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Civil Appeal No. 1801 of 1974.
From the Judgment and Order ,dated 20.3.1974 of the Karnataka High Court in W.P. No. 1956 of 1971.
R.N. Narasimhmurthy, Novin Singh and M. Veerappa for the Appellants.
The appeal is by special leave.
Challenge is to the Judgment.
,of the Karnataka .High Court declaring Rule 8(1) of the Karnataka Excise (Sale of Indian & Foreign Liquors) Rules, 1968 in so far as it relates to levy of licence fee for retail vending of authorised India and foreign liquors and directing refund of such levy col lected within three years prior 2.8.1971 when the Writ Petition was filed.
Respondent, an excise contractor, had taken in auction the exclusive privilege tosell liquors in retail at an approved shop premises. 'He was issued the appropriate licence under the provisions of the law on payment of licence fee in terms of Item 2 of Rule 8(1) of the aforesaid Rules.
Respondent filed a writ petition before the Karnataka High Court chal lenging the vires of section 23(d) of the Mysore Excise Act, 1965 (hereafter 'Act ' for short) and Rule 8(1.) as being beyond the legislative competence of,the State Legislature.
The High Court did not accept the contention of the respondent in 'regard to section 23 but held that Rule 8(1) authorising the 'levy of a licence fee for the retail off shop was without authority of law.
Section 23(d), as far as relevant, provides: "23.
Ways of levying such duties Subject to such Rules regulating the time, place and manner, as may be prescribed, excise duty and countervailing duty under section 22 shall be levied in one or more of the follow ing ways, as may be prescribed, namely: 702 (a) . . . (aa) . . . . (b) . . . . . (c). . . . . (d)by fees on licences in respect of manufacture or sale of any excisable articles.
" Rule 8 made the rule making powers, under the Act, interalia, provides: "8.
Fee to be paid (1) The licence fee for the several kinds of licences shall be as follows, namely: (1) . . . . . (2). . . . . (3) . . . .
The High Court rightly did not accept the challenge to section 23(d) of the Act.
What is authorised under section 23(d) is imposition of a fee of licence in respect of manufacture or sale of any excisable articles.
Rule 8(1) has obviously gone beyond the enabling provision in the section by requir ing a licence fee to be paid for the premises where the licence shop is located.
Such a fee would not have the support of section 23(d).
It is unnecessary to refer to prece dents for support for this conclusion.
It may be possible for the Legislature to make a statutory provision for a licence fee of the type contemplated under the Rules but without authority of the statute a rule of the type impugned should not have been made.
We find no merit in this appeal and it is, therefore, diismissed.
fore, dismissed.
Respondent did not appear inspite of service of appeal notice.
We make no of for costs.
G.N. Appeal dismissed.
| The Respondent, a licencee under floe Karnataka Excise Act for selling liquor at an approved shop, flied a Writ Peti tion before the High Court challenging the vires of Section 23(d) of the Mysore Excise Act, 1965 and Rule 8(1) of the Karnataka Excise (Sale of Indian and Foreign Liquors) Rules, 1968 as being beyond the legislative competence of the State.
The High Court negatived the contention of the Respond ent in respect of Section 23(d) of the Act but held that Rule 8(1) authorising tihe levy of licence fee for retail shop was without authority of law and dircted refund of the levy collected for three years prior to the filing of tiWrit Petition.
Aggrieved by the High Court 's decision, the appellant State has preferred the present appeal by special leave.
Dismissing the appeal, this Court, HELD: The High Court rightly did not accept the chal lenge to Section 23(d) of the Mysore Excise Act, 1965.
What is authorised under Section 23(d) is imposition of a fee of licence in respect of manufacture or sale of any excisable articles.
Rule 8(1) of the Karnataka Excise (Sale of Iadion & Foreign Liquors) Rules, 1968 has obviously gone beyond the enabling provision in the section by requiring a licence fee to be paid for the premises where the licensed shop is located.
Such a fee would not have the support of Section 23(d).
It is unnecessary to refer to precedents for support for this conclusion.
It may be possible for the Legisla 701 ture to make a statutory provision for a liicence fee of the type contemplated under the Rules but without authority of the statute a rule of this type should not have been made.
[702E F]
|
ivil Appeal No. 565 of 1976.
629 From the Judgment and Order dated 5.8.1975 of the Bombay High Court in Special Civil Application No, 429 of 1970.
K. Rajgopal, pardeep Rajgopal, Ms. Rekha Rajgopal M.S. Ganesh and section Sukumaran for the Appellant.
Dr. V. Gauri Shankar, M. Arora and Ms. A. Subhashini for the Respondent, The Judgment of the Court was delivered by KULDIP SINGH, J.
The appellant company carries on the business of exporting manganese ore to England and United States of America.
The Income Tax Officer, Nagpur issued a notice dated March 20, 1970 under Section 148 of the Income Tax Act, 1961 (hereinafter called the 'Act ') stating that he had reasons to believe that the income of the appellant chargeable to tax for the assessment year 1953 54 had es caped assessment within the meaning of Section 147 of the Act.
The company was called upon to show cause why it should not be re assessed to.
income for the said year.
The appel lant company challenged the notice by way of writ petition under Article 226/227 of the Constitution of India before the Nagpur bench of the Bombay High Court.
The High Court by its judgment dated August 5, 1975 dismissed the writ peti tion with costs.
This appeal via special leave petition is against the said judgment of the High Court.
The relevant facts are hereinafter.
The appellant: is a non resident company having its office in London.
It has its office in India at Nagpur.
The appellant is assessed to income tax at Nagpur and it has been the practice of the ,appellant company to produce before the Income Tax Officer the relevant books which are kept by the local office at Nagpur, the balance sheets, the trade account and the prof it/ loss account from their head office in London.
It ap pears that sometime in 1958 the customs authorities came to know that the appellant company had declared very low prices in respect of all the consignments of manganese ore exported by them out of India.
It was also found that most of the export was only to three buyers who in turn did not purchase manganese ore from any other company except the appellant.
After due enquiries investigation the custom authorities found that the appellant was systematically showing lesser value for the manganese ore exported as com pared with the prevailing market price for the same grade of manganese ore.
630 The Collector, Customs, Visakhapatnam, by an order dated March 2, 1959 held that there was under invoicing by the appellant to.
the tune of Rs.78 lacs.
The said order of the collector was, however, set aside in appeal and the matter was remanded to the Collector for re hearing.
In the final order passed by the Collector of Customs dated November 16, 1972, under invoicing was shown to the tune of about Rs.44/45 lacs.
It is thus obvious that the custom authori ties came to the conclusion that the prices mentioned in the relevant contracts between the appellant and the buyers were lesser than the contemporaneous market prices.
The custom authorities thus found as a fact that the appellant company was indulging in under invoicing.
The Income Tax Officer, on coming to know about the pendency of proceedings before the Collector of Customs, issued a notice dated March 20, 1970 under Section 148 of the Act.
In the notice the reasons on the basis of which he entertained the necessary belief as required under Section 147 of the Act, were not given, however, alongwith the return filed on behalf of the revenue before the High Court, the reasons which led to the issue of notice under Section 148 on the grounds mentioned under Section 147(a) of the Act were disclosed.
It is not disputed that the reasons need not be set out in the notice and the same can be produced before the court.
Section 147 of the Act provides for assessment or re assessment in cases where income has escaped assessment.
The Revenue 's right to take action under the section is subject to the conditions laid down therein.
The requisite condi tions provided under Section 147(a) at the relevant time were as under: The income tax officer should have reason to believe that income has "escaped assess ment" by reason of omission or failure on the part of the assessee: (i) to make return of his income under the relevant provisions of the Act; or (ii) to disclose fully and truly all material facts necessary for his assessment for the year.
SeCtion 147(b) of the Act on the other hand required that 'the Income Tax Officer should have, in consequence of information in .his possession reason to believe that income has "escaped assessment".
631 It is not disputed in the year 1970 the Income Tax Officer had no jurisdiction to issue notice under Section 148 on the grounds contained under Section 147(b) of the Act as the period of limitation for the issue of such notice provided under the Act had expired.
There was however no bar at that point of time to issue the said notice on the grounds under Section 147(a) of the Act.
Mr. V. Rajagopal, Senior Advocate, learned counsel for the appellant has contended that the Income Tax Officer could not have reason to believe that there was omission or failure on the part of the appellant to disclose fully and truly all material facts necessary for the assessment and that 'the income chargeable to tax had escaped assessment.
According to him, it was not the practice with the appellant to produce the account books from their head office in London before the Income Tax Officer.
The appellant company produced before the Income Tax Officer the balance sheets, profit and loss account and all other necessary records required for the purpose of assessment.
According to the learned counsel the only material before the Income Tax Officer was the original order of the Collector of Customs wherein it was held that the appellant had indulged in under invoicing, resulting in declaring lesser price than the prevailing market price.
The learned counsel contended that the order of the Collector could at the most be an information within the ambit of Section 147(b) of the Act but it could not be the basis or the reason to entertain the belief as requires under Section 147(a) of the Act.
The only question which arises for our consideration is whether the two conditions required to confer jurisdiction on the Income Tax Officer under Section 147(a) of the Act have been satisfied in this case.
The first is that the Income Tax Officer must have reason to believe that the income chargeable to income tax had been under assessed and the second that Such under assessment has occurred by reason of omission or failure on the part of the assessee to dis close fully and truly all material facts necessary for its assessment for the year 1953 54.
So far as the first condition is concerned, the Income Tax Officer, in his recorded reasons, has relied upon the fact as found by the Custom Authorities that the appellant under invoiced the goods he exported.
It is no doubt correct that the said finding may not be binding upon the Income Tax Authorities but it can be a valid reason to believe that the chargeable income has been under assessed.
The final outcome of the proceedings is not relevant.
What is relevant is the existence of reasons to make the Income Tax Officer believe that there 632 has been under assessment of the assessee 's income for a particular year.
We are satisfied that the first condition to invoke the jurisdiction of the Income Tax Officer under Section 147(a) of the Act was satisfied.
As regards the second condition the appellant did not produce the books of accounts kept by them at their head office in London nor the original contracts of sale which were entered into at London with the buyers.
The appellant did not produce before the income Tax OffiCer any of the accounts which related to the foreign buyers.
No reasons Were given for the supply of manganese ore at a lower than the market rate.
It is for the assessee to disclose all the primary facts before the Income Tax Officer to enable him to account the true income of the assessee.
The proven charge of under invoicing per se satisfy the second condition.
The appellant 's assessable income has to be determined On the basis of the price received by it for the goods exported.
If the true price has not been disclosed and there was underin voicing the logical conclusion prima facie is that there has been failure on 'the part of the appellant to disclose fully.and truly all material facts before the Income Tax Officer.
We are therefore, satisfied that both the condi tions required to attract the provisions of Section 147(a)have been complied with in this case.
Mr. V. Rajagopal further argued that in fact the notice was issued under Section 147(b)of the ACt and not under Section 147(a) of the Act.
We are unable to accept this contention.
Although the notice only mentioned Section 147 of the Act without indicating whether it was under Section 147(a) or 147(b), but the reasons recorded by the Income Tax Officer on February 26, 1970 which run into more than 20 pages specifically state that the proposed action was under Section 147(a) of the Act.
Even otherwise we are satisfied that the material on the record and the reasons recorded by the Income Tax Officer justify the issue of the notice under Section 147(a) of the Act.
We therefore, dismiss the appeal with costs which we quantify as Rs. 15,000.
N.P.V. Appeal dis missed.
| The appellant, a non resident company, was carrying on the business of exporting manganese ore, and was assessed to income tax for the assessment year 1953 54.
Subsequently, on coming to know that proceedings for under invoicing were pending against the appellant before the Customs Authori ties, the respondent, the Income Tax Officer issued a notice under Section 148 of the Income Tax Act, 1961 to the appel lant stating that he 'had reasons to believe that the income of the appellant chargeable to, tax for the assessment year 1953 54 had escaped assessment within the meaning of Section 147 of the Act and called upon the appellant to show cause as to why it should not be re assesseed to income.
The appellant 's writ petition challenging the notice was dis missed by the High Court.
In the appeal before this Court on behalf of the appel lantcompany, it was contended that the only material before the Income Tax Officer was the original order of the Collec tor of Customs wherein it was held that the appellant had indulged in under invoicing, resulting in declaring lesser price than the prevailing market price, which could at the most he an information within the ambit of Section 147 of the Act, but could not be the basis or the reason to enter tain the belief, as required under Section 147(a) of the Act and that the notice had been issued under Section 147(b) and not under Section 147(a).
Dismissing the appeal, this Court, HELD: 1.1 Two conditions are required to confer juris diction on the Income Tax Officer under Section 147(a) of the Income Tax Act, 1961.
The first is that the Income Tax Officer must have reason to. 628 believe that the income chargeable to income tax had been underassesseed and the second that such under assessment has occurred by reason of omission or failure on the part of the assessee to disclose fully and truly all material facts necessary for its assessment for the year 1953 54.
[631F] 1.2 In the instant case, the Income Tax Officer in his recorded reasons, has relied upon the facts as found by the Customs Authorities that the appellant under invoiced the goods he exported.
Though the said finding may not be bind ing upon the Income Tax Authorities, it can be a valid reason to believe that the chargeable income has been under assesseed.
The final outcome of the proceedings is not relevant.
There should be existence of reasons to make the Income Tax Officer believe that there has been under assess ment of the assessee 's income for a particular year.
Thus, the first condition was satisfied.
Secondly, the appellant company did not produce the books of accounts kept by it at its head office located outside the country, nor the origi nal contracts of sale which were entered into with the buyers at that place, or .any of the accounts which related to the foreign banks.
No reasons were given for the supply of manganese ore at lower than the market rate.
It is for the assessee to disclose all the primary facts before the Income Tax Officer to enable him to account the true income of the asessee.
Thus, the proven charge of under invoicing per se satisfies the second condition.
[631G H, 632A C] 1.3 The appellant 's assessable income has to be deter mined on the basis of the price received by it for the goods exported.
If the true price had not been disclosed and there was under invoicing, the logical conclusion prima facie is that there has been failure on the part of the appellant to disclose fully and truly all material facts before the Income Tax Officer.
In the circumstances, both the condi tions required to attract the provisions of Section 147(a) have been complied with.
[632D] 2.
Although the notice only mentioned Section 146 of the Act without indicating whether it was under SUb Section(a) or Sub.
Section (b) the reasons recorded by the Income Tax Officer specifically state that the proposed action was under Section 147(a)i of the Act.
Even otherwise, the material on record and the reasons recorded by IncomeTax Officer justify the issue of the notice under Section 147(a) of the Act.
[632F]
|
ivil Appeal Nos.
1852 & 4772 of 1989.
From the Judgment and Order dated 25.5.1988 & 11.11.1988 of the Punjab and Haryana High Court in R.S.A. Nos.
2404 of 1987 and 2246 of 1988.
666 A.S. Sohal and G.K. Bansal for the Appellants.
Atul Nanda, ,Francis Victor, S.K. Mehta (N.P.), Subhash G. Jindal and N.A. Siddiqui for the Respondents.
The Judgment of the Court was delivered by K. JAGANNATHA SHETTY , J.
These appeals against the decision of the High Court of Punjab & Haryana raise a short issue, concerning limitation governing the suit for declara tion by a dismissed employee that he Continues to be in service since his dismissal was void and inoperative.
The High Court has observed that if the dismissal of the employ ee is illegal, void or inoperative being in contravention of the mandatory provisions of any rules or conditions of service, there is no limitation to bring a suit for declara tion that the employee continues to be in service.
The facts giving rise to these appeals, as found by the Courts below, may be summarised as follows: CA No. 1852/89 The respondent in this appeal was ap pointed as an ad hoc sub inspector in the District Food and Supply Department of Punjab State.
He absented himself from duty with effect from 29 September 1975.
On 27 January 1977, his services were .terminated.
On 18 April 1984, he insti tuted the suit for declaration that the termination order was against the principles of natural justice, terms and conditions of employment, void and inoperative and he con tinues to be in service.
The State resisted the suit con tending inter alia, that the plaintiff 's services were terminated in accordance with the terms and conditions of his ad hoc appointment and the suit was barred by time.
The trial court accepted the plea of limitation and dismissed the suit, but on appeal the Additional District Judge, Jullundhar decreed the suit.
He observed that the termina tion order though simpliciter in .nature ' was passed as a measure of punishment.
The plaintiff 's services were termi nated for unauthorised absence without an enquiry and he should have been given an opportunity to explain his conduct by holding proper enquiry.
On the plea of limitation, learned Additional District Judge held that no limitation is prescribed for challenging an illegal order.
Since the.
order of termination was bad, the suit was not barred by time.
In the second appeal preferred by the State the High Court agreed with the View following its earlier decisions.
CA No. 4772/89 The respondent in this appeal was a Railway 667 Police Constable.
He was appointed on 14 November 1977.
On 15 March 1979, he was discharged from service for some misconduct.
On 15 June 1979, his appeal was rejected by AIG, Railways, Patiala, Punjab.
On 30 November 1979, his revision petition was dismissed by the Inspector General of Police, Punjab.
On 12 February 1985 he brought a suit seeking declaration that the order discharging him from service and confirmed in the appeal and revision, was illegal, ultra vires, unconstitutional and against the principles of natu ral justice and he continues to be in service as constable.
The trial court dismissed the suit.
The appeal preferred by the plaintiff was accepted by the Additional District Judge who decreed the suit as prayed for.
He has inter alia stated that the plaintiff was discharged from service in contraven tion of the mandatory provisions of the rules and as such it has no legal effect.
There is no period of limitation for.
inStituting the suit for declaration that such a dismissal order is not binding upon the plaintiff.
While affirming that principle, the High Court dismissed the second appeal in limine.
These are not the only cases in which the Punjab and Haryana High Court has taken the view that there is no limitation for instituting the suit for declaration by a dismissed or discharged employee on the ground that the dismissal or discharge was void or inoperative.
The High Court has repeatedly held that if the dismissal, discharge or termination of services of an employee is illegal, uncon stitutional or against the principles of natural justice, the employee can approach the Court at any time seeking declaration that he remains in service.
The suit for such reliefs is not governed by any of the provisions of the Limitation Act [See: (i) State of.
Punjab vs Ajit Singh, and (ii) State of Punjab vs Ram Singh, First of all, to say that the suit is not governed by the law of Limitation runs afoul of our Limitation Act.
The statute of limitation was intended to provide a time limit for all suits conceivable.
Section 3 of the Limitation Act provides that a suit, appeal or application instituted after the prescribed "period of limitation" must subject to the provisions of Sections 4 to 24 be dismissed although limita tion has not been set up as a defence, Section 2(J) defines the expression "period of limitation" to mean the period of limitation prescribed in the Schedule for suit, appeal or application.
Section 2(J) also defines, "prescribed period" to mean the period of limitation computed in accordance with the provisions of the Act.
The Court 's function on the presentation of plaint is simply to examine whether, on the assumed facts the plaintiff is within time.
The Court has to find out when the 668 "right to sue" accrued to the plaintiff.
If a suit is not covered by any of the specific articles prescribing a period of limitation, it must fail within the residuary article.
The purpose of the residuary article is to provide for cases which could not be covered by any other provision in the Limitation Act.
The residuary article is applicable to every variety of suits not otherwise provided for.
Article 113 (corresponding to Article 120 of the Act 1908) is a residu ary article for cases not covered by any other provisions in the Act.
It prescribes a period of three years when the right to sue accrues.
Under Article 120 it was six years which has been reduced to three years under Article 113.
According to the third column in Article 113, time commences to run when the right to sue accrues.
The words "right to sue" ordinarily mean the right to seek relief by means of legal proceedings.
Generally, the right to sue accrues only when the 'cause of action arises, that is, the right to prosecute to obtain relief by legal means.
The suit must be instituted when the right asserted in the suit is infringed or when there is a clear and unequivocal threat to infringe that right by the defendant against whom the suit is insti tuted (See: (i) Mt. Bole vs Mt. Koklam and Ors., AIR 1930 PC 270 and (ii) Gannon Dunkerley and Co. vs The Union of India, ; In the instant cases, the respondents were dismissed from service.
May be illegally.
The order of dismissal has clearly infringed their right to continue in the service and indeed they were precluded from attending the office from the date of their dismissal.
They have not been paid their salary from that date.
They came forward to 'the Court with a grievance that their dismissal from service was no dis missal in law. ' According to them the order of dismissal was illegal, inoperative and not binding on them.
They wanted the Court to declare that their dismissal was void and inoperative and not binding on them and they continue to be in.
service.
For the purpose of these cases, we may assume that the order of dismissal was void inoperative and ultra vires, and not voidable.
If an Act is void or ultra vires it is enough for the Court to declare it so and it collapses automatically.
It need not be set aside.
The aggrieved party can simply seek a declaration that it is void and not bind ing upon him.
A declaration merely declares the existing state of affairs and does not 'quash ' so as to produce a new state of affairs.
But nonetheless the impugned dismissal order has at least a de facto operation unless and until it is declared to be void or nullity by a competent body or Court.
In Smith vs East.
Elloe Rural District Council, ; at 769 Lord Redcliffe observed: 669 " An order even if not made in good faith, is still an actcapable of legal consequences.
It bears no brand of invalidity upon its fore head.
Unless the necessary proceedings are taken at law to establish the cause of inva lidity and to get it quashed or otherwise upset, it will remain as effective for its ostensible purpose as the most impeccable of orders.
" Apropos to this principle, Prof. Wade states: "the principle must be equally true even where the 'brand ' of invalidity ' is plainly visible; for their also the order can effectively be resisted in law only by obtaining the deci sion of the Court (See: Administrative Law 6th Ed.
p. 352).
Prof. Wade sums up these principles: "The truth of the matter is that the court will invalidate an order only if 'the right remedy is sought by the right person in the right proceedings and circumstances.
The order may be hypothetically a nullity, but the Court may refuse to quash it because of the plain tiff 's lack of standing, because he does not deserve a discretionary remedy, because he has waived his rights, or for some other legal reason.
In any such case the 'void ' order remains effective and is, in reality, valid.
It follows that an order may be void for one purpose and valid for another, and that it may be void against one person but valid against another." (Ibid p. 352) It will be clear from these principles, the party ag grieved by the invalidity of the order has to approach the Court for relief of declaration that the order against him is inoperative and not binding upon him.
He must approach the Court within the prescribed period of limitation.
If the statutory time limit expires the Court cannot give the declaration sought for.
Counsel for the respondents however, has placed strong reliance on the decision of this Court in State of M. P.v.
Syed Quamarali, The High Court has also relied upon that decision to hold that the suit is not governed by.
the limitation.
We may examine the case in detail.
The respondent in that case was a sub inspector in the Central Province Police Force.
He was dismissed from service on 22 December 1945.
His appeal against that order was dismissed by the Provincial Government, Central Prov inces and Berar on 9 April 1947.
He brought the suit on 8 December 1952 on allegation that the order of dismissal was contrary to the para 24 1 of the Central Provinces and 670 Berar Police Regulations and as such contrary to law and void, and prayed for recovery of Rs.4724/5 on account of his pay and dearness allowance as sub inspector of police for the three years immediately preceding the date of the insti tution of the suit.
The suit was decreed and.
in the appeal before the Supreme Court, it was urged that even if the order of dismissal was contrary to the provisions of.law, the dismissal remained valid until and unless it is set aside and no relief in respect of salary could be granted when the time for obtaining an order setting aside the order of dismissal had elapsed.
It was observed: "We therefore hold that the order of dismissal having been made in breach of a mandatory provision of the rules subject to which only the power of punishment under section 7 could be exercised, is totally invalid.
The order of dismissalhad therefore, no legal existence and it was not necessary for the respondent to have .the order set aside by a Court.
The defence of limitation which was based .only on the contention that the order.had to be set aside by a court before it became invalid must therefore be rejected.
" These observations are of little assistance to the plaintiffs in the present case.
This Court only emphasized that since the order of dismissal was invalid being contrary to para 241 of the Berar Police Regulations, it need not be set aside.
But it may be noted that Syed Qamarali brought the suit within the period of limitation.
He was dismissed on 22 December 1945.
His appeal against the order of dis missal was rejected by the Provincial Government on 9 April 1947.
He brought the suit which has given rise to the appeal before the Supreme Court on 8 December 1952.
The right to sue accrued to Syed Qamarali when the Provincial Government rejected his appeal affirming the original order of dismissal and the suit was .brought within six years from that date as prescribed under Article 120 of the Limitation Act, 1908.
The Allahabad High Court in Jagdish Prasad Mathur and Ors.
vs United Provinces Government, AIR 1956 All 114 has taken the view that a suit for declaration by a dismissed employee on the ground that his dismissal is void, is gov erned by Article 120 of the Limitation Act.
A similar view has been taken by Oudh Chief Court in Abdul Vakil vs Secre tary of State and Anr., AIR 1943 Oudh 368.
That in our opinion is the correct view to be taken.
A suit for declara tion that an order of dismissal or termination from service passed against the plaintiff is wrongful, illegal or ultra vires is governed by Article 113 of the Limitation Act The decision to the contrary taken by the Punjab & Haryana 671 High Court in.
these and other cases ((i)State of Punjab vs Ajit Singh,.
and (ii) State of Punjab vs Ram Singh, is not correct and stands overruled.
In the result, we allow the appeals, set aside the judgment and decree of the High Court and dismiss the suit in each case.
In the circumstances, however, we make no order as to costs.
V.P.R. Appeals allowed.
| The respondent plaintiff in C.A. No. 18S2/89 was appointed as an ad hoc Sub inspector in the District Food and Supply Department.
He absented himself from duty from 29 September 197S. On 27 January 1977, his services were terminated.
On 18 April 1984, he instituted 'the mir for declaration that the termination order was against the principles of natural Justice, terms and conditions of employment, void and inoperative and be continued to be in service.
The State the appellant defendant contended that the plaintiff 'sservices were terminated in accordance with the terms and conditions of his ad hoc appointment and the suit was barred by time.
The trial Court dismissed the Suit on the ground of limitation, but on appeal the Additional District Judge decreed the suit, holding that the termination order though simplicitor in nature was passed as a measure of punishment without an 'enquiry and he should have been given an oppor tunity to explain his conduct by holding proper enquiry and that, since the order of termination was bad, the suit was not barred by time.
The second appeal preferred by the State was dismissed by the High Court holding that as the dismissal of the employee was illegal, 664 void or inoperative being in contravention of the mandatory provisions of any rules or.
conditions of service, there was.no limitation to bring a suit for declaration of contin uance in service.
The respondent plaintiff in C.A. No. 4772/89 was ap pointed on.
14 November 1977.
On 15 March 1979, he was discharged from service for some misconduct and against which appeal was made, which was rejected on 15.6.1979.
When his revision petition was dismissed on 30.11.1979 he brought a suit on 12.2.1985 seeking declaration that the order discharging him from service was illegal, ultra vires, unconstitutional against the principles of natural justice and continuance in service.
The trial court dismissed the suit.
The appeal preferred by the plaintiff was allowed by the Additional District Judge that the plaintiff was discharged from service in contravention of the mandatory provisions of the rules and as such it had no legal effect.
There was no period of limitation .for instituting the suit for declaration that such a dismissal order was not binding upon the plaintiff.
The High Court dismissed the second appeal in limine.
On the question, whether limitation governs the suit for declaration by a dismissed employee, if the dismissal was illegal, void or inoperative being in contravention of the mandatory provisions of any rules or conditions of service, this Court, allowing the appeals of the State the defendant, HELD: 1.
The Court 's function on the presentation of plaint is simply to examine whether, on the assumed facts, the plaintiff is within time.
The Court has to find out when the "right to sue" accrued to the plaintiff.
If a suit is not covered by any of the specific articles prescribing a period of limitation, it must fall within the residuary article.
[667H 668.
A suit for declaration that an order of dismissal or termination from service passed against the plaintiff is wrongful, illegal or ultra vires is governed by Article 113 of the Limitation Act.
[6TOG.H] 3.
The party aggrieved by the invalidity of the order has to approach the Court for relief of declaration that the order against him is inoperative and not binding upon him.
He must approach the Court within the prescribed.period of limitation.
If the statutory time limit expires the Court cannot give the declaration sought for.
[669E F] 665 4.
If an act is void or ultra vires it is enough for the Court to declare it so and it collapses automatically.
It need not be set aside.
The aggrieved party can simply seek a declaration that it is void and not binding upon him.
A declaration merely declares the existing state of affairs, and does not 'quash ' so as to produce a new state of af fairs.
[668F G] But none theless the impugned dismissal order has at least a de facto operation unless and until it is declared to be void or nullity by a competent body or Court.
[668H] Smith vs East Elloe Rural Disrict Council, ; at 769, referred to.
Prof. Wade: Administrative Law, 6th Ed.
P. 352, referred to.
State of M.P.v.
Syed Quamarali, , distin guished.
Jagdish Prasad Mathur and Ors.
United Provinces Government, AIR 1956 All 114 and Abdul Vakil vs Secretary of State and Anr , AIR 1943 Oudh 368, Approved.
State of Punjab vs Ajit Singh, and State of Punjab vs Ram Singh, , over ruled.
The words "right to sue" ordinarily mean the right to seek relief by means of legal proceedings.
Generally, the right to sue accrues only when the cause of action arises, that is, the right to prosecute to obtain relief by legal means.
The suit must be instituted when the right asserted in the suit is infringed or when there is a clear and une quivocal threat to infringe that right by the defendant against whom the suit is instituted.
[668C D] Mt. Bole vs Mt. Koklam and Ors., AIR 1930 PC 270 and Gannon Dunkerley and Co. vs The Union of India, ; followed.
|
vil Appeal Nos.
93794 1 of 1980.
From the JUdgment and Order dated 22.2.1980 of the Madras High Court in C.R.P. Nos.
934/78, 602/77, 110/78 and 111/78 and dated 29.2.1980 in C.R.P. No. 601 of 1977.
A.V. Rangam for the Appellant.
section Srinivasan for the RespOndents.
The following Order of the Court was delivered: These are five Civil Appeals by Special Leave against identical orders of a learned Single Judge of the Madras High Court.
In relation to Civil Appeal No. 937 of 1980 the Regional Transport Authority, out of two permits, granted one permit on the route Salem to Poolambadi to the appellant State Transport Undertaking and the other to the first respondent, Safe Service Ltd. In Civil Appeal No. 938 of 1980 there was only one permit for the route Salem to Pallipatti which was granted to the State Transport Undertaking.
1n other words, it was denied to the Second respondent, R.P. David.
In Civil Appeal No. 939 of 1980, on the route Salem to Poolambadi, out of two permits, one permit was granted to the State Transport Undertaking and the other to another private operator, Suganeswara Motor Service denying the permit to R.P. David respondent herein.
In Civil Appeal No. 940 of 1980, on the route Salem to Erode, the objection of the State Transport Undertaking on the renewal sought by Parsu raman Pillai respondent was sustained and the permit was granted to the State Transport Undertaking, leaving the private operator aggrieved.
In Civil Appeal No. 94 1 of 1980, on the route Salem to Tiruchangode, the renewal appli cation of K. Ramaswamy respondent operator was declined on objection by the State Transport Undertaking, who in turn, on its application, was granted the permit leaving the private operator K. Ramaswamy respondent aggrieved.
All the aggrieved parties preferred appeals before the State Trans port Appellate Tribunal.
The Tribunal identically in all these Cases took the view that since a draft scheme under Section 68C of the had been pub lished by the ' State Government and was under 711 consideration at the time when the matter was pending in appeal, sub section 1 D of Section 68 F of the Act stood in the way for any relief 'being granted to the private opera tors and thus dismissed the appeals.
That provision forbids permits being granted or renewed during the period interven ing between the date of publication of any draft scheme under Section 68 C of the Act, and the date of publication of the approved or modified scheme, in favour of any person, or for any class of road transport service, in relation to an area, or route, or portion thereof, covered by such scheme.
However, the proviso thereto permits that where the period of operation of a permit in relation to any area, route or portion thereof specified in the scheme published under Section 68 C expires after such publication, such permit may be renewed for a limited period, but the permit so renewed shall cease to be effective on the publication of the scheme under sub section (3) of Section 68 D of the Act.
As is evident, the Appellate Authority applied sub section(1 D) of Section 68F to all the five cases and not the proviso.
The High Court on revision preferred by the private operators upset the orders of the Appellate Authori ty directing the Regional Transport Authority to re consider the matter on merit.
While doing so it relied on a judgment of the Madras High Court in K.A. Natarajan vs
M. Naina Mo hammed & Anr., AIR 1978 Madras 280 to the effect that appeal before the Appellate Authority was maintainable even though a draft scheme within the terms of Section 68C of the Act had appeared on the scene.
The State Transport Undertaking being aggrieved is before us by Special Leave.
We have heard learned counsel on both sides.
So far as Civil Appeal Nos. 937 939/80 are concerned, these are cases of non grant of permits to the aggrieved private operators.
To their cases sub section (D) of Section 68F of the Act was clearly attracted.
No permit could be granted on their asking in the presence of the draft scheme.
And when none could be granted the exercise of consideration of the claim of the aggrieved.
private operators on merit, was itself a futility.
When the law forbade the grant of a permit in the aforesaid duration, merits of grant stood nowhere.
In this view of the matter, we are inclined to take the view that the High Court was in error in accepting the related revi sion petitions of the private operators and remitting their cases to the Appellate Authority for reconsideration on merits.
And as a consequence it was further in error in ordering that till such orders were passed by the Appellate Authority, both the State Transport Under 712 taking and private operators could be allowed to run, in view of the facts which glare out on the record.
So far as Civil Appeal Nos.
940 941 of 1980 are con cerned, the respective private operators were functioning and had sought renewal of their existing permits on the routes in question and, on denial of the same, and corre sponding grant thereof to the State Transport Undertaking, grievance arose to those private operators to take the matter in appeal.
Theirs were cases which could perhaps fall within the proviso to sub section (1 D) to Section 68F of the Act.
Their permits were capable of being renewed for a limited period provided they had expired after the publica tion of the draft scheme under Section 68C of the Act.
The controverted plea of the State Undertaking however is cate goric that the renewal application was rejected on 30th August, 1974 in one case and on 19th October, 1974 in the other, and on such rejection both the permits were granted to the State Transport Undertaking, and when the matter was in appeal before the Appellate Tribunal, the draft scheme was, much later, published on 4.6.1976.
Mr. section Srinivasan, learned counsel appearing for the private operators in Civil Appeal NOs.
940 941 of 1980 contends that when an appeal was taken to the Appellate Authority, the provisions of subsection (1 A) of Section 134 of the Act were invoked and orders were obtained, notwith standing the expiration of the term of the permit, so as to continue the permit to be valid until the appeals before the Appellate Authority were disposed of.
On that basis it is contended that the proviso to sub section (1 D) of Section 68F of the Act comes to his rescue, on the strength of orders in terms of sub section (1 A) of Section 134 of the Act, as valid permits were continuing and were capable of being renewed for a limited period, so as to cease being effective on the publication of the final scheme under sub section (3) of Section 68D of.the Act.
It may not require examining the contention because it is fractionally factual.
The necessary factual data has not been placed before us in the form of a counter or the suggestive orders as such.
We are thus left in the dark.
Still, lest we cause any injus tice to Mr. section Srinivasan 's clients, we are goaded to take the view that even though these two appeals shall also meet the same fate as that of Civil Appeal Nos.
937 939 of 1980 they shall remain subjected to an alternate that in the event of orders under sub section (1 A) of Section 134 being existent, the Appellate Authority shall examine the question and pass such orders in relation to the appeals of these private operators in accordance with law; but in case there were no such 713 orders earlier, the view of the Appellate Authority dismiss ing the appeals shall stand affirm,ed.
In view of what has been said above, we allow Civil Appeal Nos.
937 939 of 1980 unqualifedly and Civil Appeal Nos.
940 941 of 1980 qualifiedly in the terms above stated.
Parties shall bear their own costs in all these appeals.
V.P.R. Appeals al lowed.
| In Civil Appeal No. 937 of 1980 the Regional Transport Authority, out of two permits, Wanted one permit an the route Salem to Poolambadi to the appellant State Transport Undertaking and tie other to the first respondent.
In Civil Appeal No. 938 of 1980 them was only one permit for the route Salem to Pallipatti, which was Wanted to the State Transport Undertaking, denying the second respondent.
In Civil Appeal No. 939 of 1980, on the route Salem to Poolambadi, ant of two permits, one permit was granted to the State Transport Undertaking and the other to another private operator, denying the permit to the respondent therein.
In Civil Appeal No. 940 of 1980, on the route Salem to Erode, the objection of the State Transport Undertaking on the renewal sought by the respondent was sustained and the permit was granted to the State Transport Undertaking.
In Civil Appeal No. 941 of 1980, an the route Salem to Tiruchangode, the renewal application of the respondent was declined on objection by the State Transport Undertaking, who in turn, an its cation, was granted the permit.
All the aggrieved parties preferred appeals before the State Transport Appellate Tribunal, which dismissed the appeals, holding that since a draft scheme under Section 68C of the had been published by the State Government and was under consideration at the time when the matter was pending in appeal, subsection (1 D) of Section 68 F of the Act stood in the way for any relief being granted to the private operators.
709 The High.
Court allowing the revision preferred by the private operators, upset the orders of the Appellate Author ity, directing the Regional Transport Authority to re con sider the matters on merit against which the State Transport Undertaking approached this Court by Special Leave.
The appellants the private operators in C.A. Nos.
940 941 of 1980 contendeed that Section 68(F)(1 D), proviso of the was applicable to their cases on the strength of orders in terms of Section 134(1 A), as valid permits were continuing and were capable of being renewed for a limited period, so as to cease being effective on the publication of the final scheme under .section 68D(3).
Allowing C.A. Nos.
937 939 of 1980 unqualifiedly and C.A. Nos.
940 941 of 1980 qualifiedly, this Court, HELD 1.
To the cases of non grant of permits to the ag grieved private operates, sub section (1 D) of Section 68F of the Act was clearly attracted .No permit could be granted on their asking in the presence of the draft scheme.
And when none could be granted the exercise of consideration of the claim of the private operators on merit, was itself a futlifty.
When the law forbade the grant of a permit, merits of grant stood nowhere.
[711F G] 2.
The private operators in C.A. Nos. 940 941 of 1980 were functioning and had sought renewal of their existing permits on the routes in question and, on denial of the same, and corresponding grant thereof to the State Transport Undertaking, grievance arose to those private operators to take the matter in appeal.
Their cases fail within the proviso to sub section (1 D) to Section 68F of the Act.
Their permits were capaable of being renewed for a limited period provided they had exlpired after the publication of the draft scheme under Section 68C of the Act, [712B C] 3.
