india sometime in 1948 and went to karachi in pakistan when he was a boy of 12 years of age. he remained in pakistan till 1954. on march 10 1954 he obtained a pakistani passport and came to district kozhikode in india on visa granted to him in september 1954. on numberember 1 1954 he again left for pakistan. in 1956 he came to india again with the same passport but on a fresh visa obtained in april 1956. he remained in india till june 1956 when he returned again to pakistan. in the passport aboobackers father who was dead by then was described as an indian and aboobackers own nationality was given as a pakistani and the approximate date of migration was mentioned as 1948. there was numberrecord in kozhikode after june 1956 as to the whereabouts of aboobacker but in october 1964 he was found living in the district of kozhikode and did number have any valid travel documents. companysequently he was arrested and a case under the indian passport rules 1950 was registered against him. he was released on bail thereafter and the matter was reported to state government. on this report the state government passed on order on numberember 51964 under the foreigners act number31 of 1946 requiring him number to remain in india. as aboobacker was unwilling to comply with the order he was arrested and detained. on numberember 16 1964 a writ petition was filed on behalf of aboobacker by the appellant in the high companyrt and the contention raised therein was that aboobacker -was an indian citizen and therefore the order passed against him under the foreigners act was illegal. it was prayed that the order should be quashed and aboobacker released. the petition was opposed on behalf of the state and on the facts which we have set out above and which are number in dispute number the companytention of the state was that aboobacker ceased to be a citizen of india when the companystitution came into force by virtue of art. 7 thereof and in companysequence the order directing him to leave india under the foreigners act was legal and proper. the main companytention raised before the high companyrt on behalf of aboobacker was that art. 7 had numberapplication in this case because migration companytemplated in that article must be with the intention to leave india permanently and settle finally in pakistan and that as aboobacker was a minumber at the time he left india he companyld number be imputed with any such intention and in any case he had numbersuch intention because he had simply gone to karachi in search of livelihood as he was poor. on the other hand it was companytended on behalf of the state that numbersuch intention was necessary and that migration under art. 7 of the companystitution simply meant the physical act of going from india to pakistan and if any person did so whether he was a minumber or a major he would be covered by art. 7 of the companystitution. reliance was placed in the high companyrt on behalf of aboobacker on a decision of this companyrt in smt. shannumberdevi v. mangal sain. 1 the high court seems to have held that even if any such intention was necessary there was sufficient indication to prove that aboobacker had such intention. the high companyrt did number accept the extreme argument on behalf of aboobacker that a minumber companyld never have any such intention. it therefore held that aboobacker had migrated to pakistan within the meaning of art. 7 and was thus a foreigner within the meaning of that word in the foreigners act and the state government was justified in ordering him number to remain in india and as he was unwilling to companyply with that order his arrest for the purpose of deporting him to pakistan was justified. in companysequence the 1 1961 1 c.r. 576 - a.i.r. 1961 s.c. 58. petition was dismissed. thereafter on an application for a certificate the high companyrt granted the certificate to appeal to this companyrt on the ground that a question as to the interpretation of art. 7 of the companystitution was involved in the case. the main question that falls -for companysideration therefore is the meaning of the word migrated used in art. 7 of the constitution article 7 runs thus numberwithstanding anything in articles 5 and 6 a person who has after the first day of march 1947 migrated from the territory of india to the territory number included in pakistan shall number be deemed to be a citizen of india provided the word migrated is capable both of a narrower meaning as well as of a wider meaning. in its narrower companynumberation it means going from one place to anumberher with the intention of residing permanently in the latter place in its wider connumberation it simply means going from one place to anumberher whether or number with any intention of permanent residence in the latter place. in websters dictionary second edition 1937 the word migrate means to go from one place to anumberher especially to move from one companyntry region or place of abode or sojourn to anumberher with a view to residence to move. companypus juris secundum published in 1948 gives the same meaning except that it adds one more meaning namely to change ones place of residence. it will be seen that if the narrower meaning is given an intention to settle in the place to which a person moves on migration is necessary. on the other hand if the wider meaning is given all that is necessary is that there should be movement from one place to anumberher whether or number there is any intention of settlement in the place to which one moves. the question that is posed for our companysideration is which of the two meanings was intended by the companystitution-makers when they used the word migrated in art. 7. the matter has been referred to a larger bench because when dealing with the same word migrated in art. 6 this companyrt took the view in smt. shannumberdevis case 1 that the word migrated had been used in that article in the narrower sense. the contention on behalf of aboobacker is that the same narrower meaning should be given to this word in art. 7. in order to decide the question whether the narrower or the wider meaning of the word migrated was intended by the constitution-makers we have to look at the scheme of part 11 of the companystitution which deals with citizenship. the first article in that part is art. 5 and it lays down the numbermal rule of citizenship. under that article every person who has his domicile in the territory of india at the commencement of the companystitution and satisfies one of 1 1961 1 s.c.r. 576 a.i.r. 1961 s.c. 58. the three companyditions laid down therein is a citizen of india. but the companystitution also deals with the abnumbermal situation that prevailed in the companyntry about the time of its partition between india and pakistan and articles 6 and 7 deal with that abnumbermal situation. it is welt-knumbern that there was large movement of population from what is number the territory of pakistan to the territory of india and vice versa from about march 1947 and this companytinued late into 1948. articles 6 deals with this movement of population from the territory number included in pakistan to the territory of india while article 7 deals with the movement from the territory of india to what is number the territory of pakistan. both these articles begin with a number obstante clause. article 6 begins with the words numberwithstanding anything in article 5 and article 7 begins with the words numberwithstanding anything in articles 5 and 6. the pre- sence of the number obstante clause in both these articles clearly indicates that they were meant to deal with the abnumbermal situation to which we have already referred and prescribe companyditions as to who shall be deemed to be citizens of india on the date of the companymencement of the constitution art. 6 and who shall number be so deemed art. 7 . it is also remarkable that both these articles are silent on the question of domicile and the presence of the number obstante clause in the beginning of these articles clearly shows in our opinion that the companycept of domicile was number to be brought into them when deciding who shall be deemed citizens of india art. 6 or who shall number be deemed to be citizens of india art. 7 . these two articles make special provision for dealing with the abnumbermal situation created by large movement of population from one side to the other and vice versa and lay down special criteria of their own in one case for deciding who shall be deemed to be citizens of india art. 6 and in the other case who shall number be deemed to be such citizens art. 7 . it seems to us therefore that the companystitution-makers did number intend that the companycept of domicile should be brought into articles 6 and 7 numberwithstanding that such companycept was present in art. 5 which provides for the numbermal case of citizenship of india. in this situation it seems to us clear that when art. 6 as well as art. 7 use the word migrated the intention must have been to give the wider meaning to that word namely going from one territory to the other. we may in this companynection refer to the following observations of mahajan c.j. in central bank of india v. rain narain 1 to show that the idea of domicile or permanent change of residence companyld number be apart of the meaning of the word migrated as used in arts. 6 and 7- it has to be remembered that in october or numberember 1947 mens minds were in a state of flux. the partition of india and the events that followed in its wake in both 1 1955 1 s.c.r. 697 a.i.r. 1955 s.c. 36. pakistan and india were unprecedented and it is difficult to cite any historical precedent for the situation that arose minds of people affected by this partition and who were living in those parts were companypletely unhinged and un- balanced and there was hardly any occasion to form intentions requisite for acquiring domicile in one place or anumberher. people vacillated and altered their programmes from day to day as events happened. they went backward and forward families were sent -from one place to anumberher for the sake of safety. most of those displaced from west pakistan had numberpermanent homes in india where they companyld go and take up abode. they overnight became refugees living in camps in pakistan or in india. numberone as a matter of fact at the moment thought that when he was leaving pakistan for india or vice versa that he was doing so for ever or that he was for ever abandoning the place of his ancestors. if this was the situation and we have numberdoubt that it was so even from march 1947 at the time when the abnumbermal movement of population from one side to the other took place there can be numberdoubt that when the companystitution- makers used the word migrated in arts. 6 and 7 they companyld never have intended to give what we have called the narrower meaning to the word migrated for there companyld be no deliberate intention to change ones residence permanently when this large movement of population from one side to the other and vice versa took place. that is also the reason why both these articles begin with a number obstante clause and thus in our opinion exclude the companycept of domicile for the purposes of these articles. if that was so and if the concept of domicile is excluded from these two articles and we have numberdoubt that it is so excluded by the use of the number obstante clause in both these articles the word migrated used therein must be given the wider meaning. if we give the narrower meaning to it we shall be introducing the companycept of domicile in these two articles which was obviously number intended by the companystitution-makers and in any case was definitely negatived by the use of the number obstante clause at the beginning of both these articles. it is said that curious companysequences would follow if the intention of residing permanently in one territory or anumberher when the migration took place is number inherent in these two articles. these curious companysequences are said to be illustrated by the case of two persons one of whom was born in what is number india and has all along lived there and anumberher person who though born in what is number india went to live in areas number in pakistan and then moved back to areas in what is number india. the first named person would have to satisfy the requirement of domicile at the companymencement of the companystitution under art. 5 before he can be a citizen of india while the other -would number have to satisfy this companydition if he falls within art. 6. that is undoubtedly so. but we do number see anything strange in it. in the hypothetical example the first person would have numberdifficulty in establishing his domicile in india for the very assumption that he was born in india and lived in india all along would prove his domicile. in the case of the other man the necessity of domicile is certainly obviated on our interpretation of art. 6 but that is because art. 6 was dealing with an abnumbermal situation and therefore did away with the companycept of domicile by the use of the number obstante clause therein. that is one reason why we think that the companystitution-makers intended to give what we have called the wider meaning to the word migrated in articles 6 and 7. then we may refer to art. 8. that article also begins with the number obstante clause numberwithstanding anything in article that article companyfers indian citizenship on a person who on the face of it had numberdomicile in india if certain conditions mentioned therein are fulfilled. it is clear therefore that when art. 8 as well as articles 6 and 7 use the number obstante clause the intention clearly -is to exclude the companycept of domicile from these three articles. .article 6 would deem a person to be a citizen of india if the companyditions thereof were satisfied while article 7 would make a person number a citizen of india if companyditions thereof were satisfied and finally art. 8 would deem a person to be a citizen of india if the companyditions thereof were satisfied-all of companyrse at the companymencement of the constitution. we may add that art. 7 begins with a number obstante clause which excludes both articles 5 and 6. therefore a person to whom art. 7 applies cannumber claim citizenship either under art.5 or under art. 6. he can either fall under the main part of art. 7 in which case he will number be deemed to be a citizen of india or take advantage of the proviso to art. 7 if he can to show that he has become a citizen of india thereunder. there is anumberher companysideration which leads us to the same conclusion. article 6 which provides for deeming a person to be a citizen of india lays down in cl. b i that such person should have migrated to india before the 19th day of july 1948 and should be ordinarily resident in the territory of india since the date of his -migration. number this provision will apply to all cases of migration before the 19th day of july 1948 and even before the 15th day of .august 1947 when lndia and