Even though the two appeals in C.A. Nos. 940 941 of 1980 shall also meet the same fate as that of C.A. Nos. 937 939 of 1980, they shall remain subjected to an alternate that in the event of orders under sub section (1 A) of Section 134 being existent the Appellate Authority shah examine the question and pass such orders in relation to the appeals of these private operators in accordance with law; but in case there were no such orders earlier, the view of the Appellate Authority dismissing the appeals shall stand affirmed.
[712G 713A] 710 K.A. Natarajan vs
M. Naina Mohammed & Ant., AIR 1978 Madras 28O, referred to.
|
Petition Nos.
5704 and 8842 of 1990.
IN Writ Petition (Crl.) No. 1171 of 1986.
(Under Article 32 of the Constitution of India).
Altaf Ahmed, Additional Solicitor General, A.S. Nambiar, Laxmi Kant Pandey in person, Ms. A. Subhashini, Ms. Niranja na Singh, Ms. Shanta Vasudeva, P.K. Manohar, K.R. Nambiar, Jagdeep Kishore, T.V.S.N. Chari, Ms. Suruchi Aggarwal, Ms. Manjula Gupta, Bharati Reddy, Ms. Kusum Choudharv, Ms, Bina Gupta, Ms. Monika Mohil, Ms. Vandana Saggar, Gopal Singh, A.S. Pundir, Manoj Swarup, V. Krishnamurthy, Ms. H. Wahi, B.B. Singh, D.N. Mukherjee, P.H. Parekh, Ms. Chandan Rama murthi, Ms. Kamini Jaiswal, R.K. Mehta, Ms. Urmila Kapoor, M. Veerappa, Uma Nath Singh, A.S. Bhasme, Kailash Vasdev, G. Prabhakar, S.K. Bhattacharya, R.S. Suri, Ms. section Dikshit, Prabir Choudhary, K. Swamy, Aruneshwar Gupta, Ms. M. Karan jawala, H.K. Puri and Ms. Rani Chhabra for the appearing parties.
The following Order of the Court was delivered: In Laxmikant Pandey vs Union of India, ; this Court laid down the procedure to be followed in adop tion of children by foreigners.
The Court observed the fact that children are a supremely important national asset and the future well being of the nation 'depends upon ' how the children grow and develop.
It quoted with approval the report of the Study Team on Social Welfare where it was said: "The physical and mental health of the nation is determined largely by the manner in which it is shapped in the early stages.
" 571 This Court also quoted with approval from the National Policy for the Welfare of Children where it was Said: "The nation 's children are a supremely impor tant assets.
Their nurture and solicitude are our responsibility.
Children 's programme should find a prominent part in our national plans for the development of human resources, so that our children grow up to become robust citizens, physically fit, mentally alert and morally healthy, endowed with the skills and motivations needed by society.
Equal opportu nities for development to all children during the period ' of growth should be our aim, for this would serve our larger purpose of reduc ing inequality and ensuring social justice.
" Thus saying, this Court laid down the procedure to be followed and while doing so, the CoUrt referred to recog nised child welfare agencies and provided for their licens ing or registration by the Central Government.
Petitioners in this application ' are some of the licensed welfare agen cies contemplated under the judgment of this court and petition No. 2 is the Central Voluntary Adoption Resources Agency which is a coordinating unit based at Delhi.
In these applications petitioners have made the following prayers: (a)(i) All GOvernment/juvenile homes, nursing homes and hospitals Government or private, will apply for declaration of a child as abandoned and free for placement and if the parents of the child are not known, such children should be transferred to the recog nised institution/placement agency as request ed for by them within a fixed time frame; (ii) all recognised placement agencies 'de pending upon their capacity to accommodate and care for those children after accounting for their age and qualification should be allowed to seek transfer of those children ,from Government/juvenile courts and nursing 'homes/hospitals and such institutions should be obliged to transfer the children such placement agencies; 572 (iii) Juvenile Welfare Boards/Courts should allow the aforesaid transfers in favour of the recognised agencies for rehabilitation through guardianshiP/adoPtion from VCAs/ CVARAS or otherwise; (iv) Juvenile Welfare Boards/Courts should not disturb the custody of children abandoned directly with the recognised placement agen cies when approached for declaring them as abandoned and free for placement and such orders may be passed ex parte and confirmed after notice to the concerned parties; (b)(i) Quota fixed by the Central Government for placement of children with Indian families may be quashed as being contrary to the deci sion in Laxmikant Pandey 's case; (ii) in the alternative, if this Court upholds the validity of the circular fixing the quota, the percentsge may be suitably reduced; (iii) this court may direct that if the quota is to be fixed, children with handicaps, medical problems and other drawbacks should be excluded from the total count as also girls above one year and boys above two years of age should be exclude from counting; (c) The State Governments and the various Union Teritories should be directed to issue birth certificates based upon attested copies.
of court 's certificate (decree), adoption deed or on the basis of affidavits of officials of the licensed agencies; (d) This Court may approve by way Of revision of expenses by about 25% with effect from the date of the application and another 10% in crease annually to enable the agencies to maintain high Standards of care for the chil dren; (e) The Indian children adopted abroad or to be allowed to retain their citizenship/nation ality till they attain the age of majority.
wherever they should exercise their option one way or the other; (f)(i) The Central Government should be di rected to act 573 by itself or through the State/Union Territory Governments to issue show cause notice before refusing to extend recognition arid grant personal hearing before taking official action and reasoned orders should be made in support of such action; (ii) In the "event of cancellation of recogni tion, a time frame should be fixed to clear all the cases already in the pipeline for being processed; (ii) An appellate authority should be pre scribed for challenge of governmental action as stated above; (g)(i) The Court may direct stay of governmen tal action in the matter of setting up of Central Adoption Resource Agency (CARA) and ultimately hold that there was no longer any need for such as agency in view of the fact that many private agencies were not available to monitor the programme.
Notice was ordered on these petitions on September 21, 1990, and these several months that have followed have been taken by different State Governments and Union Territories and others to place their affidavits for consideration of this Court.
We have heard counsel for the appearing parties at length.
Before we deal with ' several prayers placed before the Court for consideration it is perhaps necessary 'to refer to the provisions of the Children 's Act of 1960 and the Juvenile JUstice Act of 1986.
The ' scheme of these two Acts is not very different.
The definitions of. 'neglected child ' and 'neglected juvenile ' is absolutely 'the same.
The mechanism for:administering the statutes is also more or less the same.
Under section 4(1) of the Children 's Act, a Child Welfare Board is intended to take charge of neglected children.
Under section 4(1) of the Juvenile Justice Act, a Welfare Board for the neglected juveniles is similarly contemplated.
Sub sections (3) and (4) of either Act autho rise 'the Board to ' function as a Bench of Magistrates and confers on such Board certain powers under Criminal Proce dure Code conferable on a Metropolitan Magistrate or a Judicial Magistrate of the First Class.
Section 9 of the Children 'section Act contemplates of Children 's Homes and de tailed provisions have been made in the matter of setting up of such homes and management thereof.
Section 11 contem plates of Observation Homes.
Chapter III deals with neglect ed children.
574 Under Chapter II of the ACt of 1986 provision has been made for.
setting up of Juvenile Homes (section 9), Special Homes (section 10) and Observation Homes (section 11).
Both the Acts provide.
for After Care organisation.
Though these, two statutes in recognition of the impor tance of children to society have made these beneficial provisions, nothing concrete and substantial appears to have been done yet for implementing either statute in a serious way.
The Children 's Act has been operative for more than 30 years while the Act of 1986 is in force for about five years.
Yet most of the provisions in the two statutes are still to be worked out in a real way.
The Union of India has set up a Department of Women and Child Development and most of the States and Union Territo ries have corresponding departments, ,yet full coordination has not been achieved.
The responsibility of administering the two statutes is not properly shared.
Monitoring seems to be very much wanting.
In course of hearing of this petition we asked learned Additional Solicitor General appearing for the Union Govern ment to tell us as to what happens to the children both boys and girls who are lodged in the Homes when they cease to be children under the statute.
It may be pointed out that under the Children 's Act boys Upto 16 and a girl upto 18 years come within the definition of "child".
If 'children ' within the meaning of the. term are lodged in various, types of homes indicated in the two statutes what exactly happens to them when they cease to be children by passing of time has remained an,enigma in the absence of a clear answer.
Obviously no provision has been made in these two Acts to meet such a situation.
Is it the intention of the stautes then that once a boy.
Or girl ceases to be a child.
and does not come within the purview of the stautes he/she would have, to be thrown out from the home on to the street as no more cared for? What then would be the effect of such a situation? Since that is not very relevant for disposing of this petition, we do not intend to proceed with that aspect any longer.
We are inclined to keep the handicapped children out Of the purview of the judgment of this Court.
We do not, howev er, agree that Indian citizenship should continue until 'the adopted child attains the age of majority and is legally competent to opt.
Such a step ,would run counter to the need of quick assimilation and may often stand as a barrier to the requirements of the early cementing of the adopted child into the adoptive family.
In regard to the issue of the birth certificate 575 of the adopted child we are of the view that such certifi cate should be obtained on the basis of application of the society sponsoring adoption.
In most of these cases the registration of birth may not be available because that would not have been done.
We are of the view that on the basis of the application and such other material which may be, relevant to be found in an affidavit to accompany the application made by a responsible person belonging to the agency the local magistrate should have the authority to make an order approving the particulars to be entered in the birth certificate and on the basis of the Magisterial order the requisite certificate 'should be granted.
This process should.
be done only after adoption is finalised and the particulars of the adopting foreign parents are available to be inclined.
There is no point in having two birth certifi cates, one before the child is placed for adoption and another when adoption is completed.
If the procedure for taking out a birth certificate is deferred until adoption is finalised the certificate can be obtained once for all.
We are of the view that the 'Chief District Medical Officer (CDMO) may be involved in the matter of ascertainment of the age and the magistrate may ordinarily act on the certificate granted by the CDMO.
We gather that many of these agencies have indeed no child care facilities.
In the event of such facilities not being available maintaining children in hygienic condition and in an environment which would be healthy for the chil dren 's growth and mental development would indeed be diffi cult.
The licensing authority should ordinarily ensure that the registered agency has proper child care facilities so that an agency which does not have such facilities may over a period of years go out ,of the field.
The affidavit of the Union Government indicates that it never intended to fix any quota for the purpose of allowing renewal of registration or licence.
In view of the clear statement in the affidavit we must hold that it is not the policy of the Government of India require the agency to satisfy the condition of any quota.
In fact the Government of India 's circular letter is intended to emphasise on the feature that registered societies to entitle themselves for renewal of registration or licence should exhibit their involvement in the process of adoption and the authority should have evidence to satisfy that the agency is really involved in the activity, We would accept the stand taken by the petitioner that in the event of registration/licence being proposed to be cancelled, an opportunity should be granted to such agency.
That would answer the 576 requirements of natural justice and would uphold a healthy scheme of administration.
We have not been able to see any.
positive justification for opposition to the setting up of CARA.
Such an institution would be an organisation of prima cy and would work as a useful agency in the field.
While we agree that there should be no keen, competition for offering adoptions, regulated competition may perhaps keep up 'the system in a healthy condition.
Existence 'of CARA in that field is, therefore, welcome.
We do not agree with the stand of the petitioner that the scheme envisaged by the main judgment Should be altered in this regard.
The judgment laid down a scale of expenses to be recov ered by the agency offering placement for maintaining the child from the adoptive parents.
There was some modification in 1986.
Keeping in view the general rise in cost of living we are prepared to allow escalation of 30%.
We do not, however, agree to an escalation of 10% every year.
The matter may be reviewed once in three years so far as escala tion of expenses in concerned.
Only one aspect is left for consideration and that is the petitioner 's prayer for transfer of children from statu tory homes to recognised agencies for placement.
The chil dren who can be transferred for such purposes would be those whose parents are not known, orphans and perhaps those who are declared as abandoned children.
We have.
pointed out already that the homes are not set up in several States and areas.
Even Juvenile Boards have not been properly function ing and the recognised agencies do not have the facility of child care.
In these circumstances to order transfer of children from statutory homes to recognised agencies can indeed not be accepted as a rule.
We are prepared to observe that as and when such a request is received from recognised agencies, the Juvenile Court or the Board set up under the Act may consider the feasibility of such transfer and keep ing the interest of the child in view, the possibility of an adoption within a short period and the facilities available in the recognised agency as also, other relevant features, make appropriate orders.
A strait jacket formula may very often be injurious to the interest of the child.
This order disposes of the petitions.
V.P.R. Petition Partly al lowed.
| The writ petitioners some of the licensed welfare agencies contemplated under the judgment of this Court in ; , and petitioner No. 2, the Central Volun tary Adoption Resource Agency prayed that the Indian chil dren adopted to he allowed to retain their citizenship till they attain the age of majority; that birth certificates to be issued based upon attested copies of Court 's certificate (decree), adoption deed or affidavits of the officials of the licensed agencies; that quota fixed for placement of children with Indian families he quashed; that show cause notice he issued before cancellation of registration/ li cence to the registered agency; that setting up of Central Adoption Resource Agency be stayed; that to enable the agencies to maintain high standards of care for the chil dren, expenses by about 25% be revised and annual escalation of 10% be made; and that transfer of children from Statutory homes to recognised agencies for placement he allowed.
Partly allowing the writ petition, this Court, HELD: 1.
If the Indian citizenship is allowed to contin ue until the adopted child attains the age of majority, it would run counter to the need of quick assimilation and may often stand as a barrier to the requirements of the early cementing of the adopted child into the adoptive family.
[574G H] 2.
The birth certificate of the adopted child be ob tained on the basis of application of the society sponsoring adoption.
On the basis of the application and such other material which may he relevant to he found in an affidavit to accompany the application made by a responsible person belonging to the agency, the local magistrate should have the authority to make an order approving the particulars to he entered in the birth certificate and on the basis of the magisterial order the requi 569 site certificate should be granted.
This process should be done only after adoption is finalised and the particulars of the adopting foreign parents are available to be included.
The Chief District Medical Officer (CDMO) may be involved in the matter of ascertainment of the age and the magistrate may ordinarily act on the certificate granted by the CDMO.
[574H 575D] 3.
Registered societies to entitle themselves for renew al of registration of licence should exhibit their involve ment in the process of adoption and the authority should have evidence to satisfy that the agency is really involved in the activity.
[575G] 4.
The licensing authority should ordinarily ensure that the registered agency has proper child care facilities so that an agency which does not have such facilities may over a period of years go out of the field.
[575E] 5.In the event of registration/licence being proposed to be cancelled, an opportunity should be granted to such agency.
That would answer the requirements of natural jus tice and would uphold a healthy scheme of administration.
[575H 576A] 6.
The setting up of CARA is justified.
Such an institu tion would be an organisation of primacy and would work as a useful agency in the field.
Although there should be no keen competition for offering adoptions, regulated competition may perhaps keep up the system in a healthy condition.
Existence of CARA in that field is, therefore, welcome.
[576A B] 7.
Keeping in view the general rise in cost of living an escalation by 30% is allowed.
The matter may be reviewed once in three years so far as escalation of expenses is concerned.
[576C D] 8.1.
The children, who can be transferred for the pur poses for placement, would be those, whose parents are not known, orphans and perhaps those who are declared as aban doned children.
The homes are not set up in several States and areas.
Even Juvenile Boards have not been properly functioning and the recognised agencies do not have the facility of child care.
In these circumstances to order transfer of children from statutory homes to recognised agencies can indeed nOt be accepted as a rule.
[576D F] 570 8.2.
As and when such a request is received from recog nised agencies, the Juvenile Court or the Board set up under the Act may consider the feasibility of such transfer and keeping the interest of the child in view, the possibility of an adoption within a short period and the facilities available in the recognised agency as also other relevant features, make appropriate orders.
A strait jacket formula may very often be injurious to the interest of the child.
[576F G]
|
ivil Appeal No. 937 of 1977.
From the Judgment dated 24.3.1977 of the Allahabad High Court in Second Appeal No. 2746 of 1965.
Shanti Bhushan, J.P. Goyal, Satish Chandra, V.M. Tar kunde.
R.P. Singh, A.K. Shukla, J.M. Khanna, M.R. Bidsar, K.K. Gupta.
Vijay Kumar Verma, Ms. Shefali Khanna, P.K. Chakraborty and R.C. Verma for the appearing parties.
The Judgment of the Court was delivered by THOMMEN, J.
This appeal by,leave arises from the judg ment.
Of the Full Bench of the Allahabad High Court in Second Appeal No. 2746 of 1965, whereby the High Court, reversing the finding of the courts, below; held that the suit instituted by the present respondent was maintainable under section 180 of the United Provinces Tenancy Act, 1939 (the 'Act ').
That is the only question which arises for consideration in this appeal brought by the defendant in the suit.
678 The suit relates to 10 plots of land of Which the plain tiff is the proprietor and situated in District Muzaffarna gar.
The suit was instituted for ejectment of the defendant appellant Lala Raghuraj Swarup .(now represented by his Legal Representatives and hereinafter referred to also as the 'sub tenant '), who was granted a sub lease in the suit properties by the original tenants, Raimal and Bhartu (the 'tenants ') for a period of five years commencing from 1.1.1950 and expiring on 31.12.
However, on 14.9.1954 the tenants surrendered their interest in the holding to the plaintiff.
The plaintiff thereupon issued notice dated 2.11.1954 to the defendant calling upon him to deliver vacant possession of the land to the plaintiff on 31.12.1954 which was the agreed date of expiry of the sub lease.
Since the defendant failed to comply with that de mand, the plaintiff instituted the suit for ejectment under section 180 of the Act.
Various conntentions were, raised by the defendant in answer to the plaint allegations and all of them, except the question whether the suit was maintainable under section 180 of the Act, were rejected by the trial court as well as by the first appellate court.
Holding that the suit was not maintainable, they stated that, in view of the fact that the defendant was holding the land as a sub tenant, he was liable to be ejected only in terms of section 175, and not section 180, and had the suit been brought under section 175, it would have been stayed in terms of the Government Notification dated January 23, 1953 stating that all suits, applications or proceedings under section 175 were stayed.
It is not disputed that had the suit been brought under section 175, it was liable to be stayed for the notification is still in force and has remained in force at all material times.
On the other hand, if the suit was rightly brought under section 180, there was no stay and in that event, all the other issues having been found in favour of the plain tiff, the suit has to be, and ought to have been, decreed.
The High Court has so held by the impugned judgment.
To examine this question, we shall presently refer to sections 175 and 180, but before we do so, it is necessary to refer to the provisions concerning the status of a sub tenant (vis a vix a tenant) whose rights are extinguished by operation of law.
The expression 'tenant ' in sub section (23) of section 3 of the Act includes a 'sub tenant ' as defined in sub section (22) of that section.
These sub sections read: 679 "3(22). 'sub tenant ' means a person who holds land from the tenant thereof other than a permanent tenure holder, or from a grove holder or from a rent free grantee or from a grantee at a favourable rate of rent and by whom rent is, or but for a contract express or implied, would be payable; 3(23).
'tenant ' means the person by whom rent is, or .but for a contract express or implied would be, payable and, except when the contrary intention appears, includes a subtenant, but does not include a mortgagee of proprietary or under proprietary rights, a grove holder, a 'rent free grantee, a grantee at a favourable rate of rent or, except as otherwise expressly provided by this Act, an under pro prietor, a permanent lessee or a thekadar;" It is not disputed that the defendant at the material time was a 'sub tenant ' as defined under section 3(22) in terms of the sub lease granted to him by Raimal and Bhartu, who were 'tenants ' within the meaning of section 3(23).
Nor is it disputed that the defendant and Raimal and Bhartu were non occupancy tenants as defined under section 31 which reads: "31.
All tenants other than permanent tenure holders, fixed rate tenants, tenants holding on special terms in Oudh, ex proprietary tenants, occupancy tenants and hereditary tenants are non occupancy tenants.
" Sections 45 to 48 speak of extinction of tenancies.
Section 45, so far as it is materi al to the facts of this case, provides: "45.
The interest of a tenant shall be extin guished (c) . . . by surrender, or by abandonment; It is not disputed that, in respect of the two tenants, their interests had become extinguished in terms of clause (c) by reason of surrender of their interests in the holding on 14.9.1954 in favour of the proprietor 680 plaintiff.
The effect of such surrender on the interest of the sub tenant is dealt with in section 47.
It is with reference to this section that the applicability of section 180 has to be considered.
It iS important to remember that the material portions of section 47, namely, sub sections (1), (4) and (5) dealing with the interests of sub tenants on the extinction of the tenants ' interests, are concerned only with tenants other than permanent tenure holders or fixed rate tenants.
In other words, these sub Sections (unlike sub section (2) concerning a transferee from a permanent tenure holder or a fixed rate tenant or sub section (3) dealing with mortgages executed prior to January, 1902) deal with non occupancy tenants, as in the present case, and not with any other class of tenants.
Section 47, so far as it is material, reads: "47.
(1) Except as otherwise provid ed in sub section (3) and sub section (4) the extinction of the interest of a tenant, other than.
a permanent tenure holder or a fixed rate tenant, shall operate .to extinguish the interest of any tenant holding under him . . (2) Subject to the provisions of section 16 of the Land Acquisition Act, 1894, the extinction of the interest of a permanent tenure holder or a fixed rate tenant shall not of itself affect the rights of any transferee from such tenant under a valid transfer, but after the transfer all covenants binding and enforceable as between the landholder and the tenant shall be binding and enforceable as between the landholder.
and the transferee.
(4) Where, at the time Of the extinc tion by surrender or abandonment, or by death without any heir entitled to inherit such interest, of the interest in a holding of a tenant other than a permanent tenUre holder or fixed rate tenant, there is in existence a valid sub lease of the whole or of a portion of the holding, executed on or after the first day of January, 1902, all covenants, binding and enforceable as between the tenant and the sub tenant shall, subject to the provisions of sub section (5), be binding and enforceable as between the tenant 's landholder and the sub tenant for the remainder of the term of the sub lease or for five years, whichever period may be the shorter. 681 (5).
In the cases referred to in sub section (3) and sub section (4), if the rent payable by the sub tenant is less than that hitherto payable by the tenant, the sub tenant shall have the option of vacating the holding, but shall, if he continues in posses sion, be liable to pay rent at the rate hith erto payable by the tenant . " Section 47(1) shows that in the case of all non occupan cy tenants, (as distinguished from permanent tenure holders or fixed rate tenants with whom we are not concerned) the extinction of their interests as such tenants will, subject to the protection of sub sections (3) and (4), operate to extinguish the interests of tenants holding under them.
The interest of the defendant, being that of a, nonoccupancy sub tenant, is thus liable to be extinguished consequent on the extinction of the interests of the non occupancy tenants Raimal and Bhartu.
This extinction of the defendant 's inter est is, however, subject to the provisions contained is the relevant sub sections, which on the facts of this case, are sub seCtions (4) and (5).
Sub section (4) shows that, in the event of the.
extinction of the interest of a nonoccupancy tenant by reason of his surrender or abandonment of such interest, or his death without any heir to inherit such interest, all covenants binding and enforceable as between the tenant and the subtenant, subject to the provisions of sub section (5), will be binding and enforceable as between ' the tenants ' landholder (proprietor) and the sub tenant for the remainder Of the term of the sub lease or for five years whichever period may be the shorter.
This means that the terms and .conditions under which the defendant held the sub lease under Raimal and Bhartu continued to be binding and enforceable between the plaintiff and the defendant for the period from 14.9.
1954, which was the date of surrender by the tenants, till 31.12.1954, which was the date on which the defendants ' sub lease expired.
This is, however, subject to sub section (5) which provides that, if the rent payable by the sub tenant is less than the rent that was payable by the tenant, the sub tenant has the Option of vacating the holding or continuing in possession for the period permitted by the statute on payment of rent at the higher rate which was applicable to the tenant.
These provisions show that, notwithstanding the extinc tion of the interest of the tenant by reason of his surren der or any other reason mentioned under sub section (4), a sub tenant whose subtenancy has not expired, is protected for the remainder of the term of the sub lease or for 5 years, whichever period be the shorter, but subject to the requirement of sub section (5) about rent.
The statutory 682 right vested in the defendant thus remained in force only for the statutorily limited period, and not any further.
The limited right of the sub tenant thereafter for the purpose of removal of standing crops and other products of the earth, and his obligation to vacate the holding are stated in section 48: "48.
When the interest of a sub tenant is extinguished he shall vacate his holding but shall have in respect of the removal of stand ing crops and other products of the earth the same rights as the tenant would have upon ejectment in accordance with the provisions of this Act".
This section further emphasises the need to vacate the holding upon extinguishment of the interest, but without prejudice to the right of removal of the standing Crops etc.
We shall now consider the two provisions under which a suit can be brought.
Section 175 (the operation of which now remains stayed) deals with the ejectment of a non occupancy tenant, while section 180 deals with ejectment of a person in occupation of land without consent.
We shall first read section 175, and then section 180, so far as they are .material: "175 . . a non occupancy tenant shall also be liable to ejectment on the application of the landholder on any of the following grounds, namely: (a) that he is a tenant holding from year to year; (b) that he is a tenant holding under ,a lease for a period which has expired or will expire before the end of the current agricultural year.
" Significantly, this section, dealing with a non occupan cy tenant, refers to a tenant falling under clause (a) or clause (b), i.e., a tenant having a present interest in terms of an unexpired lease or an expired lease under which he holds over.
The section has no application to past ten ants whose interests have become extinguished for the rea sons stated in section 45 or section 47 or whose lease has been duly determined.
On the other hand, persons who are not, or, ' who are no longer, tenants at the time of the suit, and liable to ejectment, have to be proceeded against under section 180: 683 "180.
(1) A person taking or retaining posses sion of a plot of land without the consent of the person entitled to admit him to occupy such plot and otherwise than in accordance with the provisions of the law for the time being in force, shall be liable to ejectment under this section on the suit of the person so entitled, and also to pay damages which may extend to four times the annual rental value calculated in accordance with the sanctioned rates applicable to hereditary tenants.
Section 180 has no application to a present tenant.
This section provides for ejectment of a person in occupation of land without a valid consent.
He is a person who has taken or retained possession of land without the consent of the landlord and contrary to law.
He may have taken possession by trespass, or after being in lawful occupation, retained possession contrary to the will of the person entitled to admit him to occupy the land and without the support of law; in either event he is a person liable to be ejected under section 180.
It makes no difference.
for the purpose of this section that a person was in unauthorised occupation at all material times, or, the occupation was authorised at its commencement, but became unauthorised by reason of the authority to occupy having been extinguished by operation of law, or duly determined by the person entitled to give such authority.
Unlike section 175, which is, as seen above, confined to a person who is a tenant either in terms of an unexpired lease or by reason of .his being allowed to continue in possession after the expiry of the period of the lease, section 180 concerns a person who was never, or who is no longer, a tenant.
Apart from a mere trespasser, a person remaining in possession of the land, notwithstanding the extinguishment of his interestor determination of his lease, and without the consent of andcontrary to the will of the landlord, and otherwise than as permitted by law, equally falls within the ambit of section 180.
Any such person does not hold under a lease and is not a 'tenant" within the meaning of section 175.
He has no present right of 'holding ' or 'retaining possession ' of the land.
The expression 'hol ding ' is defined under section 3(7) as :.
"a parcel or parcels of land held under one lease, engagement or grant, or in the absence of such lease, engagement or grant under one tenure and in the case of a thekadar includes the theka area".
684 This shows that there must be an existing or continuing legal relationship between the owner and ' the person in possession of the land.
In the absence of any such relation ship, either 'because no lease or anyother interest or right was ever granted or because it was duly determined or extin guished, a person retaining possession of the land without the consent and contrary to the will of the landlord does not come within.
the purview of section 175.
While the legislature provides for the ejectment of a nonoccupancy tenant on the grounds specified under section 175, section 180 is meant for ejectment of a person who has no present right to retain possession of land either because his occupation commenced without any such right or the right by which he commenced the occupation has since been duly extinguished or terminated in accordance with the law in force.
Speaking of section 180, K. Subba Rao, J. (as he then was) in Bhinka & Ors vs Charan Singh, [1959] Supp.
2 SCR 798 at 808, observes: " . .
The word "taking" applies to a person taking possession of a land.
otherwise than in accordance with the provisions of the law; while the word "retaining" to a person taking possession in accordance with the provisions of the law but subsequently retain ing the same illegally So construed, it is section 180, and not section 175, which should apply 'to a person who is in unlawful or unauthorised occupation of land.
Mr. V.M. Tarkunde, counsel for the the appellant defendant,however, submits that the defendant is not in unlawful or unauthorised or illegal occupation of the land, but he is inoccupation by reason of his being a lessee, although the term of the lease has since expired.
In the Case Of such a person, it is section 175 that applies.
Mr. Tarkunde says that the interest of the defendant in the land continues eveni.after termination of the period of his sub lease and notwithstanding the plaintiffs notice calling upon ' him to quit.
His interest in the land, counsel says, is not extinguished by reason of the extinction of the interests of the tenants.
The defendant ceased to be a sub tenant and was elevated ' to the position of a tenant upon the extinction of the interests of the tenants by reason of their surrender of the holding, This argument is urged by counsel on the basis of his construction of 685 section 47 which, in our view, is not correct.
Section 47(1), as seen above, specifically says that, except as otherwise provided in sub section (3) and sub section (4), the extinguishment of the interest of a non ocCupancy tenant will, extinguish the interest of his sub tenant.
Once the interest Of the person under whom the defendant held the land was extinguished, the defendant was no longer a sub tenant, but a person enjoying a legal right for a limited period in terms of the statute.
As stated by this Court in Birendra Pratap Singh & Anr.
vs Gulwant Singh & Ors., ; , 878 879: " .
The subsequent possession was, however, under a legal right and that right accrued to the appellants under sub section (4) of section 47 . .
This sub section does not lay down that the original sub lease executed by the chief, tenant, who surrenders his1 rights, is to continue in force.
What this provision does is to create a new right in the sub tenant and that is the limited right to continue in possession for the re mainder of the term of the sub lease or for five years whichever period may be shorter . . ".
This shows that the sub tenant was no longer a holder ' of.
any parcel of land once his right to hold was extinguished and his statutory right for the limited.
period had also expired in terms of section 47.
When that event has oc curred, he has no further interest in the land and his continued occupation is, as pointed out by this Court in Bhinka (supra), only an unauthorised or illegal occupation.
Referring to sub section (4) of section.
47, this Court, in Birendra Pratap Singh (supra) stated: " .
So far as the right granted by section 47(4) is concerned, it is granted by the statute itself for 'a limited period and, once that period expires, it cannot be held that the right continues thereafter.
There is no requirement in law that, after the expiry of that period.
there must be eviction from .the land in order to extinguish the right granted by section 47(4).
The possession subsequent to 30th June, 1951 cannot, therefore, be held to be in pursuance of a right .conferred on a sub tenant referred to in section 47(4) Of the Tenancy Act 686 and, consequently, the land was not held by the appellants thereafter in the capacity mentioned in section 19(vii) of the Act. .",, This observation regarding section 47(4) of the Act was made by this Court with reference to section 19(vii) of the U.P. Zamindari Abolition and Land Reforms Act, 1950 (No. 1 of 195 1).
The ' construction placed on section 47(4) of the Act in that decision supports the view we have indicated on the point in issue, and that .decision was rightly relied on by the High Court in coming to the conclusion which it did.
Mr. J.P. Goyal, supplementing the arguments of Mr. Tarkunde, places reliance on certain observations of this Court in Biswabani (P) Ltd. vs Santosh Kumar Dutta & Ors., [ ; That decision refers to the protection of a statutory tenant in terms of the West Bengal Premises Tenacy Act, 1956.
This Court stated that, even after the expiry of the contractual tenancy, the tenant would continue as a statutory tenant, except where he has surrendered possession or has been evicted under the enabling provisions of the relevant Rent Restriction Act.
That decision has no rele vance to the facts of this case where the question relates to the construction of the relevant provisions of the Act under Which separate and special provisions have been made to regulate the rights and liabilities of different catego ries of tenants, including non occupancy tenants with whom alone we are concerned.
Their liability to ejectment, 'fo llowing the extinction of their interests and rights in the land, is regulated by statute.
The views expressed by the Full Bench of the High Court are correct.
The learned Judges have rightly held that insofar as the defendant has continued to remain in occupa tion of the land even after the expiry of the .period of his lease, and despite the landlord 's notice to quit the prem ises, he can no longer be regarded as a tenant referred to in clause (a) or (b) of section 175 and, therefore, that section has no application to him.
The right section in terms of which a suit has to be brought against him, as the plaintiff has done in the present case, is section 180.
Accordingly there is no merit in this appeal.
R.M. SAHAI, J.
While joining ' in the opinion of brother Thommen, J., few words are being added, on nature of inter est created 687 under sub section (4) of Section 47 of the U.P. Tenancy Act of 1939 (referred hereinafter as the Act).
Sub tenant, literally or statutorily either in the Rent Control legislations or agricultural tenancies, normally, is a ,person in possession holding from the tenant.
His right or interest depends on provi sions in the Statute.
Under U.P. Tenancy Act, sub;tenant according toclause (22) of section 3 holds land from a tenant.
Even though he isinclud ed in the definition of tenant in clause (23) and is non occupationally under Section 31 of the Act, yet, he is inferior class of tenant a she is specifically precluded by Section 39 from subletting and has nosecurity of tenure as he can be evicted under Section 175 of the Actand his inter est in the holding extinguishes, statutorily, under Section47 on extinction of interest of his tenant under Section 45 of the Act.
Similar provision for extinction .of tenancy existed in Agra TenancyAct of 1926.
Sub section 3 .and 4 are, in fact, identical with sub section.2 and 3 of the 1926 Act.
Even Section 28 of N.W.P. Tenancy Act 1901(Act II of. 1901) provided for extinction of interest of sub tenant onejectment of his tenant under Section 57 of that Act.
And on extinc tion, for other reasons, the covenant binding and enforceable as bet ween tenant and the sub tenant became binding between tenants land holder and the sub tenant .and he was permitted, at his option, tocontinue, in possession for the remainder period of lease, on paymen tof the rent which was being paid by the tenant, Therefore, continuanceof sub tenant under the covenant between tenant and sub tenant exis ted in Tenancy legislations right from 1901.
But there existed a vitaldifference between 1901 Act on one hand and 1926 and 1939 Act on the other.
In 1901 Act the sub lessee could continue . 'for the remainderperiod of the term of the sub lease ' whereas under 1926 and 1939 Actsthe period was fixed depending on if the sub tenancy was createdbefore or after 1st January 1902.
In the former case the sub lesseecould continue for, 'the remainder term of the sub lease or for the lifetime of the tenant or for ten years ', whichever period was the shortest and in latter 'for the remainder period of the lease or five years ' whichever Was shorter.
Reason for fixation of period by latter enact ments, namely 1926 and 1939 was to remove uncertainty about landholders interest as the tenants, particularly widows, who had.lmited .interest, only, at times created permanent sub tenancy or subtenancies for long durations under 1901 Act.
This resulted in mass of litigation and at times there was sharp divergence of.
opinion between Board of Revenue, the highest.
authority in the hierarchy of revenue courts dealing with agricultural holdings and the High Court.
It was to.
put this controversy at end and reationalise the law, ineeping with the.
688 spirit of those times when tiller of the soil concept was still far, that the Legislature altered the law and provided for durational or limited interest.
To appreciate its nature during subsistance of the covenant and thereafter it is necessary to extract relevant sub sections of Section 47: "47.
(1)Except as otherwise provided in sub section (3) and sub section (4) the extinction of the interest of a tenant, other than a permanent tenure holder or a fixed rate ten ant, shall operate to extinguish the interest of any tenant holding under him.
(2) . . . (3) . . . . . (4) Where, at the time of the extinction by surrender or abandonment, or by death without any heir entitled to inherit such interest, of the interest in a holding of a tenant other than a permanent tenure holder or fixed rate tenant, there is in existence a valid sub lease of the whole or of a portion of the holding, executed on or after the first day of January 1902, all covenants.
binding and enforceable as between the tenant and the sub tenant shall, subject to the provisions of sub section (5), be binding and enforceable as between the tenant 's landholder and the sub tenant for the remainder of the term of the sub lease or for.five years, whichever period may be the shorter.
(5) In the cases referred to in sub section (3) and subsection (4), if the rent payable by the sub tenant is less than that hitherto payable by the tenant, the sub tenant shall have the option of vacating the holding, but shall, if he Continues in possession, be liable to pay rent a.t the rate hitherto payable by the tenant.
What is apparent, from a bare perusal of sub section (1) of Section 47 is that it is Wider in application and immedi ate in operation.
689 It extends to every tenant holding under a tenant other than permanent tenure holder or fixed rate tenant.
The interest of such tenant extinguishes, automatically and immediately by operation of law on extinction of interest of his chief tenant.
No further requirement is contemplated.
He becomes liable to ejectment.
If he .continues in possession he is a trespasser unless he holds With consent of the landholder/landlord expressly or impliedly.
For sub tenants it has been made more explicit by Section 48 of the Act as he is required to vacate the holding except for the standing crops and produce which he is permitted to remove as any other tenant ejected in accordance with the provisions of the Act.
Thus a tenants more so a Sub tenant, continuing in possession after extinction, of his interest as provided by Section 47, cannot be considered to be in possession in any other capacity but as retaining possession otherwise than in accordance with the law for the time being in force.
Is the result! any different for a sub tenant who is permitted to continue for the remainder period of sub lease by sub section (4) of Section 47? Tenancy extinguishes under section 45 for various reasons.
Consequence of it on right of a tenant holding under him is mentioned in Section 47.
Since sub tenant, is tenant and holds from the tenant his interest, too, extinguishes by operation of law.
But the Legislature made an exception in favour of those sub tenants whose interest came to an end either because the tenant surrendered or.
abandoned his holding or died without any heir to inherit his interest, obviously, to avoid any preju dice to a weaker class of tenant due to conduct of his tenant or for reasons beyond control of anyone.
But the expression, 'Except as provided ' in sub section (1) does not carve out an exception to extinction of interest of sub tenant but to its immediate operation.
That is interest in the holding is extinguished but from a future date namely expiry of the period of leases or five years whichever is shorter.
This benefit or .concession cannot be stretched to vest any fresh tenancy right.in ' him after expiry of the period.
On a combined reading of sub section (1) of Section 47 with sub section (4) the plain and simple meaning that emerges is that the interest of .a sub tenant extinguishes on surrender by his tenant but this, is deferred for the period mentioned in this sub section.
The right created by sub section (4) being limited in operation it cannot extend beyond the ,period mentioned in it,.
Otherwise the sub section (4) and sub section (1) of the Act would be on cross purpose with each other.
Interpreting the Sub section in any other manner would be against principle of construction, as sub section (4).
cannot be read in isolation.
That is the consequence provided for in sub section (1) do take place but in the 690 manner provided by sub section (4).
To put it, simply, the extinction is complete but its operation is postponed to a later date.
Effort was made to distort the otherwise plain and simple construction by urging that since sub section (5) enjoins paying of same rent, as the tenant who had surren dered, the right and interest of the sub tenant stands enhanced, by operation of law and he stands substituted in.place of his tenant with higher rights than he held.
Natural follow up of it, added the .learned counsel, is that new right or interest created under Section 47(4) cannot extinguish after expiry of the period except as provided under section 45 of the Act.
The argument suffers from inherent fallacy, Section 47(4) does not arrest extinction.
It only postpones it.
In Birendra Pratap vs Gulwant Singh and Others, ; this Court while construing sub section (4)of Section 47 observed as under: "So far as the right granted by Section 47(4) is concerned, it is granted by the statute itself for a limited period and, once that period expires, it cannot be held that the right continues thereafter.
" No new tenancy is created.
What is made binding and enforce able is the old covenant existing between the tenant and sub tenant for the remainder period of the sub lease.
Thus whatever right a sub tenant acquires under sub section (4) it ceases to operate after the expiry of period of lease or the period mentioned in the sub section.
No second extinc tion is visualised.
That would be not.
only doing violence to the language of the sub sections but would also result in nullifying the .
effect of sub section '(1) completely.
Status of a person in possession after expiry of the remainder period of lease or five years as provided in Section 47(4) can neither be .of statutory tenant nor a tenant holding over as understood is common parlance.
He is a person in possession without authority of law.
A sub tenant whose extinction is postponed as a matter of conces sion because of the tenant 's prejudicial acts cannot be placed any higher than other sub tenants who are required 'to vacate their holding immediately under Section 48.
Therefore retention of possession by such person cannot be except ,otherwise than in accordance with the provisions of the Act for the time being in force.
691 The Full Bench therefore did not commit any error of law in applying the ratio laid down by this Court in Birendra Pratap Singh vs Gulwant Singh and Others, (supra) that the effect of extinction of sub tenant 's interest under Section 47(1) of the Act was not only that, 'he could no longer be .held to be in the capacity of sub tenant ' but even the 'new right ' of continuance for the remainder period of lease which was created under Section 47(4) was limited and did not vest any right in such person to continue after that date nor any fresh right of sub tenancy could be deemed to accrue consequently possession of Such person after expiry of the extended period, was Otherwise that in accordance with the provision of taw against whom a suit for ejectment under Section 180 of the Act was maintanable.
The appeal thus as held by brother Thommen, J., is devoid of any merit.
ORDER For the reasons stated by us in our separate but concurring judgments dated August 21, 1991, we see no merit in fids appeal and it is accordingly dismissed with costs throughout.
R.P. Appeal dismissed.
| The defendant appellant was a sub tenant in terms of a sub lease granted to him by the non occupancy tenants for a period of five years from 1.1.1950 expiring on 31.12.1954 in respect of the land in dispute of which the plaintiff re spondent was the proprietor.
On 14.9.1954 the original tenants surrendered their interests in the holding to the proprietor who .issued a notice dated 2.11.1954 to the sub tenant demanding vacant possession of the land by 31.12.1954, the agreed date of expiry of the sub lease, and, since the latter failed to comply with the notice, the propriter filed a suit fro, ejectment under section 180 of the nited Provinces Tenancy Act, 1939.
The Trial Court as well as the first appellate court decided all the issues in favour of the plaintiff, but dismissed the suit as not maintainable holding that the defendant being a sub tenant was liable to be ejected only in terms of section 175 and not under section 180 of the Act, and had the suit been brought under section 175 it would have been stayed in terms of the Government Notification dated 23.1.1953.
In the second appeal by the plaintiff the High Court held that the suit was rightly brought under section I80 and, finding the other issues in favour of the plaintiff, it decreed the suit.
Aggrieved, the defendant filed the appeal by special leave to this Court.
It was contended on behalf of the defendant appellant that his interest in the land was not extinguished on the extinction of the 673 tenants ' interest but continued even after termination of the period of his sub lease notwithstanding the plaintiffs ' notice; that although the term of lease had expired, he was not in unlawful or unauthorised occupation but was in pos session of the land by reason of his being a lessee, and, therefore, section 175of the United Provinces Tenancy Act, was applicable; and that he ceased to be a sub tenant and was elevated to the position of a tenant on the extinction of the interests of the tenants on their surrender of the holding.
Dismissing the appeal, this Court, HELD: (By the Court Dr.
T.K. Thommen & R.M. Sahai, JJ.) (1) The interest of a non occupancy sub tenant, is liable to be extinguished consequent on the extinction of the inter ests of the nonoccupancy tenant, and he enjoys a legal right for a limited period in terms of the statute.
(2) A person who continues to remain in occupation of the land even after the expiry of the period of his lease, and despite the landlords ' notice to quit the permises, can no longer be regarded as a tenant as referred to in clause (a) or clause (b) of section 175 of the United Provinces Tenancy Act, 1939.
(3) The persons who axe not, or are no longer, tenants at the time of the suit, and liable to ejectment, have to be proceeded against under section 180 of the United Provinces Tenancy Act, 1939.
Per Dr. Thommen, J. 1.1 The extinguishment of the interest of a non occupan cy tenant would, as envisaged by section 47(1) of the United Provinces Tenancy Act, 1939, extinguish the interest of his sub tenant except as otherwise proVided in sub sections
(3) and (4).
[685A B] 1.2 Notwithstanding the extinction of the interest of the the by reason of his surrender or any other reason mentioned under subsection (4) of section 47, a sub tenant whose sub tenancy had not expired, was protected for the remainder of the term of the sub lease or for 5 years, whichever period be the shorter, but subject to the requirement of sub section (5) about rent.
[681G H] 2.1 In the instant case, the interests of the tenants had become extinguished in terms of clause (c) of section 45 of the United Provinces 674 Tenancy Act by reason of surrender of their interests in the holding on 14.9.54 in favour of the proprietor plaintiff.
[679G H] Once the interest of the person under whom the defendant held the land was extinguished, the defendant was no longer a sub tenant, but a person enjoying a legal right for a limited period in terms of the statute.
[685B] Birendra Pratap Singh & Anr.
vs Gulwant Singh & Ors., ; , referred to.
Biswabani (P) Ltd. vs Santosh Kumar Dutta & Ors.
, ; , held inapplicable.
The interest of the defendant, being that of a nan occupancy subtenant, was, subject to the provisions of sub ss.(4)and (5) of section 47, liable to be extinguished consequent on the extinction of the interests of the non occupancy tenants.
[681 B C] 2.2 The statutory right vested in the defendant remained in force only for the statutority limited period, for the purpose of removal of standing crops and other products of the earth, and he had an obligation to vacate the holding, as envisaged by section 48.
[681H; 682A] 2.3 The terms and conditions under which the defendant held the sub lease under the tenants continued to be binding and enforceable between the plaintiff and the defendant for the period from 14.9.1954, which was the date of surrender by the tenants, till 31.12.1954, which was the date on which the defendant 's sub lease expired.
This was, however, sub ject to sub section
(5) of section 47 which provided that, if the rent payable by the sub tenant was less than the rent that was payable by the tenant, the sub tenant had the option of vacating the holding or continuing in possession for the period permitted by the statute on payment of rent at the higher rate which was applicable to the tenant.
[681E F] 3.1 Section 175 of the United Provinces Tenancy Act, dealing with a non occupancy tenant, is confined to a person who is a tenant either in terms of an unexpired lease or by reason of his being allowed to continue in possession, after the expiry of the period of the lease.
The section has no application to past tenants whose interests have become extinguished for the reasons stated in section 45 or section 47 or whose lease has been duly determined.
[682F G; 683E] 675 675 3.2 There must be an existing or continuing legal rela tionship between the owner and the person in possession of the land.
In the absence of any such relationship, either because no lease or any other interest or right was ever granted or because it was duly determined or extinguished, a person retaining possession of the land without the consent and contrary to the will of the landlord does not come within the purview ors.
[684A B] 3.3 Persons who are not, or, who are no longer, tenants at the time of suit, and liable to ejectment, have to be proceeded against under section 180.
[682G H] 3.4 section 180 has no application to a present tenant.
It is meant for ejectment of a person who has no present right to retain possession of land either because his occupation commenced without any such right or the right by which he commenced the occupation has since been duly extinguished or terminated in accordance with the law in force.
[683B; 684B C] Bhinka & Ors.
vs Charan Singh, [1959] Supp. 2 SCR 798, referred to.
The learned Judges of the High Court were correct in holding that insofar as the defendant continued to remain in occupation of the land even after the expiry of the period of his lease, and despite the landlord 's notice to quit the premises, he could no longer be regarded as a tenant re ferred to in clause (a) or (b) of section 175 and, therefore, that section had no application to him.
The right section in terms of which a suit had to be brought against him, as the plaintiff did in the instant case, was section 180.
[686G H; 687A] Per Sahai.
J.: 1.1 Sub tenant, literally or statutorily either in the Rent Control legislations or agricultural tenancies, normal ly is a person in possession holding from the tenant.
His right or interest depends on provisions in the statute.
[687C] 1.2 Under U.P. Tenancy Act, sub tenant according to clause (22) of section 3 holds land from a tenant, and even though he is included in the definition of tenant in clause (23) and is non occupancy tenant under section 31 of the Act, yet, he is inferior class of tenant as he is specifically precluded by section 39 from subletting and has no security of tenure as he can be evicted under section 175 of the Act and his interest in the holding 676 extinguishes, statutorily, under section 47 on extinction of interest of his tenant under section 45 of the Act.
[687C D] 2.1 A combined reading of sub sections (1) and (4) of section 47 shows that the interest of a sub tenant extinguishes on surrender by his tenant but this is deferred for the period mentioned in sub section (4).
The extinction is complete but its operation is postponed to a later date.
The right creat ed by sub section (4) being limited in operation it cannot extend beyond the period mentioned in it.
[689G H; 690A B] 2.2 Section 47 is wider in application and immediate in operation.
It extends to every tenant holding under a tenant other than permanent tenure holder or fixed rate tenant.
The interest of such tenant extinguishes, automatically and immediately by operation of law on extinction of interest of his chief tenant.
No further requirement is contemplated.
He becomes liable to ejectment.
If he continues in possession he is a trespasser unless he holds with consent of the landholder/landlord expressly or impliedly, and, as envis aged by section 48, he is required to vacate the holding .except for the standing crops and produce which he is permitted to remove as any other tenant ejected in accordance with the provisions of the Act.
[689A C] ' Section 47(4) does not arrest extinction.
It only postpones it.
[690C D] Birendra Pratap vs Gulwant Singh and Others, ; referred to.
2.3 The expression, 'Except as provided ' in sub section (1) of section 47 does not carve out an exception to extinction of interest of Subtenant but to its immediate operation.
That is interest in the holding is extinguished but form a future date namely expiry of the period of leases or five years whichever is shorter.
This benefit or concession cannot be stretched to vest any fresh tenancy right in him after expiry of the period.
[689F G] 2.4 No new tenancy is created by sub section
(4) of section 47.
What is made binding and enforceable is the old covenant existing between the tenant and sub tenant for the remainder period of the sub lease.
Whatever right a sub tenant ac quires it ceases to operate after the expiry of period of lease or the period mentioned in the sub section.
No second extinction is visualised.
[690E F] 3.1 Status of a person in possession after expiry of the remainder 677 period of lease or five years as provided in section 47(4) can neither be of statutory tenant nor a tenant holding over as understood in common parlance.
He is a person in possession without authority of law.
[690G] 3.2 A sub tenant whose extinction is postponed as a matter of concession because of the tenant 's prejudicial acts cannot be placed any higher than other sub tenants who are required to vacate their holding immediately under section 48.
Therefore, retention of possession by such person cannot he except otherwise than in accordance with the provisions of the Act for the time being in force.
[690G H; 691A] 4.
The full Bench of the High Court was right in holding that the effect of extinction of sub tenant 's interest under section 47(1) of the Act was not only that 'he could no longer be held to he in the capacity of subtenant ' but even the 'new right ' of continuance for the remainder period of lease which was created under section 47(4) was limited and did not vest any right in such person to continue after that date nor any fresh right of sub tenancy could be deemed to ac crue; consequently, possession of such person after expiry of the extended period, was otherwise than in accordance with the provision of law against whom a suit for ejectment under section 180 of the Act was maintainable.
[691A C]
|
vil Appeal Nos.
2266 69 of 1979.
705 From the Judgment dated 9.8.1978 of the Punjab and Haryana High Court in L.P.A. Nos.
576 to 579 of 1975.
Harbans Lal and M.V. Goswami for the Appellants.
Iqbal Singh for the Respondent.
The following Order of the Court was delivered: These appeals by special Leave are directed against the common judgment and decree of the Punjab and Haryana High Court passed in L.P.A. Nos.
576 79 of 1975.
Three brothers, by means of four sale deeds executed on June 25, 1968, sold some parcels of land to Harbhajan Singh respondent herein.
The 4th brother by the name of Ujagar Singh, whose legal representatives are the appellants herein,.
filed four suits of preemption ,against the vendee and those were decreed on July 15, 1970, on terms of payment of pre emption money on or before August 30, 1970.
Four appeals were filed by the plaintiff pre emptors before the District Judge for the reduction of the pre emption money.
On an application moved by the pre emptors the time for deposit of the amount fixed under the decree by the Trial Court was extended till further orders.
The appeals finally were rejected under Order 41 Rule 3 of the Code of Civil Procedure as being insufficiently stamped and hence not properly presented.
Before hand, however, 'the laintiff pre emptors all the same, deposited the pre emption amount in the Trial Court, on their own, on October 26, 1970.
After the rejection of their appeals, the pre emptors sought execution of the pre emption decrees which attracted objections by the vendee judgment debtor.
The primary objec tion raised was that the suits stood automatically dismissed for non deposit of the preemption money within the time identically stipulated under the questioned decrees.
The plea of the vendee was based on the mandate of Order 20 Rule 14, Civil Procedure 'Code whereunder the Court when decree ing the claim to pre emption is required to specify in the decree on or before which the pre emption money shall be paid, if not already paid, and further if it is not so paid, the suit shall stand dismissed with costs.
(Whatever is relevant in Order 21 Rule 14 alone has been taken note of).
The date specified by the Trial Court as said before was August 30, 1970 and under the interim orders of the Appel late Court the time for depositing the said money was ex tended till 706 further orders.
Undeniably the Court never passed any fur ther orders in that regard and thus the time for depositing the said money stood extended without any limit.
objec tion was sustained by the Trial/ Executing Court.
On appeal to the Appellate Court at the instance of the pre emptors, the District Judge took .a contrary view permitting the execution to proceed.
A learned Single Judge of the High Court in appeal upheld the view of the District Judge, but a Division Bench of the High Court.
In Letters Patent Appeals, reversed the District Judge as also the Single Judge uphold ing the objection by the vendee that there were no decrees which could be executed.
We have heard learned counsel for the appellant for he alonewas present.
There has been a sea change in the law of pre emption in the States of Punjab and Haryana where from these appeals have arisen.
Whereas in Punjab the Punjab Pre emption Act itself has been repealed, in Haryana it has substantially been chopped down by justicing.
This Court in Atam Parkash vs State of Haryana & Ors., ; declared ultra vires section 15(1) of the Punjab Pre emption Act, as ap plicable to Haryana, whereunder certain relatives of the vendor had been given the right to pre empt a sale of immov able.
property.
The view of this Court and the present state of law is not by any means insignificant or irrelevant for judging the present matter and for resolving the controversy in hand.
Rather its pervasive thought permeats the mind.
Learned counsel for the appellants would have the con troversy determined on the anvil of Section 148 of the Code of Civil Procedure, pleading for time to be extended by the Court, as it is extendable when any period is fixed or granted by the Court for the doing of any act prescribed or allowed by the Court, even though the period originally fixed or granted has already expired.
He has brought to our notice that in the main matter when the appeal was rejected by the District Judge as being insufficiently stamped time was asked from the District Judge to make good the deficien cy in the stamp duty but that was rejected and though he concedes that the matter was not taken up in revision before the High Court, it is still contended that this Court should exercise its plenary power to extend the time in the inter ests of justice and have the Court fee made good.
He also concedes that when the District Judge was asked to extend and specify the time for deposit of the pre emption money, he had declined to exercise his discretion, so as to regula rise payment, when the appellants had by themselves 707 deposited the pre emption money on October 26, 1970 before hand,leaving the matter to be agitated before the executing Court.
Likewise it is contended that this Court can and should specify the time for deposit so as to regularise it in exercise of powers under Section 148 C.P.C. He also high lights that the mistake herein was that of the Courtand for both the propositions he takes aid of Jogdhayan vs Babu Ram & Ors., ; and Jagat Dhish Bhargava vs Jawahar Lal Bhargava and Others, ; In any event he concedes that for the later wrongful non exercise of discre tion of the District Judge, the matter was not taken in Second Appeal or Revision, as the case may be, before the High Court.
We have pondered over, the matter.
Our view may appear some what slanting but we cannot disassociate ourselves from the canvass now spread, showing there is no law of pre emp tion permitting a decree to be drawn in terms of Section 15(1) of the Punjab Pre emption Act.
Were we to exercise at all the discretions on the subject afore mentioned we would in any event be completing the process of decreeing the suits; the suits which have been held to fall down under Order 20 Rule 14 of the Code of Civil Procedure, tantamount ing to their dismissal, and that too on present day when such decrees cannot be passed.
The High Court however, took the controversy in a different light.
It took the view that the insufficiently stamped appeals be/ore the District Judge were no appeals in the eye of law, as was contende don behalf of the vendee, and the view of the District Judge in not extending time was right as it was rightly considered that the appeals had not been entertained at all.
Support was also taken for its view by the High Court from the circumstance of the order of the Court extending time ex parte, which conferred no obligation on the vendee to treat the decree operative against him as and when the pre emptors chose to deposit the pre emption money.
The High COurt on this reasoning restored the judg ment of the Trial/Executing Court,upholding the objections of the vendee.
Where the High Court arrived by following one way, we have been led to arrive by another.
The end result, however, is the same that the objections of the vendee mustremain sustained and the pre emptor appellants must fail in the event,not getting their suits for pre emption de creed.
The appeals must thus inevitably fail and are hereby dismissed.
Decreetal money deposited by the appellants may be permitted to be withdrawn by them, ii not already with drawn.
No costs for there is no opposition.
V.P.R. Appeals dis missed.
| Three brothers executed four sale deeds on June 25, 1968, to respondent.
The 4th brother, whose legal represen tatives are the appellants, filed four suits of pre emption against the vendee respondent and those were decreed on terms of payment of pre emption money on or before August 30, 1970.
The plaintiff pre emptors appellants filed four appeals before the District Judge for the reduction of the pre emption money.
On an application moved by the pre emptors the time for deposit of the amount fixed under the decree by the Trial Court was extended till further orders.
The appeals were rejected under Order 41 Rule 3 of the Code of Civil Procedure as being insufficiently stamped and not properly presented.
Before hand, however on 26.10.1970, the plaintiff pre emptors, deposited the pre emption amount in the Trial Court.
The pre emptors sought execution of the pre emption decrees.
The vendee judgment debtor raised objections stat ing that the suits stood automatically dismissed for non deposit of the pre emption money within the time identically stipulated under the decrees.
The objection was sustained by the Trial/Executing Court.
704 The appeal to the Appellate Court at the instance of the preemptors, was allowed, permitting the execution to pro ceed.
A Single Judge of the High Court in further appeal upheld the view of the District Judge, but the Division Bench of the High Court allowed the Letters Patent Appeals, upholding the objection made by the vendee respondent, that there were no decrees which could be executed, against which these appeals by special leave to this Court .were filed.
The appellants contended that the controversy could be determined on the anvil of Section 148 of the Code of Civil Procedure by extending time by the Court, as it was extend able when any period was fixed or granted by the Court for the doing of any act prescribed or allowed by the Court, even though the period originally fixed or granted had already expired; that this Court should exercise its plenary power in the interests of justice to extend the time.
Dismissing the appeals, this Court, HELD: 1.
There is no law of pre emption permitting a decree to be drawn in terms of Section 15(1) of the Punjab Pre emption Act.
Were the Court to exercise at all the discretions on the subject, the Court would in any event be completing the process of decreeing the suits; the suits which have been held to fall down under Order 20 Rule 14 of the Code of Civil Procedure, tantamounting to their dismiss al, and that too on present day when such decrees cannot be passed.
[707C D] 2.
The objections of the vendee must remain sustained and the pre emptor appellants must fail in the event, not getting their suits for pre emption decreed.
Decretal money deposited by the appellants may be permitted to be withdrawn by them, if not already withdrawn.
[707F G] Atarn Parkash vs State of Haryana & Ors., ; , followed.
Jogdhayan vs Babu Ram & Ors., ; and Jagar Dhish Bhargava vs Jawahar Lal Bhargava and Others, ; , referred to.
|
ivil Appeal No. 902 of 1977.
From the Judgment and Order dated 13.7.1976 of the Madras High Court in S.A. No. 1575 of 1973.
, K. Ram Kumar and Ms. Janki Ramachandran for the Appellant.
M. Raghuraman for the Respondents The Judgment of the Court was delivered by KASLIWAL, J.
This appeal by Special Leave is.
directed against the Judgment of the High Court of Judicature at Madras dated 29.7.1976.
The short controversy in the case is regarding the ambit and scape of a will dated 22.6.
executed by one Padmanabha Chettiar.
The construction of the will is in question in the present case.
A translation of the will as supplied by the appellant in this Court reads as under: "On the 2nd day of June, 1924, i.e. Tamil 9th day of Ani of Raktakshi.
year, this will executed by me, Padmanabha Chettiar, son of Sami Chettiar, Vysya caste, cultivation, resident of New Street, Sultanpettai, Koppam, Palakkadu Taluq, Kallikottai District, presently at Aniaimalai, is to the effect.
As I do not have male progeny and I have attained old age, the movable and immovable properties mentioned hereunder in my possession and enjoyment, both ancestral and also self ac quired, shall be enjoyed by me absolutely till my life time, after my lifetime my wife Dhana lakshmi Ammal shall enjoy likewise till her lifetime; after her lifetime as described hereunder A Schedule properties shall be enjoyed absolutely by my daughter and wife of Anaimalai Subramania Chettiar, Rajalakshmi Ammal, and after her it should go to her male children".
The question which arises on the basis of the contents of the above will is whether Rajalakshmi Ammal had acquired a life estate 716 under the will or an absolute estate.
The High Court took the view that it was one of the cardinal principles of construction of wills that so far as legally possible effect should be given to every disposition contained in the will unless the law prevents such effect being given to it.
The High Court held that the fact that the testator directed that after Rajalakshmi Ammal it shall go to her male chil dren clearly showed an intention that Rajalakshmi Ammal 's interest in the properties should not be absolute.
The High Court thus arrived to the conclusion that Rajalakshmi Ammal should be deemed to have held only a life estate in the properties and after her death, her 'male children got the properties absolutely.
After going through the contents of the will we agree with the view taken by the High Court.
We do not agree with the contention of the learned counsel for the appellant raised before us that Padmanabha Chettiar, the testator, of the will wanted to give absolute right in the property to his wife Dhanalakshmi Ammal and thereafter absolute right in favour of his daughter Rajalakshmi Ammal.
The above inten tion is negatived by a clear mention in the will that after Rajalakshmi Ammal the property shall ultimately go to her male children.
In case the intention of the testator was to give the properties absolutely in favour of Rajalakshmi and not merely life interest then there was no question of mentioning that after her it should go to her male children.
Learned counsel for the appellant also raised a conten tion that even if it may be considered that only life inter est was given to Rajalakshmi Ammal under the will, such right became absolute under Section 14 (1) of the .
This contention was neither raised in any of the courts below nor before the High Court nor in the petition for special leave and we cannot permit this ground to be raised for the first time before us during the course of arguments.
In the result we find no force in this appeal and the same is dismissed with no order as to costs.
T.N.A. Appeal dis missed.
| 'P ' executed a will on 22.6.1924.
The terms of the will provided that after the death of testator his wife shall enjoy the properties till her lifetime; after her wife 's lifetime the properties shall be enjoyed absolutely by his daughter and after her daughter the properties should go to her male children.
A question arose as to whether on the basis of the will the daughter acquired a fife estate or an absolute estate.
The High Court held that the fact that the testator directed that after her daughter the properties shall go to her male children clearly showed an intention that daughter 's inter est in the properties was not absolute.
Accordingly, the High Court held that the daughter acquired only a life estate in the properties.
Hence this appeal against the judgment of the High Court.
Dismissing the appeal, this Court, HELD: 1.
It cannot be held that the,testator of the will wanted to give absolute right in the property to his daugh ter.
The intention of the testator to give absolute right in the property to his daughter is negatived by a clear mention in the will that after his daughter the property shah ulti mately go to her male children.
In case the intention of the testator was to give the properties absolutely in favour of his daughter and not merely life interest then there was no question of mentioning .that after her it should go to her male children.
Accordingly, the view taken by the High Court was correct.
[716C E] 715 2.
A contention neither raised in any of the courts below nor before the High Court nor in the petition for special leave cannot he permitted to be raised for the first time before this Court during the course of arguments.
[716F]
|
(Crl.) No. 116 of 1990.
(Under Article 32 of the Constitution of India).
R.K. Garg, N.D. Garg, Rajiv Kr.
Garg and P.C. Choudhary for the Petitioner.
U.R. Lalit and Ms. Kamini Jaiswal for the Respondents.
The Judgment of the Court was delivered by VERMA, J.
The short question arising for decision by us is the true meaning of Sub section (2) of Section 427 of the Code of Criminal Procedure, 1973 and its effect.
For an Offence of murder committed on 17.9.1978 the petitioner, Ranjit Singh, was convicted under Section 302 I.P.C. by the Sessions Judge on 6. 3.1979 and sentenced to life imprisonment which was confirmed by the High Court of Punjab & Haryana.
While the petitioner was on parole after his conviction and sentence for first murder, he was tried for the second murder committed On October 25, 1980 and convicted under Section 303 I.P.C.
This conviction was altered to one under Section 302 I.P.C. and for the second murder, also the petitioner was sentenced by this Court on 30.9.
1983 to life imprisonment instead of death sentence.
This Court while disposing of the.
petitioner 's appeal, in this manner, directed as under: 746 "We feel that life imprisonment would be the proper sentence that should be imposed upon the appellant.
We accordingly reduce the sentence of death imposed upon him and, sen tence him to suffer rigorous imprisonment for life.
However, since the present murder was committed by him within a span of one year of his earlier conviction and that too when he was released .on parole we are clearly of the view that the instant sentence of imprisonment for life awarded to him should not run concur rently with his earlier sentence Of life imprisonment.
We therefore, direct that in case any remission or commutation in respect of his earlier sentence is granted to him the present sentence should .commence thereafter.
" The petitioner has now filed this Writ Petition under Arti cle 32 of the Constitution for issuance of a suitable writ or direction to correct,the above direction given in the 0order dated September 30, 1983 to bring it in consonance with Section 427(2) Cr. P.C. and consequently for his re lease on the ground that both life sentences had to run concurrently in accordance with Section 427(2) Cr.
P.C. and he is entitled to relief because he has undergone fourteen years sentence of imprisonment with remissions at the time of filing the Writ Petition on February 19, 1990.
This is how the question of construction of Section 427(2) Cr.
P.C. arises in the present case.
Section 427 of the Code of Criminal Procedure, 1973 is as under: "427.
Sentence on offender already sentenced for another offence (1) When a person already undergoing a sentence of im prisonment is sentenced on a subsequent con viction to imprisonment or imprisonment for life, such imprisonment ' or imprisonment for life shall commence at the expiration of the imprisonment to which he has been previously sentenced, unless the Court directs that the subsequent sentence shall run concurrently with such previous sentence: Provided that where a person, who has, been sentenced to imprisonment by an order under Section 122 in default of furnishing security is, whilst undergoing such sentence, sentenced to imprisonment for an offence committed prior to the making of such order, the latter sen tence shall commence immediately.
747 (2) When a person already undergoing a sentence of imprisonment for life is sen tenced on a subsequent conviction to.
impris onment for a term or imprisonment for life, the subsequent sentence shall run concurrently with such previous Sentence . ' ' Shri R.K. Garg, learned counsel for the petitioner strenu ously urged that this Court 's above quoted direction in the judgment dated 30.9.1983 passed in Criminal Appeal No. 418 of 1982 while affirming the conviction under Section 302 I.P.C. for the second murder and imposing the punishment of life imprisonment for it 'also amounts to directing that the two sentences of life imprisonment are tO run consecutively and not concurrently which is in direct conflict with Sub section (2) of Section 427 Cr.
P.C. He ,urged that the life 'span of a person Could be only one and therefore ,any subsequent life sentence must run concurrently and not consecutively which is the clear mandate :of Section 427(2).
On this basis, it was, urged that this Court 's direction in the above manner on the petitioner 'S conviction for the second offence of murder is contrary to Section 427(2) of the Code 01 Criminal Procedure, 1973.
This is the basis of the reliefs claimed on behalf of the .petitioner.
In reply, Shri U.R. Lalit.
appearing.
on behalf of respondents, con tended that the direction of this Court properly construed is not contrary to Section 427(2) Cr.
P.C. and, therefore, the question of issuing any writ or directions claimed by the petitioner does not arise.
We may straightaway mention that the question of grant of relief under Article 32 of the Constitution does not arise on the above facts.
The petitioner 's incarceration is the result of a valid judicial order and, therefore, ' there can be no valid claim to the infringement of any fundamental right which alone can be the foundation for a writ under Article 32 of the COnstitution.
The only question, it ap pears, therefore, is about the correct construction of the direction given by this Court in its judgment dated 30.9.1983 in Criminal Appeal No. 418 of 1982 in the fight of the true meaning of Section427(2) Cr.
The meaning of a sentence of imprisonment for life is no longer res integra; It was held by a Constitution Bench in Gopal Vinayak Godse vs The State of Maharashtra and Others, ; that a sentence of transportation for life or imprisonment for life must prima facie be treated as transportation Or imprisonment for the whole of the remain ing period of the convicted person 's natural life.
It was further held: 748 "Unless the said sentence is commut ed or remitted by appropriate authority under the relevant provisions of the Indian Penal Code or the Code of Criminal Procedure, a prisoner sentenced to life imprisonment is bound in law to serve the life term in prison.
" The contention that a sentence of life imprisonment was to be treated as a sentence of imprisonment for a fixed term was expressly rejected.
This view was followed and reiterat ed in Maru Ram vs Union of India & Ant., [1981] 1 S.C.R. 1196 while considering the effect of Section 433A introduced in the Code of Criminal Procedure, 1973 with effect from 18.12.1978.
The Constitution Bench in Maru Ram summarised one of its conclusions as under: "We follow Godse 's case (supra) to hold that imprisonment for life lasts until the last breath, and whatever the length of remissions earned, the prisoner can claim release only if the remaining sentence is remitted by Govern ment.
" Another conclusion in Maru Ram was that the mandatory mini mum of 14 years ' actual imprisonment prescribed by Section 433A which has supremacy over the Remission Rules and short sentencing statutes made by the various States will not operate against those whose cases were decided by the trial court before the 18th December, 1978 when Section 433A came 'into force but Section 433A would apply to those sentenced 'by the trial court after 18.12.1978 even though the offence was committed prior to that date.
From these decisions it is obvious that the mandatory minimum of 14 years '.
actual imprisonment prescribed by Section 433A is applicable to petitioner in respect of both sentences of life imprisonment since the conviction by the trial court even for the first murder was after 18.12.1.978, the second offence itself being committed after '18.12.1978.
There is no dispute that the mandatory minimum of 14 years ' actual imprisonment, as required by Section 433A even for the first sentence of life imprisonment, has not been served out by the petitioner and, therefore, irrespective of the points raised in this petition on the basis of Section 427(2) Cr.
P.C. the petitioner cannot claim relief much less a writ under Article 32 of the Constitution in the absence of the remaining sentence being remitted by the Government.
This alone is sufficient to refuse any relief under Article 32 of the Constitution.
The question now is of the meaning of Section 472(2) Cr. P.C, and its effect, in the present case, in view of the above quoted direc 749 tion Of this Court in its judgment dated 30.9.1983.
Sub section (1) of Section 427Cr.
P.C. provides for the situation when a person already undergoing a sentence of imprisonment is sentenced on a subsequent conviction to imprisonment or life imprisonment.
In other words, Sub section (1) of Section 427 Cr.
P.C. deals with an offender who while undergoing sentence for a fixed term is ' subse quently convicted to imprisonment for a fixed term or for life.
In such a situation, the first sentence, being for a fixed term, expires on a definite date which is known when the subsequent conviction is made.
, Sub section (1) says that in ' such a situation, the date of expiry of the first sentence which the offender is undergoing being known, ordinarily the subsequent sentence would commence at the expiration of the first term of imprisonment unless the Court .directs the subsequent sentence to run concurrently with the previous sentence.
Obviously, in cases ' covered by Sub section (1)where the sentence is for a fixed ' term, the subsequent sentence Can be consecutive unless directed to run concurrently.
Sub section (2), on the other hand, pro vides for an offender "alreadly undergoing sentence of imprisonment for life" who is sentenced on a subsequent conviction to imprisonment for a term or for life.
It is well settled since the decision of this Court in Gopal Vinayaka Godse and reiterated in Maru Ram that imprisonment for life is a sentence for the remainder or the life of the offender unless the remaining sentence is commuted or remit ted by the appropriate authority.
This being so at the.stage of sentencing by the Court On a subsequent conviction, the earlier sentence of imprisonment for life must be understood in this manner and, therefore, there can be no question of a subsequent sentence of.
impriosnment for a term or for life running consecutively which is the general rule laid down in Sub .
section (1) of Section 427.
As rightly contended 'by Shri Garg, and not disputed by Shri Lalit, the earlier sentence of imprisonment for life being understood to mean as sentence to serve the remainder of life in prison unless commuted or remitted by the appropriate authority and a person having only one life ' span, the sentence on a subse quent conviction of imprisonment for a term or imprisonment for life can only be superimposed to the earlier life sen tence and certainly not added to it since extending the life span of the offender or for that 'matter anyone is beyond .human might.
It is this obvious situation which is stated in sub section (2) of Section 427 since the general ' rule enunciated in sub section (1) thereof is that without the Court 's direction the subse .
quent sentence will.
not run concurrently, but consecutively.
The only situation in which no direction of the Court is needed to make the subse quent sentence run concurrently with the previous sentence is 750 provided for in Sub section (2) which has been enacted to avoid any possible controversy based on Sub section.
(1) if there be no express direction of the Court to that effect.
Sub section (2) is in the nature of anexCeption to the general rule enacted in Sub section (1) of Section 427 that 'a sentence on subsequent conviction commences on expiry of the first sentence unless the Court directs it to run concurrently.
The meaning and purpose of Sub sections (1) & (2)of Section 427 and the object of en,acting Sub section ?)is, therefore, Clear.
We are not required to say anything regarding the practical.
effect of remission or commutation of the sentences since that question does not arise in the present case.
The limited controversy before us has been indicated.
The only question now is of 'the meaning and effect of the above quoted direction in this Court 's judgment dated 30.9.1983 It is obvious that the direction .of this Court must be con strued to harmonise with Section 427(2) Cr.
P.C. which is the statutory mandate apart from being the obvious truth.
The subsequent sentence of imprisonment for life has, there fore, to run concurrently with the read as sentenceof imprisonment for life awarded to the petitioner.
Thed exercise is to construe the last sentence in the direction which re under: "We, therefore, direct that in case any remission or commutation .in respect of his earlier sentence is grant ed to him the present sentence should commence thereafter.
" It is in the background of this ultimate direction that the proceeding portion has to be read.
This last sentence in the direction means that in case, any remission or commutation is granted in respect of the earlier.
sentence.
of life imprisonment alone then the benefit of that remission or .commutation will not ipso facto be available in respect of the sub.
sequent sentence of life imprisonment which would continue to be unaffected by the remission or commuta tion in respect of the earlier sentence alone.
In other WordS, the operation of the superimposed subsequent sen tence, of life imprisonment shall not be wiped out .merely because in respect of the corresponding earlier sentence of life imprisonment any remission or commutation has been granted by the appropriate authority.
The consequence is that the petitioner would not 'get any practical 'benefit of any remission or commutation respect of his earlier sentence because of the superimposed subsequent life sen tence unless the same corresponding benefit in respect of the subsequent sentence.
is also .granted tO the petitioner.
It is in this manner that the direction is given for the, two Sentences of life impri 751 sonment not to run concurrently.
The ultimate direction contained in the last sentence is obviously for this purpose.
So construed the direction of this Court in the judgment dated 30.9.1983 in Criminal Appeal No. 418 of 1982 fully harmonises with Section 427(2) Cr.
P.C. This is the clarification we make of this Court 's judgment dated 30.9.
1983 in Criminal Appeal No. 4 18 of 1982.
We have already stated that this petition 'for the issuance of a writ Under Article 32 of the Constitution is untenable.
We have, there ' fore, treated it as a petition for clarification of the judgment dated 30.9.1983 in Criminal Appeal No. 418 of 1982.
Accordingly, the petition is disposed of with this clarifi cation.
R.P. Petition disposed of.
| The petitioner who was convicted under section 302 IPC on 6.3.1979 and sentenced to life imprisonment; was also tried for a second murder committed while he was on parole after his conviction and sentence for the first murder, and was convicted under section '303 IPC.
Altering the conviction to one under section 302 IPC, for the second murder this Court sentenced him to life imprisonment instead of death sentence and by its judgment dated 30.9.1983 directed that in case any remission and commutation in respect of his earlier sentence 'was granted, the latter sentence should commence thereafter.
The petitioner filed a writ petition under Article 32 of the Constitution.
praying for his release on the ground that both the life sentences had to run concurrently in accord ance with section 1427(2) Cr. P.C., and as he had undergone 14 years sentence of imprisonment with remissions at the time of filing the writ petition on .February 19, 1990, he was entitled to be released. 'It was contended that this Court 's direc, tion dated 30.9.83 was .contrary to section 427(2) of the Code of Criminal 743 Procedure, 1973 since it amounted to directing that the two sentences of life imprisonment were to run consecutively and not concurrently.
On behalf of the respondents it was contended that the direction of this Court, properly construed, was not contrary to.s.
427(2) Cr.
P.C. and, therefore, the question of issuing any writ or directions as claimed by the peti tioners did not arise.
Disposing of the petition treating it as one for clari fication of the judgment dated 30.9.1983 this Court, HELD: 1.1 A sentence of transportation for life or imprisonment for life must prima facie be treated as trans portation or imprisonment for the whole of the remaining period of the convicted person 's natural life unless the remaining sentence is 'commuted or remitted by the appropri ate authority.
This being so at the stage of sentencing by the Court on a subsequent conviction, the earlier sentence of imprisonment for life must be understood in this manner and, therefore, there can b no question of a subsequent sentence of imprisonment for a term or for life running consecutively which is the general rule laid down in sub s (1) ors.