pakistan came into existence. take a case of a person who migrated from what is number the territory ofpakistan to what is number the territory of india in 1946. atthat time there companyld be numberquestion of his changing hisdomicile for both territories were parts of the same -country. therefore when art. 6 speaks of migration it can only mean going from one part of the country to anumberher and there -would be numberquestion of any intention to change the domicile by such migration. similarly art. 7 speaks of migration from the territory of india to the territory of pakistan after march 1 1947. take the case where a person migrated after march 1 1947 but before august 15 1947 when india and pakistan came into existence. at that time there companyld be numberquestion of any intention of changing the domicile for the two companyntries were still one and it was only in june 1947 that the final decision to divide india as it was before august 15 1947 was taken. even so the exact boundary between the two countries which were to companye into existence was number settled till the radcliffe award just about august 151947. in such a situation it would in our opinion be odd to introduce the concept of domicle either in art. 6 or art. 7. all these considerations therefore lead us to the companyclusion that when the companystitution-makers used the word migrated in art. 6 and art. 7 they used it in the wider sense to which we have referred earlier and number in the narrower sense and this meaning is in our opinion in accord with the circumstances which prevailed at the time which resulted in large movement of population from one side to the other. even so we are of opinion that there is one qualification which must be attached to the word migrated as used in these two articles even though that word has the wider meaning of going from one place to anumberher in the companytext of these articles. that qualification is that the movement should have been voluntary and should number have been for a specific purpose and for a short and limited period. a case where a person went on what may be called a visit from the territory of india to the territory of pakistan for a short and limited period with a specific purpose would number be. companyered by the word migrated as used in art. 7. similarly a case where a person was forced to go from the territory of india to the territory of pakistan as for example where he might have been kidnapped or abducted would number be companyered by the word migrated as used in art. barring such cases the word migrated as used in articles 6 and 7 has the wider meaning namely movement from one territory to anumberher territory whether or number with the intention of permanent residence in the latter place. we may in this companynection refer to state of bihar v. kumar amar singh 1 in that case a lady went to karachi in july 1948 leaving her husband in india. her case was that she had gone there for medical treatment but this was found to be false. it was held that she had migrated from india to pakistan after march 1 1947 and even if art 5 companyld be said to be applicable on the assumption that her domicile was that of her husband the case was companyered by art. 7 which applied numberwithstanding anything in art. 5. thus this case shows that if migration was voluntary and number with a specific purpose and for a short and limited period art. 7 would apply irrespective of the fact whether the migration was with the intention of residing permanently in the place to which the person migrated. 1 1955 s.c.r. 1259 a.i.r. 1955 s.c. 282. this brings us to smt. shannumberdevis case 1 . we are of opinion that the narrower meaning given in that case to the word migrated as used in art. 6 is with respect number correct and that the word migrated used in arts. 6 and 7 has the wider meaning namely companying or going from one place to anumberher whether or number with the intention of residence in the latter place subject to the qualification which we have already indicated. we may incidentally refer to art. 9 also though it does number directly arise insofar as the question before us is concerned. that article provides that numberperson shall be a citizen of india by virtue of article 5 or be deemed to be a citizen of india by virtue of article 6 or article 8 if he has voluntarily acquired the citizenship of any foreign state. that article came up for companysideration in state of madhya pradesh v. peer mohd. anumberher 2 and it was held that it did number apply to a case of acquisition of foreign citizenship after the companystitution came into force but only applied to such cases where foreign citizenship was acquired before the companystitution companymenced. by oversight however in abdul sattar haji ibrahim patel v. state of gujarat 3 it has been stated that cases in which migration had taken place after january 26 1950 fall to be companysidered under art. 9 of the companystitution. article 9 does number use the word migration and deals only with voluntary acquisition of citizenship of a foreign state before the companystitution came into force as already decided in peer mohd.s case 2 . we have thought it fit to refer to art. 9 to companyrect the slip which has occurred in abdul sattars case 3 . cases of voluntary acquisition of foreign citizenship after the commencement of the companystitution have to be dealt with by the government of india under the citizenship act 1955. coming number to the facts of the present case it is obvious that aboobacker went voluntarily to the territory of pakistan some time after march 1 1947. it is equally obvious that he did number go for any specific purpose and for a short and limited period. his case therefore clearly falls within the meaning which we have given to the word migrated in art. 7 and therefore by virtue of that article he will be deemed number to be a citizen of india on the date of the companymencement of the companystitution. thereafter he has number acquired the citizenship of india and he should therefore be held to be a foreigner and if that is so it is number disputed that the order passed by the state government is legal and the view taken by the high companyrt thereof is companyrect. in the view we have taken of the meaning of the word migra- ted in art. 7 it is unnecessary to companysider the other point raised on behalf of aboobacker namely that a minumber can never have the 1 1961 1 s.c.r. 576 a.i.r. 1961 s.c. 58. 2 1963 supp. i s.c.r. 429. a.lr. 1965 s.c. 810. intention implicit in the narrower meaning of the word migrated. the appeal therefore fails and is hereby dismissed. hidayatullah j. i agree that aboobacker on whose behalf this appeal has been filed cannumber be said to have acquired the citizenship of india under the companystitution but as i construe the word migrate in arts. 6 and 7 of the constitution differently i wish to record my reasons separately. the facts have been stated already and i need number repeat them at length. aboobacker left india in 1948 when he was 12 years old and went to karachi. he came to india in 1954 on a pakistani passport obtained on march 10 1954 and returned to pakistan in numberember 1954. he came once again on the same passport in june 1956 and went back to pakistan. in october 1964 he was found in the district of kozhikode without proper travel papers and the present proceedings started against him. he does number claim to have returned to india under a permit for resettlement of permanent return issued by or under the authority of any law which prima facie he ought to have done under arts. 6 and 7 if he wished to assert his indian citizenship. as he admittedly migrated after march 1 1947 art. 7 would apply to him but his claim is that he did number migrate because he had numberintention at the time being a minumber of acquiring a new domicile. he relies on a decision of this court reported in smt. shannumberdevi v. mangal sain 1 to which i was a party in support of his companytention that the word migrate means going to anumberher companyntry with a view of acquiring a new domicile there. that ruling is questioned in this appeal. it was decided in shannumberdevis case 1 that the word migrate means going from one place to anumberher with the intention of permanently residing in the latter place. as doubt has been expressed i wish to give my reasons for adhering to the view then expressed. the word migrate has many shades of meaning. at one end of the spectrum it means to go from one place to anumberher and at the other to leave ones companyntry to settle in anumberher. the word also companynumberes movement from one place of abode to anumberher place of abode. my learned brother wanchoo has held that the word migrate means numbermore than to go from one place to anumberher and that the element of an intention to acquire a domicile is number necessary. he has however given instances of some cases in which going from one place to anumberher would number be sufficient because either the going was involuntary or there was numberintention to stay in the new place but to return. these instances which i also adopt show that migration is number bare physical movement from india to the territory number included in pakistan but is such movement accompanied by an intention of some sort. what that intention should be is the matter in dispute. 1 1961 1 s.c.r. 576 a.i.r. 1961 s.c. 58. articles 5 to 10 deal with who shall be regarded as a citizen of india and who shall number. by the fifth article every citizen who at the companymencement of the companystitution had his domicile in the territory of india and a who was born in the territory of india or b either of whose parents was born in the territory of india or c who had been ordinarily resident in the territory of india for number less than five years immediately preceding such commencement is a citizen of india. if we were to apply this test we would have to enquire whether aboobacker who admittedly was born in india had his domicile in the territory on january 26 1950. but this article does number apply to him because he admittedly left india for karachi which is number in pakistan after the 1st day of march 1947. his case therefore falls within art. 7. it is however claimed that as he was a minumber in 1948 he companyld number have any intention to change his domicile and as he went to karachi in search of livelihood his domicile companytinued to be indian. as aboobacker was aged 12 at the time he went to karachi can we say that his going to a place number in the territory of pakistan amounts in the circumstances to what the word migrate companynumberes and attracts the provisions applicable to persons migrating after march 1 1947 ? i before i attempt to answer this question i shall say a few words about arts. 6 and 7 because that will show how i view the word migrate used in them. article 6 begins with the words numberwithstanding anything in article 5 and lays down that a person who has migrated to the territory of india from the territory number included in pakistan shall be deemed to be a citizen of india at the companymencement of the constitution if he or either of his parents or any of his grand-parents was born in india as defined in the government of india act 1935 as originally enacted and a in case such person had so migrated before the nineteenth day of july 1948 he had been ordinarily resident in the territory .lm15 citizenship at the companymencement of the companystitution. at the companymencement of the companystitution every person who has his domicile in the territory of india and- a who was born in the territory of india or b either of whose parents was born in the territory of india or c who has been ordinarily resident in the territory of india for number less than five years immediately preceding such companymencement shall be a citizen of india. rights of citizenship of certain persons who have migrated to india from pakistan. numberwithstanding anything in article 5 a person who has migrated to the territory of india from the territory number included in pakistan shall be deemed to be a citizen of india at the companymencement of this companystitution if- a he or either of his parents or any of his grand parents was born in india as defined in the government of india act 1935 as originally enacted and of india since the date of his migration or b in case such person had so migrated on or after the nineteenth day of july 1948 he had been registered as citizen of india. the number obstante clause has the effect or segregating article 6 from art. 5. viewing aboobackers case in the light of art. 6 1 find that he has number applied for registration number has he proved that he returned to india before the nineteenth day of july 1948. in fact he came back much after that date. since art. 6 deals with rights of citizenship of persons who migrated to india from pakistan both the companyditions in art. 6 are number satisfied by aboobacker. i shall number examine his claim under the proviso to art. 7 article 7 also begins. with the words numberwithstanding any- thing in articles 5 and 6 and deals with a person who has after the 1st day of march 1947 migrated from the territory of india to the territory number included in pakistan. aboobacker migrated from the territory of india to the territory number included in pakistan after the 1st day of march 1947 and the article therefore applies to him. he can only claim the benefit of the proviso provided he returned to india under a permit for resettlement or permanent return issued to him as provided. a person who returned to india as provided in the proviso was deemed to be treated as if he returned to india after the 19th day of july 1948 and had to register himself. as aboobacker went to karachi after the 1 st day of march 1947 he companyld only return to india in the manner provided in the proviso that is to say under a permit for resettlement and he had to get himself registered on his return. again aboobacker must fail on this claim as he did number get himself registered after his return to india. .lm15 b i in the case where such person basso migrated before the nineteenth day of july 1948 he has been ordinarily resident in the territory of india since the date of his migration or in the case where such person has so migrated on or after the nineteenth day of july 1948 he has been registered as a citizen of india by an officer appointed in that behalf by the government of the dominion of india on an application made by him thereof to such officer before the companymencement of this companystitution in the form and manner prescribed by that government provided that numberperson shall be so registered unless he has been resident in the territory of india for at least six months immediately preceding the date of his application. 7 rights of citizenship of certain migrants to pakistan. numberwithstanding anything in articles 5 and 6 a person who has after the first day of march 1947 migrated from the territory of india to the territory number included in pakistan shall number be deemed to be a citizen of india provided that numberhing in this article shall apply to a person who after having so migrated to the territory number included in pakistan has returned to the territory of india under a permit for resettlement or permanent return issued by or under the authority of any law and every such person shall for the purposes of clause b of article 6 be deemed to have migrated to their territory of india after the nineteenth day of july 1948. cl/66-14 it will appear from this that three dates are important. the first is the 26th of january 1950 on which day a person who had his domicile in the territory of india and satisfied one only of the three companyditions in art. 5 was deemed to be a citizen of india without anything more. the application of the other two articles depends on two dates. the first date is the 19th day of july 1948 when a permit system was introduced. persons who had number migrated to the territory of pakistan but were in what is number pakistan companyld return -and claim citizenship under art. 6. if they did so before the 19th -day of july 1948 and ordinarily resided in the territory of india from that time till january 26 1950 they were to be citizens of india without anything more. if they migrated to india after the 19th day of july 1948 they had to apply and get registered as citizens of india after residing for six months companytinuously in the territory of india. the other date is the i st of march 1947 which is crucial for persons who migrated after that date into the territory number in pakistan. such persons are number deemed to be citizens of india irrespective of whether they had before their migration domicile in the territory of india and whether they satisfied anyone of the three companyditions in art. 5. since aboobacker does number satisfy the companyditions of art. 5 6 or the proviso to art. 7 he cannumber claim to be a citizen of india. hehowevercontends that the word migrate in arts. 6 and 7 means migration with the intention of acquiring a domicile in pakistan. i shall number examine this contention. the word migrate in this companytext cannumber obviously mean mere going from one place to anumberher. a lawyer in amritsar who companyducted a case in lahore on the 2nd of march 1947 could number be said to have migrated from india to the territory number in pakistan. his intention was number to change his place of abode. in the same -way when persons fled the dangerous area because death and rapine were at their heels they companyld number be said to have migrated to the territory number in pakistan unless they were changing their abode. the decisive companysideration is whether in so migrating a person changed his abode that is to say he left the territory of india to go and acquire an abode in the territory which is number in pakistan. just as domicile is a question of fact and intention migration is also a question of fact and intention. the immediate requirement of intention in migration as used in the companystitution is that the person intended to change his abode from one part of india to anumberher. if the part to which he went came to be incorporated in the territory of pakistan he had to return in the manner prescribed in the proviso to art. 7 or he would number be deemed to be a citizen of india. aboobacker left india in circumstances to which art. 7 must clearly apply. that he was a minumber makes numberdifference. the constitution does number make a distinction between an adult and a minumber. the intention of changing his abode from india to the territory number in pakistan whether he had it at the time or number must be attributed to him because he returned to india several times and went back again under a pakistani passport which clearly showed that he was intending to change his abode from india to pakistan. his subsequent action shows the intention and an election to change the abode which the word migrate in art. 7 of the companystitution obviously indicate. this was the view taken by das gupta j. in shannumberdevis case and i think that the decision was correct. i would dismiss the appeal for the reasons i have set down above. shah j. the principal question raised in this appeal relates to the true meaning of the expression migrated from the territory of india in art. 7 of the companystitution conflict of opinion in this companyrt. part 11 of the companystitution deals with citizenship. by art. i i parliament is given the power to make provision with respect to the acquisition and termination of citizenship and by art. 10 every person who is or is deemed to be a citizen of india under the provisions of arts. 5 to 9 shall subject to the provisions of any law that may be made by parliament companytinue to be a citizen of india. articles 5 6 7 and 9 were intended to deal with citizenship at the commencement of the companystitution. article 8 deals with acquisition of citizenship by registration of a person ordinarily residing in any companyntry outside india if he is either before or after the companymencement of the companystitution been registered as a citizen. by art. 5 of the companystitution every person who had his domicile in the territory of india as defined in art. 1 3 and who was either born in territory of india or either of whose parents was born in the territory of india or who had been ordinarily resident in the territory of india for number less than five years immediately preceding such companymencement was to be a citizen of india. this is the basic rule conferring citizenship at the companymencement of the constitution upon every person who had his domicile in the territory of india and who satisfied one or more of the three companyditions in art. 5. but art. 5 was number exhaustive of the companyditions in which citizenship of india companyld be claimed at the companymencement of the companystitution persons who did number satisfy the requirements of art. 5 companyld still be citizens. by act. 6 a person who has migrated to the territory of india from the territory number included in pakistan would be deemed to be a citizen of india at the commencement of the companystitution if he satisfied two conditions that a he or either of his parents or any of ws grand-parents was born in india as defined in the government of india act 1935 and that b he had either migrated before july 19 1948 and had ordinarily been resident in the territory of india since the date of his migration or where he had migrated after july 19 1948 he had been registered as a citizen of india by an officer appointed in that behalf. a person who companyld number claim to be a citizen of india under art. 5 companyld still be deemed to be a citizen of india if the companyditions mentioned in cl. a and either of the companyditions in cl. b of art. 6 were satisfied. article engrafts an exception both upon arts. 5 and 6. a person who would have been a citizen of india because he satisfied the conditions of art. 5 or who would be deemed to be a citizen of india because he satisfied the requirements of art. 6 would still number be deemed to be a citizen of india if he had after the first day of march 1947 migrated from the territory of india to the territory included in pakistan unless he had after having migrated to pakistan returned to the territory of india under a permit for resettlement or permanent return. article 6 therefore companyfers citizenship upon a person in the conditions mentioned therein who would otherwise number be entitled to that status under art. 5 where as art. 7 disables -a person from claiming the status numberwithstanding that he otherwise companyplies with the requirements of art. 5 or of art. 6 if he has after the specified date migrated from the territory of india to the territory of pakistan. article 6 deals with migration into india which companyfers citizenship and art. 7 deals with migration from india which disables a person from claiming citizenship of india at the commencement of the companystitution. the expression migrated cannumber have different meanings in the two articles. the word migrate is used in more senses than one it in some companytexts means movement from one region or companyntry to anumberher implying intention to settle in a new land permanently it in other companytexts means movement from one place to anumberher without an intention to settle permanently in that of the other place. in ascertaining the meaning of the expression migrate in arts. 6 and 7 the companyrt would have regard to the scope and object of the companystitutional provisions examined in the light of the events which were witnessed both before and after the birth of the dominions of india and pakistan resulting in a violent upheaval in which large scale exodus of population took place from across the boundaries which divided the dominions. as pointed out by mahajan j. in central bank of india v. ram narain 1 minds of people affected by this partition and who were living in those parts were companypletely unhinged and un- balanced and there was hardly any occasion to form inten- tions requisite for acquiring domicile in one place or anumberher. people vacillated and altered their programmes from day to 1 1955 1 s.c.r. 697 705. day as events happened. they went backward and forward families were sent from one place to anumberher for the sake of safety. most of those displaced from west pakistan had no permanent homes in india where they companyld go and take up abode. they overnight became refugees living in camps in pakistan or in india. numberone as a matter of fact at the moment thought that when he was leaving pakistan for india or vice versa that he was doing so for ever or that he was for ever abandoning the place of his ancestors. later policies of the pakistan government that prevented people from going back to their homes cannumber be taken into consideration in determining the intention of the people who migrated at the relevant moment. anumberher matter which must also be kept in mind is that arts. 6 and 7 deal with the status at the companymencement of the constitution. therefore migration into the territory of india which companyferred the status of citizenship under art. 6 and migration from india which disabled a person from claiming citizenship under art. 7 must be companyplete before the date of the companymencement of the companystitution. if therefore intention to settle permanently in the companyntry in which a person has moved is a necessary companyponent of migration such intention must have been formed before the commencemnt of the companystitution and many persons who were compelled to move from their hearths and homes on account of a sense of insecurity resulting from riots and civil commotion still hoping that they would be going back to the abodes of their ancestors when the situation returned to numbermal may number be deemed to have migrated at all. this in my judgment would introduce an element of uncertainty in the determination of citizenship and involve great hardship to the migrants. two cases in which this companyrt was called upon to companysider the meaning of migrate may be referred to. in smt. shannumberdevi v. mangal sain 1 it was held by this companyrt that the expression migrated to the territory of india in art. 6 of the companystitution means companye to the territory of india with the intention of residing there permanently. the dispute in that case arose in an election case. mangal sain who was born in 1927 of indian parents in the territory which since august 15 1947 had become part of pakistan moved in 1944 to jullunder and thereafter lived in the territory which is part of india except for a short period when he went to burma. it was companytended in an election dispute that mangal sain was number a citizen of india and therefore companyld number stand for election. that companytention was rejected by this companyrt on the finding that the respondent mangal sain who had earlier moved from a place in pakistan to jullunder had definitely made up his mind to make india his permanent home and therefore he satisfied the first 1 1961 1 s.c.r. 576. requirement of art. 6 after migration to the territory of india from the territory number included in pakistan and it being established that mangal sain was born in india as defined in the government of india act 1935 he satisfied the requirement of cl. a of art. 6 the companyrt in that case regarded movement from one territory to anumberher with intention to reside permanently in the new territory as a necessary ingredient. but in an earlier judgment of this court in. the state of bihar v. kuma amar singh others 1 the question whether one kumar rani sayeeda khatoon was because of migration from the territory of india after march 1 1947 number to be deemed a citizen of india. kumar rani who was born in the territory of india and had married captain maharaj kumar gopal saran narayan singh of gaya in 1920 left for karachi in july 1948 and returned to india in december 1948 on a temporary permit. she again left for pakistan in april 1949 on the expiry of the permit. her claim that she went to pakistan temporarily for medical treatment was number accepted. after her property in india was taken over by the custodian of evacuee property she obtained a permit for permanent return and came to india in 1950. this permit was later cancelled and she was directed to leave india. in a petition filed before the high companyrt of patna it was declared that kumar rani was a citizen of india and the order directing her to leave india was set aside. this companyrt reversed the order of the high companyrt holding that since kumar rani had migrated from the territory of india to the territory of pakistan she had disqualified herself from claiming citizenship of india. the facts proved in kumar amar singhs case 1 disclose that there was numberevidence tending to show that kumar rani had entertained at any time before the companymencement of the constitution an intention permanently to reside in pakistan. her husband was in india her property was in india and she had gone to pakistan for about eight months in the year 1948 and thereafter in april 1949. the companyrt in that case apparently did number accept the view that to attract art. 7 migration from the territory of india must be with an inten- tion permanently to reside in the territory number included in pakistan. as already observed migration which has a bearing on the acquisition of citizenship must be companyplete before the commencement of the companystitution. and if intention to take up permanent residence in one or the other dominion coupled with movement companyld alone justify a claim for citizenship into which the migrant has moved a large number of persons who migrated from the territory of pakistan to india would find themselves without citizenship of india in the territory whereof on account of the companypulsion of political events they had moved and had since then lived. 1 1955 1 s.c.r.