427, Cr.
P.C. [747G; 749D E] 1.2 The earlier sentence of imprisonment for life being under stood to mean as sentence to serve the remainder of life in prison unless commuted or remitted by the appropri ate authority and a person having only one life span, the sentence on a subsequent conviction of imprisonment for a term or imprisonment for life as envisaged by section 427(2) of the Cr.
P.C., can only be superimposed to the earlier life sentence and certainly not added to it since extending the life span of the offender or for that matter anyone is beyond human might.
[749F G] It cannot be said that a sentence of life imprisonment is to b treated asasentence of imprisonment for a fixed term.
[748B] Gopal Vinayak Godse vs The Stateof Maharashtra & Ors., ; and MaruRam vs Union of India & Anr., ; , followed.
2.1 The operation of the superimposed subsequent sen tence of Iife imprisonment should not be wiped out merely because in respect of to correspondingI earlier sentence of life imprisonment any remission or commutation was granted by the appropriate.authority.
[75lF G] 744 2.2 In the instant case, the last sentence in the direc tion meant that in case, any remission or commutation was granted in.
respect.
of the earlier sentence of life impris onment alone then the benefit of that remission or commuta tion would not ipso facto be available in respect of the subsequent sentence of life imprisonment which would contin ue to be unaffected by the remission or commutation in respect of the earlier sentence alone.
The consequence would be that the petitioner would not get any practical benefit of any remission or commutation in respect of his earlier sentence because of the superimposed subsequent life sen tence unless the same corresponding benefit in respect of the subsequent sentence was also granted to the petitioner.
It was in this manner that the direction 'was given for the two sentences of life imprisonment not to run concurrently.
[750E H; 751A] The subsequent sentence of imprisonment for life had, therefore, to run concurrently with the earlier sentence of imprisonment for life awarded to the petitioner.
[750C D] 3.
The general rule enunciated in sub,section (1) of section 427 Cr.
P.C. is that without the Court 's direction the subsequent sentence will not run concurrently but consecu tively.
[749G] The only situation in which no direction of the Court is needed to make the subsequent sentence run concurrently with the previous sentence iS provided for in sub,section (2) which has been enacted to avoid any possible controversy based on sub,section (1) if there being no express direction of the Court to that effect.
[749G H; 750A] Sub,section (2) is in the nature of an exception to the general rule enacted under sub section (1) of section 427 0Cr.
P.C. [T50A] 4.1 The mandatory minimum of 14 years ' actual imprison ment prescribed by section 433A Cr.
P.C. which has supremacy over the Remission Rules and short sentencing statutes made by the various States would not operate against those whose cases were decided by the trial court before the 18th Decem ber, 1978 when section 433A Cr.
P.C. 'came into force but the section would apply to those sentenced by the trial court after 18.12.1978 even though the offence was committed prior to that date.
[748D E] Maru Ram vs Union of India & Anr., ; , followed.
745 4.2 In the instant case, section 433A Cr.
P.C. was applicable to petitioner in respect of both sentences of life imprison ment since the conviction by the trial court even for the first murder was after 18.12.1978, the second offence itself being committed after 18.12.1978.
The mandatory minimum of 14years ' actual imprisonment as required by section 433A even for the first sentence of life imprisonment was not served out by the petitioner, and, therefore, irrespective of the points raised in the instant petition on the basis of section 427(2) Cr.
P.C. the petitioner could not claim relief much less a writ under Article 32 of the Constitution in the absence of the remaining sentence being remitted by the Government.
[748E G] 5.
The petitioner 's incarceration was the result of a valid judicial order and, therefore, there could be no valid claim to the infringement of any fundamental right which alone could be the foundation for a writ under Article 32 of the Constitution.
[747E F]
|
ivil Appeal No. 630 of 1981.
, From the Judgment and Decree dated 24.8.
1979 of the Andhra Pradesh High Court in Second Appeal No. 358 of 1977.
WITH S L .P Nos. 438/79 & 2113/80.
724 T.S. Krishnamurty lyer, G. Narasimhalu, G.S. Narayana, K. Ram Kumar, Mrs. Anjani, Mrs. J. Ramachandran, T.T. Kunhi kannan, section Srinivasan and A.T.M. Sampath for the appearing parties.
The Judgment of the Court was delivered by KASLIWAL, J.
In the above appeal and Special Leave Petitions question has been raised about the ambit and scope of Sec.
14(1) and 14(2) of the (hereinafter referred to as the 'Act ').
Before adverting to the legal question, it would be proper to narrate in short the facts of each case.
Civil Appeal No. 630 of 1981 Thota Madhav Rao, the plaintiff filed a suit against Thota Manikyamma on the allegation that the plaintiffs father Yellamanda and the defendant 's husband Late Venkata Subbayya were brothers.
As the defendant and her husband had no issue they brought up the plaintiff as their foster son from the age of eight years and thereafter the plaintiff continued to live with them and was brought up treating him as their own son.
Venkata Subbayya died on 14.1.1932 and before his death he executed a will bequeathing the suit properties in favour of his wife Smt.
Thota Manikyamma for her life with a vested remainder in favour of the plaintiff.
Both the parties lived together with perfect understanding but after some time there was misunderstanding and the defendant assumed hostile attitude towards the plaintiff and began to claim the suit property as her absolute property.
The defendant also executed a registered will on 26.10.69 bequeathing the suit properties in favour of one Ramisetti Koteswar Rao.
The plaintiff in these circumstances claimed absolute right in the suit properties after the lifetime of the defendant and challenged the right of the defendant to execute any will in respect of the suit properties.
The defendant took the plea that her husband died issueless and intestate and did not execute any will at any time.
Neither she nor her husband brought up the plaintiff as their foster son nor did they educate him.
The defendant had brought up Ramisetti Koteswar Rao, who is her nephew, from his child hood and performed his marriage.
On account of love and affection for him and his children, the defendant executed a registered will on 26.10.69 bequeathing all her properties in his favour.
The Trial Court held the will dated 14.1.1932 proved and decreed the plaintiffs suit.
The First Appellate Court upheld the Judgment and decree of the Trial Court.
The defendant preferred a second ' appeal in the High Court.
During the pendency of the Second Appeal in the 725 High Court the plaintiff died and his legal representatives were brought on record.
The High Court by Judgment dated 24.8.1979 allowed the second appeal and dismissed the suit with costs throughout.
The legal representatives of the plaintiff have come to this Court by grant of special leave.
The question involved is whether the life interest in the property acquired by Thota Manikyamma under the will execut ed by her husband and continued to be in her possession became her absolute property under Sec.
14(1) of the Act.
Special Leave Petition (C) No. 438 of 1979 One Meenammal is the wife of Ovi Reddiar.
Married life between Ovi Reddiar and his wife.
was not happy and cordial.
Ovi Reddiar executed a registered will exhibit A 4 dated 21.3.1921 bequeathing all his properties including the suit properties in favour of .his mother and sister for their lifetime and thereafter in favour of Ramalinga Reddiar and Dhanush Koti Reddiar, the two sons of his sister and their issues.
In the said will reference was made regarding the ' conduct of Meenammal in deserting him and in any event if she changed her mind and agreed to live under the protection of the legatees she was allowed to enjoy the income from item I of the suit properties and that she should construct a house in item referred to in the will and to live there during her lifetime and after her death the said Item and the house site .with the house shall go to the above men tioned Ramalinga Reddiar and Dhanush Koti Reddiar.
Ovi Reddiar died in 1922 and thereafter the legatees under the will entered into possession of all the proper ties.
Meenammal put obstruction to the legatees in getting possession.
There was some criminal litigation between Smt.
Meenam mal and the legatees under Sec.
145 Cr.
P.C. which resulted in favour of the legatees (exhibit A 1).
Meenammal then filed a suit in 1923 praying for a declaration that the will made by her husband was not valid and as such be cancelled and for possession and mesne profits and in the alternative she claimed for maintenance both past and future.
In the said suit the parties entered into a compromise and a com promise decree was passed on 5.3.1924, vide (exhibit A 1).
Under the terms of said compromise the execution of the will was accepted and the same was made subject to the terms of the compromise decree.
Under the compromise .decree it was agreed that Smt.
Meenammal would enjoy items 1 & 2 of the properties mentioned in the will and also 50 cents of land during her lifetime.
She would also have an enjoyment of the 726 house site during her lifetime without any right of aliena tion. ' Dhanush Koti died unmarried in 1930 but during his lifetime he sold his interest in.
the properties in favour of Ramalinga Reddiar.
Ramalinga Reddiar died in 1962.
On his death the petitioners before this Court being the sons and daughters of Ramalinga Reddiar Claimed to have become enti tled for all the properties of Ramalinga Reddiar including the rights in the suit property.
Meenammal during her lifetime executed a settlement deed in favour of the re spendents before this Court giving absolute rights in the suit properties.
The petitioners before this Court filed a suit against Smt.
Meenammal and the respondents for declara tion that the settlement deed (exhibit A 10) executed by Smt.
Meenammal will not enure beyond the lifetime of Smt.
Meenammal.
Meenammal contested the suit and took the plea that the limited interest given to her under the com promise decree had become enlarged into absolute right by virtue of Section 14(1) of the Act.
The Trial Court decreed the suit and it was.
affirmed in first appeal.
Meenam mal having died.
, the respondents in this Court preferred a second appeal in the High Court of Judicature at Madras.
The High Court allowed the Second Appeal and dismissed the suit filed by the petitioners.
The petitioners in these circum stances have filed the S .L.P. under Article 136 of the Constitution of India, S.L.P. (C) No. 2113 of 1980 The suit properties as well as some other properties originally belonged to one Ramalinga Udayar.
He had two wives, namely, Alamolu and Saraswati.
the first wife Alamolu was living away from her husband.
Ramalinga did not have any issue from both the wives.
Ramalinga being attached with one Siva Subramania the petitioner before us executed a will on 2.7.
1945 ,bequeathing his properties in favour of his second wife Saraswati for her lifetime and thereafter, absolutely in favour of Siva Subramania.
A provision was also made for the payment of Rs.68 and a direction to make available 18 kalams of paddy in favour of Alamolu for her lifetime.
In order to ensure the payment of the maintenance and delivery of paddy a charge was also created over the properties to go ultimately in favour of Siva Subramania Udayar.
As Siva Subramania Udayar was a minor at that time the second wife Smt.
Saraswati was appointed as his guard ian.
Ramalinga died on 8.7.45 and subsequently his first wife Alamolu was awarded 50 kalams of paddy and a sum Of Rs.250 in cash perannum 'by way of maintenance.
On appeal the High Court modified the decree of the Trial Court and en hanced the maintenance to Rs.480 per annum 727 and directed Siva Subramania the legatee under the will to give one building for the residence of Alamolu.
Thereafter in 195 1 Alamolu sought the recovery of possession of one of the buildings and the Executing Court alltted to her the eastern house backyard and the shops.
The second wife saras wati preferred an appeal to the High Court against the above order of the executing court.
A compromise was entered into between the parties in the High Court.
According to the terms of compromise Alamolu was permitted to occupy the eastern house together with the two shops but the backyard portion was not given.
Alamoler however remained in posses sion of that portion as well, where some coconut trees were standing.
Lateron Saraswati was removed from the guardian ship of Siva Subramania Udayar, and natural father was appointed as his guardian.
Alamolu died on 2.2.1966.
The respondents before us are brother 's grandsons of Alamolu.
Alamolu settled the suit properties in favour of one Chan drashekhar Udayar claiming title to the same in pursuance to a compromise in A.A.O. 567 of 1950.
Ramayya Mudaliar another respondent before us initially took on lease the properties from Chandrashekhar and lateron purchased the eastern half of the building and backyard portion.
Siva Subramania Udayar challenged these transactions on the grounds that Alamolu was given a right of residence only in the building and the same lasted till her lifetime and such right could never be enlarged into an absolute right.
The settlement deed made by her in favour of Chandrashekhar Udayar and the sale made by Chandrashekhar in favour of Ramaiah were invalid and no title could be conveyed by Alamolu in their favour.
Siva Subramania Udayar as such filed a suit for recovery of possession of the suit properties with mesne profits.
The Trial Court held that Alamolu was not the absolute owner of the suit properties as contemplated under Section 14(2) of the Act.
The suit as such was decreed in favour of the plaintiff Siva Subramania Udayar.
Learned Single Judge of the High Court dismissed the appeal.
On a Letters Patent Appeal the Division Bench of the High Court allowed the appeal and dismissed the suit.
The plaintiff Siva Subramania Udayar has filed the S.L.P. under Article 136 of the Consti tution of India.
The controversy raised in these cases is almost settled by a number of decisions of this Court.
However, Learned counsel for the appellant in the appeal as well as Learned counsel for the petitioners in the Special Leave Petitions have raised an argument, placing reliance on Mst.
Karrni vs Amru and Ors., that the life estate given to a widow under the will of her husband cannot become an absolute estate under the provisions of the Hindu succession Act, as 728 such we consider it proper to deal with this case in the light of other cases decided by this Court.
Section 14 of the reads as under: 14"(1) Any property possessed by a female Hindu, whether acquired before or after the commencement of this Act, shall be held by her as full owner thereof and not as a limited owner.
Explanation In this sub section, "property" includes both movable and immovable property acquired by a female Hindu by inheritance or devise, or at a partition, or in lieu of maintenance or arrears of maintenance, or by gift from any person.
Whether a relative or not, before.
at or after her marriage, or by her own skill or exertion, or by purchase or by prescription, or in any other manner what soever, and also any such property held by her as stridhana immediately before the commence ment of this Act.
(2) Nothing contained in sub section (1) shall apply to any property acquired by way of gift or under a will or any other instrument or under a decree or order or a civil court or under an award where the terms of the gift, will or other instrument or the decree.
order or award prescribe a restricted estate in such property".
The contention raised is that if a female Hindu acquires any property under a will which gives her a restricted estate in such property then provisions of sub section (2) will over ride, the provisions of subsection (1) of Section 14 of the Act which makes a female Hindu as full owner.
In Badri Prashad vs Smt.
Kanso Devi, ; a Bench of three Judges considered the question in detail.
In the above case a Hindu having self acquired properties, died in 1947 leaving five sons and a widow.
On a dispute between the parties an Arbitrator was appointed in 1950.
The Arbitrator gave an award and a decree was passed in terms of award.
Under the award the widow was given widow 's estate.
It was held that the widow inherited the property under Section 3 (1) of the Hindu Women 's Right to Property Act, 1937 and was in possession of it within the meaning of the word possession in Scetion 14(1) of the Act and when by an award her share was separetaed by metes and bounds, she also acquired the property within 729 the meaning of that section.
It was held that she had become full owner of the property in her possession under Section 14(i) on the coming into force of the , even though previously she was a limited owner.
It was clearly held in the above case that Section 14(2) of the Act is in the nature of a proviso or an excep tion to Section 14(1) and comes into operation only if acquisitiOn in any of the methods indicated therein is made for the first time without there being any pre existing right in the female Hindu to the property.
The Bench con sisted of Hon.
J.C. Shah, V. Ramaswamy and A.N. Grover, JJ.
The case of Mst.
Karmi vs Amru and Others, (supra) on which reliance has now been placed by Learned Counsel for the appellant and petitioners was also decided by a Bench of three Judges Hon.
J.C. Shah, K.S. Hegde and A.N. Grover, JJ.
It may be noted that two Hon 'ble Judges, namely, J.C. Shah and A.N. Grover were common to both the cases.
In Mst.
Karmi vs Arnru and Others, one Jaimal died in 1938 leaving his wife Nihali.
His son Ditta pre deceased him.
Appellant in the above case was the daughter of Ditta and the respondents were collaterals of Jaimal.
Jaimal first executed a will dated 18.12.1935 and by a subsequent will dated 13.11.1937 revoked the first will.
By the second will a life estate was given to Nihali and thereafter the property was made to devolve on Bhagtu and Armu collaterals.
On the death of Jaimal in 1938, properties were mutuated in the name of Nihali Nihali died in 1960/61.
The appellant Mst.
Karmi claimed right on the basis of a will dated 25.4.1958 execut ed by Nihali in her favour.
It was held that the life estate given to a widow under the will of her husband cannot become an absolute estate under the provisions of the Hindu Succes sion Act.
Thereafter, the appellant cannot claim the to the properties on the basis of the will executed by the widow Nihali in her favour.
It is a short Judgment without advert ing to any provisions of Sections 14(1) or 14(2) of the Act.
The Judgment neither makes any mention of any argument raised in this regard nor there is any mention of the earli er decision in Badri Pershad vs Smt.
Kanso Devi, (supra).
The decision in Mst.
Karmi & Anr.
cannot be considered as an authority on the ambit and scope of Sections 14(1) and (2) of the Act.
The controversy regarding sub Section (1) and (2) of Section 14 of the Act again came up for consideration in V. Tulsamrna & Ors.
vs V. Sesha Reddy (dead) by Lrs.
; , This case was also, decided by a Bench of three Judges.
In this case the controversy now raised before us was considered in detail.
All the earlier cases were 730 considered including Badri Prasad vs Smt.
Kanso Devi, (supra) and the ratio of this case was followed and approved in V. Tulsamma 's case.
Hon 'ble Bhagwati, J. who wrote the leading judgment dealt with the question in detail and after applying the mind to the controversy decided the same in a well considered manner.
V. Tulsamma 's case again was dis cussed in extenso and followed in Bai Vajia (dead) by L. Rs. vs Thakorbhai Chelabhai & On., ; , by a Bench of three Judges.
The same view has been consistently adopted in long series of cases of this Court and to mention a few of them are Jagannathan Pillai vs Kunjithapadam Pillai & Ors.
, [ ; ; Gopal Singh & Anr.
vs Dill Ram (dead) by L.Rs.
& Ors.
; , ; Gulwant Kaur and Others vs Mohinder Singh and Others, [ ; and Jaswant Kaur vs Major Harpal Singh, [ A mention of all the above cases shows that this Court in a long series 'of cases has taken a consistent view that Sec.
14(2) of the Act is in the nature of a proviso or an exception to Sec.
14 and comes into operation only if acqui sition in any of the methods indicated therein is made for the first time without there being any pre existing right in the female Hindu to the property.
If the case falls under the provisions of Sec.
14(1)of the ACt then the female Hindu shall be held to be full owner of the property and sub section (2) of Section 14 will only apply where the property is acquired without there being and pre exisitingisting right of the female Hindu in such property.
Thus we a firm and reiterate that sub section (2) of Sec.
14 will be con strued more in the nature of a proviso or an exception to sub section
(1) of Sec. 1 of the Act.
This view lends support to the object of the section which was to remove the disability on women imposed by law and to achive a social purpose by bringing about change in the social and economic position of women in Hindu society.
In the result we find no force in all the above cases and are dismissed with cost.
K. RAMASWAMY, J. 'I have had the advantage to read the draft judgment of my learned brother.
I fully agree with the resoning and conclusions.
The repeated attempts to reopen the ratio in Tulasamma 's case, in particular, from its proponent i.e. Sri Krishna Murthy lyar made me to tread the route through which I reached the same result thus: Sir Main Henry in his "Earlier History of Institutions" at p. 339 stated that, "the degree in which personal immuni ty and proprietory 731 capacity of women are recognised in a particular state or community is a test of the degree of the advance of its civilisation.
It is, therefore, clear that the esteem in which woman is held, the status occupied by her in society and the treatment meted out to her are regarded as index to the degree of civilisation and culture attained in a coun try.
Manu in his Smriti, Chapter III Verses 55 to 57 stated that where women are honoured and adorned there Gods are pleased, but where women are not honoured no sacred fire yields rewards.
What is the status held by women in the Hindu society is a matter of history reflected from Vedic culture, Smrities, the Shastric law, the statutory privision and ultimately converged and recognised in the supreme law of the land, i.e. egalitarian socialist Indian Constitution.
Shivaswamy lyer in his "Revolution of Hindu Women, " 1935 ,Edn.
p. 64 stated that the ideals of the society as to womanhood includes not merely the relations of husband and wife or mother and children or the other intimate rela tionship of family life, but also the notions we find about her capacity, her character, her claim to equality, inde pendence and freedom for developing, her rights to personal ownership and control of property, to the choice of her vocation and other rights as well as duties as member of the society.
Status and rights of Hindu woman fluctuated and swung like a pendulum with ups and downs from period to period starting from 4000 B.C. uptodate.
However esteem for women remained constantly high in the society.
In Vedic society woman enjoyed equal status economical ly, socially and culturally with men, vide p. 335,339 and 409 of The Position of Woman in Hindu Civilization, 1955 Edn.
by Altakar.
He stated that initiation to education upanayanam was performed in Vedic period to the girls as well as boys.
Women studied the Vedas, even composed Vedic rhymes.
They participated in public life freely.
Vishvavara, Apala, Lopamudra and Shashayasi are only few examples in the initial Vedic period.
Thereafter Ghosha, Maitrai and Gargi occupied price of place for equality in intellectual excel lence and equal status with men.
Selfishness and male chau vanism made woman to gradually degrade and were given no voice even in the settlement of their marriages or so on.
She was denied participation in public affairs.
Though Yajnavalkya was a proponent to her economic status but ultimately Manu Smriti took firm hold and in Chapter IX Verse 18, Manu stated that woman had no right to study the Vedas.
Thereby, denied the right to education, fundamental human right to acquire knowledge and cultural and intellec tual excellence.
In Chapter IX Verse 149, he stated that woman must not seek.
separation from father, husband or 732 son and bondaged her for ever.
In Chapter IX Verse 45, the husband was declared to be one with the wife that the wife can seek no divorce but allowed immunity to a male to dis card an unwanted wife.
All through the ages till Hindu Marriage Act was made a male was allowed polyandry.
In Chapter IX Verse 4 16, he stated that a wife, a son and a slave are declared to have no property and if they happened to acquire it would belong to male under whom she is in protection.
Thus she was denuded or her right to property or incentive to decent and independent living and made her a dependent only to rare children and bear the burdens.
When she becomes a widow, she was declared to have only mainte nance and if in possession of her husband 's property or coparcenery, to be a widow 's estate with reversionery right to the heirs of last male holder.
Fidality was a condition precedent to receive maintenance.
In Chapter IX Verse 299, he prescribed corporeal punishment to a wife who commits faults, should be beaten with a rope or a split bamboo.
If she was murdered it was declared to be an Upapattaka that is a minor offence vide Chapter XI Verse 67.
I did not adhere to literal translation but attempted to portray their sweep and deep incursion on social order.
Thus laid firm founda tion to deny a Hindu female of equality of status.
opportu nity and dignity of person with no independent right to property and made her a subservient, socially, educationally and culturally.
Widows were murdered by inhuman Sati and now by bride burnings.
Gautam Budha gave her equality of status and opportuni ty.
Efforts of social reformers like Raja Ram Mohan Rai, Kandukuri Veeresalingam and a host of other enlightened made the British Rulers gradually to make statute law, given her right to separate residence and maintenance and a right over property of her husband or joint family for maintenance and a charge by a decree of court.
Mahatma Gandhiji, the father of the nation, in Young India on October 17, 1929 had writ ten thus: "I am uncompromising in the matters of women 's rights.
In my opinion she should live under no legal disa bility, no suffering by men, we should treat the daughters and sons on the footing of perfect equality".
Shri Ravindra Nath Tagore, the Noble laureate in his speech in 1913 re printed in "To the Women" at page 18 stated "that women is the champion of man, gifted with equal mental capacity.
She has a right to participate in any minutest activity of men and she has equal right of freedom and liberty with him".
The Constitution of India accords socio economic and political justice, equality of status and of opportunity assuring the dignity of person with stated freedoms.
Article 14 guarantees equality.
In other 733 words frowns upon discrimination on any ground.
Article 15(1) abolishes discrimination and removed disability, liability or restriction on grounds of sex and ensures equality of status.
Arti cle 29(2) gives equal right to education.
In the earliest decision this Court upheld it in State of Madras vs Srimathi Champakam Dorairajan, ; Article 16(1) accords equality of opportunity in public service for an appointment or employment to an office or post under the State and prohibits gender discrimination.
Marriage as a disability for appointment to Indian foreign service was declared unconstitutional in C.S. Muthammav.
Union of India & Ors., ; Pregnancy as a disqualification to contin ue in public employment was held to be an affront to equali ty of status, dignity of person and equal opportunity vio lating Articles 14 and 16(1) in Air India vs Nergesh Meerza & Ors., ; It abhors or is loathe to civili ty.
These are few classic illustrations.
Article 15(3) treats women as a class, mitigates the rigour of absolute equality enshrined in article 14 and its species article 15(1) & 16(1) and enjoins the State to make any special provision to remedy past injustice and to advance their status, soeio econmic and political.
Article 21 assures protection of life which includes right to livelihood.
Article 38(1) obligates the State to promote the welfare of the people by securing social order in which socio economic and political justice shall inform all the institutions of the national life.
Subarticle (2) thereof further enjoins the State to minimise the inequalities in income and to eliminate inequalities ,in status by providing facilities and opportunities to all individuals.
Women should have adequate means of livelihood on par with men, article 39(a); should have equal pay for equal work, article 39(d); health and strength of working women are not abused.
Economic necessity is not a sanctuary to abuse her person or she should not be forced to an unsuited avoca tion, article 39(e); State shall provide just and human condi tions of work and maternity relief [article 42].
Article 46 mandates the State to promote with special care the economic and educational conditions of the weaker sections of the people.
It also enjoins to protect them from social injus tice and all forms of exploitation.
To enliven and alongate this constitutional goal to render socioeconomic justice, to relieve Hindu female from degradation, disabilities, disadvantages and restrictions under which Hindu females have been languishing over cen turies and to integrate them in national and international life, Bharat Ratna Dr. Baba Saheb Ambedkar, the first Law Minister and rounding father of the Constitution drafted Hindu Code Bill.
The Hindu, Marriage Act, Adoption and Maintenance Act; Minority and Guardianship Act and Succes sion Act 1956, for short 734 'the Act ' became a part of this package.
They ensue equal status and socio economic justice to Hindu female.
In a socialist democracy governed by rule of law, law as a social engineering should bring about transformation in the social structure.
Whenever a socio economic legislation or the rule or instruments touching the implementation of welfare meas ures arise for consideration, this historical evidence furnishes as the foundation and all other relevant material would be kept at the back of the court 's mind.
Section 14(1) of the Act declares that any property, movable or immovable, possessed by a female Hindu shall be held by her as full owner thereof and not as a limited owner irrespective of the time when the acquisition was made, i.e., whether it was before or after the Act.
Undoubtedly as contended by Sri Krishna Murty Iyer, a Hindu male has free dom of testamentary disposition of his property or by con tract and section 14(1) stand an impediment in his way.
Freedom of contract would yield place to public policy envisaged above.
Its effect must be tested on the envil of socio economic justice, equality of status and to oversee whether it would subserve the constitutional animation or frus trates.
article 15(3) relieves from the rigour of article 15(1) and charges the State to make special provision to accord to women socioeconomic equality.
The court would, therefore, endeavour to find whether terms of the disposition or clauses in the instruments, will etc. enumerated in section 14 would permeate the aforestated constitutional conscience to relieve the Hindu female from the Shastric bondage of limit ed estate.
Both sub sections (1) and (2) of section 14 attract the conferment of restricted estate had by a Hindu female under an instrument, i.e. gift, will, decree or order of a Civil Court or an award.
Section 14 and the impugned docu ment must be read harmoniously as an integral scheme.
The disability attached to Hindu female by Shastric Law was removed by statutory provisons in .
Section 14(1) thereof was thought to be a tool to remove disabilities or restrictions imposed by Customary or Shas tric Law on Hindu women.
section 14(1) declares in unequivocal terms that the property whether movable or immovable held by a Hindu female acquired either before or after the Act shall be her absolute property, abolishing the limited estate known to Shastric law.
Hindu women as a class are declared as class I heirs entitling to intestate succession to a 0Hindu Male.
This Court in Pratap Singh vs Union of India, [1985] Suppl.
2 SCR 773 held that section 14 of the Act does not discriminate on grounds of sex and is intra vires of article 15(3).
The preferential treatment accorded, thereby, was held to be not .violative of articles 14 and 15(1).
Sub section (2) of section 14 of the Act attempts to denude the object of sub section (1) and 735 emasculates its efficacy.
It should, therefore, be ' read as an exception or a proviso to sub section (1) of section 14.
The interpretation of the ' proviso or an exception should not be to allow.
to 'eat away the vital veins of full ownership accorded by sub section (1) of section 14 when this Court upheld the validity of section 14(1) on the envil of Art; 15(3)what should be the message thus intended to convey? It would mean that the court would endeavour to give full effect tO legis lative and constitutional vision of socio economic equality to female 'citizen by granting full ownership of property to a Hindu female.
As a fact article 15(3) as a fore runner to common code does animate 'to 'make law to accord socio economic equality to every female citizen of India, irre spective of religion, race cast or region.
In Seth Badri Preasad vs Smt.
Kanso Devi, [.1969] 2 SCC :586 in an injunction suit against the respondent, the appellant ,contended that the respondent was given limited estate in a decree passed in an award and that, therefore, section 14(2) applies.
Negating that contention, this court held that sub sec.
(2) of section 14 is more in the nature of a provi so or an exception to sub sec.
It can come into opera tion only if the acquisition is in any of the methods indi cated in sUb sec.
(2).without there being any pre existing right in the female Hindu who is in possession of the property.
I Section 14(1) removes the disability of the woman. 'It was accordingly held that though she came into possession by virtue of decree passed in an award as limited estate, she acquired the absolute ownership under sub sec.
(1) of section 14.
Section 14 was subject of critical consideration in V. Tulasamma vs
V. Sesha Reddy (dead) by L.Rs.; , and its ratio has become a Tulsidalam to Hindu.
women as locus classicus giving forward thrust.
to constitutional goal according full ownership in the property, movable or immovable,.
held by: her as full owner thereof; redeemed her from the shackles of women estate known to Shastric law.
Fazal Ali, J. undertook extensive survey into sources of Hindu Law and found 'that Hindu widow 's right to maintenance is a personal obligation of the husband and he has a duty to maintain her even if he has no property.
Her right to maintenance would become an eqUitable charge on her hus band 's property though no charge was created by a decree of civil court as "jus ad rem", i.e. right over property though not right to property "jus in rem" and any person who suc ceeds to the property carries with it a legal obligation to maintain the wife from her husband 's estate.
Only .bona fide purchaser for value without notice alone was relieved of this Obligation; The right to maintenance is a pre existing right preceding Hindu Women 's Right to Property and 736 Separate Residence Act, 1946.
Section 14(1) recognises her preexisting right.
Any property acquired by Hindu female by inheritence or device or at a partition or.
in lieu of maintenance or arrears of maintenance or by gift from any person Whether relative or not, before, at or after her marriage, or by her own skill or,exertion, or by purchase or by prescription or in any other manner whatsoever, and also suCh property held by her as stridhana immediately before the commencement of this Act, movable or immovable property shall be held by her as full owner thereto and not as a limited owner.
Subsection (2) thereto shall be construed as an exception or a proviso which cannot be read to ,emascu late the purpose enunciated under sub section (1).
There fore, the property held by her or property given to her at a partition, or under a compromise decree, gift, or in lieu of maintenance .and held by her,on the date when the ACt.came into force, namely, June 17, 1956 shall be her absolute property as full owner.
Bhagwati J. (as he then was) speak ing for himself and Gupta, J. while pointing out the faulty drafting of section 14, held that section 14(1) seeks to do away with the traditional limitation of her power of disposition which were regarded under the Hindu law as inherent all her es tate.
The words "possessed of" means as the state of owning or having in one 's hand or power which need not be actual or physical possession or personal occupation of the property by the Hindu female.
It may be actual or constructive or in any form recognised by law.
Sub section (1) of section 14cannot be interpreted in a manner which would deprive the Hindu woman of the protection sought to be given to her by sub section (1).
The social purpose of the law would be frus trated and reformist zeal underlying the statutory provison would be chilled.
It was not the intention of the legisla ture in enacting sub section (2) which must be construed as an exception or a proviso to sub section (1).
No provision should be construed in isolation and be read in the context so as to .
make a consistent enactment of the whole statute.
Sub section (2) must be read in the context of sub section (1) of section 14 and if so read sub section (2) must be confined to cases where the Hindu female acquires the property for the first time as a grant without any preexisting right to the property under a will or by way of gift.
or in any other instruments or a decree or order of the civil court or an award, the terms of which prescribe a restricted estate in the property.
Subsection (2) must be read as an exception or proviso to sub section (1) so as to leave aS large a scope for operation as possible to sub section (1) of section 14.
It was, therefore, held that the property given to Tulasmma in a compromise decree in lieu of her maintenance with re stricted estate known as widow 's estate in Hindu law was enlarged and she became an absolute owner under the Act.
She had the right to 737 alienate the property in favour of the others.
An attempt to reopen the ratio was thwarted by this Court in Bai Vajia (dead) by L.Rs, vs Thakorbhai Chelabhai &.Ors., ; while reaffirming the ratio of Tulasamma 's case as correct law, this Court further held that limited ownership is sine quo non for the applicability of sub section (1) of section 14 of the Act.
When a widow holds a property for her enjoyment, as long as she lives, no body is entitled to deprive her or to deal with the property in any manner, to her detriment.
The property is for the time being beneficially Vested in her and she has the occupation, control and usufruct of it to the exclusion of all others.
SUch relationship to property falls squarely within the meaning of expression of "limited owner" as under section 14(1) of the Act.
In that context approved the dictum of Bhagwati, J. that section 14(1) aimed to achieve a social purpose.
to bring about change "in the social and economic position of women 'in Hindu Society", It was a step to accord equality of sex, elevating women from subservient position in the economic field to higher pedestal with full ownership untrammelled by artificial limitation of Women 's estate created by male dominence to subjugate her. ' .
In Jagannathan Pillai vs Kunithapadam Pillai & Ors., ; this Court held that if, the question arises as to what was the .nature of the widow 's interest in the property and a challenge was made during her life time or after her death, all that has to be shown by the con cerned Hindu female was that she had acquired the property and that She was possessed of the property at the point of time when her title was called into question.
The 'question then was whether she became full owner? In that case the widow as a limited owner sold the property but later on re purchased the self same property and was in possession at the date when the question of holding the property and" ' the nature of the right held by her had arisen.
It was held that she was in possession as limited owner and after the Act she became full owner, and not limited owner of the property.
It was further held that ' the legislative intent is abundantly 'loud and clear.
To erase the injustice .and remove the legal shackles by abolishing the concept of limited estate, or the women 's or widow 's estate once and for all.
To obvi ate hair splitting, the legislature 'has made it abundantly clear that whatever be the property possessed by a Hindu female, it will 'be, Of her absolute ownership and not of limited ownership, notwithstanding the position obtaining under the traditional Hindu law.
In Gulwant Kaur & Anr.
vs Mohinder Singh & Anr., [1987] 3 738 SCR 576 construing a letter written by the husband giving the property for wife 's maintenance, this court laid that section 14 is aimed at removing restrictions or limitations on the right of a female Hindu to enjoy, as a full owner, property possessed by her so long as her possession is traceable to a lawful origin, that is to say, if she has a vestige of a title.
It makes no difference whether the property was acquired ' by inheritance or 'devise, etc.
The right to main tenance is not a grant made for the first time without any pre existing right.
Even if the instruments are silent as to the nature of the interest given to the widow in the proper ty and did not, in so many terms, prescribe that she has a limited interest 'in the property, she would have no more than a limited interest in the property under the Hindu law as it stood 'prior to the ' enactment of the Act.
Hence a provision in the instrument prescribing that she would have only a limited interest in the property, would be merely recording the true legal position and would not attract the applicability of sub sec.
(2), but would be governed by sub sec.
(1) of section 14.
The conclusion was, therefore, held inescapable that where the property is allotted to a widow under an instrument, decree, etc.for her maintenance, sub sec.
(2) of section 14 had no application.
In Maharaja Pillai Lakshmi Ammal vs Maharaja Pillai Thilanayakom Pillai & Anr., [19881 1 SCR 780 under a parti tion deed, limited .
estate in lieu of maintenance was created and this court held that the deed or any other ar rangement by which the husband gives property to his wife for maintenance need not specifically say thatit was given in lieu of maintenance.
The right to maintenance is a per sonal obligation of the husband.
If the wife is put in possession of the property with the right to take the income for her maintenance, it must be presumed that the property was given to her in lieu of maintenance attracting section 14(I) and the ' limited ownership ripened into full ownership.
Accordingly it was 'held that section 14(1) attracted to the facts in that case.
In Jaswant Kaur vs MajOr Harpal Singh, under a will executed by the husband the widow was given a life estate which was held to be enlarged into an absolute estate attracting section 14(1),but not section 14(2) as Hindu female acquired property under the instrument.
Her title was trace able to her antecedent over her widow 's estate by gift deed of 1954 to the appellant, one of her daughters.
The widow died in 1968.The appellant filed a suit for injunction, based on gift deed, against the respondent, another Sister claiming exclusive right, title and interest in the property and also pleaded adverse possession.
The respondent filed a cross suit for partition into two shares and claimed half share pleading that their mother was not in possession of 739 property on the date when the Act came into force.
The appellant.
acquired only limited ownership of their mother and on her death as a reversioner of her father she was entitled to partition.
The High Court ultimately upheld the respondent 's contention and held ' that the widow did not acquire absolute estate under section 14(1).
Being a limited owner, what was conveyed by her to the appellant was only a limited estate and the appellant would not get the benefit of full ownership as she herself was not the limited owner under sec.
14(1).
On demise of the .mother as reversioner, the respondent was entitled to file the. suit for partition.
The appellant did not acquire title by adverse possession as she was a co owner and there .was no right.
Therefore, sub sec.
(2) of section 14 would not attract.
Munshi Singh vs Smt.
Sohan Bai (dead)by L.Rs., was a case where limited owner gifted away the property, and was parted with possession and the plea of repurchase was negatived by all the courts.
So this court held that section 14( 1) ' does not apply.
In Pearey Lal vs Ra meshwar Das, [1963] Suppl.
2 SCR 834 in construing a will vis a vis sections 75, 82, 86 of the this Court held that the limited estate is not enlarged into an absolute 'estate.
In Karme vs Amru, AIR 1971 SC 745 the attention of this Court to section 14(1) was not drawn nor had an occasion to angulate in this perspective.
Therefore, the ratio therein is of little assistance to the appellant.
In Kalawatibai vs Soiryabai & Ors., ; the mother of the parties, a Hindu widow gifted adverse posses sion as against the other co owner unless it was so asserted and acquiesced by the respondent.
Therefore, the decree for partition was upheld and the suit for injunction was dis missed.
The ratio therein does not assist the appellant.
Thus I hold that ' the Act revolutionised the status of a 'Hindu female; used section 14(1) as a tool to undo past injus tice to elevate her to equal status with dignity of person on par with man; extinguished pre existing limitation of woman 's estate, or widow 's estate known to Shastric law removed all the fetters to blossom the same into full Owner ship.