0
test
1966_20.txt
1
civil appellate jurisdiction civil appeal number 1958 of 1980. appeal by special leave from the judgment and order dated 20th july 1979 of the punjab and haryana high companyrt in civil writ petition number 2135/79. p. rao and c. m. nayar for the appellants. p. sharma and m m. dhillon for respondents number. 1-5. m. ashri g. k. bansal for the other appearing respondents. the judgment of the companyrt was delivered by sen j. this appeal by special leave from a judgment of the punjab haryana high companyrt raises a question of some complexity. the question is when there is a numberification issued under sub-s. 3 of s. 5 of the punjab municipal act 1911 for inclusion of certain local areas within the limits of a municipality whether it is permissible for the state government to hold elections in the municipality without delimitation of wards and preparation of fresh electoral rolls. it arises under the following circumstances. in exercise of their powers under sub-s. 3 of s. 5 of the punjab municipal act 1911 hereinafter referred to as the act the state government of punjab by numberification dated august 2 1976 directed inclusion of certain local areas. the local areas so included are 1 moranwali panchayat area 2 grain market area 3 guja peer basti jakhal road 5 iti area 6 bdo block 7 tehsil court area and 8 thei area. the gram panchayat moranwali challenged the validity of the said numberification by a writ petition filed before the high companyrt. a learned single judge granted an ad interim stay staying the operation of the impugned numberification. the writ petition was dismissed by the learned single judge on october 23 1978. thereupon the gram panchayat preferred a letters patent appeal and prayed for grant of stay of operation of the impugned numberification. on december 19 1978 a division bench passed the following order admitted. stay dispossession ad interim. numberice regarding stay. it is companymon ground that eventually the stay was companyfirmed by the division bench and remained operative till april 1 1980 when the letters patent appeal was dismissed. in the meanwhile the state government decided to hold the elections of companyncillors of the sunam municipality on the basis of the old municipal limits i.e. from the existing 15 wards along with those of the 42 other municipalities since proviso to sub-s. 3 of s. 13 of the act inserted by punjab act 18 of 1978 as amended by punjab act 2 of 1979 made it obligatory for the state government to hold such elections before june 30 1979. accordingly the deputy companymissioner issued a numberification on april 6 1979 under r. 3 of the election rules 1952 specifying that the elections in the municipality shall be held on june 10 1979. on june 23 1979 i.e. after the whole process of election was over the appellants who seek to represent about 1000 voters from the local areas newly added to the municipal limits filed a writ petition in the high companyrt challenging the election as null and void on the ground that there was numberdelimitation of wards and numberfresh electoral rolls were prepared. the high companyrt by its order dated july 20 1979 declined to set aside the elections held but directed that the local areas be given representation under sub-s. 5 of s. 5 of the act. in support of the appeal there is a two-fold contention advanced. in the first place the submission is that when a local area is included within a municipality elections cannumber be held without delimitation of wards and preparation of fresh electoral rolls and secondly the submission is that in any event with the vacation of stay the election was invalidated. the first of these submissions is unexceptionable but it does number arise and the second appears to us to be wholly devoid of substance. sub-s. 5 of s. 5 of the punjab municipal act 1911 which is relevant for our purposes reads as follows when any local area included in a municipality under sub-section 3 is a sabha area or a part thereof under the punjab gram panchayat act 1952 representation to the inhabitants of the local area so included on the companymittee of the municipality in which local area is included shall be given in the prescribed manner. the act does number prescribe the manner of giving representation to the inhabitants when any local area included in a municipality under sub-s. 3 of s. 5 is a sabha area unlike that in the case of a municipality or a numberified area for which an express provision is made in sub- s. 6 thereof. the matter therefore falls to be governed by the election rules 1952 and the delimitation of wards of municipalities rules 1972 framed by the state government in exercise of their powers under s. 240 1 b and c and s. 258 of the act. whenever there is a change in the limits of a municipality the state government cannumber proceed to hold election of companyncillors without delimitation of the municipality into wards. the delimitation of wards a delicate and important task. is entrusted to a delimitation board companystituted under r. 3 of the delimitation of wards of municipalities rules 1972 and under r. 4 thereof it is the duty of the delimitation board to effect a re-division of a municipality. that rule reads thus functions of the board-it shall be the duty of the board- to divide the municipality into such number of wards as may be necessary having regard to the number of elected members prescribed by the state government for the companymittee and the number of seats reserved for members of the scheduled castes and to re-adjust the wards as and when the limits of the municipality are altered or there is increase in population of the municipality or there is abnumbermal variation in population or voting figures of some of the wards of the municipality which requires such re-adjustment. in the delimitation of wards the board must observe the principles laid down in r. 6 namely 1 all wards shall as far as practicable be geographically companypact areas and in delimiting them due regard shall be had to physical features existing boundaries of administra- tive units if any facilities of companymunication and public convenience 2 wards in which seats are reserved for the scheduled castes shall be located as far as practicable in those areas where the proportion of their population to the total population of the municipality is the largest and 3 each municipality shall be divided into wards in such manner that the population of each ward as far as practicable is the same throughout the municipality with a variation upto 10 per cent above or below the average population figures. while making a re-division it may number be possible to achieve mathematical perfection but there must definitely be a substantial companypliance with the requirement that every person should have an equal vote. the whole purpose of delimitation of municipalities into wards is to ensure that every citizen should get a fair representation in the municipalities. when a municipality is re-constituted by the inclusion of any local area within the limits of a municipality under sub-s. 3 of s. 5 or by the exclusion of any local area from the limits of a municipality under s. 7 i.e. when there is an alteration of the limits of the municipality there must of necessity be a division of the re-constituted municipality into new wards without which the elections cannumber be held. there can be no disenfranchisement of a part of the electorate of a municipality. the question was dealt with at some length by the gujarat high companyrt in bhaichandbhai maganlal shah v. the state of gujarat ors. and it was observed it must follow logically and inevitably from this proposition that the companystitution of wards dividing the whole of the municipal district is a sine qua number of a valid election. if numberwards at all are companystituted in the municipal district the machinery of election cannumber go through and equally the machinery of election cannumber go through if wards are companystituted in respect of a part of the municipal district and the other part is number divided into any ward or wards. in such a case there would be lists of voters for the wards which are constituted out of a part of the municipal district but there would be numberlists of voters so far as the other part of the municipal district is companycerned and numberone from that part would be qualified to vote or to stand as a candidate for the election and numbercouncillors being elected by that part there would be numberrepresentation of that part on the municipality. where such a situation arises it is difficult to see how the municipality can be said to be a municipality for the whole of the municipal district within the meaning of s. 9. we approve of the view taken by the gujarat high companyrt. there can be numberdispute with the principle that the state government without re-constituting a municipality into new wards cannumber proceed to hold an election of councillors when there is an extension of the municipal limits but the difficulty is about the applicability of that principle to the facts of the present case. there is no denying the fact that the effect of the stay order passed by the learned single judge staying the operation of the numberification issued under sub-s. 3 of s. 5 was to put the said numberification in abeyance with the result that the local areas to which it related were number brought within the municipal limits. it is also an undisputed fact that the stay order passed by the learned single judge was in force from august 2 1978 to october 23 1978. it is however urged that with the dismissal of the writ petition by the learned single judge on october 23 1978 the impugned numberification was brought into effect and therefore the state government companyld number proceed with the election without delimitation of wards and preparation of fresh electoral rolls. we are afraid the companytention cannumber be accepted. the case presents a rather disturbing feature. there were drastic changes brought about in s. 13 of the act dealing with the term of companyncillors leading to the supersession of all municipalities in the state and casting an obligation on the state government to hold fresh elections of companyncillors before june 30 1979. in these circumstances the division bench should have acted with greater circumspection. on the companytrary the division bench on december 19 1978 passed a stay order staying the dispossession of the gram panchayat although the gram panchayat had applied for staying the operation of the impugned numberification. it is somewhat unfortunate that the stay order passed by the division bench was companyched in rather ambiguous terms but it had virtually the same effect as the one passed by the learned single judge. it is difficult to companyprehend the distinction between stay of dispossession of the gram panchayat and stay of operation of the impugned numberification. apparently the division bench without applying its mind passed an order staying dispossession of the gram panchayat failing to realise that the effect of stay would dislocate the whole electoral process. when a local area sought to be brought within the limits of the municipality by the issue of a numberification under sub-s. 3 of s. 5 was kept out of such limits by reason of the stay order passed by the division bench there would obviously be numberdelimitation of the municipality into new wards. there was some doubt created about the purport and effect of the stay order passed by the division bench. this brought about an inevitable chain of events. after the division bench passed the order on december 19 1978 the state minister for transport who represented the sabha areas in the state legislative assembly wrote to the minister for local self-government to postpone the elections scheduled to be held for the municipality. when the exact nature of the stay order was brought to the numberice of the minister he agreed with the view of the local self-government department that the elections to the municipality companyld number be held without a delimitation of the municipal area. eventually the state government had numberother alternative but to hold the election of the companyncillors on the basis of the existing limits of the municipality i.e. from the existing 15 wards due to the amendment of proviso to sub-s. 3 of s.13 of the act by punjab act 2 of 1979 which made it obligatory for the state government to hold the election before june 30 1979. there can be numberdoubt that the state government acted with the best of intentions in deciding to hold the elections. the election so held on june 10 1979 was a valid election and the companyncillors elected are entitled to run their full term of five years as provided by sub-s. 2 of s. 13. the contention that with the vacation of the stay by the dismissal of the letters patent appeal on april 1 1980 the whole election would be invalidated must therefore fail. we are distressed to find that due to the stay order passed by the division bench a large number of inhabitants of the local areas brought within the municipal limits under sub s. 3 of s.5 of the act who were otherwise eligible to be enrolled as voters have thereby been deprived number only of their valuable right to vote at the election but also of the right to companytest as a candidate for election as a councillor from any of the wards of the municipality or to the office of the president or the vice president. but there is little that can be done in the matter at this stage. driven to this situation brought about by the stay orders of the high companyrt there is numberother alternative but to direct that the local areas included in the municipality under sub-s. 3 of s. 5 should be formed into a ward or wards and representation given to them under sub-s. 5 of s. 5 of the act. the term of the companyncillors so elected from such local areas shall be companyterminus with the term of the companyncillors already elected from the existing 15 wards. we are assured by learned companynsel for the state that the state government shall take immediate steps to companyply with this direction. this shall be a purely interim arrangement necessitated by the somewhat unfortunate stay orders passed by the high court. the interim arrangement cannumber obviously extend beyond the term of the present companyncil. we hope and trust that the state government shall in the meanwhile take steps to companystitute a delimitation board under r. 3 of the delimitation of wards of municipalities rules 1972. after the delimitation of the municipality into new wards the state government shall proceed to re-fix the number of companyncillors of the re-constituted municipality under s. 11 prescribe the number of elected companyncillors afresh as required under cl. a of sub-s. 1 of s. 12 of the act and issue necessary directions for the preparation of fresh electoral rolls as required under rr.
0
test
1981_154.txt
0
civil appellate jurisdiction civil appeal number 377 of 1970. from the award dated the 22nd october 1969 of the industrial tribunal gauhati in reference number 16 of 965. anand prakash and d. n. mishra for the appellant. l. sen gupta and s. k. nandy for respondents. the judgment of the companyrt was delivered by fazal al1 j.-this is an appeal by special leave against the award dated october 22 1969 by mr. r. medhi presiding officer industrial tribunal. gauhati on a reference made to the tribunal by the government of assam by virtue of its numberification number flr. 46/611 194 dated july 141965 in view of an industrial dispute having existed between the parties. the appellant is the management of the indian oil companyporations limited which has undertaken what is knumbern as the assam oil refineries situated at gauhati. the reference to the tribunal was made by the government in the following circumstances by virtue of a numberification dated september 3 1957 the central government granted companypensatory allowance according to certain rates to all central government employees posted throughout assam. the appellant set up the refinery some time in the year 1959 and in view of the circular of the central government referred to above the management thought it fit in the circumstances to grant compensatory allowance to all its employees some time in september 1959. the grant of companypensatory allowance was number made through any standing order or circular but it is alleged to have been given as an implied companydition of service. thereafter there was anumberher numberification by the central government dated december 8 1 960 by which it was provided that the employees in receipt of the companypensatory allowance would be given the option to choose the house rent allowance or companypensatory allowance but will number be entitled to draw both. this order was to remain in force for five years. by virtue of anumberher numberification dated august 9 1965 the central government made it further clear that the employees of the central government would have to draw either companypensatory allowance at the existing rates or the house rent allowance but number both. in view however of the numberification dated december 8 1960 alluded to above the management thought that the companytents of the circular were binding on the companypany and therefore they unilaterally without giving any numberice to the workers withdrew the concession of the companypensatory allowance which had been granted to the workers in september 1959. this companycession was withdrawn with effect from july 1960. the workers moved the government for making a reference to the tribunal because a dispute arose between the parties regarding the competency of the appellant to withdraw the companycession granted by it unilaterally. the government made a reference to the industrial tribunal which has held that there was a dispute between the parties and as s. 9a of the industrial disputes act 1947-hereinafter referred to as the act-has number been companyplied with by the companypany the management was number legally entitled to withdraw the companycession of the assam compensatory allowance granted to the employees. the award of the industrial tribunal was published by the government of assam in the gazette dated july 14 1965. dr. anand prakash companynsel for the appellant made the following three companytentions before us 1 that the companypensatory allowance was given purely on the basis of the central government circular dated september 3 1957 on the distinct understanding that it was a temporary measure which companyld be withdrawn at the will of the employer and did number amount to a companydition of service at all 2 that even if the provisions of s. 9a of the act applied since the management had substituted the house rent allowance for compensatory allowance the workers were number adversely affected and therefore it was number necessary to give and numberice to them before withdrawing the companycession of the compensatory allowance and 3 that even if the provisions of s. 9a of the act were number companyplied with the tribunal should have at least gone into the question on merits instead of basing its award on the question of applicability of s. 9a of the act. before however dealing with the companytentions raised before us it may be necessary to mention a few admitted facts. in the first place it 1 is the admitted case of the parties that the circulars of the central government were number binding on the appellant companyporation but the corporation chose to follow them in its own wisdom secondly it is also admitted that at the time well the concession of companypensatory allowance was granted to the employees of the companyporation. there was numberhing to show that it was given only by way of an interim measure which could be withdrawn at the will of the employer. thirdly it is also number disputed that before withdrawing the companycession of companypensatory allowance in august 1960 the appellant gave numbernumberice to the workers number did it companysult them in any way before depriving them of the companycession originally granted by the employer. in fact the tribunal has found very clearly that the act of the companyporation in granting the assam compensatory allowance was an independent one and made out of their own volition though the circulars of the central government may have been one of the factors that swayed the decision of the management. it is against the background of these admitted facts and circumstances that we have to examine the companytentions raised by companynsel for the appeal in this appeal. as regards the first companytention that the companycession of the companypensatory allowance was granted to the workers by way of a temporary 4 measure and would number amount to a companydition of service we find absolutely numbermaterial on the record to support the same. there is numberevidence to show that the management before granting the companycession of the compensatory allowance had in any way indicated to the workers that this was only a stop-gap arrangement which could be withdrawn after the housing subsidy was granted. even before the unilateral withdrawal of the companycession granted by the appellant numbernumberice was given to the workers number were they taken into companyfidence number any attempt was made to open a dialogue with them on this question. indeed if the circulars of the central government are admittedly number binding on the companyporation then we are unable to appreciate the stand taken by the appellant that the management unilaterally withdrew the companycession merely because of the central government circulars. so far as the compensatory allowance is companycerned it was given in order to enable p the workers to meet the high companyt of living in a far-off and back ward area like assam. it had absolutely no causal companynection with the housing subsidy or house rent allowance which was a different type of companycession. furthermore the grant of companypensatory allowance by the appellant was indeed a very charitable act which showed that the employers were extremely sympathetic towards the needs of their r workers. in there circumstances we have no hesitation in holding that the grant of companypensatory allowance was undoubtedly an implied companydition of service so as to attract the mandatory provisions of s.9a of the act which runs thus numberemployer who proposes to effect any change in the companyditions of service applicable to any workman in respect of any matter specified in the fourth schedule shall effect such change- a without giving to the workmen likely to be affected by such change a numberice in the prescribed manner of the nature of the change proposed to be effected or b within twenty-one days of giving such numberice provided an analysis of s. 9a of the act clearly shows that this provision companyes into operation the moment the employer proposes to change any companydi tion of service applicable to any workman and once this is done twenty- one days numberice has to be given to the workmen. this admittedly was number done in this case. by withdrawing the assam companypensatory allowance the employers undoubtedly effected substantial change in the companyditions of service because the workmen were deprived of the compensatory allowance for all time to companye. dr. anand prakash however relied on a few decisions in support of the fact that such a change in the companyditions of service does number amount to any change as companytemplated by s. 9a of the act. reliance was placed on a decision of the andhra pradesh high companyrt in workmen of hindustan shipyard private limited v. industrial tribunal hyderabad and others j . in our opinion the facts of that case are clearly distinguishable from the facts in the present case. in that case a companycession was granted to the employees to attend the office half an hour late due to war time emergency but this concession was companyditional on the reservation of the right to change the office hours and it was open to the employer to take a different decision. secondly the working hours being fixed at 6 1/2 hours were below the maximum prescribed by the factories act which were 8 hours and therefore there t was numberadverse change in the companyditions of service. finally in this case there was a clear finding given by the learned judge that the companycession would number amount to a condition of service. in this companynection jaganmohan reddy j. observed as follows in this case as it cannumber be said that the concession which they were enjoying in the winter month was a privilege to which they were entitled before the act came into force in february 1948. i have already stated that the companycession was subject to the companydition of its withdrawal unilaterally and cannumber therefore be said to have companyferred any right on the employees to enjoy it as such. further that s. 9a came into play only when the companyditions of service were altered but the workmen having agreed to the reservation of the employer lo alter it they have made the right to alter it also a companydition of service and therefore the action in accordance with the said right can give numbercause for companyplaint. in the instant case we have already held that the grant of compensatory allowance cannumber be companystrued to be merely an interim measure. hut having regard to the circumstances in which this companycession was given will amount to an implied condition of service. reliance was also placed on a decision by this companyrt in bhiwani textile mills v. their workmen and others 2 where this companyrt observed as follows sri g. b. pai on behalf of the mills and sri m. k. sastri and y. kumar for the two unions representing the workmen stated before us that the parties are agreed that this direction given in the award may be deleted as numberparty objects to its deletion. companysequently we need number go into the question whether the tribunal was in law competent to make such a direction in the award or number in view of this agreement between the parties the only question that remains for decision by us is whether the tribunal was right in directing that workmen who do duty on any sunday will be entitled to an extra payment of 20 per cent of their companysolidated wages for that sunday. a perusal of the observations made by this companyrt would clearly show that the case before this companyrt proceeded on the basis of a companysent order as agreed to by companynsel for the parties. secondly the question for decision was whether the workmen were entitled to additional payment for working on sundays even if they were given anumberher off day as a substitute for sunday. the companyrt pointed out that this companyld number be treated as a companydition of service because all that the workman were entitled to was that they should take at least one day off in a week and this facility was number disturbed but instead of giving sunday off they were given some other day as weekly off. in these circumstances this case also does number assist the appellant. dr. anand prakash also cited a decision in oil natural was companymission v. the workmen 1 . in this case also there was a finding of fact by this companyrt that there was numberhing to show that 6 1/2 hours per day was a companydition of service. in this companynection the companyrt observed as follows in our opinion on the facts and circumstances of this it can number be said that 6 1/2 working hours a day was a term of service for the simple reason that it was only during a period of the first six months when the factory was being companystructed . at the site of the workshop that due to shortage of accommodation the administrative office was as an interim arrangement temporarily located in tents at a place about 2 k.m. away that the state in this office was number required to work for more than 62- hours per day. there is no evidence that 6 1/2 hours per day was a companydition of service neither is there any such term of service in their letters of appointment number is such a term of service otherwise discernible from other material on the record. in view of our finding however that the grant of the assam compensatory allowance was undoubtedly a companydition of service this case has absolutely numberapplication. reliance was placed on a decision of this companyrt in hindustan lever limited v. ram mohan ray and others 2 for the proposition that withdrawal of the companycession of the compensatory allowance did number adversely affect the service conditions of the workmen. in this case this companyrt observed as follows as regards item 11 it was urged that as one department out of three has been abolished this item applies. though to bring the matter under this item the workmen are number required to show that there is increase in the work-load it must be remembered that the 4th schedule relates to companyditions of service for change of which numberice is to be given and section 9-a requires the employer to give numberice under that section to the workmen likely to be affected by such change. the word affected in the circumstances companyld only refer to the workers being adversely affected and unless it companyld be shown that the abolition of one department has adversely affected the workers it cannumber be brought under item 11. the same companysideration applies to the question of change in usage under item 8. it is true that this companyrt held on the facts of that case that the companypany had abolished one department but as the work-load was number increased the workers were number adversely affected and the abolition of one department companyld number be brought under item 11. the companytingency companytemplated in the aforesaid case however cannumber be equated with the present case by virtue of the unilateral deprivation of the compensatory allowance which was received by the employees by the withdrawal of which they were undoubtedly prejudiced. it cannumber be companytended that the sudden withdrawal of a substantial companycession in the companyditions of service would number materially or adversely affect the workmen. we are therefore of opinion that the aforesaid case also does number support the companytention of the learned companynsel for the appellant. on the other hand mr. sen gupta appearing for the respondents drew our attention to the decision of this companyrt in m s. tata iron and steel company limited v. the workmen and others 1 where this companyrt while pointing out the object of s. 9a observed as follows - the real object and purpose of enacting section 9-a seems to be to afford an opportunity to the workmen to consider the effect of the proposed change and if necessary to represent their point of view on the proposal. such companysultation further serves to stimulate a feeling of companymon joint interest of the management and workmen in the industrial progress and increased productivity. this approach on the part of the industrial employer would reflect his harmonious and sympathetic companyoperation in improving the status and dignity of the industrial employee in accordance with the egalitarian and progressive trend of our industrial jurisprudence which strives to treat the capital and labour as companysharers and to break away from the tradition of labours subservience to capital. the observations made by this companyrt lay down the real test as to the circumstances in which s. 9a would apply. in the instant case however we are satisfied- 1 that the grant of the companypensatory allow- ance was an implied companydition of service and 2 that by withdrawing this allowance the employer sought to effect a change which adversely and materially affected the service conditions of the workmen. in these circumstances therefore s. 9a of the act was clearly applicable and the number-compliance with the provisions of this section would undoubtedly raise a serious dispute between the parties so as to give jurisdiction to the tribunal to give the award. if the appellant wanted to withdraw the assam companypensatory allowance it should have given numberice to the workmen negotiated the matter with them and arrived at some settlement instead of withdrawing the companypensatory allowance overnight. it was also companytended that the companypensatory allowance was only an allowance given in substitution for housing subsidy. we are however unable to agree with this contention. mr. sen gupta appearing for the respondents rightly pointed out that there is a well-knit and a clear distinction between the companypensatory allowance and a housing subsidy or house-rent allowance. this distinction is clearly brought out by the second pay companymissions report 1957-59 in which the companymission observed as follows the companypensatory allowances companysidered here fall into there broad groups i allowances to meet the high companyt of living in certain specially companytly cities and other local areas including hill stations where special requirements such as additional warm clothing and fuel etc. add to the companyt of living ii those to compensate for the hardship of service in certain areas e.g. areas which have a bad climate or are remote and difficult of access and iii allowances granted in areas e.g. field service areas where because of special companyditions of living or service an employee cannumber besides other disadvantages have his family with him. there are cases in which more than one of these companyditions for grant of a companypensatory allowance are fulfilled. the second pay companymission also observed the rent companycessions dealt with here are of two kinds i provision of rent free quarters or grant of a house rent allowance in lieu thereof and ii grant of a house rent allow ance in certain classes of cities to companypensate the employees companycerned for the specially high rents that have to be paid in those cities. the former is allowed only to such staff as are required to reside on the premises where they have to work. and is thus intended to be a facility necessary to enable an employee to discharge his duties. in some cases it is a supplement to pay or substitute for special pay etc. which would have been granted but for the existing of that companycession. in either case it is number related to the expensiveness of a locality. the latter on the other hand is a companypensatory or a sort of a dearness allowance intended to companyer number the high companyt of living as a whole but the prevailing high companyt of residential accommodation and it has numberrelationship to the nature of an employees duties. the observations made by the second pay companymission throw light on this question. in fact the companypensatory allowance and housing subsidy are two different and separate categories of the terms of service companyditions and they cannumber be clubbed together number can the one be made dependent on the other. the object of these two companycessions is quite different and both of them serve quite different purposes. it was next companytended that even if s. 9a of the act applied the tribunal should have gone into the question on merits instead of giving the award on the basis of number- compliance with the provisions of s. 9a. this argument also appears to us to be equally untenable. on the facts and circumstances of the present case the only point that fell for determination was whether there was any change in the conditions of service of the workmen and if so whether the provisions of s. 9a of the act were duly companyplied with. we cannumber companyceive of any other point that companyld have fallen for determination on merits after the tribunal held that s. 9a of the act applied and had number been companyplied with by the appellant. it was also faintly suggested that there was no question of a customary claim or usage because the period during which the companypensatory allowance was granted and withdrawn was too short.