The discrimination sufferred by Hindu female under Shastric law was: exterminated by legislative fiat.
The social change thus envisaged must be endeavoured to be given full vigour, thrust and efficacy.
Section 14(1) enlarges the restricted estate into full ownership when the Hindu female has pre existing right to maintenance etc.
Sub sec.
(2) operates when the grant was made for.the first time Under the document with no pre existing right.
Sub sec (2), therefore, must be .
, 740 read as an exception or a proviso to sub sec.
Both the sub sections read with the explanation to be pragmaticably considered as a constituent integral scheme.
The Court would sit in the armed chair of the testator, or its maker and summon to its aid the attending circumstances to execute the instrument; the relationship of the parties and to see whether the Hindu female acquired the property with vestige of pre existing right and the will, gift deed, order, decree or an award of the civil court or in any of the forms ' known to law was executed in recognition thereof or entitled under the existing law.
If the finding is positive her limited estate, though created with restrictive covenants in instru ment or an omission to expressly so mentioned in full par ticulars thereof in the instrument in that regard are of little consequence.
Her limited estate gets blossomed into full ownership under sec.
14(1) with a right to bequeath, gift over, alienation or to deal in any manner.
recognised by law.
If on the other hand the Hindu female acquires for the first time the tittle therein as a grant with restric tive estate under the instrument with no pre existing title or right, sub section (2) of section '14 gets attracted and the restrictive.
covenants.
contained in the instrument would bind her.
She remains to be a limited owner in terms there of.
The subsequent alienee or transferee acquires no higher right thereunder than the legatee etc.
The reversioner to the last male holder is not bound by such transfer and is entitled to succeed the estate, on her demise, in terms of the instrument.
It is too late in the 'day to take retro grade step to reopen Tulasamma 's ratio.
In Civil Appeal No. 630 of 1981 of Thota Madhav Rao, Sri Narsimhalu, his learned counsel contended that Thota Mani kyamma, the respondent, having come into posses 'sion and in enjoyment of the lands bequeathed under a will with a vested reminder in the appellant, her rights are circumscribed.
by the restrictions contained in the 'will and section 14(1) does not apply.
He also contended that by application of section 14(1) to the instruments executed anterior to the Act amounts to giving retrospective operation of section 14(1).
We find no substance in either contention.
It is settled law that a legatee under a testamentary disposition is bound by the restrictive convenants contained therein.
But distinction should be maintained between an ordinary legatee and a legatee/Hindu female coupled with vistage of pre existing title to the property but with a limited estate known to Shastric law as reflected in the impugned deed etc.
Undoubt edly section 14 is not retroactive in its operation.
Devolution of the property under the will would take effect after the demise of the testator and the legatee would be bound by the terms of gift over etc.
The .stranger legatee cannot take shelter under subsequent change of law to enlarge the opera tion of restrictive covenant to claim absolute ownership in the property bequeathed to her.
741 But socio economic amelioration under the Act engulfs an instrument under the sweep of section 14(1) thereof, it extin guishes the pre existing limited estate or restrictive condition and confer absolute and full ownership of the property possessed by a Hindu female as on the date when the Act had come into force, namely, June 17, 1956.
The courts are 'not giving retrospective operation to section 14(1) or to the instrument.
The courts only would be applying the law to the facts round as on the date when the question arose to find whether legatee has pre existing vistage of title under law; and the nature of possession of the property held by her and 'whether the legatee would get the benefit of section 14(1) of the Act.
There need be no express recital even in the will of the enjoyment of the property devised under the will in lieu of maintenance as a limited owner for her life.
Even if so mentioned, it would be a reflection or restate ment of the law existing as in 1932 when the will was exe cuted.
The respondent, admittedly, being a widow of the testator who.
under Shastric law, was obligated to provide maintenance to his wife, and it being personal obligation, the property bequeathed was in lieu of maintenance for her life.
She was in enjoyment of the property and the benefi cial interest therein stood vested in her.
As per existing law as in 1932 the widow as a legatee was entitled to wid ow 's estate and she remained in possession on the date of the Act came into force and was in enjoyment of the income derived therefrom for her life.
No one had a right to inter dict it.
The restrictive covenant, therefore, does not stand an impediment to section 14(1) to have full play to extinguish the same and enlarge the limited estate of widow into an absolute ownership.
The restrictions contained in the will, though falls both under sub sec.
(2) as well as sub sec.
(1), of section 14, the right to maintenance being a pre existing right over property "red ad rem" section 14(1) would apply.
The testamentary succession with a restrictive conditions in the will was obliterated.
She became an absolute owner on or after June 17, 1956.
Accordingly I have no hesitation to hold that, though the will created a restrictive covenant, section 14(2) does not apply.
Section 14(1) enlarged the widow 's limited estate held by Manikyamma into an absolute ownership as full owner with a right to disposition by testamentary instrument or otherwise.
As regards the claim in S.L.P. No. 2113 of 1980 is concerned, admittedly the decree was granted with restrictive covenant to remain in possession of a portion of the house and enjoyment for life and by operation of the ratio in Tulasiamrna 's case the restrictive covenant has enlarged into absolute estate.
The appeal and special leave petitions are accordingly dismissed with costs.
V.P.R. Appeal and Petitions dismissed.
| Plaintiff 's case was that as the defendant and her husband had no issue they brought up the plaintiff as their foster son from the age of eight years and thereafter the plaintiff continued to live with them and was brought up treating him as their own son.
Defendant 's husband 'died on 14.1.1932 and before his death he executed a will bequeathing the suit properties in favour of his wife, for her life with a vested remainder in favour of the plaintiff.
Both the parties lived together with perfect ' under standing 'but after some time there was misunderstanding and the defendant assumed hostile attitude towards the plaintiff and began to claim the suit property as her absolute proper ty.
The plaintiff claimed absolute right in the suit proper ties after the lifetime of the defendant and challenged the right of the defendant to execute any will in respect of the suit properties.
The defendant took the plea that her husband died issueless and 718 intestate and did not exeCute any will at any time.
Neither she nor her husband brought up the plaintiff as their foster son nor did they educate him.
The defendant had brought up her nephew from his childhood and performed his marriage.
On account of love and affection for him and his children, the defendant executed a registered will on 26.10.69 bequeathing all her properties in his favour.
The Trial Court held the will dated 14.1.1932 proved and decreed the plaintiff 's suit.
The First Appellate Court upheld the Judgment and decree of the Trial Court.
The defendant preferred a second appeal in the High Court.
During the pendency of the Second Appeal in the High Court the plaintiff died and his legal representatives were brought on record.
The High Court allowed the second appeal.
The legal representatives of the plaintiff came to this Court by grant of Special Leave.
S.L.P. (C) No. 438/1979.
Married life between '0 ' and his wife, 'M ' was not happy and cordial. 'o ' executed a registered will dated 21.3.1921 bequeathing all his properties including the suit properties in favour of his mother and sister for their lifetime and thereafter in favour of 'R ' and 'D ' two sons of his sister and their issues.
In the said will reference was made re garding the conduct of 'M ' in deserting him and in any event if she changed her mind and agreed to live under the protec tion of the legatees she was allowed to enjoy the income from item I of the suit properties and that she should construct a house in item referred to in the will and to live there during her lifetime and after her death the said Item I and the house site with the house shall go to his sister 's sons. '0 ' died in 1922 and thereafter the legatees under the will entered into possession of all the properties. 'M ' put obstruction to the legatees in getting possession. 'M ' filed a suit in 1923 praying for a declaration that the will made by her husband was not valid and as such be cancelled and for possession and mesne profits and in the alternative she claimed for maintenance both past and fu ture.
719 In the said suit the parties entered into a compromise and a compromise decree was passed on 5.3.1924.
Uuder the terms of the said compromise the execution of the will was accepted and the same was made subject to the terms of the compromise decree.
Under the compromise decree it was agreed that 'M ' would enjoy items 1 & 2 of the properties mentioned in the will and also 50 cents of land during her lifetime.
She would also have an enjoyment of the house site during her lifetime without any right of aliena tion. 'D ' died unmarried in 1930 but during his lifetime he sold his interest in the properties in favour of 'R ', his brother, who died in 1962.
On his death the petitioners being his sons and daughters claimed to have become.
enti tled for all their father 's properties including the rights in the suit property. 'M ' during her life time executed a settlement deed in favour of the respondents giving absolute rights in the suit properties.
The petitioners filed a suit against M and the respond ents for declaration that the settlement deed executed by 'M ' will not enure beyond the lifetime of 'M '. 'M ' took,the plea that the limited interest given to her under the com promise decree had become enlarged into absolute right by virtue of Section 14(1) of the Act.
The Trial Court decreed the suit and it was affirmed in first appeal. 'M ' having died, the respondents preferred a second appeal in the High Court.
The High Court allowed the second appeal against which.
the petitioners filed the S.L.P. S.L.P. (C) No. 2113 of 1980 'R 'did not have any issue from 'A ' and 'S ', his wives.
He being attached with the petitioner, executed a will on 2.7.1945 bequeathing his properties in favour of his second wife 'S ' for her lifetime and thereafter, absolutely in favour of the petitioner.
A provision was also made for the payment of Rs.68 and a direction to make available 18 kalams of paddy in favour of 'A ' for her lifetime.
In order to ensure the payment of the maintenance and delivery of paddy a charge was also created over the properties to go ulti mately in favour of the petitioner.
As the petitioner was a minor at that time the second wife was 720 appointed as his guardian. 'R ' died on 8.7.45 and subse quently his first wife 'A ' was awarded 50 kalams of paddy and a sum of Rs.250 in cash per annum by way of maintenance.
On appeal the High Court modified the decree of the Trial Court and enhanced the maintenance to Rs.480 per annum and directed the petitioner, the legatee under the will to give one building for the residence of 'A '.
Thereafter in 1951 'A ' sought the recovery of possession of one of the buildings.
The Executing Court allotted to her the eastern house backyard and the shops, against which the second wife preferred an appeal to the High Court.
A compromise was entered into between the parties in the High Court.
According to the terms of compromise 'A ' was permitted to occupy the eastern house together with the two shops but the backyard portion was not given.
Later on 'S ' was removed from the guardianship of the petitioner, and natural father was appointed as his guardian.
The respondents were brother 's grandsons of 'A ' who died on 2.2.1966, had settled the suit properties in favour of one 'C ' claiming title to the same in pursuance to a compro mise in A.A.O. 567 of 1950. 'R ' another respondent initially took on lease the properties from 'C ' and later on purchased the eastern half of the building and backyard portion.
The petitioner, challenging the transactions on the grounds that 'A ' was given a right of residence only in the building and the same lasted till her lifetime and such right could never be enlarged into an absolute right; that the settlement deed made by her in favour of 'C ' and the sale made by 'C ' in favour of 'R ', a respondent were invalid and no title could be conveyed by 'A ' in their favour, filed a suit for recovery of possession of the suit properties with mesne profits.
The Trial ' Court held that 'A ' was not the absolute owner of the suit properties as contemplated under Section 14(2) of the Act and decreed the suit in favour of the plaintiff.
Single Judge of the High Court dismissed the appeal.
On a Letters Patent Appeal the Division Bench of the High Court allowed the appeal and dismissed the suit.
The plaintiff petitioner has filed the S.L.P. under Article 136 of the Constitution of India.
721 Whether, the life estate given to a widow under the will of her Hindu husband beome san absolute estate under the provi sions of the Succession Act was the controversy raised in these cases.
The contention raised was that if a female Hindu acquires any property under a will which gives her a restricted estate in such pro perty then provisions of sub section (2) will override, the provisions of sub section (1) of Section 14 of the Act which makes a female Hindu as full owner.
Dismissing the appeal and the S.L.Ps.
this Court, HELD: PER N.M. KASLIWAL, J. on his behalf and on behalf of K. RAMASWAMY, J. of the Act is in the nature of a proviso or an exception to Sec.
14 and comes into operation only if acqui sition in any of themethods indicated therein is made for the first time without there being any pre existing right in the female Hindu to the property.
If the case falls under the provisions of Sec.
14(1) of the Act then the female Hindu shall he held to he full owner of the property and sub section (2) of Section 14 will only apply where the property is acquired without there being any pre existing right of the female Hindu in such property.
[730D E] 2.
Sub section (2) of Sec.
14 will he construed more in the nature of a proviso or an exception to sub section
(1) of Sec.
14 of the Act.
This view lends support to the object of the section which was to remove the disability on women imposed by law and to achieve a social purpose by bringing about change in the social and economic position of women in Hindu society.
[730E F] Mst.
Karmi vs Arnru and Ors.
, ; Badri Pershad vs
Kanso Devi; , ; V. Tulsamma & Ors.
vs Sesha Reddy (dead) by L.Rs.; , ; Bai Vajia (dead) by L.Rs.
vs Thakorbhai Chelabhai & Ors., ; ; ' Jagannath Pillai vs Kunjithapadam Pillai & Ors., ; ; Gopal Singh & Ant.
vs Dill Ram (dead) by L.Rs.
& Ors.
; , ; Gulwant Kaur and Others vs Mohinder Singh and Others, ; and Jaswant Kaur vs Major Harpal Singh, , referred to.
PER K. RAMASWAMY.
The Act revolutionised the status of a Hindu female; used 722 s.14(1) as a tool to undo past injustice to elevate her to equal status with dignity of person on par with man; extin guished pre existing limitation of woman 's estate, or wid ow 's estate known to Shastric law removed all the fetters to blossom the same into full ownersip.
The discrimination suffered by Hindu female under Shastric law was exterminated by legislative fiat.
The social change thus envisaged must be endeavoured to be given full vigour,thrust and efficacy.
[739F G] 2.
Section 14(1) enlarges the restricted estate into full ownersip when the Hindu female has pre existing right to maintenance etc.
Subsec.
(2) operates When the grant was made for the first time under the document with no pre existing right.
Sub sec.
(2) therefore, must be read as an exception or a proviso to sub sec.
Both the sub sec tions read with the explanation to be pragmaticably consid ered as a constituent integral scheme.
[739G 740A] 3. section 14 is not retroactive in its operation.
Devolution of the property under the will would take effect after the demise of the testator and the legatee would be bound by the terms of gift over etc.
The stranger legatee cannot take shelter under subsequent change of law to enlarge the opera tion of restrictive covenant to claim absolute ownership in the property bequeathed to her.
But socio economic amellora tion under the Act engulfs an instrument under the sweep of section 14(1) thereof, it extinguishes the pre existing limited estate or restrictive condition and confer absolute and full ownership of the property possessed by a Hindu female as on the date when the Act had come into force, namely, June 17, 1956.
The courts are not giving retrospective operation to section 14(1) or to the instrument.
The courts only would be applying the law to the facts found as on the date when the question arose to find whether legatee has pre existing vistage of title under law; and the nature of possession of the property held by her and whether the legatee would get the benefit of section 14(1) of the Act.
There need be no express recital even in the will of the enjoyment of the property devised under the will in lieu.
or maintenance ass limited owner for her life.
Even if 'so mentioned, it would be a reflection or restatment of the law existing as in 1932 when the will was executed.
[740G 741C] 4.
A legatee under a testamentary disposition is bound by the restrictive covenants contained therein.
But distinc tion should be maintained between an ordinary legatee and a legatee/Hindu female coupled with vistage of pre existing title to the property but with a limited estate known to Shastric law.
[740F G] 723 5.
As per existing law as in 1932 the widow as a legatee was entitled to widow 's estate and she remained in posses sion of the date of the Act came into force and was in enjoyment of the income derived therefrom for her life.
No one had a right to interdict it.
The restrictive covenant, therefore, does not stand an impediment to section 14(1) to have full play to extinguish the same and enlarge the limited estate of widow into an absolute ownership.
[741D E] 6.
The restrictions contained in the will, though fails both under sub sec.
(2) as well as sub sec.
(1) of section 14, the right to maintenance being a pre existing right over property "res ad rem" section 14(1) would apply ' The testamentary succession with a restrictive conditon in the will was obliterated.
She became absolute owner on or after June 17, 1956.
[ 741E F] Sir Main Henry: Earlier History of Institutions, at P. 339; E.S. Shivaswamy lyer: Revolution of Hindu Women, [1935] Edn.
P. 64; Manu Smriti, Chapter III verses 55 57, Chapter IX verses 18, 149, 45, 416, 299, Chapter XI verse 67; Mahat ma Gandhiji 'S (article) Young India, dated October 17.
1929; Ravindra Nath Tagore, (his speech in 1913 reprinted in) To the women, P. 18.
The Position of Woman in Hindu civilisa tion, 1955 Edn.
By Altaken, referred to.
State of Madras vs Srimati Charnpakam Doraira/an, ; ; C.B. Muthatmma vs Union of India & Ors., ; ; Air India vs Nergesh Meerza & Ors., ; ; Pratap Singh vs Union of India, |19851 Suppl.
2 SCR 773; Seth Badri Prasad vs Smt.
Kanso Devi, ; V. Tulasamma vs Sesha Reddy (dead) by L.Rs.; , ; Bai Vajia (dead) by L.Rs.
vs Thakorbhai Chelabhai & Ors., ; ; Jagannathan Pillai vs Kunithapadam Pillai & Ors., ; ; Gulwant Kaur & Anr.
vs Mohinder Singh & Anr., ; ; Maharaja Pillai Lakshmi Ammal vs Maharaja Pillal Thillanayakom Pillai & Anr., ; Jaswant Kaur vs Major Harpal Singh, ; Munshi Singh vs Smt.
Sohan Bai (dead) by L.Rs., '[1989] 2 SCR 1012; Pearey Lal vs Rameshwar Das, [1963] Suppl.
2 SCR 834; Karmi vs Amru, AIR 1971 SC 745 and Kalawatibai vs Soiryabai & Ors.
, ; , referred to.
|
ivil Appeal No. 3237 of 1991.
From the Judgment and Order dated 10.10.1990 of the Delhi High Court in C.W. No. 3204 of 1990.
Soli J. Sorabjee, S.V. Deshpande and C.L. Sahu, Advs.
for the Appellant.
Dr. Y.S. Chitale, and S.K. Sinha for the Respondents.
The Judgment of the Court was delivered by VERMA, J.
Leave is granted.
Respondent No. 6, Jupiter Cooperative Group Housing Society Limited, was formed in 1979 for providing houses to its 130 members including the appellant Prem Jeer Kumar.
The appellant was earlier the Secretary and then the President of the Society till 1985, by which time substantial con struction had been completed.
The members were allotted three room flat for a sum of Rs. 1, 10,000.
In August, 1985, Respondent No. 3, Registrar, Delhi Cooperative Societies, appointed 784 an Administrator to look into the affairs of the Society since the appel.
lant and other office bearers had held the office for more than two terms.
The controversy giving rise to this proceeding relates to the alleged discrepancy re garding purchase of some building material in January, 1984, for the construction of flats for members of the Society in Vikas Puri at New Delhi.
The New Managing Committee of the Society formed in September, 1986, complained to the Regis trar, COoperative Societies alleging irregularities by the previous Managing Committee of which the appellant was the President.
This matter was referred to arbitration by order dated 12.10.1989 passed by the Joint Registrar (Arbitration) Cooperative Societies, Delhi Administration.
Respondent No, 1, Surender Gandotra was appointed the Arbitrator, who gave his AWard on 1.5. 1990.
The relevant portion of the Award is as under: "It is also interesting to discuss the conduct of these two respondents of this case, Shri Poonam Dhand and Shri P.J. Kumar as they have been moving applications after applications in this court raising vicious and frivolous grounds just to delay the delivery of justice in this case.
The miscellaneous applications relating to the dispute of juris diction of this court and then that since criminal proceedings are pending with the Delhi Police, proceedings in this Court should be kept pending till final decision in the criminal proceedings.
All these applications were properly attended, scrutinized and dis posed of legally.
It is also interesting that despite number of chances/opportunities having been given to the respondent to file reply to the main points of the claimant society, the defendants S/Shri Poonam Dhand and Shri P.J. Kumar did not file any reply and followed delaying and dilatory tactics and to defeat the ends of justice.
Even today 30th April, 1990, fixed for hearing none came from the side of S/Shir Poonam Dhand, P.J. Kumar either presonally or through Advocate.
The advocate of the claimant society Shri Tomar argued that ex parte proceedings may be initiated against the respondents who have absented from these proceedings.
In view of these cricumstances, and the conduct of 'respondents in this case 0right from the very inception of this case, there is no other alternative left for me but to proceed ex parte against the respondents S/Shri Poonam Dhand and P.J. Kumar.
Ex parte award is announced with the following details; .
785 Principal amount to be paid by the respon dents to the Jupiter Cooperative Societies Limited, Vikas Puri, New Delhi.
Rs 1,46,2 10.20 Interest at the rate of 18% from 17.4.1985 till all the dues are cleared by the respond ents.
Cost allowed Rs.5,000.00 With the above observations, ex parte award is given against the respondents S/Shri Poonam Dhand, P.3, Kumar who are jointly and severally responsible to pay the Jupiter Cooperative Group Housing Society Limited, Vikas Puri, New Delhi, principal amount of Rs. 1,46,210.00 NPS plus 18% interest from 17.4.1985 till all the dues are cleared and costs of Rs.5,000.
" , The appellant then filed an appeal under section 76 of the Delhi Cooperative Societies Act, 1972 (hereinafter referred to as 'the Delhi Act ') in the Delhi Cooperative Tribunal (Respondent No. 2) challenging the Award dated 1.5.1990.
The Tribunal held that the Arbitrator 's act of proceeding ex parte against the appellant is justified and taking the view that the appeal had no merit, dismissed the same.
The appellant then filed a writ petition in the High Court challenging the Award and dismissal of his appeal by the Tribunal on 3.7.1990.
The said writ petition has been dismissed by the High Court on 10.10.1990.
It is in these circumstances that the appellant assails the Award, dismiss al of the appeal and then the .writ petition.
The argument of Shri Sorabjee, learned counsel for the appellant, is that it is section 59 and not section 60 of the Delhi Act which applies to the present case.
In reply, Dr. Chitale on behalf of the contesting respondents contended that section 60 relating to arbitration and not section 59 pertaining to surcharge applies to the present case.
Sections59 and 60 of the Delhi Act, insofar as relevant, are quoted hereinbelow: "59.
Surcharge (1) If in the course of an audit, inquiry, inspection or the wind ing up of a cooperative society, it is found that any person, who is or was entrusted with the organisation or management of such society or who is or has at any time been an officer or an employee of the society, has made any payment contrary to this Act, the rules or the bye laWs or has caused any deficiency in the assets of the society by breach of trust or wilful negligence or has misappropriated or fraudulently retained any money 786 or other property belonging to such society, the Registrar may, of his own motion or on the application of the committee, liquidator or any creditor, inquire himself or direct any person authorised by him, by an order in writing in this behalf, to inquire 'into the conduct of such person; Provided that no such inquiry shall be held after the expiry of six years from the date of any act or omission referred to in this sub section.
(2) Where an inquiry is made under sub section (1), the Registrar may, after giving the person concerned an opportunity of being heard, make an order, requiring him to repay or restore the money or property or any part thereof, with interest at such rate, or to pay contribution and costs or compensation to such extent, as the Registrar may consider just and equitable." "60.
Disputes which may be referred to arbitration(1) Notwithstanding anything contained in any law for the time being in force, if any dispute touching the constitu tion, management or the business of a coopera tive society other than a dispute regarding disciplinary action taken by the society or its committee against a paid employee of the society arises (a) among members, past members and persons claiming through members, past members and deceased members, or (b) between a member, past member or person claiming through a member, past member or deceased member and the society, its com mittee or any officer, agent or employee of the society or liquidator, past or present, or (c) between the society or its commit tee and any past committee, any officer, agent or employee, or any past officer, past agent or past employee or the nominee, heirs or legal representatives of any deceased officer, deceased agent, or deceased employee of the society, or (d) between the society and any other cooperative society, between a society and liquidator of another society 787 or between the liquidator of another society.
such disputes shall be referred to the Regis trar for decisior and no court shall have jurisdiction to entertain any suit other proceedings in re spect of such dispute. (2) For the purposes of sub section (1), the following shall be deemed to be disputed touching the constitution management or the business of a cooperative society namely (a) a claim by the society for any debt or demand due to it from a member or the nominee, heirs or legal rep resentatives of a deceased member, whether such debt of demand is admitted or not; (b) a claim by a surety against the principal debtor where the society has recov ered from the surety any amount in respect of any debt or demand due to it from the princi pal debtor as a result Of the default of the principal debtor, whether such debt or demand is admitted or not; (c) any dispute arising in connection with the elec tion of any officer of a society other than a society mentioned in sub section (1) of section 31.
(3) If any question arises whether a dispute referred to the Registrar under this section is or is not a dispute touching the consitution, management or the business of cooperative society, the decision thereon of the Registra shall be final and shall not be called in question in an court.
i (4) . . . ." In substance the contention of the learned counsel for the appeal lant is that the proper action to take in such a case is to resort to section 59 dealing with surcharge and not to settlement of dispute by arbitration since it is not one of the disputes which may be referred to arbitration in terms of section 60 of the Delhi Act.
It was argued that sub section (2) of section 60 is exhaustive and not merely illustrative, which shows that the present dispute does not fall within the ambit 0 section 60.
Dr. Chitale, on the other hand, asserted that it is sub 788 section (1) of section 60 which indicates the true scope of section 60 while sub section (2) is merely illustrative and no exhaustive.
It was urged that clause (c) of sub section (1) of section 60 expressly provides that if any dispute touching the constitution, ' management or the business of the cooperative society arises between the society or its committee and any past committee, any officer, agent or employee or any past officer of the society, the dispute shall be refered to arbitration.
Reliance is placed on behalf of the appellant on Chander Nagar Cooperative House Building Society Ltd. and Anr.
vs Ashok Ohri, A. 1.
R. 1976 63 Delhi 299 wherein the learned Single Judge took the view that sub section (2) of section 60 of the Delhi Act is exhaustive and not merely illustra tive.
That decision overlooks the decision of this Court in Srirakulu referred hereafter and conflicts with it.
Further consideration of the same is, therefore, not necessary.
Dr. Chitale placed reliance in Pentakota Srirakulu vs The Cooperative Marketing Society Ltd.; , to contend that this point was concluded against the appellant.
In our opinion, the contention of Dr. Chitale has to be accepted.
The decision of this Court in Srirakulu was ren dered 'with reference to the Madras Cooperative Societies Act, 1932 (hereinafter referred to as 'the Madras Act ') wherein section 51 relating to settlement of disputes by arbitration was the provision corresponding to section 60 of the Delhi Act Clause (c) of sub section (L) of section 51 of the Madras Act was substantially the same as clause (c) of sub section (1)of section 60 of the Delhi Act.
The explana tion in sub section (1) of section 51 of the Madras Act was substantially similar to clause (a)of sub section (2) of section 60 of the Delhi Act.
The material part of section 51 of the Madras Act, on the basis of which the decision was endered in Srirakulu quoted therein is as under " section 51 Arbitration: Disputes: 51.
(1) If any dispute touching the business of a registered society (other than a dispute regarding disciplinary action taken by the society or its committee against a paid servant of the society) arises (a) . . . . . . . (b) . . . . . . 789 (c) between the society or its com mittee and any past committee, any officer, agent or servant, or any past officer, past agent or past servant, or the nominee, heirs or legal representatives of any deceased officer, deceased agent or deceased servant, of the society, or (d) . . . . . .
Explanation A claim by a registered society for any debt or demand due to it from a member, past member or the nominee, heir or legal representative of a deceased member, whether such debt or demand be admitted or not, is a dispute touching the business of the society within the meaning of this sub sec tion.
" In the Madras Act, section 49 was the provision correspond ing to section 59 of the Delhi Act.
It was, therefore, on the basis of similar corresponding provisions that the question arose for decision of this Court in Srirakulu.
In Srirakulu also the facts disclosed in the inquiry that certain loss was caused to the society by the acts of past Managing Committee and, therefore, a special officer ap pointed to look into the affairs of the society made a claim under section 51 of the Madras Act before the Registrar against the past President of the Society: It was held that the Registrar 's order under section 51 of the Madras Act could not be challenged.
We do not find any significant difference between the provisions of the Madras Act which form the basis .of this Court 's decision in Srirakulu and sections 59 and 60 of the Delhi Act with which we are con cerned to justify taking a different view as suggested by learned.
counsel for the appellant.
Following the view taken in Srirakulu, this appeal must fail.
Consequently, the appeal is dismissed with costs quantified at Rs.5,000.
N.P.V. Appeal dis missed.
| On a complaint made by the Managing Committee of the 6th respondent Cooperative Housing Society, the third respond ent, Registrar, Cooperative Societies, referred the dispute relating to irregularities in the purchase of building material for construction of flats for members of society by the past Managing Committee, of which the appellant was the President at the relevant time, to arbitration.
The first respondent Arbitrator, gave his ex parte award, on the failure of the appellant and another person to file their reply to the claim of the claimant society, and directed the appellant and the other person to pay the society certain sum with interest thereon.
The appellant challenged the award before second re spondent, the Delhi Cooperative Tribunal, which dismissed the same holding that the Arbitrator 's act of proceeding ex parte was justified and that the appeal had no merit.
The appellant 's writ petition was also dismissed by the High Court.
In the appeal before this Court on behalf of the appel lant it was contended that it was Sec.
59 dealing with surchage which was applicable to the instant case and not Section 60, which pertained to settlement of disputes by arbitration since the dispute in question was one which could not be referred to arbitration in terms of Section 60 of the Act.
On behalf of the contesting respondents it was submitted that it was Section 60, which was applicable and not Section 59.
Dismissing the appeal, this Court, HELD: 1.1 Sub Section (1) of Section 60 of the Delhi Co operative 783 Societies Act, 1972 indicates the true scope of the Section 60, while sub section (2) is merely illustrative, and not exhaustive.
Clause (c) of sub section (1) expressly provides that if any dispute touching the constitution/management or the business of the cooperative society arises between the society or its committee and any past committee.
any offi cer, agent or employee or any past officer of the society, the dispute should be referred to the arbitration.
[787H, 788A B, D] 1.2 In the instant case, the dispute, viz. irregulari ties in the purchase of building material for construction of flats for the members of the Society by the previous Managing Committee, touches the management of the Society and fails within the ambit of Section 60 of the Act.
The third respondent, Registrar, Cooperative, Societies was, therefore, right in referring the dispute to arbitration.
[789D F] Pentakota Srirakulu vs The Cooperative Marketing Society Ltd. ; , followed.
Change Nagar Cooperative House Building Society Ltd. and Anr.
Ashok Ohri, AIR 1976 63 Delhi 239, disapproved.
|
ivil Appeal No. 3383 of 199 1.
From the Judgment and Order dated9.11.1990 of the Cen tral Administrative Tribunal, Jabalpur in O.A. No. 129 of 1989.
Altar Ahmed, Additional Solicitor General, Hemant Sharma and C.V.S. Rao for the Appellant.
B.S. Banthia, Piyush Mathur, G. Prakash, T.C. Sharma, S.K. Agnihotri and S.K. Gambhir for the Respondents.
The Judgment of the Court was delivered by SAWANT, J.
What falls for consideration in this appeal is the interpretation of clauses (1), (2) and ,(3) of Regu lation 5 of the Indian Administrative Service (Appointment by Promotion) Regulations,.
1955 (hereinafter referred to as the 'Regulations ').
The first respondent and five others who were members of the Madhya Pradesh State Civil ' Service had approached the Central Administrative Tribunal ( 'Tribunal ' for brevity) with a grievance that the selection of officers to the Indian Administrative Service ( 'IAS ') on the basis of recommendation made by the Selection Committee in its meet ing held on December 19, 1988 and on March 16, 1989 was illegal.
In its meeting on December 19, 1988, the Selection Committee had estimated 7 vacancies in the IAS cadre and was, therefore, required to prepare a select list of 14 members of the State Civil Service for promotion to the IAS, under Regulation 5(1) of the Regulations.
While preparing the list, the committee had to consider for inclusion in the said list the cases of members of the State Civil Service (in the order of there seniority) equal to three times the number of officers to be placed on the list.
Hence the Committee had to consider the cases of 42 members of the Service.
The Committee, however, considered the cases only of 30 officers, graded them and submitted its recommendation to the Union Public Service Commission.
The Commission directed the Committee to meet again and grade the remaining 12 officers also.
Accordingly, the Committee met again on March 779 16, 1989 to complete the select list as directed.
As a result of this selection, appointment orders of 14 officers who were included in the select list were issued on 29th/30th March 1989.
This was challenged by the applicants before the Tribunal by pointing out that the State had wrongly calculated the number of vacancies as 7 by Counting the period of 12 months under Regulation 5(1), from December 1, 1988 to November 30, 1989 instead of from 16th March 1989 to 15th March.
If the latter period was considered as the proper period for the purposes of the said Regulation, the vacancies would be 11 and the select list of 22 officers would have to be prepared.
That will extend the zone of consideration in all to 66 officers.
Since 1.8 of the 66 officers were ineligible, the zone of consideration will extend to the 84th officer in the seniority list.
On behalf of the State Government, it was contended that since the meeting was first held on 19th December.
1988 the period of 12 months under the said Regulation will have to be calcu lated from December 1, 1988 to November 30, 1989 according to the previous practice of the State Government, ,which was that since the Committee meets in the second fortnight of December, the period was to be calculated from the 1st December of that .year.
We agree with the Tribunal that neither the practice adopted by the State Government nor the interpretation placed by it on Regulation 5(1) is proper.
The relevant portion of Regulation 5(1) reads as follows: "5.
Preparation of a list of suitable officers. (1) . .
The number of members of the State Civil Service included in the list shall not be more than twice ,.he number of substantive vacancies anticipated in the course of the period of twelve months, commencing from the date of preparation of the list.
in the posts available for them . . . (Emphasis supplied ) We are not concerned with the rest of the provision of the said regulation for the purposes of this point.
The wording of the regulation is very clear.
It says "commencing from the date of the preparation of the list".
In the.
present case, admittedly the list which was prepared by the Selection Committee on 19.12.
1988 was not according to Regulation 5(1) read with Regulation 5(2).
Regulation 5(2) requires that the cases of members of the State Civil Serv ice which are required to be considered for preparation of the select list have to be in number equal to three times the number of officers to be placed on the select list.
As pointed out earlier, the Selection Committee had on the basis of its estimate of vacancies on 19th December, 1988 considered the 780 cases of only 30 officers when it was required to consider the cases of 42 officers.
It is for this reason that the Union Public Service Commission had returned its recommenda tion and asked the Selection Committee to consider the cases of 12 more officers.
Hence the preparation ' of the select list was not complete in December 1988 and the Commit tee was required to convene a fresh meeting on March 16, 1989 on which date alone it ican be said to have prepared the select list as required under Regualtion 5(1).
Since the select list, as required by Regulation 5(1), was for the first time prepared on March 16, 1989, the period of 12 months under Regulation 5(1) had to be counted from that date.
The Tribunal had, therefore, rightly held, that the span of 12 months would begin from March 16, 1989 and end on March 15, 1990.
There is further no dispute that during the period of 12 months from 16th March, 1989 to 15th March, 1990, the esti mated vacancies were 11 and, therefore, the Tribunal 's direction to prepare a select list of 22 officers by consid ering the cases in all of 66 officers and, therefore, ex tending the zone to the 84th officer in the,seniority list according to the order of seniority (18 officers out of 66 being ineligible), is both proper and valid.
A contention was then advanced before us on behalf of the appellant that the select list lapses when a meeting of the Selection Committee to prepare a fresh select list is held.
Hence no appointment could be made from the earlier select list on and after the date of the meeting of the next Selection Committee.
There is nothing on record as to wheth er any Selection Committee met after March 16, 1989.1n fact, the Tribunal 's direction to constitute a Review Committee to consider the cases of the applicants before it and any other officers who were in the consideration zone, has not yet been implemented and the Selection Committee has yet to meet to prepare the list of members of the State Civil Service eligible to be placed in the select list as on March 16, 1989.
There is, therefore, no question of the lapse of the list which is yet to be prepared.
A meeting of the Selection Committee to prepare the list for future years cannot be held unless the meeting as directed by the Tribunal is first held and the select list finalised.
The last contention was that under Regulation 5(3), there is a bar on the Selection Committee taking into con sideration the cases of the members of the State Civil Service who have attained the age of 54 years on the first day of January of the year in which it meets.
The argument was that some of the officers had attained the age of 54 years 781 on 1st January, 1989 and, therefore, would be ineligible for consideration to be placed in the select list.
According to us, this contention is inconsistent with the provisions of Regulation 5(3) of the Regulations.
Regulation 5(3) reads as follows: "5(3) The Committee shall not consider the cases of the members of the State Civil Serv ice who have attained the age of 54 years on the first day of January of the year in which it meets:" (Emphasis ours) The provision of Regulation 5(3) is clear.
It speaks of the first day of January of the year "in which", the Selection Committee " 'meets".
It is unlike the language of Regulation 5(1) which, as pointed.
out earlier, speaks of "the date of the preparation of the list".
In the present case, admitted ly the Committee first met on 19th December, 1988.
There fore, for the purpose of 'Regulation5(3), it iv that date which is relevant and if that is so, it is only those mem bers of the State Civil Service who will be ineligible who had attained the age of 54 years on 1st January, 1988.
The Tribunal has also clarified this while giving the direction for a Review Selection Committee.
We make it clear that for the purposes of the Review Selection Committee to be convened as directed by the Tribu nal the zone of consideration will be as if the meeting was held on March 16, 1989.
The actual number of vacancies which will have to be considered has already been indicated in our judgment.
In the circumstances of the case, the appeal fails and is dismissed.
In view of the fact that these proceedings have been pending for some time we direct that the Review Departmental Promotion Corn ' mittee/Selection Committee should meet and prepare the select list within two months from the day of the receipt of the writ of this Court.
In the circumstances of the case, there will be no order as to costs.
N.P.V. Appeal dis missed.
| The first respondent and five other members of Madhya Pradesh State Civil Service challenged before the Central Administrative Tribunal the selection of 14 officers of the State Civil Service for promotion to the Indian Administra tive Service as illegal on the ground that the State had wrongly calculated the anticipated number of vacancies as 7 by counting the period of 12 months under Regulation 5(1) of the Indian Administrative Service (Appointment by promotion) Regulations, 1955, from December 1, 1988 to November 30, 1989, instead of from March 16, 1989 to March 15, 1990, and if the latter period was considered as the proper period for the purposes of the said Regulation, the vacancies would he 11 and the select list of 22 officers would have to he prepared, for which 66 officers would have to be considered, and the zone of consideration would extend to the 84th officer in the seniority list, since 18 of the 66 officers were ineligible under Regulation 5(3).
On behalf of the State Government it was contended that since the meeting was first held on December 19, 1988 the period of 12 months under the Regulation 5(1) would have to he calculated from December 1, 1988 to November 30, 1989 according to the previous practice of the Government, which was that since the Committee met in the second fortnight of December, the period was to be calculated from the 1st December, 1988.