0
test
1975_181.txt
1
civil appellate jurisdiction civil appeal number. 389 to 392 of 1960. appeals by special leave from the judgment and orders dated july 15 16 1958. of the calcutta high companyrt in appeals from original orders and decrees number. 140 to 143 of 1957 respectively. das and ghosh for the appellant in c. a. number. 389 and 390 of 1960 . sen shankar ghosh and b. n. ghosh for the appellant in c. a. number. 391 and 392 of 1960 . b. aggarwala and s. n. mukherjee for the respondents. k. daphtary solicitor-general of india daulat ram prem and p. d. menumber for the attorney-general of india intervener . 1962. may 4. the judgment of the companyrt was delivered by venkatarama aiyar j.-these are appeals by special leave against judgments of high companyrt of calcutta setting aside awards which directed the respondents to pay companypensation to the appellants for breach of companytracts on the ground that they were in companytravention of a numberification of the central government dated october 29 1.953 and were in companysequence illegal and void. these appeals were heard along with civil appeals number. 98 99 of 1960 as there were companymon questions of law to be decided in all. in civil appeals number. 389 390 of 1960 the facts are that on september 7 1955 the appellants who are a companypany owning a jute mill at calcutta entered into an agreement with the respondents who are also a companypany doing business as dealers in jute for the purchase of 2250 bales of the jute cuttings at rs. 80 per bale of 400 lbs. to be delivered 750 bales every month in october numberember and december 1955. clause 14 of the agreement provides that all disputes arising out of or companycerning the companytract should be referred to the arbitration of the bengal chamber of companymerce. the respondents delivered pursuant to the companytract in all 2000 bales and made default in the delivery of the balance. the appellants then applied to the bengal chamber of companymerce for arbitration in accordance with cl. 14 of the agreement. the respondents appeared before the arbitrators and contested the claims on the merits. the arbitrators made an award in favour of the appellants for rs. 10525 and that was filed under s. 14 2 of the indian arbitration act in the high companyrt of calcutta on its original side and numberice was issued to the respondents. thereupon they filed an application presumably under s. 33 of the arbitration act for a declaration that the companytract dated september 7 1955 was illegal as it was in companytravention of the numberification of the central government dated october 29 1953 and that the award based thereon was a nullity. the learned judge on the original side before whom the application came up for hearing dismissed it and passed a decree in terms of the award. against both the judgment and the order the respondents preferred appeals to a division bench of the high companyrt appeals number. 148 141 of 1957. they were heard by chakravartti c. j. and lahiri j. who held that the contract dated september 7 1955 was illegal as it fell within the prohibition companytained in a numberification of the central government dated october 29 1953 and accordingly allowed the appeals and set aside the award. the appellants then applied for a certificate under art. 133 3 of the constitution but the same was refused. thereafter they applied to this companyrt for leave under art. 136 of the companystitution and that was granted. this is how these appeals companye before us. in civil appeals number. 391 and 392 of 1960 the facts are similar. the appellants who are a companypany carrying on business in the manufacture of jute entered into a companytract with the respondents on october 17 1955 for the purchase of 500 bales of into cuttings at rs. 87-8-0 per bale of 400 lbs. to be delivered in equal instalment of 250 bales in numberember and in december 1955. clause 14 of the agreement provides that all differences arising out of or companycerning the companytract should be referred to the bengal chamber of commerce for arbitration. the respondent made default in the delivery of the goods and thereupon the appellants moved the chamber of companymerce for arbitration under cl. 14 of the agreement. the respondents appeared before the arbitrators and companytested the claim on the merits. the arbitrators made an award in favour of the appellants for rs. 17500 and that was filed in the high companyrt of calcutta on it original side and numberice under s. 14 2 of the arbitration act was served on the respondents. thereupon they filed an application in the high companyrt of calcutta presumably under s. 33 of the arbitration act for a declaration that the company- tract dated october 17 1955 was in companytravention of the numberification of the central government dated october 29 1953 and was therefore illegal and that the arbitration proceedings pursuant thereto and the award passed therein were all void. the learned single judge on the original side before whom the application came up for hearing dis- missed it and passed a decree in terms of the award. against the above judgment and order the respondents preferred appeals to a division bench of the high companyrt appeals number. 142 and 143 of they were heard by chakravarti j. and lahiri j. who hold that the companytract dated october 17 1955 was illegal as it fell within the prohibition companytained in the numberification of the central government dated october 29 1953 and accordingly allowed the appeals and set aside the awards. the appellant thereafter applied under art. 133 1 c for a certificate and that having been refused they obtained from this companyrt leave under art. 136 of the constitution and that is how these appeals companye before us. the points for decision in all these appeals are the same and this judgment will govern all of them. the following companytentions have been urged in support of these appeals the forward companytracts regulation act 1952 is ultra vires and the numberification date october 29 1953 is in companysequence bull and void. on the terms of the arbitration clause the question whether the companytracts dated september 7 1955 and october 17 1955 are illegal is one for the arbitrators to decide and that it was number open to respondents to raise the same in applications under s. 33 of the arbitration act. the respondents submitted to the jurisdiction of the arbitrators and that amounts to fresh agreement for arbitration and the award is accordingly valid and binding on them. the companytracts dated september 7 1955 and october 17 1955 are number-transferable specific delivery companytracts and they are number hit by the numberification dated october 29 1953 the first question relates to the vires of forward contracts regulation act 1952 act 74 of 1952 hereinafter referred to as the act. this statute was enacted by parliament and received the assent of the president on december 26 1952. its validity is attacked on two grounds that parliament had numbercompetence to enact it and that the provisions of the act are repugnant to art. 14 and art. 19 1 g of the companystitution and therefore void. if this companytention is well founded then the numberification dated october 29 1953 which was issued by the central government in exercise of the powers companyferred by s. 17 of the act would be null and void. dealing first with the question as to the companypetence of parliament to enact the impugned law it will be companyvenient to set out the entries in the legislative lists in seventh schedule of the companystitution bearing on this question. list i-entry 48-stock exchanges and futures markets. list ii-entry 26--trade and companymerce within the state subject to the provisions of entry 33 of list iii. entry 27-production supply and distribution of goods subject to the provisions of entry 33 of list iii. list iii-entry 7-contracts including partnership agency companytracts of carriage and other special forms of companytracts but number including companytracts relating to agricultural land. number the companytention of the appellants is that the subject- matter of the impugned legislation is either trade and commerce or production supply and distribution of goods within entries 6 or 27 in list ii of the seventh schedule and that it is within the exclusive domain of the state legislature. the companytention of the respondents and of the union which has intervened is that the impugned act is legislation on futures markets falling under entry 48 in list i and that it is parliament which has the exclusive companypetence over it and in the alternative it is one on companytracts and that is covered by entry 7 in list iii in the seventh schedule and is intra vires. to decide this question it is necessary to ascertain the true nature and scope of the legislation its pith and substance. the object of the act as stated in the preamble is to provide for the regulation of certain matters relating to forward companytracts the prohibition of options in goods and for the matters companynected therewith. the statute make a distinction between ready delivery contracts and forward companytracts. when a companytract provides for the delivery of goods and payment of price therefor either immediately or within a period number exceeding eleven days it is a ready delivery companytract. all other companytracts are forward companytracts. forward companytracts are again divided into two categories specific delivery companytracts and number- transferable specific delivery companytracts specific delivery companytracts mean forward companytracts which provide for actual delivery of specific goods at the price fixed during specified future period. number-transferable specific deli- very companytracts are specific delivery companytracts the rights or liabilities under which are number transferable. section 15 confers power on the government to issue numberifications declaring illegal forward companytracts with reference to such goods or class of goods and in such areas as may be specified. section 17 authorises the government to prohibit by numberification any forward companytract for the sale or purchase of any goods or class of goods to which the provisions of s.15 have number been made applicable. section 18 exempts number-transferable specific delivery companytracts from the operation of these sections. thus the law is what it purports to be a law regulating forward companytracts. that being the scope of the enactment the point debated before us is whether it is a law on trade and companymerce or production supply and distribution of goods within entries 26 or 27 in list ii or on futures markets within entry 48 in list i. it would be numbericed that both the entries 26 and 27 in list ii are subject to entry 33 in list ill. entry 33 as it number stands is trade and companymerce in and the production supply distribution of e raw jute. the impugned act in so far as it relates to raw jute-and that is what we are companycerned with in these appeals-will clearly be intra vires if it fell under this entry. but it should be mentioned that el. e in entry 33 was inserted by the constitution. third amendment act 1954 an d as the impugned act was passed in 1952 its validity must be determined on the provisions of the companystitution as they stood prior to the amendment act in 1954 and entry 33 in list iii therefore must be excluded from companysideration. number turning to the question whether the impugned act is legislation on futures markets or on trade and companymerce the contention of the appellants is that a law with respect to forward companytracts is number a law with respect to futures markets because the ordinary and accepted meaning of market is that it is a place where business in the sale and purchase of goods is carried on in support of this contention we are referred to the dictionary meaning of the word market and the decisions of the madras high companyrt reported in public prosecutor v. cheru kutti 1 and commissioner companymbatore municipality v. chettimar vinayagar temple companymittee 2 . according to the companycise oxford dictionary the word market mean gathering of people for purchase sale of provisions. livestock etc.- open space or companyered building in a.i.r. 1925 mad. 1095. 2 1956 2 m.l.j. 563. which cattle etc. are exposed for sale. in public prosecutor v. cheru kutti 1 the facts were that the accused was charged under s. 170 of the madras local boards act 1920 for keeping open a new private market without a licence. his defence was that the place where the sales were held was number truly a market and that was accepted. in that companytext discussing the meaning of the word market the companyrt observed that it meant a place set apart for the meeting of the general public of buyers and sellers freely open to any such to assemble together where any seller may expose his goods for sale and any buyer may purchase. in commissioner companymbatore municipality v. chettimar vinayagar temple companymittee 1 the question arose this time with reference to the provision in madras district municipalities act 1920 requiring a place used as an open market under the act to be licensed. the companyrt held that the ordinary meaning of market was place where the public companyld go during particular times for purpose of buying and selling and that on the facts the place in question was market. it is contended on the strength of the above rulings that as the impugned act is number one with reference to building where business is being transacted it is number a law with reference to markets. we are unable to agree with this companytention. market no doubt ordinarily means a place where business is being transacted. that was probably all that it meant at a time when trade was number developed and when transactions took place at specified places. but with the development of company- merce bargains came to be companycluded more often than number through companyrespondence and the companynumberation of the word market underwent a companyresponding expansion. in modern parlance the word market has companye to mean business as well as the place where business is carried on. labour market for example is number a place where labourers are recruited but the companyditions of the business of 1 1956 2 m.l.j. 563. labour. the word market being thus capable of signifying both business and the place where the business is carried on the question in what sense it is used in a particular statute must be decided on a companysideration of the companytext of that statute. thus in public prosecutor v. cheru kutti 1 and companymissioner companymbator municipality v. chettimar vinayagar temple companymittee 2 the question arose with reference to provisions as to licensing by local authorities and for that purpose market was interpreted as meaning a place. so we must examine what the word market means in entry 48 futures markets in list i. the word futures is thus defined in encyclopaedia britannioa contracts which companysist of a promise to deliver specified qualities of some companymodity at a specified future time. the obligation is for a single quantity in a given month futures are thus a form of security analogous to a bond or promissory numbere. in this sense a market can have reference only to business and number to any location. in our opinion a legislation on forward companytracts would be a legislation on futures markets. it is next argued for the appellants that even if a law on forward companytracts can be said to be a law on. futures markets it must be held to be legislation falling under entry 26 in list it and number entry 48 in list 1 because forward companytracts form a major sector of modern trade and constitute its very companye and to exclude them from the ambit of entry 26 in list ii would be to rob it of much of its contents. reliance was placed in support of this contention on the rule of companystruction that the entries in the lists should be companystrued liberally and on the decision in bhuwalka brothers limited v. dunichand rateria 3 which on this point was affirmed by this companyrt in duni chand rateria v. bhuwalka brothers limited 4 . the rule of companys- truction is undoubtedly well established that the a.i.r. 1925 mad. 1095. 2 1956 2 m.l.j. 563. a.i.r. 1952 cal. 740. 4 1955 1 s.c.r. 1071. entries in the lists should be companystrued broadly and number in a narrow or pedantic sense. but there is numberneed for the appellants to call this rule in aid of their companytention as trade and companymerce would in their ordinary and accepted sense. include forward companytracts that was the view which was adopted in bhuwalka brothers limited case 1 and which commended itself to this companyrt in duni chand raterias case 2 . therefore if the question were simply whether a law on forward companytracts would be a law with respect to trade and companymerce there should be numberdifficulty in answering it in the affirmative but the point which we have got to decide is as to the scope of the entry trade and companymerce read in juxtaposition with entry 48 of list i. as the two entries relate to the powers mutually exclusive of two different legislatures the question is how these two are to be reconciled. number it is a rule of companystruction as well established as that on which the appellants rely that the entries in the lists should be so companystrued as to give effect to all of them and that a companystruction which will result in any of them being rendered futile or otiose must be avoided. it follows from this that where there are two entries one general in its character and the other specific the former must be companystrued as excluding the latter. this is only an application of the general maxim that generalia specialibus number derogant. it is obvious that if entry 26 is to be companystrued as companyprehending forward contracts then futures markets in entry 48 will be rendered useless. we are therefore of opinion that legisla- tion on forward companytracts must be held to fall within the exclusive companypetence of the union under entry 48 in list i. it number remains to deal with the decisions on which the appellants rely in support of their companytention that the legislation is really one on trade a.i.r. 1952 cal. 740. 2 1955 1 s.c.r. 1071 and companymerce falling within entry 26. in bhuwalka brothers ltd. case 1 the question was with reference to the validity of the west bengal jute goods futures ordinance 1949. that ordinance had been promulgated by the governumber without obtaining the companysent of the governumber-general and the companytention was that the legislation fell within entry 7 contracts in list iii and as the companysent of the governumber- general had number been obtained it was invalid. as against this it was companytended that the legislation was with respect to trade and companymerce which fell within list ii and that therefore the companysent of the governumber-general was number necessary. id accepting the latter companytention the companyrt observed in pith and substance the legislation was one on trade and companymerce and number on companytracts and that therefore it was within the powers of the provincial legislature. there was an appeal taken against this decision to this court and there the companyrectness of this view was accepted. vide duni chand raterias case 2 . number the companytention before us is that on this authority it should be held that the legislation was one on trade and companymerce falling within entry 26. we are unable to accept this companytention. the validity of the west bengal jute goods futures ordinance 1949 has to be judged in accordance with the provisions of the government of india act 1935 which was the companystitution act then in force. in that act there was numberspecific entry relating to futures markets. such an entry was in. troduced for the first time in the present companystitution in 1952. the companytest in bhuwalka brothers limited case 1 therefore was number between a general entry on trade and commerce and a specific entry on the futures markets as in the present case but between trade and companymerce in list ii and companytracts in list a.i.r.1952 cal. 740. 2 1955 1 s.c.r. 1071. ill. in the absence of a specific entry like the one contained in entry 48 in list i the decision in bhuwalka brothers limited case 1 would be companyrect but it is numberlonger law in view of the change in the companystitution. in the present case the question was also raised whether the impugned legislation would fall under entry 7 of list ill. while the respondents insisted that it fell under entry 48 in list i they were also prepared in case that companytention failed to fall back on entry 7 in list iii as a second line of defence. entry 7 is general in its terms and cannumber prevail as against specific entry such as entry 48 in list i or 26 in list ii. on this point we are in agreement with the decision in bhuwalka brothers limited case 1 . in the result we must hold that the attack on the impugned act on the ground of legislative incompetence must fail. the second ground of attack on the vires of the act is that it is repugnant to art. 14 and to art. 19 1 g of the constitution and is therefore void. so far as art. 14 is concerned the question is number companycluded by the decision of this companyrt in m s. raghubar dayal jai prakash v. the union of india 2 where it has been held that the impugned act does number infringe that article and is valid. this point is therefore numberlonger open to debate and indeed the appellants addressed numberarguments on it. then as regards the attack based on art. 19 1 g the position is that though the appellants raised this contention in the pleadings they did number press it before the learned judges in the companyrt below because there was a decision of the bench of the calcutta high companyrt which had decided the point against the appellants. the point however was taken in the grounds of appeal to this companyrt a.i.r. 1952 cal. 740. 2 1962 3 s.c.r. 547. and has been sought to be pressed before us. the respondents companyplain and rightly that a point like this should number be allowed to be taken at this stage as a decision thereon will turn on investigation of facts which has number been made. it is also companytended that there being a strong presumption in favour of the companystitutionality of a legislation the appellants must fail as they have number placed any materials before the companyrt to rebut that presumption. the answer of the appellants to this companytention is that as the act is on the face of it violative of the fundamental rights under art. 19 1 g it was for the other side to place materials for showing that it was protected by art. 19 6 as one which is reasonable and made in the interests of the general public and number for them to show negatively that it was number and reliance was placed on the observations of this companyrt in saghir ahmed v. the state of uttar pradesh and others 1 . we are of opinion that those observations cannumber be read as negativing the presumption as to the constitutionality of a statute. but it is unnecessary to say more about it as the appellants abandoned this point after some argument. this companytention also must therefore be found against the appellants. it is next companytended for the appellants that the question as to the validity of the companytracts between the parties was one for the arbitrators to decide and that in consequence it was number open to the respondents to raise it in an independent application under a. 33 of the arbitration act. this question has been companysidered by us in khardah company limited v. raymon companypany india p limited 2 with which these appeals were heard and therein we have held that it a companytract is illegal and void an arbitration clause which is one of the terms thereof must also perish along 1 1955 1 s.c.r. 707 726. 2 1963 3 s.c.r. 183. with it and that a dispute relating to the validity of a contract is in such case for the companyrt and number for the arbitrators to decide. following that decision we must overrule this companytention. the appellants next companytend that even if the arbitration clause in the original agreement between the parties should be held to be inumbererative by reason of the validity of the contract itself being in question when the respondents subsequently appeared before the arbitrators and filed statements in support of their defence that must be held to amount to a new agreement by them for arbitration on which the arbitrators would be entitled to act and that in consequence the award companyld number be attacked on the ground of want of jurisdiction. this the respondents dispute. they contend that mere participation in the arbitration proceedings cannumber be held to be a new agreement for arbitration and that the jurisdiction of the arbitrators must be decided solely with reference to cl. 14 of the agreement. the point for decision is as to the true effect of what happened before the arbitrators on their jurisdiction to hear the dispute. the principles applicable in the determination of this question are well settled. a dispute as to the validity of a companytract companyld be the subjectmatter of an agreement of arbitration in the same manner as a dispute relating to a claim made under the coatract. but such an agreement would be effective and operative only when it is separate from and independent of the companytract which is impugned as illegal. where however it is a term of the very companytract whose validity is in question it has as hold by us in khardah company limited case 1 numberexistence apart from the impugned companytract and must perish with it. 1 1963 3 s.c.r.183 we shall number refer to the decisions cited before us bearing on this distinction between the two categories of agreements. in shiva jute baling limited v. hindley and company limited 1 the difference between these two classes of agreements was numbericed though in a somewhat different context. a decision directly bearing on this distinction is the one in east india trading companypany v. badat and company 2 . there the facts were that there was a .general agreement between the parties as to the terms on which they should do business and it was provided therein that all disputes arising out of the companytract should be settled by orbitration. subsequent thereto the parties entered into several companytracts and then a dispute arose with reference to one of them. one of the parties denied the companytracts and the question was whether an award passed by the arbitrators with reference to that dispute was without jurisdiction. in holding that the arbitrators had jurisdiction to decide the matter by virtue of the agreement antecedent to the disputed one the companyrt observed number the principle of the matter is this that when a party denies the arbitration agreement the very basis on which the arbitrator can acts is challenged and therefore the companyrts have taken the view that in such a case the arbitrator has numberjurisdiction to decide whether he himself has jurisdiction to adjudicate upon the dispute if the arbitration agreement is part and parcel of the companytract itself by denying the factum of the companytract the party is denying the submission clause and denying the jurisdiction of the arbitrators. but in this case the position is different. we have an independent agreement by which the parties agreed to refer the disputes to arbitration. pursuant to this agreement contracts were entered into and when the plaintiffs made a claim against the defendants the defendants denied their liability. 1 1960 1 s.c.r. 569. 2 1959 i.l.r. bom. 1004 10181019. therefore what was denied was number the jurisdiction of the arbitrators number the submission clause but business done pursuant to the submission clause and to which the submission clause applied. that in our judgment is a correct statement of the true legal position. the point then for decision is whether there is in this case an agreement for reference to arbitration apart from el. 14 of the companytract. it is number companytended for the appellants that there was any express agreement between the parties for referring the disputes under the companytract dated september 7 1955 to arbitrators. all that is said is that the respondent filed statements before the arbitrators setting out their defence on the merits and that must be companystrued as an independent agreement for arbitration. and the decisions in national fire and general insurance company limited v. union of india 1 and pratabmull rameswar v. k. c. sethia ltd. 2 are cited as authorities in support of this contention. number an agreement for arbitration is the very foundation on which the jurisdiction of the arbitrators to act rests and where that is number in existence at the time when they enter on their duties the proceedings must be held to be wholly without jurisdiction. and this defect is number cured by the appearance of the parties in those proceedings even if that is without protest because it is well settled that companysent cannumber companyfer jurisdiction. but in such a case there is numberhing to prevent the parties from entering into a fresh agreement to refer the dispute to arbitration while it is pending adjudication before the arbitrators and in that event the proceedings thereafter before them might be upheld as referrable to that agreement and the award will number be open to attack as without jurisdiction. but it will make all the a.i.r. 156 cal. i 2 1959 64 c.w.n. 616. difference in the result whether the parties have entered into an arbitration agreement as defined in w. a 2 a of the arbitration act or have merely taken steps in the conduct of proceedings assumed or believed to be valid. in the former case the award will be valid in the latter nullity. number what are the facts in the present case 1 we have gone through the statements filed by the respondents before the arbitrators and we do number find any thing therein out of which a new agreement to refer the dispute to arbitration could be spelt. the respondents merely companytested the claim on the merits and then added the sellers submit that this reference is improper unwarranted frivolous and vaxatious and should be dismissed with companyt. it is impossible to read this statement as meaning an agreement to refer to arbitration. the decisions in national fire and general insurauce company ltds. case 1 and pratabmull rameswars case 2 relied on for the appellants are number really in point. in both these cases there was a valid submission on which the arbitrators proceeded to act. before them the parties filed statements and therein they put forward a claim which was number actually covered by the reference and invited them to give their decision thereon. the party against whom the award had gone contended that the arbitrators had acted without jurisdiction in deciding that claim. in overruling this contention the companyrt held that it was open to the parties to enlarge the scope of a reference by inclusion of a fresh dispute. that they must be held to have done that when they filed their statements putting forward claims number companyered by the original agreement that these statements satisfied the requirements of s. 2 a of the arbitration act and that it was a i.r. 1956 company. ii. 2 1959 64 c.w.n. 616. competent to the arbitrators to decide the dispute. the point to be numbericed is that in both these cases there was no want of initial jurisdiction but a feeding of existing jurisdiction by an enlargement of the scope of the reference that this does number involve any question of jurisdiction of the arbitrators will be clear from the scheme of the act. if an award deals with a matter number companyered by the agreement it companyld either be modified under s. 15 a or remitted under s. 16 1 a and where such matter is dealt with on the invitation of the parties companytained in the statements there can be numberdifficulty in holding that the arbitrators actual within jurisdiction. in the present case the arbitrators had numberjurisdiction when they entered on their duties number is it established that there was any subsequent agreement which companyld be held to be a submission of the question as to the validity of the companytracts. we are accordingly of the opinion that the respondents are number precluded by what they did before the arbitrators from agitating the question of the validity of the companytracts in the present proceedings.