The Tribunal held that neither the practice adopted by the State Government, nor the interpretation placed by it on Regulation S(1) was proper, and that the span of 12 months would begin from March 16, 777 1989 and end on March 15, 1990 and directed that a Select List of 22 officers should be prepared since during the later period, the estimated vacancies were 11, and that a Review Committee should be constituted to consider the cases of the applicants.
Dismissing the appeal preferred by the Union of India, this Court, HELD: 1.1 The wording of the Regulation 5(1) of the Indian Administrative Service (Appointment by promotion) Regulations, 1955, is very clear.
It says "commencing from the date of preparation of the list".
[779F] 1.2 In the present case, admittedly the list which was prepared by the Selection Committee on December 19, 1988 was not according to Regulation 5(1) read with Regulation 5(2).
Since the Selection Committee had, on the basis of its estimate of seven vacancies on December 19, 1988 considered the cases of only 30 officers when it was required to con sider the cases of 42 officers, the Union Public Service Commission had returned its recommendation and asked the Selection Committee to consider the cases of 12 more offi cers.
Hence, the preparation of the Select List was not complete in December, 1988 and the Committee was required to convene a fresh meeting on March 16, 1989, on which date alone it can be said to have prepared the select list as required by Regulation 5(1).
Since the select list, as required by Regulation 5(1) was for the first time prepared on March 16, 1989, the period of 12 month under Regulation 5(1) had to be counted from that date.
[779G H, 780A B] 1.3 During the period of 12 months from 16th March, 1989 tc 15th March, 1990, the estimated vacancies were 11 and, therefore, select list of 22 officers has to be prepared by considering the cases in all of 66 officers and extending the zone to the 84th officer in the seniority list according to the order of seniority (18 officers out of 66 being ineligible).
[780C D] 2.
The provision of Regulation 5(3) speaks of the first day of January of the year "in which", the Selection Commit tee "meets" unlike the language of Regulation 5(1) which speaks of "the date of the preparation of the list".
In the present case, the Committee first met of December 19, 1988.
Therefore, for the purpose of Regulation 5(3), it is that date which is relevant and if that is so, it is only those members of the State Civil Service who had attained the age of 54 years on January 1, 1988 who would be ineligible.
[781C D] 778 3.
In the circumstances, for the purposes of the Review Selection Committee to be convened, the zone of considera tion will be as if the meeting was held on March 16, 1989.
The actual number of vacancies which will have to be consid ered is 11.
[781E]
|
Civil "Appeals Nos.
30 18 21 of 1987.
From the Judgment and Orders dated 24.4.87, 2.3.87, & 1.4.87 of the Central Administrative Tribunal, Hyderabad in Original Applica 794 tion No. 121/86, T.A. Nos.
958& 180 of 1986 and O.A. No. 140of 1986.
WITH CA Nos.
3016/88 & 51 55/90 with CA Nos.
3083 & 4379 of 1990 and S.L.P. (C) Nos.
1094, 2344/90, 11680 of 1991.
Altar Ahmed, Additional Solicitor General, V.C. Mahajan, J.D. Jain, C.V.S. Rao, Hemant Sharma, B. Parthasarthy, A. Subba Rao, M.N. Krishnamani, Pravir Choudhary, Ms. Indu Malhotra, Ms. Shirin Jain, T.V.S.N. Chari, Ms. Suruchi Aggarwal and Ms. Manjula Gupta for the appearing parties.
The Judgment of the Court was delivered by SAWANT, J.
Civil Appeals Nos.
3019/87, 3020/87 and 3016/88 arise out of the judgment dated March 2, 1987 deliv ered by the Full Bench of the Central Administrative Tribu nal (hereinafter referred to as the 'Tribunal ').
Civil Appeals Nos.
3018/87 and 3021187 arise out of the judgments dated April 24, 1987 and April 1, 1987 respective ly of the Tribunal, Hyderabad Bench.
Civil Appeals Nos.
3083/90 and 4379/90 arise out of the judgments dated March, 2, 1989 and September 15, 1989 of the Madras and Hyderabad Bench of the Tribunal respectively and which are based on the aforesaid decision of the Full Bench of the Tribunal.
Civil Appeals Nos.
51 55 of 1990 arise out of the deci sion dated July 12, 1989 of the Tribunal, Chandigarh Bench.
Special Leave Petition (C) No. 1094 of 1990 arises out of the decision dated June 29, 1989 of the Tribunal; Bombay Bench.
SpeCial Leave Petition (C) No. 2344 of 1990 arises out of the decision dated 18th September, 1989 given by the Tribunal, Principal Bench, New Delhi.
Special Leave Petition (C) No. 11680 of 1991 arises out of the decision dated January 25, 1991 given by the Tribu nal, Principal Bench, New Delhi.
2, The common questions involved in all these matters relate to what in service jurisprudence has come to be known as "sealed cover procedure".
Concisely stated, the questions are: (1) what is the date from which it can be said that disciplinary/criminal proceedings are 795 pending against an employee? (2) What is the course to be, adopted when the employee is held guilty in such proceedings if the guilt merits punishment other than that of dismissal? (3) To what benefits an employee who is completely or par tially exonerated is entitled to and from which date? ' The , 'sealed cover procedure" is adopted when an employee is due for promotion, increment etc.
but disciplinary/criminal proceedings are pending against him at the relevant time and hence, the findings of his entitlement to the benefit are kept in a sealed cover to be opened after the proceedings in question are over '.
Hence.
the relevance and importance of the questions.
The Union of India and the other appellant authori ties have by these appeals challenged the findings recorded by the different Benches of the Tribunal in reply to one or the other ' of or all the aforesaid three questions, in the decisions impugned therein.
While recording its findings, the Full Bench of the Tribunal has also struck down two provisions of the Central Government Memorandum of 30th January, 1982 on the subject.
We may, therefore, first refer to the said memorandum.
The Government of India (Deptt. of Personnel & Train ing) issued an Office Memorandum No, 22011/1/79.
(A) dated January 30, 1982 on the subject of promotion of offi cers in whose cases "the sealed cover procedure" had been followed but against whom disciplinary/court proceedings were pending for a long time.
The Memorandum stated that according to the existing instructions, cases of officers (a) who are under suspension or (b) against whom discipli nary proceedings are pending or a decision has been taken by the competent disciplinary authority to initiate discipli nary proceedings or, (c) against whom prosecution has been launched in a court of law or sanction for prosecution has been issued, are considered for promotion by the Departmen tal Promotion Committee (hereinafter referred to as the 'DPC ') at the appropriate time but the findings of the Committee are kept in a sealed cover to be opened after the conclusion of the disciplinary/court proceedings.
While the findings are kept in the sealed cover, the vacancy which might have gone to the officer concerned is filled only on an officiating basis.
If on the conclusion of the departmen tal/court proceedings, the officer concerned is completely exonerated, and where he is under suspension it is also held that the suspension was.wholly unjustified, the sealed cover is opened and the recommendations of the DPC are acted upon.
If the officer could have been promoted earlier, he is promoted to the post which is filled on an officiating basis, the officiating arrangement being terminated.
On his 796 promotion, the officer gets the benefit of seniority and fixation of pay on a notional basis with reference to the date on which he would have been promoted in the normal course, but for the pending disciplinary/ court proceedings.
However, no arrears of salary are paid in respect of the period.
prior to the date of actual promotion.
The Memoran dum goes on to state further that it was noticed that some times the cases in the courts or the departmental proceed ings take unduly long time to come to a conclusion and the officers undergo considerable hardship, even where it is not intended to deprive them of promotion for Such a long time.
The Government, therefore, in consultation with the Union Public Service Commission examined how the hardship caused to the Government servant in such circumstances can be mitigated and has laid down the following procedure in such cases: "3.
(i)(a) It may be ascertained whether there is any departmental disciplinary proceedings or any case in a court of law pending against the individual under consideration, or (b) there is a prima facie case on the basis of which a decision has been taken to proceed against the official either departmentally or in a court of law. ' (ii) The facts may be brought to the notice of the Departmental PromOtion Committee who may then assess the suitability of the official(s) for promotion to the next grade/post and for the purpose of this assessment, the D.P.C. shall not take into consideration the fact of the pending case(s) against the official.
In case an official is found "unfit for promo tion ' on the basis of his record, without taking into consideration, the case(s) pending against him, the findings of the D.P.C. shall be recorded in the proceedings.
In respect of any other kind of assessment, the grading awarded by the D.P.C. may be kept in a sealed cover.
(iii) After the findings are kept in a sealed cover by the Departmental Promotion Committee subsequent D.P.Cs.
, if any, held after the first D.P.C. during the period the discipli nary/court proceedings may be pending, will also consider the officer 's case and record their findings.
which will again be kept in sealed cover in the above manner.
797 In the normal course, on the conclu sion of the disciplinary/court proceedings, the sealed cover or covers may be opened, and in case the officer is completely exonerated i.e. no statutory penalty, including that of censure, is imposed, the earliest possible date of his promotion but for the pendency of the disciplinary/court proceedings against him, may be determined with reference to the position(s) assigned to him in the findings in the sealed cover/covers and with reference to the date of promotion of his next junior on the basis of such position.
The officer con cerned may then be promoted, if necessary by reverting the juniormost officiating person, and he may be given a notional promotion from the date he would have been promoted, as determined in the manner indicated above.
But no arrears of pay shall be payable to him for the period .of notional promotion proceeding the date of actual promotion.
If any penalty is imposed on the officer as a result of the disciplinary pro ceedings or if he is found guilty in the court proceedings against him, the findings in the sealed cover/covers shall not be acted upon.
The officer 's case for promotion may be con sidered in the usual manner by the next D.P.C. which meets in the normal course after the conclusion of the disciplinary/court proceed ings.
The existing instructions provide that in a case where departmental disciplinary proceedings have been held under the relevant disciplinary rules, "warning" should not be issued as a result of such proceedings.
If it is found as a result of the proceedings that some blame attaches to the officer, then the penalty of censure at least should be imposed.
This may be kept in view so that no occasion arises for any doubt on the point whether or not an officer has been completely exonerated in disciplinary proceedings held against him.
" Clause (iv) of Para 3 of the Memorandum then lays down the procedure for ad hoc appointment of the concerned offi cer when the disciplinary/court .proceedings are not con cluded even after the expiry of two years from the date of the DPC which first considered him for promotion and whose findings are kept in the sealed cover, provided however that the officer is not under suspension.
It is not necessary to reproduce that clause in extenso here.
Suffice it to say that the Memorandum urges that in making the ad hoc promo tion in such cases, his case should be placed before the DPC which is held after the 798 expiry of the said period of two years, and the ad hoc promotion has to be made on the basis of the totality of the record of service etc.
Para 4 of the Memorandum states that if the officer concerned is acquitted in the court proceedings on the merits of the case or exonerated in departmental discipli nary proceedings, the ad hoc promotion already made may be confirmed and the promotion treated as a regular one from the date of the ad hoc promotion with all attendant bene fits.
In such cases, the sealed cover may be opened and the official may be assigned his place in the seniority list as he would have got in accordance with the recommendation of the DPC.
Paras 5, 6 and 7 of the Memorandum then read as follows: "5.
Where the acquittal in a court case is ' not on merits but purely on technical grounds, and the Government either proposes to take the matter to a higher court or to pro ceed against the officer departmentally, the appointing authority may review whether the ad hoc promotion should be continued.
Where the 'acquittal by court is on technical grounds, if the Government does not propose to go in appeal to a higher court or to take further departmental action, action should be taken in the same manner as if the officer had been acquitted by the court on merits.
If the officer concerned is not acquitted/exonerated in the court proceedings or the departmental proceedings, the ad hoc promotion already granted should be brought to an end by the issue of the "further order" contemplated in the order of ad hoc promotion (Please see para 3(vi) above) and the officer concerned reverted to the post from which he was promoted on ad hoc basis.
After such reversion, the officer may be considered for future promotion in the usual course by the next D.P.C." , 5.
To bring the record uptodate, it may be pointed out that in view of the decision of this Court in Union of India & Anr.
vs Tajinder Singh, [ ; decided on September 26, 1986, the Government of India in the Deptt.
of Personnel & Training issued another ' Office Memorandum No. 22011/2/86.
(A) dated January 12, 1988, in superses sion of all the earlier instructions on the subject 799 including the Office Memorandum dated 30th January, 1982 referred to above.
There is no difference in the instruc tions contained in this and the earlier aforesaid Memorandum of January 30, 1982, except that this Memorandum provides in paragraph 4 for a six monthly review of the pending proceed ings against the Government servant where the proceedings are still at the stage of investigation and if as a result of the review, the appointing authority comes to the conclu sion on the basis Of material and evidence collected in the investigation till that time, that there is no prima facie case in initiating disciplinary action or sanctioning prose cution, the sealed cover is directed to be opened and the employee is directed to be given his due promotion with reference to the position assigned to him by the the DPC.
A further guideline contained in this Memorandum is that the same sealed cover procedure is to be applied where a Govern ment servant is recommended for promotion by the DPC, but before he is actually promoted, he is either placed under suspension or disciplinary proceedings are taken against him or decision has been taken to initiate the proceedings or criminal prosecution is launched or sanction for such prose cution has been issued or decision to accord such sanction is taken.
These differences in the two Memoranda have no bearing on the questions to be answered.
On the first question, viz., as to when for the purposes of the sealed cover procedure the disciplinary/criminal proceedings can be said to have com menced, the Full Bench of the Tribunal has held that it is only when a charge memo in a disciplinary proceedings or a chargesheet in a criminal prosecution is issued to the employee that it can be said that the departmental proceed ings/criminal prosecution is initiated against the employee.
The sealed cover procedure is to be resorted to only after the charge memo/charge sheet is issued.
The pendency of preliminary investigation prior to that stage will not be sufficient to enable the authorities to adopt the sealed cover procedure.
We are in agreement with the Tribunal on this point.
The contention advanced by the learned counsel for the appellant authorities that when there are serious allegations and it takes time to collect necessary evidence to prepare and issue charge memo/charge sheet, it would not be in the interest of the purity of administration to reward the employee with a promotion, increment etc.
does not impress us.
The acceptance of this contention would result in injustice to the employees in many cases.
As has been the experience so far, the preliminary investigations take an inordinately long time and particularly when they are initi ated at the 800 instance of the interested persons, they are kept pending deliberately.
Many times they never result in the issue of any charge memo/chargesheet.
If the allegations are serious and the authorities are keen in investigating them, ordi narily it slould not take much time to collect the relevant evidence and finalise the charges.
What is further, if the charges are that serious, the authorities have the power to suspend the employee under the relevant rules, and the suspension by itself permits a resort to the sealed cover procedure.
The authorities thus are not without a ,remedy.
It was then contended on behalf of the authorities that conclusions nos.
1 and 4 of the Full Bench of the Tribunal are inconsistent with each other.
Those conclusions are as follows: "(1) consideration for promotion, selection grade, crossing the efficiency bar or higher scale of pay cannot be withheld merely on the ground of pendency of a disciplinary or crimi nal proceedings against an official; ( 3 ) . . . . . . . . (4) the sealed cover procedure can be resorted only after a charge memo is served on the concerned official or the charge sheet filed before the criminal court and not before . ' ' There ' is no doubt that there is a seeming contradiction between the two conclusions.
But read harmoniously, and that is what the Full Bench has intended, the two conclusions can be reconciled with each other.
The conclusion No. 1 should be read to mean that the promotion etc.
cannot be withheld merely because some disciplinary/criminal proceedings are pending against the employee.
To deny the said benefit, they must be at the relevant time pending at the stage when charge memo/charge sheet has already been issued to the employee.
Thus read, there is no inconsistency in the two conclusions.
We, therefore, repel the challenge of the appellant authorities to the said finding of the Full Bench of the Tribunal.
The Full Bench of the Tribunal, while considering the earlier Memorandum dated 30th January.
1982 has, among other things, held that the portion of paragraph 2 of the memoran dum which says "but no arrears are allowed in respect of the period prior to the date of the 801 actual promotion" is violative of Articles 14 and 16 of the Constitution because withholding of salary of the promotion al post for the perked during which the promotion has been withheld while giving other benefits, is discriminatory when compared with other employees ' who are not at the verge of promotion when the disciplinary proceedings ' were intiated against them.
The Tribunal has, therefore, directed that.
on exonera tion.
full salary should be paid to such employee which he would have on promotion if he had not been subjected to disciplinary proceedings.
We are afraid that the Tribunal 's reference to para graph 2 of the Memorandum is incorrect.
Paragraph 2 only recites the state of affairs as existed on January 30, 1982 and the portion of the Memorandum which deals with the relevant point is the 'last sentence of the first sub para graph after clause (iii) of paragraph 3 of the Memorandum which is reproduced above.
That sentence reads as follows: "But no arrears of pay shall be payable to him for the period of notional promotion preceding the date of actual promotion".
This sentence is preceded by the observation that when the ' employee is completely exonerated on the conclusion of the disciplinary/court proceedings, that is, when no statu tory penalty, including that of censure, is imposed, he is to be given a notional promotion from the date he would have been promoted as determined by the Departmental Promotion Committee.
This direction in the Memorandum has also to be read along with the other direction which follows in the next sub paragraph and which states that if it is found as a result of the proceedings that some blame attaches to the officer then the penalty of censure at least, should be imposed.
This direction is in supersession of the earlier instructions which provided that in a case where departmen tal disciplinary proceedings have been held, "warning" should not be issued as a result of such proceedings.
There is no doubt that when an employee is completely exonerated and is not visited with the penalty even of censure indicating thereby that he was not blame worthy in the least, he should not be deprived of any benefits includ ing the salary of the promotional post.
It was urged on behalf of the appellant authorities in all .these cases that a person is not entitled to the salary of the post unless he assumes charge of the same.
They relied on F.R. 17(1) ' of the Fundamental 802 Rules and Supplementary Rules which reads as follows: "F.R. 17(1) Subject to any excep tions specifically made in these rules and to the provision of sub rule (2), an officer shall begin to draw the pay and allowances attached to his tenure of a post with effect from the date when he assumes the duties of that post, and shall cease to draw them as soon as he ceases to discharge those duties: Provided that an officer who is absent from duty without any authority shall not be entitled to any pay and allowances during the period of such absence.
" It was further contended on their behalf that the normal rule is "no work no pay".
Hence a person cannot be allowed to draw the benefits of a post the duties of which he has not discharged.
To allow him to do so is against the elemen tary rule that a person is to be paid only for the work he bas done and not for the work he has not done.
As against this, it was pointed out on behalf of the concerned employ ees, that on many occasions even frivolous proceedings are instituted at the instance of interested persons, sometimes with a specific object of denying the promotion due, and the employee concerned is made to suffer both mental agony and privations which are multiplied when he is also placed Under suspension.
When, therefore, at the end of such sufferings, he comes out with a clean bill, he has to be restored to all the benefits from which he was kept away unjustly.
We are not much impressed by the contentions advanced on behalf of the authorities.
The normal rule of "no work no pay" is not applicable to cases such as the present one where the employee although he is willing to work is kept away from work by the authorities for no fault of his.
This is not a case where the employee remains away from work for his own reasons, although the work is offered to him.
It is for this reason that F.R. 17(1) will also be inapplicable to such cases.
We are, therefore, broadly in agreement with the find ing of the Tribunal that when an employee is completely exonerated meaning thereby that he is not 'found blameworthy in the least and is not visited with the penalty even of censure, he has to be given the benefit of the salary of the higher post along with the other benefits from the date on which he would have normally been promoted but for the disciplinary/ 803 criminal proceedings.
However, there may be cases ' where the pro ceedings, whether disciplinary or criminal, are, for example, delayd at the instance of the employee or the clearance in the disciplinary proceedings or acquittal in the criminal proceedings is with benefit of doubt or on account of non availability of evidence due to the acts attributable to the employee etc.
In such circumstances, the concerned authorities must be vested with the power to decide whether the employee at all deserves any salary for the intervening period and if he does, the extent to which he deserves it.
Life being complex, it is not possible to anticipate and enumerate exhaustively all the circumstances under which such consideration may become necessary.
To ignorehowever, such circumstances when they exist and lay down ' an inflexi ble rule that in every case when an employ ee is exonerated in disciplinary/ criminal proceedings he should be entitled to all salary for the intervening period is to undermine discipline in the administration and jeopar dise public interests.
We are, therefore, unable to agree with the Tribunal that to deny the salary to an employee would in all circumstances be illegal.
While, therefore, we do not ap prove of the said last sentence in the first sub paragraph after clause (iii) of paragraph 3 of the said Memorandum, viz. "but no arrears of pay shall be payable to him for the period of notional promotion preceding the date of actual promotion", we direct that in place of the said sentence the following sentence be read in the Memorandum: "However, whether the officer concerned will be entitled to any arrears of pay for the period of notional promotion preceding the date of actual promotion, and if so to what extent, will be decided by the concerned authority by taking into consideration all the facts and circumstances of the disciplinary proceeding/criminal prosecution.
Where the authority denies arrears of salary or part of it, it will record its reasons for doing so.
" To this extent we set aside the conclusion of the Tribu nal on the said point. 8.
The Tribunal has also struck down the 'following portion in the second sub paragraph after clause (iii) of paragraph 3 which reads as follows: "If any penalty is imposed on the officer as a result of the disciplinary proceedings or if he is found guilty in the court proceed ings against him, the findings in the sealed cover/covers shall not be acted upon" and has directed that if the pro ceedings result in a penalty, the person concerned should be considered for promotion in a 804 Review DPC as on the original date in the light of the results of the scaled cover as also the imposition of penal ty and his claim for promotion cannot be deferred for the subsequent DPCs as provided in the instructions.
It may be pointed out that the said sub paragraph directs that "the officer 's case for promotion may be considered in the usual manner by the next DPC which meets in the normal course after the conclusion of the disciplinary/court proceedings".
The Tribunal has given the direction in question on the ground that such deferment of the claim for promotion to the subsequent DPCs amounts to a double penalty.
According to the Tribunal, " 'it not only violates Articles 14 and 16 of the Constitution compared with other .employees who are not at the verge of promotion when the disciplinary proceedings are Initiated against them but also offends the rule against double leopardy contained in Article 20(2) of the Constitu tion".
The Tribunal has, therefore,.held that when an em ployee is visited with a penalty as a result of the disci plinary proceedings there should be a Review DPC us on the date when the sealed cover procedure was followed and the review DPC should consider the findings in the sealed cover as also the penalty imposed.
It is not clear to us as to why the Tribunal wants the review DPC to consider the penalty imposed while considering the findings in the sealed cover if, according to the Tribunal, not giving effect to the findings in the sealed cover even.
when a penalty is imposed, amounts to double jeopardy.
However, as we read the findings of the Tribunal, it appears that the Tribunal in no case wants the promotion of the officer to be deferred once the officer is visited with a penalty in the disciplinary proceedings and the Tribunal desires that the officer should be given promotion as per the findings in the sealed cover.
According to us, the Tribunal has erred in holding that when an officer is found guilty in the discharge of his duties, an imposition of penalty is all that is necessary to improve his conduct and to enforce discipline and ensure purity in the administration.
In the first instance, the penalty short of dismissal will vary from reduction in rank to censure.
We are sure that the Tribunal has not intended that the promotion should be given to the officer from the original date even when the penalty imparted is of reduction in rank.
On principle, for the same reasons, the officer cannot be rewarded by promotion as a matter of course even if the penalty is other than that of the reduction in rank.
An employee has no right to promotion.
He has only a right to be considered for promotion.
The promotion to a post and more so, to a selection post, depends upon several circum stances.
To qualify for promotion, the least that is expect ed of an employee is to have an 805 unblemished record.
That is the minimum expected to ensure a clean and efficient administration and to protect the public interests.
An employee found guilty of a misconduct cannot be placed on par with the other employees and his case has to be treated differently.
There is, therefore, no discrimi nation when in the matter of promotion, he is treated dif ferently.
The least that is expected of any administration is that it does not reward an employee with promotion retro spectively from a date when for his conduct before that date he is penalised in presentii.
When an employee is held guilty and penalised and is, therefore, not promoted at least till the date on which he is penalised, he cannot be said to have been subjected to a further penalty on that account.
A denial of promotion in such circumstances is not a penalty but a necessary consequence of his conduct.
In fact, while considering an employee for promotion his whole record has to be taken into consideration and if a promotion committee takes the penalties imposed upon the employee into consideration and denies him the promotion, such denial is not illegal and unjustified.
If, ,further, the promoting authority can take into consideration the penalty or penal ties awarded to an employee in the past while considering his promotion and deny him promotion on that ground, it will be irrational to hold that it cannot take the penalty into consideration when it is imposed at a later date because of the pendency of the proceedings, although it is for conduct prior to the date the authority considers the promotion.
For these reasons, we are of the view that the Tribunal is not right in striking down the said portion of the second sub paragraph after clause iii) of paragraph 3 of the said Memorandum.
We, therefore, set aside the said findings of the Tribunal.
In the circumstances, the conclusions arrived at by the Full Bench of the Tribunal stand modified as above.
It is needless to add that the modifications which we have made above will equally apply to the Memorandum of January 12,1988 9.
In the result, in Civil Appeals Nos. 3019/87, 3020/87 and 30 16/88 which arise out of the decision of the Full Bench, the Division Bench of the Tribunal to which the matters are remanded by the Full Bench., will dispose of the cases of the employee/s involved in the appeals in the light of what we have held hereinabove.
Civil Appeal No. 3018 of 1987 In this case, no charge sheet was served on the respon dentemployee when the DPC met to consider the respondent 's promotion.
806 Yet, the sealed cover procedure was adopted.
The Tribunal has rightly directed the authorities to open .the sealed cover and if the respondent was found fit for promotion by the DPC, to give him the promotion from the date his immedi ate junior Shri M. Raja Rao was promoted pursuant to the order dated April 30, 1986.
The Tribunal has also directed the authorities to grant to the respondent all the conse quential benefits.
The Tribunal has further stated in the impugned order that its order would not mean that the disci plinary proceedings instituted against the respondent em ployee should not go on.
We see no reason to interfere with this order.
The appeal, therefore, stands dismissed.
In the circumstances of the case, however, there will be no order as to costs.
Civil Appeal No. 302 1 of 1987 In this case, the DPC did not consider the case of the respondent employee for crossing efficiency bar w.e.f. 14th September, 1983 on the ground that disciplinary proceedings were contemplated against him.
We are, therefore, of the view that the Tribunal 's direction that the DPC should be convened to consider the case of the respondent for crossing the efficiency bar w.e.f.
14th September, 1983 on the basis of his confidential record at the relevant date and without reference to the contemplated disciplinary proceedings is both proper and valid.
In this case also the Tribunal has given the said direction without prejudice to the right of the appellant authorities to take any disciplinary action as might have been contemplated.
This order also does not require any interference from this Court.
Hence, the appeal stands dismissed.
In the circumstances of the case, however, there will be no order as to costs.
Civil Appeal No. 3083 of 1990 In this case, the respondent employee 's case was considered for promotion by the DPC in August 1982.
However, the result was kept in a sealed cover in view of the pending disciplinary proceedings against him.
According to the employee, on October 11, 1985 the disciplinary proceedings ended in complete exoneration.
Thereafter, a DPC was again constitut ed in March 1986 which, after consideration of the employ ee 's case, recommended him for promotion w.e.f.
July 26, 1986.
this was obviously contrary even to the instructions contained in the Memorandum.
He was entitled to promotion from the date his immediate junior was promoted in or after August 1982 if he was in August 1982 found fit for promotion by the DPC, The Tribunal has, 807 therefore, rightly directed the appellant to open the sealed cover and if the DPC in 1982 had found him fit for promo tion, to give him the promotion from the date on which his immediate junior was promoted.
However, while doing so, the Tribunal has ' also directed arrears of salary to be paid for intervening period along with all consequential benefits.
Since we have held disagreeing with the decision of the Full Bench of the Tribunal that the .benefit of the arrears of salary will not flow automatically but will depend upon the circumstances in each case, we modify the said order to the extent it directs the payment of arrears of salary, and direct the appellant authority to consider whether the employee in the circumstances of the case was entitled to any arrears of salary and to what extent.
The authority will, of course give reasons for denial of the whole or part of the arrears of salary The appeal is, there fore, allowed partly with no order as to costs.
Civil Appeal No. 4379 of 1990 In this case, the respondent employee was not recommend ed for promotion by the DPC in its meeting held on February 1, 1988 Instead, the DPC had kept the results in a sealed cover because of the pending dis.ciplinary proceed ings.
Admittedly, no charge memo was served.
On the employee till the date the DPC met on February 1, 1988 it was issued only in March 2, 1989.
The Tribunal has, therefor rightly directed the authorities tO open the sealed cover.
We are, however, unable to understand the direction of the Tribunal to convene a Review DPC for considering the employee 's case as on February 1 1988.
If the DPC had considered the case of the employee on February 1, 1988 and withheld the result because of the pending disciplinary proceedings, the proper direction would have been to ask the appellant authority to open the sealed cover and if the employee was found fit for promotion, to direct the authority to promote him from the date on which his immediate junior was promoted as a result of the recommendation of the DPC on February 1, 1988.
In case he is so found fit, he would be entitled to the bene fits of seniority etc.
on a notional basis.
However, whether he. would be entitled to the arrears of salary for the intervening period and to what extent will have to be decid ed by the appellant authority in the light of what we have state above.
In case the authority denies to the employee the salary in full or in part, it will, of course, record its reasons for doing so.
The appeal is therefore, allowed partly as above with no order as to costs.
Civil Appeals Nos.
51 55 of 1990 These appeals are filed against five respondent employees.
Dis 808 ciplinary proceedings as well as criminal prosecution were launched against each of them for lodging false Leave Travel Concession claims and for using forged documents to support them.
The employees were suspended from service on 15th July , 1983.
They admitted guilt and pleaded revocation of their suspension on depositing the amount of Rs. 1600.
They were reinstated in service in November, 1983.
Keeping in view the deposit of the amount voluntarily in October 1983, a lenient view was taken and the criminal.
prosecutions against them were dropped by the Administration by an order of January 14, 1985.
However, this was done without prejudice to the departmental proceedings which were subsequently initiated and the formal chargesheet was issued to the employees on December 24, 1987.
The Departmental Promotion Committee met in July 1986 to consider the cases of the employees for promotion but re sorted to sealed cover procedure in view of the pendency of the disciplinary proceedings against them.
There is no dispute that the formal chargesheet was issued either on August or December 24, 1987.
Conflicting months have been mentioned in the decision of the Tribunal.
However, we find that the Tribunal has taken a mechani cal view and applied the decision of the Full Bench and directed the promotions to be given to the employees on the basis of the recommendations, if any, of the DPC of July 1986.
We are of the view that in the present case when the DPC met in July 1986, the Committee had before it the record of the refund of the amount by the respondent employ ees and the consequent withdrawal of the prosecutions with out prejudice to the authorities ' right to institute depart mental proceedings.
In view of the aforesaid peculiar facts of the present case, the DPC which met in July 1986 was justified in re sorting to the .sealed cover procedure, notwithstanding the fact that the charge sheet in the departmental proceedings was issued in August/December, 1987.
The Tribunal was, therefore, not justified in mechanically applying the deci sion of the Full Bench to the facts of the present case and also in directing all benefits to be given to the employees including payment of arrears of salary.
We are of the view that even 'if the results in the sealed cover entitle the employees to promotion from the date their immediate juniors were promoted and they are, therefore, so promoted and given notional 'benefits of seniority etc., the.
employees in no case should be given any arrears of salary.
The denial of the benefit of salary will, of course, be in addition to the penalty,.if any,.
imposed on the employees at the end of the disciplinary proceedings.
We, 809 therefore, allow these appeals as above with no order as to costs.
S.L.P. (Civil) No. 1094 of 1990 Special leavegranted.
The respondent employee in this case was a Sepoy in the Department of Central Excise and Customs.
He passed his Departmental examination for the post of Lower Division Clerk against 10% vacancies and by letter of October 14, 1981, he was informed about his selection for the said post against the said vacancies reserved for educationally quali fied Group D staff.
However, he was informed that.
his appointment order as L.D.C. would be issued if he was exon erated from the disciplinary proceedings which were then pending against him.
In the Departmental Inquiry, .he, was exonerated of all the charges and by an order.of June 6, 1985 he was appointed to officiate as Lower Division Clerk.
By a subsequent order of July 3, 1985, the earlier order of June 6, 1985 was made effective from September 25, 1981.
By yet another order of July 29, 1985, his pay was fixed by giving him increment from September 25, 1981 but he was denied arrears of pay from that date till June 2, 1985.
The employee did not challenge the said order denying him ar rears of pay till he made his representation on February 18, 1988.
To his representation a reply was sent that since he had not worked as LDC during the said period he was not entitled to the arrears of salary.
By the impugned decision, the Tribunal has directed the authorities to grant to the respondent employee his pay and allowances from September 25, 1981 to June 2, 1985.
In view of what we have held above, the appeal is al lowed, the impugned order is hereby set aside and instead the appellant authorities are directed to examine the ques tion whether the respondentemployee was entitled to any salary and if so to what extent in the light of the view taken by us.
The appellant authorities will, of course, have to record reasons if the arrears of salary in its entirety or in part are denied to the employee.
In the circumstances of the case, however, there will be no order as to costs.
S.L.P. (Civil) No. 11680of1991 Special leave granted '.
The order impugned in this appeal is an interim one whereby the Tribunal has directed the appellant Union of India to open the sealed 810 cover and if the result shows that the DPC has found the respondentemployee fit for promotion to the post of Commis sioner of Incometax, to give effect to the said recommenda tions.
The admitted facts are that the DPC which met in 1988 had considered the respondentemployee 's case for promotion to the post of Commissioner of Income tax.
However, since some departmental proceedings were pending against him, he was not given the ,said promotion.
It was for the first time in 1990, that the appellants served on him a memorandum asking his explanation in respect of certain alleged acts of misconduct to which he sent a reply on May 18, 1990.
Till the date of the 'impugned order of the Tribunal, i.e., January 1, 1991, no charge sheet was served upon the re spondent employee.
However, 12 persons.
junior to him were promoted by an order dated April 16, 1990.
The Tribunal has, as stated above, therefore, made the impugned order.
There is .no direction in the order to pay him the arrears of salary for the interregnum.
In the circumstances of the case, we do not think it necessary to interfere with the impugned order.
The appeal, therefore, stands dismissed.
In the circumstances of the case, however, there will be no Order as to costs.
S.L.P. (Civil) No. 2344 of 1990 Special leave granted.
The peculiar facts in this case are that at the relevant time the respondent employee was working as Superintending Engineer since July 1986.
When earlier he was working as Garrison Engineer in Bikaner Division, there was a fire in the Stores in April 1984 and there were also deficiencies in the Stores held by: the Store keeper during the 'period between 1982 and 1985.
Hence, disciplinary proceedings were commenced in February 1988 and the respondent was served with a charge sheet on February 22, 1988.
By an order of August 19, 1988 a penalty of withholding of increment for one year was imposed on the respondent as a result of the said disciplinary proceedings.
On June 3, 1988, the DPC met for considering 'the promo tion 'to the Selection Grade.
Pursuant to this meeting, by an order of July 28, 1988 some juniors were given the Selection Grade with retrospective effect from July 30, 1986.
The respondent employee 's name was kept in a sealed cover and was, therefore, not included in the list of the promotee officers.
The Tribunal has found fault With the authorities on two 811 grounds.
The Tribunal has observed that although when the DPC met in June 1988, the employee was already served with a charge sheet on February 22, 1988 and, therefore, the sealed cover procedure could not be faulted, since admittedly his juniors were given promotion with retrospective effect from July 30, 1986,.
the DPC should not have excluded the re spondent 's name from consideration when it met on June 3, 1988.
The second fault which the Tribunal has found is that since the penalty of stoppage of increment was imposed at the end of the disciplinary proceedings, it was not open for the authorities to deny the 'respondent his promotion to the.
Selection Grade as that amounted to 'double penalty.
Having taken this view, the Tribunal has directed that a Review DPC should consider the 'respondent 's case for promo tion w.e.f.
July 1986 when his juniors were given promotion taking into account his performance and confidential records up to 1986.
We are afraid the Tribunal has taken an errone ous view of the matter.
Admittedly, the DPC met in June 1988 when the employee was already served with the charge sheet on February 22, 1988.
The charge sheet was for misconduct for the period between 1982 and 1985.
Admittedly further, the employee was punished by an order of August 19, 1988 and his one increment was withheld.
Although, therefore, the promotions to his juniors were given with retrospective effect from, July 30, 1986, the denial of promotion to the employee was not unjustified.
The DPC had for the first time.
met on June 3, 1988 for considering promotion to the Selection Grade.
It is in this meeting that his juniors were given Selection Grade with retrospective effect from July 30, 1986, and the sealed cover procedure was adopted in his case.
If no disciplinary .proceedings were pending against him and if he was.
otherwise selected by the DPC he Would have got the Selection Grade w.e.f. July 30, 1986, but in that case the.
disciplinary proceedings against him for his misconduct for the earlier period, viz., between 1982 and 1985 would have been meaningless.
If the Tribunal 's finding is 'accepted it would mean that by giving him the Selection Grade w.e.f. July 30, 1986 he would stand rewarded notwith standing his misconduct for the .earlier period for which disciplinary proceedings were pending at the time of the meeting of the DPC and for which again he was visited with a penalty.
We, therefore, allow the appeal and set aside.
the finding of the Tribunal.
There will, however, be no order as to costs.
Before we part with these appeals, we make it clear that if any of the respondent employees in any of the above appeals has/have been given any benefits the same will not be disturbed.
G.N. Appeals disposed of.
| When an employee is due for promotion, increment etc.
but disciplinary/criminal proceedings are pending against him at the relevant time, the findings of his entitlement to such benefit are kept in a sealed cover to be opened after the proceedings in question are over.
According to this procedure, while the findings are kept in the sealed cover, the vacancy which might have gone to the officer concerned is filled only on an officiating basis.
If on the conclusion of the departmental/court pro ceedings, the officer concerned is completely exonerated, and where he is under suspension it is also held that the suspension was wholly unjustified, the sealed, cover is opened and the recommendations of the DPC are acted upon.
If the officer could have been promoted earlier, he is promoted to the post which is Idled on an 791 officiating basis, the officiating arrangement being termi nated.
On his promotion, the officer gets the benefit of seniority and fixation of pay on a notional basis with reference to the date on which he would have been promoted in the normal course, but for the .pending disciplinary/court proceedings.
However, no arrears of salary.
are paid in respect of the period prior to the date of actual promotion.
Sometimes the cases in the courts or the departmental proceedings take unduly long time to come to a conclusion and the officers undergo considerable hardship, even where it was not intended to deprive.
them of promotion for such a long time.
The Government in consultation with the Union Public Service Commission examined how the hardship caused to the Government servant in such circumstances could be mitigated and laid down certain procedures by an Office Memorandum No. 2201111179 Eatt.
(A) dated January 30, 1982.
In interpreting the Memorandum as to what is the date from which it can be said that disciplinary/criminal pro ceedings are pending against an employee; as to what would be the course to be adopted when the employee is held guilty in such proceedings if the guilt merits punishment other than that of dismissal; and as to what benefits an employee who is completely or partially exonerated is entitled to and from which date, different Benches of the Central Adminis trative Tribunal recorded their findings and while doing so, the Full Bench of the Tribunal struck down two provisions of the said Memorandum dated January 30, 1982, which related to a prohibiton against acting upon the findings contained in the sealed cover in case the officer was imposed penalty as a result of disciplinary proceedings or found guilty in the Court proceedings against him and regarding arrears of pay for the period of notional promotion.
Aggrieved by the decisions of the various Benches of the Tribunal, the Union of India and other authorities preferred the present appeals and special leave petitions.
Disposing of them matters, this Court, HELD: 1.
The sealed cover procedure is to be resorted to only after the charge memo/charge sheet is issued.
The pendency of preliminary investigation prior to that stage will not be sufficient to enable the authorities to adopt the sealed cover procedure.
The preliminary investigations take an inordinately long time and particularly when they are initiated at the instance of the interested persons, they are kept 792 pending deliberately.
Many times they never result in the issue of any charge memo/charge sheet.
If the allegations are serious and the authorities are keen in investigating them ordinarily it should not take much time to collect the relevant evidence and finalise the charges.
If the charges are that serious, the authorities have the power to suspend the employees under the relevant rules, and the suspension by itself permits a resort to the sealed cover procedure.
The authorities thus are not without a remedy.
[799F H; 800A B] 2.
When an employee is completely exonerated meaning thereby that he is not found blame worthy in the least and is not visited with the penalty even of censure, he has to be given the benefit of the salary .of the higher post along with the other benefits from the date on which he would have normally been promoted but for the disciplinary/criminal proceedings.
However, there may be cases.
where the proceed ings, whether disciplinary or criminal, are delayed at the instance of the employee or the clearance in the discipli nary proceedings or acquittal in the criminal proceedings is with benefit of doubt or on account of nonavailability of evidence due to the acts attributable to the employee etc.
In such circumstances, the concerned authorities must be vested with the power to decide whether the employee at all deserves any salary for the intervening period and if he does, the extent to which he deserves it.
being com plex, it is not possible to anticipate and enumerate exhaus tively all the circumstances under which such consideration may become necessary.
To ignore, however, such circumstances when they exist and lay down an inflexible rule that in every case when an employee is exonerated in disciplinary/criminal proceedings he should be entitled to all salary lot the intervening period is to undermine disci pline in the administration and jeopardise public interests.
The Tribunal was not right in holding that to deny the salary to an employee would in all circumstances be illegal.
[802G H; 803A D] 3.
The normal rule of "no work no pay" is not applicable to cases where the employee although he is willing to work is kept away from work by the authorities for no fault of his.
This is not a case where the employee remains away from work for his own ' reasons, although the work is offered to him.
It is for this reason that F.R. 17(1).will also be inapplicable to such caseS. [802F G] 4.
The Tribunal erred in holding that when an officer is found guilty in the discharge of his duties, an imposition of penalty is all that is necessary to improve his conduct and to enforce discipline and ensure purity in the adminis tration.
In the first instance, the penalty short of 793 dismissal will vary from reduction in rank to censure.
The Tribunal has not intended that the promotion should be given to the officer from the original date even when the penalty imparted is of reduction in rank.
On principle, the officer cannot be rewarded by promotion as a matter of course even if the penalty is other than that of reduction in rank.
[804F G] 5.
An employee has no right to promotion.
He has only a right to be considered for promotion.
The promotion to a post and more so, to a selection post, depends upon several circumstances.
To qualify for promotion, the least that is expected of an employee is to have an unblemished record.
That is the minimum expected to ensure a clean and efficient administration and to protect the public interests.
An employee found guilty of misconduct cannot be placed on par with the other employees and his case has to be treated differently.
There is therefore, no discrimination when in the matter of promotion, he is treated differently.
[804G H; 805A] 6.
The least that is expected of any administration is that it does not reward an employee 'with promotion retro spectively from a date when for his conduct before that date he is penalised in presenti.
When an employee is held guilty and penalised and is, therefore, not promoted at least till the date on which he is penalised, he cannot be said to have been subjected to a further penalty on that account.
A denial of promotion in such circumstances is not a penalty but a necessary consequence of his conduct.
[805B C] 7.
While considering an employee for promotion his whole record has to be taken into consideration and if a promotion committee takes the penalties imposed upon the employee into consideration and denies him the promotion, such denial is not illegal and unjustified.
If the.
promoting authority can take into consideration the penalty or penalties awarded to an employee in the past while considering his promotion and deny him promotion on that ground, it will be irrational to hold that it cannot take the penalty into consideration when it ' is imposed at a later date because of the pendency of the proceedings, although it.
is for conduct prior to the date the authority considers the promotion.
[805C D]
|
ivil Appeal No. 3471 of 1991.
From the Judgment and Order dated 14.9.1990 Punjab and Haryana High Court in C.W.P. No. 12328 of 1990.
860 G.K. Bansal for the Appellants.
K.C. Bajaj, Ms. Kusum Chaudhary and Y.K. Jain for the Respondent.
The following Order of the Court was delivered: Special leave granted.
We have heard learned counsel for both the parties and also considered the order passed by the High Court.
Admit tedly, these two appellants were appointed much earlier to the appointment of respondent Nos. 3 and 4 in the post of Assistant Sub Inspector of Police.
Their appointment being on 30.3.71 and 24.4.71 whereas the appointment of respondent Nos. 3 and 4 were on 18.2.83.
They were promoted in 1983 as Assistant Sub Inspectors of Police.
On 1.1.89 respondent Nos. 3 and 4 and appellant Nos.1 and 2 were promoted as Inspectors of Police and a composite Seniority List of appellants, respondent Nos. 3 and 4 and other similarly appointed persons was issued by respondent No. 1 in which appellant No 1 was shown at serial No. 33, appellant No. 2 at serial No. 34 and the respondent Nos. 3 and 4 were at serial numbers 46 and 47 respectively.
On 16.10.89 by order of respondent Nos. 1 and 2, State of Haryana and Director General of Police respondent No. 3 was promoted out of turn as Deputy Superintendent of Police.
On 23.10.89 respondent No. 4 was promoted as Deputy Superintendent of Police, out of turn.
It is rather curious that not a single whisper was there in the order of promotion why the said, out of turn, promotion was given.
It was tried to be contended by learned counsels on behalf of respondent Nos. 3 and 4 that because of their gallantry this out of turn promotion was given.
However, there is no whisper about this in the letters giving promotion.
The appellants, on the other hand, were promoted as Deputy Superintendents of Police as on 11.1.90.
While filing the Writ Petition before the High Court, the appellants stated that they came to know of this out of turn promotion sometime on 3.8.90.
We have considered the order of the High Court.
It is really a matter of great regret that inspite of several pronouncements of this Court that the order dismissing the writ petition must be a speaking order in order to enable the persons affected to know what were the reasons which weighed with the High Court in dismissing the writ petition.
This Court has observed several times that the High Court should not pass laconic order.
In that view of the matter, we think it 861 just, proper and fair to set aside the order of the High Court and send the case back on remand to the High Court to hear out the writ petition after giving opportunity to parties and recording a reasoned speaking order on merits.
The appeal is accordingly disposed of R.P. Appeal disposed of.
| Respondents No. 3 and 4, who were junior to the appel lants as Inspectors of Police in the State of Haryana, were given out of turn promotions as Deputy Superintendents of police earlier than the appellants.
The Appellants chal lenged the said promotion order in a writ petition which was dismissed by the High Court by a non speaking order.
Ag grieved, the appellants filed the appeal by special leave to this Court.
Disposing of the appeal, this Court, HELD: 1.
The order dismissing the writ petition must be a speaking one in order to enable the person affected to know what were the reasons which weighed with the High Court in dismissing it.
The High Court should not pass a laconic order.
[860G] 2.
In the instant case, in the order of promotion there was not a single whisper why the said out of turn promotion was given.
[860E] 3.
The order of the High Court is fit to be set aside, and the case be sent back on remand to the High Court to hear the writ petition after giving an opportunity to the parties and recording a reasoned speaking order on merits.
[861A]
|
N: Criminal Appeal No. 533of 1991.
From the Judgment and Order dated 10.1.
1989 of the Gujarat High Court in Miscellaneous Criminal Application No. 32 of 1989.
H.S. Zaveri for the Appellant.
Dushayant Dave, Ashish Verma and Anip Sachthey.
for the Respondents.
The Judgment of the Court was delivered by VERMA, J.
Petitioner 's daughter Chhaya Was married to Respondent No. 2 Satish on5.
12. 1984 and they started living together in their marital home at Bagasara.
On 13.8.
1986, Chhaya died at Bagasara.
The petitioner and his wife got some vague information about their daughter Chhaya and went to Bagasara, the same day but were unable to meet or see their daughter who had died.
The petitioner suspected that their daughter 's death was unnatural resulting from torture by her husband and his relatives.
The petitioner filed a criminal complaint against Respondent Nos. 2 to 5, who are the husband, his parents and sister which was trans ferred to the Court of.
Judicial Magistrate First Class at Dhari and registered as Criminal Case No. 382 of 1988 for an offence under section 498 A read with section 34 I.P.C.
The petitioner filed an application for committing the case to the Court of Session for trial for .an offencepunishable under section 304 B I.P.C. which was inserted in the Indian Penal Code by Act No. 43 of 1986 w.e.f.
19.11.1986.
On 29.11.1988, the Learned Magistrate dismissed the petition er 's application holding that this amendment being prospec tive was inapplicable to a death which occurred on 13.8.1986, prior to the amendment.
Aggrieved by this order, the petitioner moved an application (Misc.
Criminal Applica tion No. 32 of 1989) in the High Court of Gujarat .for a direction to commit this case of dowry death to 'the Court of Session since an 'offence punish able under section 304 B is triable by the Court of Session. ' By the impugned order dated January 10, 1989, the High Court has dismissed that application.
Hence this special leave petition.
815 Leave is granted.
The point arising for our decision is the applicability of section 304 B of the Indian Penal Code to the present case where the death alleged to be a dowry death occurred prior to insertion of section 304 B in the Indian Penal Code.
This is the only ground on which the.
appellant claims trial of the case in the Court of Session.
The reason.given by the High Court to support its view is that the offence was committed prior to the date of insertion of section 304 B in the Indian Penal Code on account of which the section can have no application to the present case.
None of the courts below.
has examined the applicability .of any other pre existing more stringent provision even if section 304 B does not apply.
As such affirmation of the view that section 304 B does not apply, will not preclude the appellant from contending that any other more stringent provision is attracted on the accusa tion made.
If that point is raised, the courts below will have to decide the same on merits on the basis of accusation made.
It is in this background that the point raised by the appellant regarding applicability of section 304 B is decid ed by us.
Section 304 B and the cognate provisions are meant for eradication of the social evil of dowry which has been the bane of Indian society 'and continues unabated in spite of emanicipation of women and the women 's liberation movement.
This all prevading malady in our society has only a few lucky exception in spite of equal treatment and opportunity to boys and girls for education and career.
Society contin ues to perpetuate the difference between them for the pur pose of marriage and it is this distinction which makes the dowry system thrive.
Even though for eradication of this social evil, effective steps can be taken by the society itself and the social sanctions of the community can be more deterrent, yet legal sanctions in the form of its .prohibi tion and punishment are some steps in that direction.
The was enacted for this purpsoe.
The Report of the Joint Committee of Parliament quoted the observations of Jawaharlal Nehru to indicate the role of legislation in dealing with the social evil as under: " Legislation .cannot by itself normally solve deep rooted social problems, One has to ap proach them in other ways too, but legislation is necessary and essential, so that it may give that push and have that educative factor as well as the legal sanctions behind it which help public opinion to be given a certain shape.
" 816 The enactment of in its original form was found inadequate.
Experience shows that the demand of dowry and the mode of its recovery takes different forms to achieve the same result and various indirect and sophisticated methods are being used to 'avoid leaving any evidence of the offence.
Similarly, the conse quences of non fulfilment of the demand of dowry meted out to the unfortunate bride takes different forms to avoid any apparent causal connection between the demand of dowry and its prejudicial effect on the bride.
This experience has led to several other legislative measures in the continuing battle to combat this evil.
The Criminal Law (Second Amendment) Act, 1983 (No. 45 of 1983) was an act further to amend the Indian Penal Code, the Code of Criminal Procedure, 1973 and the .
Section 498 A was inserted in the Indian Penal Code and corresponding amendments were made in the Code of Criminal Procedure which included section 198A .therein and also inserted section 113A in the ,. 1872.
Thereafter, the Dowry Prohibition (Amendment) Act, 1986 (No. 43 of 1986) was enacted further to amend the Dowry Prohibition .Act, 1961 and to make certain .necessary changes in the Indian Penal Code, the Code of Criminal Procedure, 1973 and the .
Two of the salient features of the Dowry Prohibition (Amendment) Act, 1986 (No. 43 of 1986) stated in the State ment of Objects and Reasons of the Bill are as under: "(e) Offences under the Act are proposed to be made non bailable. "(g) A new offence of "dowry death" is proposed to be included in the Indian Penal Code and the necessary consequential amend ments in the Code of Criminal Procedure, 1973 and in the have also been proposed." Accordingly by section 7 of the Amendment Act, section 8 of the was amended to make every Offence under this Act non bailable while continuing it to be non compoundable.
By sections 10, 11 and 12, amendments were made in the Indian Penal Code, Code of Criminal Proce dure, 1973 and the , as part of the same scheme as follows: 817 "10.
In the Indian Penal Code, after, section 304 A, the following section shall be inserted, namely: '304 B. Dowry death.
(1) Where the death of a woman is caused by any burns or bodily injury or occurs otherwise then under normal circumstances within seven years of her marriage and it is shown that .soon before her death she was subjected to cruelty or harass ment by her husband or any relative of her husband for, Or in connection with, any demand for dowry such death shall be called "dowry death", and such husband or relative shall be deemed to have caused her death.
Explanation For the purposes of this sub section, , 'dowry".
shall have the same meaning as in section 2 of the Dowry Prohibi tion Act, 196 1 (28 of 1961).
(2) Whoever commits dowry death shall be punished with imprisonment for a term which shall not be less than seven years but which may extend to imprisonment for "11.
In the Code of Criminal Proce dure, 1973, in the First Schedule after the entries relating to section 304 A, the follow ing entries shall be inserted, namely: Section Offence Punishment COgnizable Bailable or By what or non non bail Court cognizable able tribale 1 2 3 4 5 6 "304 B ' Dowry Imprison Ditto Non Court of death ment of not bailable ' Session." lesS ' than seven years but which may extend to imprisonment for life. ' "12.
In the , after section 818 113 A, the following section shall be insert ed, namely: "11.3 B. Presumption as to dowry death.
When the question is whether a person has committed the dowry death of a woman and it is shown that soon before her 'death.
such woman has been subjected by such .person to cruelty Or harassment for, or in connecting with, any demand for dowry, the Court shall presume that such person had caused the dowry death.
Explanation.
For the purpose of this section ', "dowry death" shall have the same meaning as in section 304 B of the Indian Penal Code (45 of 1860).
" It is clear from the above historical background that the offence of dowry death punishable under section 304 B of the Indian Penal Code is a new offence inserted in the Indian Penal Code with effect from 19.11.1986 when Act No. 43 of 1986 came into force.
The offence under section 304 B is punishable with a minimum sentence of seven years which may extend to life imprisonment and is triable by Court of Session.
The corresponding amendments made in the Code of Criminal Procedure and the relate to the trial and proof of the offence.
Section 498;A inserted in the Indian Penal Code by the Criminal Law (Second Amendment)Act, 1983 (Act No. 46 of 1983) is an offence triable by a Magistrate of the First Class and is punishable with imprisonment for a term which may extend to three years in addition to fine.
It is for the offence punishable under section 498 A which was in the statute book on the date of death of Chhaya that the respondents are being tried in the Court of Magistrate of the First Class.
The offence punisha ble under section 304 B, known as.
dowry death, was a new offence created with effect .from 19.11.1986 by insertion of the provision in the Indian Penal Code providing for a more stringent offence ' than section 498 A. Section 304 B is a substantive provision creating a new offence and not merely a provision effecting a, change in procedure for trial of a pre existing substantive offence.
Acceptance of the appel lant 's contention would amount to holding that the respond ents can be tried and punished for the offence of dowry death provided in section 304 B of the Indian Penal Code with the minimum sentence of seven years ' imprisonment for an act done by them prior to creation of the new offence of dowry death.
In our opinion, this would clearly deny to them the protection afforded by clause (1) of Article 20 of the Constitution which reads as under: 819 "20.
Protection in respect of con viction for offences.
(1) No person shall be convicted of any offence except for violation of the law in force at the time of the commis sion of the act charged as an offence, 'nor be subjected to a penalty greater than that which might have been inflicted under the law in force at the time of the commission of the offence. ' ' " In our opinion ,.
the protection given by Article 20(1) is a complete answer to the appellant 's contention.
The contention 'of learned counsel 'for the appellant that section 304 B inserted in the Indian Penal Code does not create a new offence and ' contains merely a rule of evidence is untenable.
The rule of evidence to prove the offence of dowry death is contained in section 113 B of the providing for presumption as to dowry death which was a simultaneous ' amendment made in the for proving the offence of dowry death.
The fact that the was so amended simultane ously with the insertion of section 304 B in the Indian Penal ' Code by the same Amendment Act is ' another pointer in this direction.
This contention is, therefore, rejected.
In follows that the view taken by the High Court that the respondents cannot be tried and punished for the offence provided in section 304 B of the Indian Penal Code which is a new offence created subsequent 'to the commission of the offence attributed to the respondents does not suffer from any infirmity.
However, as earlier indicated, in case the accusation against the respondents discloses commission of any other more stringent pre existing offence by the re spondents than section 498 A of the Indian Penal Code, the appellant would be entitled to raise that question and the Court will then consider and decide it on that basis.
No such argument having been advanced before us or any of the courts below so far, the same does not arise for considera tion in the present proceeding.
With these observations, the appeal is dismissed.
T.N.A. Appeal dis missed.
| Appellant 's daughter was married to respondent No. 2 on 15.12.1984.
She died on 13.8.1986.
The appellant filed a criminal comp .
laint against the respondents viz. daugh ter 's husband and his relatives for an offence under section 498 A, triable by a Magistrate of First Class, 'read with section 34 of the Indian Penal Code, 1860 alleging that his daughter 's death was unnatural resulting from torture by her husband and his relatives.
By Act No. 43 of 1986, the Indian Penal Code was amended and Section 304 B, offence of dowry death, was inserted in the Code w.e.f.
19.11.1986.
Since the newly inserted offence of dowry death was triable.
by a Court of Session, the appellant flied an application before the Magistrate for committing the case to the Caurt of Session for trial of offence under section 304 B. 'The Magistrate dismissed his application by holding that the amendment being prospective was inapplicable 'to the case because the death had occurred prior to the amendment.
Thereafter the appellant filed an application in the High Court for a direction to Commit the case of dowry death to the Court of Session.
The High Court also dismissed his application by holding that since the offence was committed prior to the date of insertion of section 813 304 B, the section was not applicable to the case.
In appeal to this Court on the question whether section 304 B of the Indian Penal Code was applicable to a case of dowry death where the death has occurred prior to the insertion of Section 304 B, it was contended on behalf of the appellant that section 304 B of the Indian Penal Code does not create a new offence and contains merely a rule of evidence.
Dismissing the appeal, this Court, HELD: 1.
The offence of dowry death punishable under section 304 B of the Indian Penal Code is a new offence inserted in the code with effect from .19.11.1986 when Act No. 43 of 1986 came into force The said offence is punisha ble with a minimum sentence of seven years which may extend to life imprisonment and is triable by Court of Session.
The corresponding amendments made by Act No. 43 of 1986 in the Code of Criminal Procedure and the relate to the trial and proof of the offence.
Section 498 A inserted in the Indian Penal Code by the Criminal Law (Second Amendment) Act, 1983 is an offence triable by a Magistrate of the First Class and is punishable with impris onment for a term which may extend to three years in addi tion to fine.
The offence of dowry death punishable under section 304 B provides for a more stringent offence than section 498 A. Section 304 is a substantive provision creat ing a new offence and not merely a provision effecting a change in procedure for trial of a pre existing substanative offence.
The rule of evidence to prove the offence of dowry death is contained in section 113 B of the providing for presumption as to dowry death which was a simultaneous amendment made in the for proving 'the offence of dowery death.
The fact that the was so amended simul taneously with the insertion of section 304 B in the Indian Penal code by the same Amendment Act is another pointer in this direction.
There fore, it cannot be held that section 304 B. does not create a new offence and contains merely a rule of evidence.
[818D F, 819C D] 2.
The respondents are being tried in the Court of Magis trate of .the
First Class for the offence punishable under section 498 A which was in the statute book on the date of death of Appellant 's daughter Their trial and punishment for the offence of dowry death provided in section 304 B of the Indian Penal Code 'with the minimum sentence of seven years ' imprisonment for an act done by them prior to creation of the new offence of dowry death would clearly deny to them the protection afforded by clause (1) of Article 20 of the Constitution.
Accord ingly, the view taken by the High Court that the respondents cannot be 814 tried and punished for the offence provided in section 304 B of the Indian Penal Code which is a new offence created subsequent to the commission of the offence attributed to the respondents does not suffer from any infirmity.
[818E, G, 819E]
|
Criminal Appeal No. 303 of 1984.
From the Judgment dated 19.5.1984 of the Rajasthan High Court in D.B. Criminal Appeal No. 129 of 1983.
R.K. Jain, R.P. Singh and R.K. Khanna for the Appellants.
Sushil Kumar and AruneShwar Gupta for the Respondent.
The Judgment of the Court was delivered by 824 K. JAYACHANDRA REDDY, J.
There are two appellants.
They are father and son respectively and they figured as A 1 and A 2 before the trial court.
They were tried for offences punishable ' under Sections 302, 201 and 120 B I.P.C. for causing murder of Madhu Saxena, wife of A 2 and daughter in law of A 1, the deceased in the case.
They were acquitted by the trial court.
The State preferred an appeal before the Division Bench of the High Court and the Division Bench of the High Court convicted them under Section 120 B and Section 302 read with 34 of the I.P.C. and sentenced each of them to undergo imprisonment for life.
They have preferred this appeal under Section 2(a) of the Supreme Court (Enlargement of General Appellate Jurisdiction) Act.
The deceased was married to A 2 in the year 1961.
Two sons and one daughter were born to them.
A 1, father of A 2, was a practising lawyer after retiring from the Government Service.
The matrimonial life of the deceased and A 2 was not smooth.
There were frequent quarrels.
The accused lived in their own house alongwith the deceased.
It is in the evidence that the deceased was not healthy both physically and mentally.
She was also admitted in mental hospital once.
She used to confine herself to her room and she appeared to be somewhat mentally deranged.
The daughter of the deceased, who was examined as D.W. 2, aged 13 years was studying in 1Oth Class and she was also living in the same house.
On 18.3.82 the dead body of the deceased was found in her room in the house of the accused.
At that time admittedly A 2 was not in the house and he was at Suratgarh.
On 'being informed about the death A 1 sent for Dr. Madan Lal Arora, who exam ined the deceased and declared her to be dead.
Thereafter A 1 informed P.W. 5, Jagmohan Prasad, the father of the de ceased.
P.W. 5 went there and enquired.
A 1 told P.W. 5 that the deceased be cremated at 9 A.M.
The brother of the de ceased told P.W. 5 that he has .seen the dead body lying in the room and that it was giving rotten smell.
P.W. 6 lodged a report before the Police.
P.W. 22 took up the investiga tion, held the inquest, examined the witnesses and sent the dead body for post mortem.
The Doctor P.W. 2 conducted the postmortem.
He found that the body was giving rotten smell and the skin here and there was peeled off, nails were loose and the tongue was found in between the teeth.
He found an injury on the head.
He also found that some of the organs were decomposed and noticed greenishbrown discolouration on the neck.
He opined that the death was due to head injury and pressure in the neck region.
He, however, sent the tissues of the trachea though decomposed and a piece of neck skin and also viscera for histopathology and for chemical analysis, but the 825 pathologist could not give opinion regarding the piece of skin and the tissues of the trachea.
The pathologist noted that the skin was discoloured and that the tissues and the mussle attached to the trachea showed no abnormality.
The Doctor P.W. 2 opined that the head injury was caused by blunt weapon: and that death is.
result of neck injury.
The pressure on the left and front of the neck was apparent.
After completion of the investigation, the charge sheet was laid.
22 witnesses were examined on behalf of the prosecu tion.
The accused dented the offences.
A 1 stated that he was away from 14.3.
1982 onwards and was at Jodhpur in his daughter 's house.
In support of his plea D.W. 1, Dr. Ram Krishna Mehta, the neighbour of A 1 's daughter, was exam ined.
He also examined his grand daughter D.W. 2, namely the daughter of A 2 and the deceased.
A 2 stated that he was at Suratgarh from 11.3.1982 onwards.
Both of them denied the allegations of the prosecution.
The case registered rests on circumstantial evidence: The trial court held that there was no evidence of conspira cy between the A 1 and A 2 for murdering the deceased.
It further held that there is no legal proof also that the Circumstances relied upon by the prosecution are hardly sufficient to connect them with the murder.
The trial court.
however, severely criticised about the iII treatment and hard behaviour of A 1 and A 2 towards the deceased.
The High Court, however, took a different view.
The High Court mainly relied on the evidence regarding the ill treat ment of the deceased by A 1 and A 2 and held that the ac cused had strong motive.
The High Court has also referred to the earlier incidents in some of the letters.
The High Court accepted the medical evidence in to and reached the con clusion that the death was homicidal and due to asphyxia due to head injury and pressure on the neck.
Finally, the High Court, relying on the conduct of the accused after coming to know about the death of the deceased, reached the conclusion that the two accused conspired and got .the deceased mur dered and accordingly convicted them under Sections 302 read with 34 I.P.C. and 120 B I.P.C. Shri R.K.Jain, the learned counsel for the appellants submitted that the High Court has merely acted on prejudice and suspicion and that there is absoluteIy no material to prove the conspiracy and muchless to connect the two accused in any manner with themurder The prosecution examined 22 witnesses.
P.W. 1 an Assistant 826 School teacher in Jaipur and related to the deceased deposed that she attended a dinner in the house of the deceased and A 2 and in the year 1978 when the deceased came to her house she was having some spots ' of beating by sticks on her back and the deceased told PW. 1 that she was beaten by her hus band.
On 18.3.82 P.W. 1 's neighbour told her that there was a telephone message fxom A 1 that the deceasd was about to die.
On that P.W. 1 and others went to the house of the deceased.
They opened the room from where bad smell was coming and in that room they saw the dead body of the de ceased which was decomposed.
A 1 who was present there told them that they would cremate the dead body that night.
On that P.W. 5, the husband of P.W. 1 and the brother of the deceased objected to.
P.W. 1 has also mentioned about other incidents of cruel treatment meted out to the deceased.
P.W. 2 is the Doctor, who conducted the post mortem and we shaft advert to his evidence later.
P.W. 3 is the eider sister of the deceased.
She only stated that she got the information about the death of the deceased.
P.W. 4 is the son of the deceased and A 2.
He deposed that on 11th March, 1982 his father A 2 came with him to the bus stand to see him off.
P.W. 4 met the deceased before leaving on the evening of 11th March, 1982 and talked to her.
At that time the condi tion of the deceased was very weak and she was unhealthy.
P.W. 4 also deposed that his father A 2 was to go to Surat garh by the evening of 11.3.82.
This witness was treated hostile.
In the crossexamination by the defence this witness stated that his sister Gianwati who was examined as D.W. 2 told him that she went regularly to the room of the deceased to give food from 11.3.82 to 15.3.82 and that on 16.3.82 D.W. 2 did not meet the deceased due to headache and on 17th and 18th March the deceased did not respond when D.W. 2 called her.
P.W. 4 further deposed that D.W. 2 also told the same to her grand mother.
P.W. 5 is the father of the de ceased.
He also deposed about the iII treatment of the deceased by the accused and their demand for dowry.
He further deposed that the neighbour told them that he re ceived a telephone message from A 1 that the deceased was ' about to die.
Thereupon P.W. 5 sent his son P.W. 6 to A 1 s house.
Later he was told by A 1 who came to his house that the deceased died and the Doctor has declared her dead.
ThereUpon P.W. 5 wanted to know the name of the Doctor.
Thereupon A 1 told him that the deceased would be cremated.
A little later P.W. 6 also came and told him that the de ceased had died before many days and her dead body was giving rotten smell.
P.W. 6 is brother of the deceased and son of P.W. 5.
He also.deposed about the ill treatment meted out to the deceased.
He further stated that on 18.3.82 on receiving the information about the serious condition of the deceased he went to house of 827 the deceased and he found that the deceased had already died and the A 1 told him that the dead body would be cremated, whereupon he informed his father P.W. 5 and then lodged a report before the police.
The police arrived and prepared a panchnama.
P.W. 7 is the neighbour of the accused.
He only attested the site plan prepared by the police.
P.W. 8 is a practising Doctor and he deposed that on 18.3.82 A 1 came to him ' at about 5.30.
P.M. and told him that his daughter in law namely the deceased was in serious condition.
Thereupon he went to the house and saw the deceased.
He examined the deceased and declared her to be dead.
P.W. 9 also was exam ined to speak about the cruelty but he was treated hostile.
P.W. 10 also belongs to the same locality.
He only deposed that the body was emitting foul smell and he signed the inventory prepared by the police.
P.W 11 is a photographer who took the photographs of the room and the dead body.
P.W. 12 is Gurubux Saxena who got the telephonic message from A 1 that the deceased was seriously ill and thereupon he in formed P.Ws 1, 5 and 6.
P.W. 13 is the cousin of the de ceased.
He also deposed about the cruelty meted out to the deceased.
He further deposed that on 18.3,82 the deceased died and he was asked by P.W. 5 to go to the house of the deceased.
He was informed by A 1 that the body would be cremated.
Thereupon he and P.W. 6 went and .gave a report to the police.
P.Ws 14 to 21 are the formal official witnesses.
Out of them P.Ws 17, 18, 19 and 20 are examined who spoke about the movements of A 2.
The sum and substance of their evidence is that A 2 was posted as expert of plant protec tion in Suratgarh and that leave was granted to him on 11.3.82.
This evidence may not be very much relevant because it is not the prosecution case that A 2 was present in the house at the time of the death of the deceased.
P.W. 22 is the Sub inspector who investigated the case.
He deposed that on receipt of the report he went to the place of occurrence, held the inquest and sent the dead body for postmortem.
He also speaks the seizure of some letters.
In the examination under Section 313 Cr.
P.C. both the accused stated that they are innocent.
A 1 's case was that he was away at Jodhpur from 15th March, 1982 onwards and was staying in her daughter 's house and he ' came to Jaipur only on 18th March, 1982 and then he was told about 'the death of the deceased.
Thereupon he called the Doctor P.W. 8 who examined and pronounced the deceased to be dead.
He denied about the allegations of iii treatment of the deceased.
A 2 stated that he married the deceased in the year 1961 and they were blessed with two sons land one daughter.
He also stated that he was a Gazetted Officer in Agriculture Depart ment and he was transferred to various places and he also took the deceased with him.
He further 828 stated that the deceased was sick and unhealthy and was staying at Jaipur.
He also stated that his daughter used to give food to the deceased.
On 11.3.82 he left for Suratgarh and later he came to know about the death of the deceased.
The accused examined D .Ws 1 to 3 on their behalf.
D .W. 1 is a Doctor at Jodhpur.
He deposed that he knew A 1 and that he was staying in his daughter 's house in Jodhpur from 15th March, 1982 to 17th March, 1982.
D.W. 2 is the daughter of A 2 and the deceased aged about 13 years.
She in general stated that her mother was sick and unhealthy and used to confine herself to the room and she used to give food to her.
She also stated that she gave food to the deceased on 15.3.82 and that she could not give food on 16.3.82 due to her own sickness.
Then on 17th and 18th March, 1982 her mother did not talk to her, therefore she returned with the food.
She also stated that A 1 went to Jodhpur on the evening of 14th March and returned from Jodhpur on 18th March, 1982.
On that day they found that the deceased was not talking and two ladies who came to meet the deceased, told that there was something wrong.
When her grand father A 1 returned from Jodhpur he sent for a Doctor and the Doctor after examining pronounced the deceased to be dead.
D.W.2 further stated that the relations between the deceased namely her mother and grand mother were not good.
In the cross examination she affirmed that she fell ill on 16.3.82 after coming from school and therefore could not give food to her mother.
She denied the suggestion that the body was decomposed even on 16th and 17th March, 1982.
D.W. 3 is the son of A 1 and brother of A 2 residing at Jodhpur.
He also deposed that A 1 came to Jodhpur and stayed from 15th on wards upto 17th March, 1982.
From the above resume of evidence it is clear that the case rests entirely on circumstantial evidence.
The dead body was found in the house of A 1 and A 2, where admittedly the deceased ' was also living but she used to confine her self to that room where the dead body was found She was sick and unhealthy and that she was not even coming out of the room.
From the evidence it is also clear that the food was given to her in the room itself and she was not even going out to answer the calls of nature.
Some of the wit nesses, no doubt, have deposed that the accused used to ill treat the deceased.
But the main question is whether A 1 and A 2 conspired, as held by the High Court and got the murder committed.
From the record it is clear and it is also not disputed thatA 2 was not in the house and that A i also left Jaipur and was staying at Jodhpur with his daughter upto 17th March, 1982 and came to Jaipur only on 18th March, 1982.
Therefore he was also not in the house at the time of death.
There is no other evidence to 829 show that as to who could have caused the death of the deceased if it is held to be homicidal.
The trial court has doubted the prosecution case that the death was homicidal.
The High Court after having elaborately examined the medical evidence reached the conclusion that it was homicidal.
But .even assuming that it was homicidal, there is absolute paucity of evidence, suggesting even remotely as to who could have caused the death.
Though, in our view, it is not strictly necessary in this case to decide the nature of death because even assuming it 'to be homicidal, the accused A 1 'and A 2 cannot be convicted unless there is other material to connect them with the crime either ,directly or indirectly.
However, we shall first consider the medical evidence regarding the cause of the death.
P.W. 2 Dr. M.R. Goel examined the dead body on 19.3.82 and found 10 injuries which were ante mortem.
Many of them were in the shape of bruises and swellings.
He found the dead body as highly decomposed and had reached an advanced stage of putrefaction.
In his opinion the death was due to the injury on the head and pressure on the neck due to asphyxia.
He was cross examined at length.
He admitted that since the brain was decomposed and was in semi liquid condi tion no injury therein could be traced.
He also admitted that the swelling of the eye was not due to the injury.on the forehead.
Coming to the injury on the neck, the Doctor stated that no injury was found on the bones of wind pipe and that portion also was decomposed.
In further cross examination he admitted that he did not make the culture of the maggots crawling on the head.
He also stated that he could not say definitely whether the death in the circum stances should ' have occurred before four days.
He, however, denied the suggestion that he could not form a definite opinion.
As far as this medical evidence is concerned, the trial court also considered the same at length.
The learned Sessions Judge noted the details in the post mortem certifi cate exhibit P, 1,.
There he found against the column cause of death, the Doctor has put only a question mark.
It is also noted in the postmortem certificate that P.W. 2 sent a part of the neck and viscera for chemical and histopathological examination.
After considering the whole evidence of the Doctor, the trial court was of the opinion that it was very difficult to say that the injuries on the head were antemor tem.
In nature and at any rate P.W. 2 's evidence has not proved beyond reasonable doubt that the death of the de ceased was due to injuries causing asphyxia and that the death was homicidal.
The High Court, on the other hand, has also noted that the death of the deceased was 4 to 8 days ' earlier ,as shown in the post mortem certificate.
The learned Judges observed thus: 830 "It is to be noticed that Dr. M.R. Goyal, who conducted the post mortem examination, is not a novice but a 'senior Medical Jurist of the S.M.S. Hospital.
According to him there was ' sub dural hammatoma over occipital region.
Bruises were found on the forehead left side . .
We have carefully examined the reasons given by the Sessions Judge for holding that the posecution has failed to prove thatit was homicidal death . . . .
In 'our considered opinion, all these injuries wereanti mortem in nature." The learned Judges thereafter explained away the dis crepancies between the post mortem and the medical evidence.
We may observe that the learned Judges of the High Court have bestowed considerable part of the judgment on the aspect of medical evidence and ultimately held thus: "In substance, we are convinced that it was a case of homicidal death.
We cannot accept the finding of the trial court on this aspect of the case and have got no hesitation in revers ing it and holding that the finding is not based on just and proper appreciation of the evidence.
" We have also gone through the medical evidence carefully and we may observe that 'we are unable to hold that the view taken by the learned Sessions Judge is altogether unreasona ble.
However, for the purpose of this appeal it may not be necessary for us to go through the details of the medical evidence.
Even accepting that the death was homicidal, we cannot on that ground alone hold the appellants guilty.
The proSecution has to, satisfactorily and beyond reasonable doubt, establish that the two accused conspired and pursuant to that conspiracy, the offence was committed.
We ,have already given a brief resume of the evidence ' adduced on behalf Of the prosecution.
We have ,noticed that both the accused were not in the house on the day the occur rence is said 'to have taken place even assuming that, the same took place on 14.3.82.
the evidence of D.W. 2 who is the only inmate of the house that was examined and whose evidence cannot be brushed aside establishes that the occur rence probably took place on 15th or 16th March, 1982.
It is only on 18.3.82 that the dead body was discovered and it is only on that day the A 1 Came to his house, at Jaipur .from
Jodhpur and A 2 admittedly was 831 away on official duty The D.W. 2 also speaks to the same.
The High Court, however, drew some inferences based on the alleged conduct of the accused and held that the two accused conspired to kill the deceased.
In the first instance the High Court held that the accused has a strong motive to get rid of the accused.
For this reliance is placed on the evidence of some witnesses who spoke about the cruel treat ment meted out to the deceased by the accused.
The learned Judges have also relied on some letters written by the deceased.
P.W. 6, the brother of the deceased deposed that the two accused used to be angry with the deceased and they did not allow him and his family members to see the de ceased.
Reliance is placed on the evidence of P.W. 5 who spoke about the demand of money.
The learned Judges of the High Court mainly relied on this evidence to infer that the accused had motive to do away with the deceased.
The High Court was not prepared to place reliance on the evidence of P.W. 4 and D.W. 2 who did not support the theory of cruelty.