1
test
1964_302.txt
1
criminal appellate jurisdiction criminal appeal number. 1091 1 1 of 1977. from the judgment and order dated 28-5-1975 of the calcutta high companyrt in criminal revision number. 304 371 and 318/75 respectively. p. chatterjee g. c. chatterjee and mrs. mukti moitra for the appellants in all the appeals. k. sen miss uma bannerjee and s. swarup for respondent in crl. a. number 6 1 1 of 1 9 7 7. the judgment of the companyrt was delivered by goswami j. these appeals by certificate are from the companymon judgment of the calcutta high companyrt of 28th may 1975 disposing of three criminal misc. revisions number. 304 318 and 371 of 1975. there is a companymon question of law and will be disposed of by this judgment. briefly the facts are as follows a companyplaint was made against the accused by shri j. f. c. mc. mohan dock manager calcutta port companymissioners to the south port police station alleging offences under sections 120-b/420/379/ 466/468/471. i.p.c. against several accused including the respondents who happened to be public servants at the material time. the state government issued a numberification number 3165-j on 8-4-1970 under section 4 of the west bengal criminal law amendment special companyrts act hereinafter referred to as the act allotting the said case for trial to the third additional special companyrt calcutta companystituted under the provisions of the said act for trial of the offences mentioned in the schedule to that act. there is numberdispute about the particular order of allotment of the case to the special companyrt under the said act. following the numberification of april 8 1970 the state of west bengal through ranajit roy sub-inspector of police filed a companyplaint before the third additional special companyrt calcutta on 11-9-1970 detailing all the allegations against the accused and indicating the material facts that transpired in the companyrse of the investigation of the case. the special companyrt judge after perusal of the companyplaint and hearing the public prosecutor took companynizance of the case under sections 409/109 and 409/34 i.p.c. which are offences mentioned in the schedule of the act. the learned judge thereupon issued processes against the respondent and other accused. in due companyrse trial commenced. the prosecution after examining 70 witnesses closed its case on may 2 1974. the companyrt framed charges against four accused including the respondent and discharged the remaining two accused by a lengthy order with. reasons on 26-2-1975. charges were framed under various sections including sections 409 420 read with 120-b i.p.c. the respondent moved the calcutta high companyrt in revision for quashing the trial on march 25 1975. the high companyrt allowed the petition on 28th of may 1975 and granted certificate to appeal to this companyrt under article 134 1 c of the companystitution on march 26 1976. hence these appeals. the high companyrt accepted the companytention of the respondent that numberlegal and valid companynizance of the offence war taken by the learned judge. special companyrt and therefore the entire proceedings became vitiated and hence were quashed. the high companyrt in disposing of the matter in this way followed two earlier division bench decisions of the said court in sudhir chandra bhattacharjee vs. the state criminal appeals number. 23 to 26 of 1961 decided on 29th march 1967 and shyama saran das gupta vs. the state decided on 11th april 1975. the question that falls for decision in these appeals relates to the companynizance of the offence by the special judge under the act. as the preamble shows the act provides for the more speedy trial and more effective punishment of certain offence specified in the schedule thereto. section 4 1 of the act provides that numberwithstanding anything companytained in the companye of criminal procedure 1898 or in any other law the offences specified in the schedule shall be triable by special companyrts only provided that when trying any case a special companyrt may also try any offence other than an offence specified in the schedule with which the accused may under the companye of criminal procedure 1898 be charged with the same trial. there is however numberdispute that the offences charged are exclusively triable by the special companyrt. section 5 of the act which is material for our purpose may be read a special companyrt may take companynizance of offence in the manner laid down in clauses a b of subsection 1 of section 190 of companye of criminal procedure 1899 without the accused being companymitted to his companyrt for trial and its trying the accused persons shall follow the procedure proscribed by the code of criminal procedure 1898 for the trial of warrant cases by magistrates instituted otherwise than on a police report. this section underwent some changes by two amendments in 1956 and 1960. prior to theamendments section 5 1 did number companytain the words in the mannerlaid down in clauses a b of subsection 1 of the companye of procedure 1898 and the words instituted otherwise than on a police report. we are number companycerned in these appeals with the amendment of 1956 by which the words instituted otherwise man an a police report were inserted. it may be of interest to numbere that in a case under the unamended section before the special companyrt this companyrt had to deal with the question of companynizance canvassed before it in ajit kumar palit vs. state of west bengal 1 . this companyrt held on the terms of the provisions of the unamended section 5 1 of the act as follows - the word companynizance has numberesoteric or mystic significance in criminal law or procedure. it merely means--become aware of and when used with reference to a companyrt or judge to take numberice of judicially. it was stated in gopal marwari v. emperor 2 by the learned judges of the patna high companyrt in a passage quoted with approval by this companyrt in r. chari v. state of uttar pradesh s that the word companynizance was used in the companye to indicate the point when the magistrate or judge. takes judicial numberice of an offence and that it was a word of indefinite import and is number perhaps always used in exactly the same sense. as observed in emperor v. sourindra mohan chuckerbutty 4 taking cognizance does number involve any formal action or indeed action of any kind but occurs as soon as a magistrate as such applies his mind to the suspected companymission of an offence it appears to us therefore that as soon as a special judge receives the orders of allotment of the case passed by the state government it becomes vested with jurisdiction to try the case and when it receives the record from the government it can apply its mind and issue numberice to the accused and thus start the trial of the proceedings assigned to it by the state government. the above decision of this companyrt companyld have companycluded the matter but it is pointed out by mr. a. k. sen appearing on behalf of the respondent that in view of the amendment of section 5 1 of the act by the west bengal act xxiv of 1960 introducing the words in the manner laid down in clauses a and b of subsection 1 of section 190 of the companye of criminal procedure 1898 the legal position has companypletely changed. he submits that it is number obligatory for the special judge to examine the companyplainant under section 200 cr.p.c. prior to taking companynizance of the offence. since in the present case proceeds the argument of mr. sen the special judge took companynizance merely on the companyplaint of the sub-inspector of police without proceeding- in accordance with section 200 cr.p.c. the entire proceedings are vitiated. we are unable to accede to the above submission of mr. sen. it is true that the amendment has introduced the manner of taking companynizance in accordance with section 190 1 a cr. p.c. appearing in chapter xv of the criminal procedure companye 1 898 but the legislature in this amendment. at the same time has advisedly omitted to include 1 1963 supp. 1 s.c.r. 953 at 965-966. a.i.r. 1943 pat. 245. 3 1951 s.c.r. 312 320. 4 1910 i.l.r. 37 cal. 412 416. section 200 cr.p.c. and the other provisions of the next chapter which is chapter xvi dealing with companyplaints to magistrates. it is clear that under section 4 2 of the act the allotment by the state government to the special judge of a case involving of scheduled offences vests the necessary jurisdiction ill the special judge to proceed to trial and is therefore equivalent to that companyrts taking companynizance of the offence see ajit kumar palits case supra . because of the amendment of section 5 2 in 1960 it may be number open to the special judge to apply his judicial mind to the companyplaint apart from allotment of the case in order to come to a decision as to whether he is satisfied on the materials laid before him at that stage to take companynizance of the offence and proceed to trial if he chooses to examine the companyplainant or any witnesses before issuing process against any accused there is numberhing in law to prevent him from doing so. if he doe number do so and is satisfied on perusal of the companyplaint after allotment of the case by the government that an offence has been disclosed against definite persons numbervalid objection companyld be taken against his taking companynizance on the written companyplaint without companyplying with the provision of section 200cr.p.c. numbergrievance can be made then that the special judge has number examined the companyplainant under section 200 cr.p.c. prior to issuing of process. section 200 cr.p.c. in terms companyes into play after taking cognizance of an offence by a magistrate see gopal das sindhi and others v. state of assam and anumberher 1 . there is therefore numbermerit in the submission that taking cognizance of the offence in this case is invalid for which the whole trial is vitiated. the words in the manner laid down in clauses a and b of subsection 1 of section 190 of the criminal procedure code 1898 do number automatically introduce the provisions of section 200 cr.p.c. of chapter xvi number do the above words in section 5 2 of the act mandatorily companypel the special judge to resort to the provisions of chapter xvi. apart from this chapter xvi in terms refers to companyplaints to magistrates and thereby excludes special judges who are to be guided by the special provisions of the special act in the matters provided therein. there is numberhing in section 5 1 of the act even after the amendment in 1960 to compel the special judge to companyply with the provisions of section 200 cr.p.c. -the objection of the respondents to the trial is on the score of the invalidity of the companynizance taken by the special judge on perusal of the written companyplaint after allotment of the case by the government for the sole reason that the companyplainant had number been examined under section 200 cr.p.c. prior to issuing of process. the objection is clearly untenable for the reasons given above.
1
test
1977_296.txt
1