The High Court, after considering the above evidence, ob served as under: "Now the question is whether in these circum stances although there are circumstances of strong motive and of cruelty and of strong desire on the part of accused Bhagwan Swarup and Parmeshwar Swarup to get rid of Madhu, there is any further evidence of other circum stances, by which it can be said that no other hypothesis except the guilt of the accused is possible in the present case.
" Then the learned Judges proceeded to consider the evidence of P.W. 8 and others.
P.W. 8 is a local Doctor who deposed that A 1 informed him in the evening of 18.3.82 that his daughter in law was serious.
He went and examined the de ceased and pronounced her to be dead.
P.W. 8 also deposed that the body was giving bad smell and it was also in a decomposed condition.
Then the High Court relied on the evidence of P.W. 12 who stated that he received a telephonic message from A 1 stating that his daughter in law was at her last breathing and he must inform P.W. 5, the father.
Then the High CoUrt proceeded to consider some other circum stances which took place from 11th March onward namely A 2 leaving on official duty.
The High Court suspected that A 2 designedly left Jaipur to Suratgarh and also surmised that A 2 marking his attendance in the register at Suratgarh was with a view to create evidence of alibi.
Then there is reference to a letter exhibit P. 15 written by A 1 to A 2 on 18.3.82 and according to the learned Judges, this letter was an effort to show that the deceased was alive even after 11th March and according to learned.
Judges exhibit P. 15 a letter of A 1 832 on the alleged death of the deceased, written by him to his son is a significant feature.
This letter is dated 18th March, 1982.
In that A 1 has simply informed A 2 that the deceased breathed her last and that Doctor, P.W. 8, pro nounced her dead and that on the next day they are going ahead with cremation.
This letter which is on a post card, is the most crucial feature, according to the High Court and that its contents show that both A 1 and A 2 were guilty conscious.
We think we need not refer to the further sur mises made by the High Court.
Suffice it to say that in the rest of the entire judgment only such suspicions and sur mises have been mentioned or drawn to reach a conclusion that A 1 and A 2 conspired.
At one stage the learned Judges observed thus: "The more and more we read this letter exhibit P. 15 dated 18.3.82 more and more we are con vinced that it was a case of pre planned, pre determined conspiracy of committing murder of Madhu, which was done on 11th March, 1982 by both accused, who were anxiously waiting the time when they could get rid of her.
It is also not Without significance that Suratgath is in Ganganagar District and a far.
place from Jaipur and post card would not reach there at least before 24 hours as it reached on 20th March and further even if telephone message is sent one would take at least 12 to 18 hours to reach this place.
The fact that cremation was decided for the morning and the information was sent in the night only goes to show that since the death was a result of murder, in which both the accused were in volved, there was no occasion to wait for son, who was husband of the ill fated unfortunate lady Madhu to perform last rite or see her face at least before she is put on fire.
The merciless inhuman approach exhibited by this letter is heart beating, hair raising and society lacking and consicious shocking and we are convinced that such a conduct would not have been possible but for the fact that the object of conspiracy of Bhagwan Swarup and Parmeshwar Swarup was achieved by putting an. ,end to the life of Madhu, which was done on 11th and during all this time, all that Par meshwar and Bhagwan Swamp were being Were the unsuccessful effort to conceal the murder of helpless lady and to create a plea of alibi or pretended the natural death.
We are, there fore, convinced that these circumstances, if taken as a whole, proves beyond all reasonable doubts that Bhagwan Swarup and Parmeshwar Swarup entered into a criminal conspiracy 833 to commit the murder of Madhu and with this abode intention, common object to fulfill the object of conspiracy they committed the murder of Madhu in their house on 11th March, 1982, by causing 11 injuries on her person after they had made it sure that the son Prakash Swamp leaves for Ajmer in the morning and then Parmeshwar Swarup left for Suratgarh in the evening and Bhagwan Swarup ultimately left for Jodhpur on 14th.
These were all preplanned pre determined well calculated steps of the conspiracy to commit the murder and then to avoid its detection by these two accused, who had deep rooted patience and hatred towards the unfortunate lady Madhu, who was being treated with cruelty which started in the beginning with the demand of dowry but contin ued later on account of various other reasons.
" We have extracted the main part of the judgment only to show that how the High Court has acted merely on suspicion.
We are unable to say as to on what basis the High Court could reach the conclusion that on 11th March, 1982 itself both A 1 and A 2 committed the murder of the deceased and left the dead body.
Such a conclusion should be based on acceptable evidence.
There is absolutely no material that the deceased was murdered on 11th March, 1982 itself.
The medical evi dence simply states that the death could have taken place 4 to 8 days prior to post mortem.
D.W. 2, the daughter is categorical that her mother, the deceased, was alive till 16th March, 1982 and that being the nature of the evidence On record, we are unable to appreciate the above conclusion of the High Court purely based on suspicion and surmises.
Further, the learned Judges of the High Court have mentioned in the above passage that both the accused conspired to commit the murder of deceased and having conspired they themselves committed the murder.
In our view there is no evidence worth men , tioning to establish these offences.
Naturally in a case of this nature, the question that arises from a layman 's point of view is then who else could have committed the murder in .the house itself? Perhaps if A 1 and A 2 were present in the house on the day of homicide then the situation would have been different and 'both of them would have been under an obligation to give an explana tion and the absence of a plausible explanation or giving a false explanation could have been very much incriminating against them.
The same coupled with other circumstances would have perhaps brought home the guilt to the accused.
But the circumstances 834 are different now.
A 1 and A 2 were away from the house.
The medical evidence does not at all support that the murder, assuming it to be one, could have taken place on 11th March itself as conjectured by, the High Court.
If the murder has taken place some time after 11th March, then A 1 and A 2 cannot directly be connected with the murder.
That being so unless conspiracy as such is established, they cannot be held liable.
Then the other inmates in the house are only the mother in law and the children of the deceased.
None of them was suspected and at any rate no one of them was charge sheeted or tried.
Therefore the question of any one of them being held responsible for the death does not arise.
No doubt a grave suspicion does arise namely that some of the inmates of the house must have been responsible and an accusing finger Can be pointed against A 1 and A 2 but from 11th March onward they were not in the house.
D.W. 2 's evidence clinches the .issue that the death must have been taken place only after 16th and before 18th March.
It is in this situation the High Court surmised on mere suspicion that A 1 and A 2 conspired and also committed the murder on 11.3.82 itself.
If the murder has been committed on 11th March itself the body would have been highly decomposed by 18th March, 1982 and would have been emitting very bad smell.
One cannot imagine that the other remaining inmates of the house would have simply and silently suffered in the house without informing anybody.
On the other hand D.W. 2 's evidence is different and she categorically stated that the deceased was alive upto 16th March.
That appears to be natural and there is no reason whatsoever to doubt the same.
As indicated supra we are inclined.
to agree with the Sessions 'Court that the medical evidence does not establish the death to be one of homicidal.
At any rate there is a grave doubt in this regard.
The evidence on record clearly shows that the deceased was not mentally sound.
The fact that she was not coming out of the room and used the same for answering the calls of nature also would snow that there was something abnormal about her and she confined her move ments to the four corners of the room.
15th March, 1982 was the last day when D.W. 2 served food to the deceased.
There after she did not go inside the room and on 18th March, 1982 the dead body was discovered.
The evidence of P.W. 2, the Doctor, also shows that no brain injury could be traced and he also did not find any injury on the bones of wind pipe.
In view of these and other admissions the trial court right ly felt that there was a reasonable doubt about the cause of death also and accordingly acquitted the accused.
From the above discussion the following important points 835 emerge; It is an undisputed case that the second accused was not present in the scene house were the occurrence took place from 11th to 20th March, 1982 and that the first accused was at Jodhpur in his .daughter 's houseI from 14.3.82 to 17.3.82 and returned to Jaipur on 18.3.82.
There fore they were not present in the house when the deceased died The Medical Officer, P.W. 2 could not say definitely as to whether the death has occurred before four days of his examination and there is absolutely no evidence either circumstantial or direct to hold that the death took place on 11.3.82 itself as found by the High Court.
The evidence of D.W. 2 who is none other than the daughter of the de ceased and was very much in the house throughout ategorical ly stated that her mother was alive on 15th March also.
Apart from D .W. 2 the only other inmate of the house during the crucial period was the mother in law of the deceased who was not even charge sheeted.
The letter exhibit P 15 written by the first accused does not in any manner incriminate them and the High Court has grossly erred in holding that A 1 and A 2 entered into conspiracy merely on the basis of conjec tures and surmises drawn from the letter.
P.Ws 4, 9 and 10 have not supported the prosecution case and the remaining evidence does not in any manner implicate A 1 and A 2 and the other remaining inmate of the house, the mother ln law of the deceased, was not even suspected.
Therefore having given our anxious and careful consideration to the facts and circumstances of the case we feel that the prosecution has miserably failed to bring home the guilt of the appellants and consequently we are inclined to allow the appeal.
The accused were tried for offences punishable under Sections 302 read with Section 34, 201 and 120 B I,P.C. only and in our view the trial court rightly held that none of these charges were proved against them.
The learned counsel for the respondent State of Rajas than, however, submitted that the accused would atleast be liable of having committed other offences.
It may be noted that the question whether they would be liable under Section 498 A or 304 B does not arise for consideration inasmuch as these provisions were not on the statute on the day of occurrence.
However, A 1 was atleast under an obligation to give information about the death of the deceased since the same was unnatural.
Assuming that the prosecution has not positively proved that the death was homicidal yet from the medical evidence it is clear that it was not a natural death and consequently the death should atleast be noted as one of suicide.
Even in the case of suicide an offence of abetment punishable under Section 306 is inherent.
There 836 fore, even in the case of a suicide there is an obligation on the person, who knows or has reason to believe that such a suicidal death has occured, to give information.
In Kali das Achamma vs The State of A.P., S.H.O. Karimnagar.
I Town P.S., it was observed as under: "In the case of every suicide abetment is inherent.
Whether ultimately it is proved or not, it is a different aspect.
Abetment of suicide is an offence punishable under Section 306 I.P.C. and therefore whenever a case of suicide is there, the body cannot be disposed of without informing the Police and further as provided under Section 174 Cr.
P.C. the Police have to hold an inquest Since it is an unnatu ral death. ' ' In the instant case A 1, who reached his house on 18.3.82 knowing fully well that the deceased had already died, informed P.W. 8 that the deceased was in a serious condi tion.
Likewise he informed P.W. 12 on telephone without disclosing that the deceased was already dead.
However, when P.W. 6, the brother of the deceased, came to the house where the dead body was lying, A 1 told him that the body would be cremated.
To the same effect is the evidence of P.W. 13.
P.W. 6, the brother of the deceased, on his own went and gave a report to the police.
It can thus be seen that A 1 intentionally omitted to give the information in respect of the death of the deceased which he was legally bound to give.
Section 202 I.P.C. is in the following .terms: "202.
Intentional omission to give information of offence by person bound to inform Whoever, knowing or having reason to believe that an offence has been committed, intentionally omits to give any information respecting that offence which he is legally bound to give, shall be punished with imprisonment of either description for a term which may extend to six months, or with fine, or with both.
" This Section punishes the illegal omission of those who under law are bound to give information in respect of an offence which he is legally bound to give particularly being the head of the family.
Under this provision it is necessary for the prosecution to prove (1) that the accused had knowl edge or reason to believe that some offence had been commit ted (2) that the accused had intentionally omitted to give information respecting that offence and (3) that the accused was legally bound to give that information.
Shri R.K. Jain, however, relied 837 on a judgment of this Court in Harishchandrasing Sajjansinh Rathod and AnOther vs State of Gujarat, [ and contended that the word "Whoever" occurring in the opening part of the Section refers to a person other then the offender and has no application to the person who is alleged to have committed the principal offence In that case the accused were tried for offences punishable under Sections 331 and 304 read with Section 34 I.P.C. in respect of the death of the deceased and were acquitted.
On appeal by the State the High Court, however, convicted them under Section 202 I.P.C. A Bench of this Court while reversing the order of High Court observed thus: "We have gone through the entire evidence bearing on the aforesaid offence under Section 202 but have not been able to discern anything therein which may go to establish the afore said ingredients of the offence under Section 202 of the Penal Code.
The offence in respect of which the appellants were indicted viz. having intentionally omitted to give informa tion respecting an offence which he is legally bound to give not having been established, the appellants could not have been convicted under Section 202 of the Penal Code.
It is well settled that in a prosecution under Section 202 of the Penal Code, it is necessary for the prosecution to establish the main offence before making a person ' liable under this section.
The offence under Section 304 (Part II) and the one under Section 33.1 of the Penal Code not having been established on account of several infirmities is difficult to sustain the conviction of the appellants under Section 202 of the Penal Code.
The High Court has also missed to notice that the word 'whoever ' occurring at the opening part of Section 202 of the Penal Code refers to a person other than the offender and has no application to the person who is al leged to have committed the principal offence.
This is so because there is no law which casts duty on a criminal to give information which would incriminate himseft.
That apart the aforementioned ingredients of the offence under Section 202 of the Penal Code do not appear to have been made out against the prosecution There is not an iota of evidence to show that the appellants knew or had reason to believe that the aforesaid main offences had been committed." (emphasis supplied) From these observations it is clear that there was .no evidence to show 838 that the accused therein knew or had reason to believe that the said offences have been committed and on the other hand they were made principal offenders.
In such a situation the ingredients of Section 202 can not be said to have been made out.
It is in this context that the meaning of the word "whoever" has been considered.
But in the instant case A 1 returned to his house where the dead body was lying on 18.3.82 and the circumstances clearly go to show that he had knowledge that the deceased died of an unnatural death.
Therefore he had knowledge or atleast had reason to believe that an offence had been committed even if, at that stage; he thought that it was only a suicide.
Therefore it was his bounden duty particularly as head of the family to inform the authorities.
He omitted to do so.
On the other hand, he went about telling that the deceased was still alive and her condition was serious.
But when P.W. 6, the brother of the deceased, came to the house and enquired, A 1 told him that the body would be cremated and he intended to do so without informing the authorities.
Therefore all the ingredients of Section 202 are made out against him and he clearly commit ted the offence ' punishable under this Section at that stage.
The fact that he himself was made an accused in other offences subsequently does not absolve him of his complicity in respect of the offence punishable under Section 202 I.P.C. So far A 2 is concerned, he came to the house only after the investigation commenced.
Therefore his case stands on a different footing.
In the result the convictions and sentences awarded against A 1 and A 2 are set aside.
A 1, however, is convicted under Section 202 I.P.C. and sentenced to undergo six months ' R.I.
The appeal is disposed of ac cordingly.
| The appellants father and son (A 1 and A 2) were tried under Sections 302, 201 and 120 B I.P.C. for causing murder of the wife of A.2.
The deceased was married to A 2 in 1961.
Two sons and one daughter were born to them.
Their matrimonial fife was not smooth.
There were frequent quarrels.
It was in the evidence that the deceased was not healthy both physically and mentally.
She was also admitted in 821 mental hospital once.
She used to confine herself to her room and she appeared to be somewhat mentally deranged.
On 18.3.82 the dead body of the deceased was found in her room in the house of the accused.
At that time admitted ly A 2 was not in the house and he was at Suratgarh.
On being informed about the death, A 1 sent for a doctor, who examined the deceased and declared her to be dead.
Thereaf ter A 1 informed P.W. S, the father of the deceased.
The brother of the deceased, P.W. 6 told P.W. 5 that he had seen the dead body lying in the room and that it was giving rotten smell.
P.W. 6 lodged a report before the Police.
The investigation was taken up, held the inquest, exam ined the witnesses and sent the dead body for post mortem.
The Doctor P.W. 2, who conducted the post mortem, opined that the death was due to head injury and pressure in the neck region.
After completion of the investigation, the charge sheet was laid.
22 witnesses were examined on behalf of the prose cution.
The accused denied the offences.
A 1 stated that he was away from 14.3.1982 onwards and was at Jodhpur in his daughter 's house.
In support of his plea D.W. 1, the neighb out of A 1 's daughter and his grand danghter, D.W. 2, namely the daughter of A 2 and the deceased were examined.
A 2 stated that he was at Suratgarh from 11.3.1982 onwards.
Both of them 'denied the allegations of the pfrosecution.
The trial court held that there was no evidence of conspiracy between the A 1 and A 2 for murdering the de ceased and the circumstances relied upon by the prosecution were hardly sufficient to connect them with the murder and the accused were acquitted by the trial court.
The State preferred an appeal before the Division Bonch of the High Court and the High Court convicted them under Section 120 B and Section 302 read with 34 of the I.P.C. and sentenced each of them to undergo imprisonment for life, against which this appeal was preferred under Section 2(a) of the Supreme Court (Enlargement of General Appellate Jurisdiction) Act, 1970.
The appellants contended that the High Court acted an prejudice and suspicion and that there was absolutely no material to prove the conspiracy and muchless to connect the two accused in any manner with the murder.
822 The respondent supported the findings of the High Court and also contended that the accused would at least be liable of having committed other offences.
Disposing of the appeal by making modification in the sentence, this Court, HELD: 1.
The second accused was not present in the scene house, where the occurrence took place from 11th to 20th March, 1982 and that the first accused was at Jodhpur in his daughter 's house from 14.3.82 to 17.3.82 and returned to Jaipur on 18.3.82.
Therefore, they were not present in the house when the deceased died.
The Medical Officer, P.W. 2 could not say definitely as to whether the death has occurred before four days of his examination and there is absolutely no evidence either circumstantial or direct to hold that the death took place on 11.3.82 itself as found by the High Court.
The evidence of D.W. 2 who is none other than the daughter of the deceased and was very much in the house throughout categorically stated that her mother was alive on 15th March, also.
Apart from D.W. 2 the only other inmate of the house during the crucial period was the moth er in law of the deceased who was not even charge sheeted.
The letter exhibit
P 15 written by the first accused does not in any manner incriminate them and the High Court has grossly erred in holding that A 1 and A 2 entered into conspiracy merely on the basis of conjectures and surmises drawn from theletter.
P.Ws. 4, 9 and 10 have not supported the prosecu tion case and the remaining evidence does not in any manner implicate A 1 and A 2 and the other remaining inmate of the house, the mother in law of the deceased, was not even suspected.
Therefore having given anxious and careful con sideration to the facts and circumstances of the case it is felt by the Court that the prosecution has miserably failed to bring home the guilt of the appellants.
[835A E] 2.
Section 202 I.P.C. punishes the illegal omission of those who under law are bound to give information in respect of an offence which he is legally bound to give, particular ly being the head of the family.
Under this provision it is necessary for the prosecution to prove (1) that the accused had knowledge or reason to believe that some offence had been committed (2) that the accused had intentionally omit ted to give information respecting that offence and (3) that the accused was legally bound to give that information.
[836G H] 3.
A 1 was at least under an obligation to give infor mation about the death of the deceased since the same was unnatural.
From the 823 medical evidence, it is clear that it was not a natural death and consequently the death should at least be noted as one of suicide.
Even in the case of suicide an offence of abetment punishable under Section 306 is inherent.
Therefore even in the case of a suicide there is an obligation on the person, who knows or has reason to believe 'that such a suicidal death has occured, to give information.
[835G 836A] 4.
In the instant case A 1 returned to his house where the dead body was lying on 18.3.82 and the circumstances clearly go to show that he had knowledge that the deceased died of an unnatural death.
Therefore he had knowledge or at least had reason to believe that an offence had been commit ted even if, at that stage, be thought that it was only a suicide.
Therefore it was his bounden duty particularly as head of the family to inform the authorities.
He omitted to do so.
On the other hand, he went about telling that the deceased was still alive and her condition was serious.
But when P.W. 6, the brother of the deceased, came to the house and enquired, A 1 told him that the body would be Cremated and he intended to do so without informing the authorities.
Therefore all the ingredients of Section 202 are made out against him and he clearly committed the offence punishable under this Section at.
that stage.
[838B D] 5.
The fact that A 1 himself was made an accused in other offences subsequently does not absolve him of his complicity in respect of the offence punishable under Sec tion 202 I.P.C. [838D] Kalidas Achamma vs The State ofA.P S.H.O. Karimnagar, I Town P.S., , Approved.
Harishchandrasing Sajjansingh Rathod and Another vs State of Gujarat, , Distinguished.
|
Civil Appeal No. 1774 of 1990.
From the Judgment and Order dated 14.2.1990 of the Delhi High Court in C.W.P. No. 13 of 1990.
WITH CIVIL APPEAL No. 4457 of 1990.
, D.V. Sehgal, A.K. Goel, Mrs. Sheela Goel andK.K. Mohan for the Appellants.
Shanti Bhushan, S.S. Sharma, R.P. Kapur and Sanjay Kapur for the Respondent.
The Judgment of the Court was delivered by VERMA, J.
These appeals by special leave are disposed of by this common judgment since they involve common questions.
Civil Appeal No. 1774 of 1990 is against the judgment of the Delhi High Court while Civil: Appeal No. 4457 of 1990 arises out of a similar judgment Of the Punjab & Haryana High Court.
The appellants in.
both these appeals are aggrieved by the promotion policy of.the respondent, the State Bank of India contained in Annexure ' 'A ' ,dated '31.10.1983 read with the Circular dated13.9.1989 for promotion 'from the cadre of junior Management Grade 1 (Rs. 1175 2675):to Middle Manage ment Grade II (Rs. 1825 2925).
The policy provides for two channels for promotion, namely, the Merit Channel and the Seniority Channel.
For filling vacancies by promotion from the cadre.
of Junior Management Grade 1 to that of Middle Management Grade II, 65%.
of the total Vacancies were re served for the Seniority Channel and the remaining 35% for the Merit Channel.
The challenge in these appeals is to the filling by promotion of the vacancies through the Merit Channel.
The criterion mentioned in the policy for the Merit Channel provides 40 per cent marks for written test, 10 per cent marks for seniority, 20 per cent marks for performance appraisal, 20 percent marks for interview and the remaining per cent marks for passing the examination held by the Bankers ' Institute called C.A.I.I.B.
The procedure adopted for taking into account 772 the marks obtained in the written test alone for shortlist ing.or screening instead of total of marks under all heads except interview forcalling a candidate for interview is challenged as arbitrary.
It is contended that the marks under another heads amounting to a maximum of 80 per cent instead of the maximum of 40 per. cent prescribed for the written test should be the proper criterion to call a candi date for interview in order to make a proper selection I on the basis of merit.
It is urged on behalf .of the appellants that by taking intoa ccount the marks of written test alone there is exclusion of other meritorious candidates whose aggregate including the marks obtaine dunder the other heads may exceed the corresponding aggregate of marks of candi dates obtaining higher marks in .written test alone.
On this basis the policy for filling vacancies from the Merit Chan nel by promotion is alleged to be arbitrary.
This is the common grievance in both these appeals.
An additional point urged in Civil Appeal No. 1774 of 1990 alone is that unfair means were adopted by some candidates at some centres in a particular circle where written tests were held which has vitiated the result of the written test.
On behalf of the respondent Bank, all the relevant documents were produced to negative both these submissions.
It was urged by learned counsel for the respondent that the provision for the Merit Channel for promotion was made in the policy to give accelerated promotion to the academically brilliant persons with the object of providing incentive to them and thereby improving the quality of personnel in the higher cadre.
He pointed out that the policy of deciding merit on the basis of written test alone has been consist ently followed and the Circular dated 13.9.
1989 was merely a clarification of the manner of preparation of the Select List to make the selection more objective and to yield better results by getting the most meritorious candidates from all circles.
This mode of preparation of Select List was adopted in 1989 also to overcome the deficiencies point ed out in the earlier years.
The object of choosing the most meritorious persons through this channel is better achieved by adopting the performance in the written test as the predominent factor for selection on .the basis of merit.
One of the attendant benefits achieved thereby is also to at tract more brilliant people into the Banking service with the prospects of accelerated promotion to the more meritori ous persofts.
The entry point for officers by direct re cruitment in the State Bank of India being the JUnior Man agement Grade 1, the prospect of the very first promotion being accelerated for academically brilliant.
persons pro vides greater incentive to the brilliant persons joining the service.
This is the justification given for adopting the policy of reserving 35 per cent of 773 the promotional vacancies to the next higher cadre through Merit Channel.
The object sought to be achieved in this manner and the making of such a provision to achieve the object of such a provision was rightly not assailed before us.
The only.
challenge was to the criterion of marks ob tained in the written test alone being the guiding factor to choose candidates who were to be called for interview.
We heard both sides at length and also closely scruti nised the Bank 's records relating to the formulation and implementation of the impugned promotion policy.
Our conclu sion is that no infirmity rendering this policy arbitrary and, there.fore, assailable on that ground is disclosed.
Keeping in view the laudable 'object of attracting academi cally brilliant candidates into the Bank 's service as offi cers by direct recruitment by giving incentive of accelerat ed promotion to the most meritorious amongst them who main tain a, high standard of achievement is conducive to public interest and cannot be faulted.
Of the serveral heads Under which the marks are divided for promotion to Merit Channel, written test and interview are the only ones which depend on the current performance.
The marks under the remaining three heads of seniority, performance appraisal and C.A.I.I.B. (passing of examination held by Bank 's Institute) relate to past performance of the candidate which are matters of record.
It is, therefore, the appraisal of the current performance by written test and interview which alone is the real part for a proper appraisal of the current performance of the candidate for the purpose of assessing his merit for promotion through the Merit Channel.
In this situation, if the marks obtained in the written test alone are taken into account for preparing the Select List to call candidates for an interview depending upon the number of vacancies avail able in Merit Channel, the criterion adopted cannot be termed arbitrary.
As earlier indicated, the marks obtained for seniority, performance appraisal 'and C.A.I.I.B. are based on service record and not on appraisal of the candi date by a mode independent of service record for assessing the true current worth of the candidate.
Since, equal oppor tunity is available to all for competing through the Merit Channel, in addition to the prospects_through the Seniority Channel, the policy adopted cannot be treated as irrational, discriminatory or arbitrary.
No doubt there is always room for improvement and so also in the mode of implementation of this policy.
The learned counsel for the respondents assured us.that the Bank is vigilant and active in making any im provement which is called for as a result of experience or suggestions from any quarter.
The Bank 's endeavour to make the assessment of merit as objective as possible is also indicated by its efforts in that direction.
The record of 774 the Bank placed before us does satisfy us about the genuine ness and bona fides of the Bank 's endeavour in this direc tion.
It may also be indicated that the Circular dated 13.9.1989 for preparation of the Select List which was applied to the examination held thereafter in 1989 was an exercise in the same direction.
We are inclined to agree with this submission of the learned counsel for the respond ents.
One of the arguments of the learned counsel for the appellants that this circular was applied retrospectively was not substantiated by the facts since preparation of the list according to this circular in the examination held in 1989 was made subsequent to the issuance of this circular and it was an exercise in improvement of the mode Of selec tion.
We do not, therefore, find any merit in the submission on behalf of the appellants that the policy framed and the mode of its implementation for filling some of the promo tional posts through the Merit Channel is discriminatory or arbitrary.
This contention is, therefore, rejected.
We may, however, add that if there be any suggestion for a further improvement in the mode of implementation of this policy the same can be given to the management of the respondent Bank and we have no doubt, as assured by Shri Shanti Bhushan, the learned counsel for the respondent Bank that the worth while suggestions, if any, would be adopted by the Bank for future examinations.
The only other point which is confined to Civil Appeal No. 1774 of 1990 is the allegation of unfair means adopted at some centres where written test was held in the Delhi Circle.
We have scrutinised all the documents including a Report dated 1.9.1989 of Mr. V.D. Bhog on which strong reliance was placed on behalf of the appellants.
We are satisfied that no ground for any interference on this basis is made out.
The relevant records disclosed that an honest attempt was made on the part of the management of the Bank to examine all the points raised in the Report of Mr. V.D. Bhog and otherwise and in cases where an element of use of unfair means was found, necessary action was taken.
The Report dated 7.12.1989 by the General Manager (Operations) is relevant in this context and the materials placed before us show that necessary action was taken by the Bank to exclude the possibility of the results being affected by use of unfair means by any candidate and this was done even before filing of the writ petition by the appellants.
The ultimate results of the candidates at these centres who appeared for written test at these centres also assures us that neither was there any mass copying at these centres nor is the final result shown to have been influenced by use of unfair means by any candidate.
It is also disclosed by the records that the complaint which led to the report by.
775 Shri V.D, Bhog was made by twenty seven candidates out of whom twenty four had obtained high marks themselves and.
out of them twelve were actually selected by inclusion in the final list of selected candidates.
This additional ground urged on behalf of the appellants in Civil Appeal No. 1774 of 1990 also cannot be accepted.
Consequently; both these appeals fail and are dismissed.
No costs.
V.P.R. Appeals dis missed.
| The appellants being aggrieved by the promotion policy of the respondent Bank dated 31.10.1983 read with the Circu lar dated 13.9.1989 for promotion from the cadre of Junior Management Grade 1 to Middle Management Grade II, moved the High Courts under Article 226 of the Constitution.
The policy provides for two channels for promotion, namely, the Merit Channel and the Seniority Channel.
For filling vacancies by promotion from the cadre of Junior Management Grade 1 to that of Middle Management Grade II, 65% of the total vacancies were reserved for the Seniority Channel and the remaining 35% for the Merit Channel.
The criterion mentioned in the policy for the Merit Channel provides 40 per cent marks for written test, 10 per cent marks for seniority, 20 per cent marks for performance appraisal, 20 per cent marks for interview and the remaining 10 per cent marks for passing the examina ' tion held by the Bankers ' institute.
The High Courts dismissed the writ applications,.
against which the appeals were filed in this Court.
TIle appellants contended that the marks under all other heads amounting to it maximum of 80 per cent instead of the maximum of 40 per cent prescribed for the written test should be the proper criterion to call a candidate for interview in order to make a proper selection on the basis of merit; that by taking into account the marks of written test alone there is exclusion of other meritorious candi dates whose aggregate 770 including the marks obtained under the other heads may exceed the corresponding aggregate of marks of candidates 'obtaining higher marks in written test alone.
On this basis the policy for filling vacancies from the Merit Channel by promotion was alleged to be arbitrary.
The respondent Bank, contended that the Provision for the Merit Channel for promotion was made in the policy to give accelerated pro.
motion to the academically brilliant persons with the object of providing incentive to them and thereby improving the quality of personnel in the higher cadre; that the policy of deciding merit on the basis of written test alone has been consistently followed and the Circular dated 13.9.1989 was merely a clarification of the manner of preparation of the Select List to make the selec tion more objective and to yield better results by getting the most meritorious candidates from all circles.
Dismissing the appeals, this Court, HELD: 1.
Keeping in view the laudable object of at tracting academically brilliant candidates into the Bank 's service as officers by direct recruitment by giving incen tive of accelerated promotion to the most meritorious amongst them who maintain a high standard of achievement is conducive to public interest and cannot be faulted.
[773C] 2.
Of the several heads under which the marks are divid ed for promotion to Merit Channel, written test and inter view are the only ones which depend on the current perform ance.
The marks under the remaining three heads of seniori ty, performance appraisal and C.A.LLB.
(passing of examina tion held by Bank 's Institute) relate to past performance of the candidate which are matters of record.
It is, therefore, the appraisal of the current performance by written test and interview which alone is the real part for a proper apprais al of the current performance of the candidate for the purpose of assessing his merit for promotion through the Merit Channel.
In this situation, if the marks obtained in the written test alone are taken into account for preparing the Select List to call candidates for an interview depend ing upon the number of vacancies available in Merit Channel the criterion adopted cannot be termed arbitrary.
[773C F] 3.
The marks obtained for seniority, performance ap praisal and C.A.I.I.B. are based on service record and not ' on appraisal of the candidate by a mode independent of service record for assessing the true current worth of the candidate.
Since, equal opportunity is available to all for competing through the Merit Channel, in addition to the 771 prospects through the Seniority Channel, the policy adopted cannot be treated as irrational, discriminatory or arbi trary.
[773F.G]
|
ivil Appeal No. 3382 of 1991.
From the Judgment and Order dated 19.5.
1989/24.5.
1989 of Delhi High Court in W.P. No. 2915 of 1988.
D.D. Thakur, V.C. Mahajan, N.S. Das Bahl, D.N. Puri, Mukul Mudgal, Ms. A. Subhashini, K. Vasudev, section Mathur, Syed Ali Ahmad, Syed Tanweer Ahmed, section Balakrishnan, M.K.D. Nambodiri, P.P. Tripathi and Ms. Sangita Garg for the ap pearing parties.
The Judgment of the Court was delivered by OJHA, J.
Special leave granted.
This Civil appeal by special leave is directed against the order of the Delhi High Court dated 19th May, 1989 as clarified by order dated 24th May, 1989 in Writ Petition No. 29 15 of 1988.
The facts in brief necessary for the decision of this appeal are that some land was proposed by the Central Government to be allotted for the resettlement of displaced persons.
In October 1959 the Rehabilitation Ministry Employ ees ' Cooperative House Building Society Ltd., New Delhi, Respondent No. 1 (hereinafter referred to as the Society) was formed and incorporated.
After completing necessary formalities an allotment of 60 acres of land was made by the Central Government in favour of the Society which, however, was subsequently cancelled on 7th May, 1979.
The Society challenged the aforesaid order of cancellation before the Delhi High Court in Writ Petition No. 654 of 1979 which was allowed by a Single Judge of that Court on 1st September, 1980.
This judgment Was challenged by the Delhi Development Authority before the High Court in Letters Patent Appeal No. 254 of 1980 which was dismissed by a Division Bench of the High Court on 5th January, 1981.
Aggrieved by these orders the Delhi Development Authority filed Special Leave Petition (Civil) No. 3762 of 1981 before this Court in which the parties entered into a compromise inter alia providing that an area of 45 acres of land in 842 place of 60 was to be allotted to the Society and that membership of the society was to be 'restricted to persons who were members as on 1st September, 1980 in accordance with the bye laws of the SoCiety as then prevailing.
1st September, 1980 was the date on which Writ Petition No. 654 of 1979 giving rise to Special Leave Petition (Civil) No. 3762 of 1981 had been allowed by the High Court.
In pursu ance of the compromise learned counsel for the Delhi Devel opment Authority prayed for and was granted leave on 6th May, 1982 to withdraw the said special leave petition.
In consequence, the order of the High Court stood modified in the light of the compromise entered into between the par ties.
The Society thereafter proceeded to make allotment of land to its members and draw of lots was held by the Society on 14th December, 1988.
This draw of lots was challenged by the appellants before the Delhi High Court in Writ Petition No. 29 15 of 1988 in which the orders appealed against were passed.
In order to appreciate the nature of dispute which was raised in this writ petition with reference to the draw of lots it is necessary to advert to some more facts.
Appellants 1 and 2 even though employees of Rehabilita tion Ministry stood posted in its subordinate offices out side Delhi.
It appears that even though only such persons who were employed and posted in the Rehabilitation Ministry in Delhi itself were intended to be eligible for membership of the Society, appellants 1 and 2 were enrolled as members of the Society on 22nd November, 1972 and 11th January, 1974 respectively.
Likewise, certain other persons who were not employees of Rehabilitation Ministry but were employees of departments which were under the charge of the Minister/Minister of State of the Rehabilitation Ministry, were also enrolled as its members by the Society.
With regard to such members who even though employees of the Rehabilitation Ministry, Were posted outside Delhi, the ' Union Cabinet in 1977 accepted a suggestion to enable Cen tral Government employees serving outside Delhi to become members of cooperative housing societies in Delhi.
In pursu ance thereof the Lt. Governor of Delhi passed a consequen tial general order on 9th June, 1977 directing that the condition with regard to bona fide residents of Delhi will stand relaxed to the extent that in case the Government servant during the term of employment and with a view to settle in Delhi after retirement has become a member of a Cooperative House Building Society, he will not be debarred from the membership of the Society simply on the 843 ground that he was not a resident of Delhi at the time of enrolment.
In pursuance of this general order the appellants and some other similar persons who had been ,enrolled as members by the Society became eligible to be members of the Society and subsequently their membership was approved.
As regards those persons who were employed in other departments under the charge of Minister/Minister of State of the Reha bilitation Ministry the Society by its Resolution dated 14th December, 1980 proposed an amendment of the bye laws so as to enable such persons also to become eligible for member ship of the Society.
The proposed amendment which was to be inserted as bye law 5(1)(a) (iii) was sent by the Society to the Registrar for approval.
The Registrar, however, refused to approve and register the proposed amendment.
Aggrieved, the Society preferred an appeal before the Lt. Governor of Delhi Which was allowed on 19th August, 1985.
The Lt. Governor directed the bye laWs to be so amended as to pro vide for eligibility of employees of a Ministry of which Department of Rehabilitation had been a part.
In pursuance of the aforesaid direction the amended bye law 5(1)(a)(iii) was registered and incorporated into the bye laws by the Registrar on 10th March, 1986.
At this place Section 12 of the Delhi Cooperative Socie ties Act, 1972 (hereinafter referred to as the Act) may be referred to which provides that an amendment of the bye laws of a cooperative society shall, unless it is expressed to come into operation on a particular day, come into force on the day on which it is registered.
Nothing to the contrary having been provided in this behalf the amended bye law 5(1)(a)(iii) was, in view of section 12 of the Act, to come into operation from both March, 1986 on which date the said amended bye Law was registered as stated above.
It appears that realising this difficulty, the Society wrote to the Registrar on 3rd February, 1987 to move the Lt. Governor for relaxing the provisions of Section 12 of the Act.
A reminder was sent by the Society on 26th March, 1987 to approve the aforesaid amended bye law with retrospective effect.
The Registrar seems to have moved the Government accordingly and necessary order in this behalf appears to have been passed by the Lt. Governor, the terms whereof are to be found in a Notification dated 27th October, 1987 issued by ' the Office of the Registrar, Cooperative Societies which reads as hereunder: "OFFICE OF THE REGISTRAR COOPERATIVE SOCIETIES New Delhi the 27th October, 1987 844 NOTIFICATION No. F. 46/2007/115/85/Bye laws/Coop/5398: In exercise of the powers conferred under Section 88 of the Delhi Coop erative Societies Act, 1972, the Lt. Governor Delhi has been pleased to exempt the Rehabili tation Min.
House Building Society Ltd. New Delhi from the provision of Section 12 of the said Act in respect of the amended bye laws No: 5(1)(a) (iii) of ' the said socie ty as registered on 10.3.86 will have retro spective effect from 10.1.1968, instead of 10.2.1986.
By Order on behalf of L.G., Delhi.
G.P. Sewallia, Spl.
(Coop)" The effect of the order of the Lt. Governor indicated in the aforesaid Notification was that employees of other departments under the charge of Minister/Minister of State of Rehabilitation Ministry became eligible to the membership of the Society with effect from 10th January, 1968.
There was a third category of members which too 'had given rise to the disputes raised in Writ Petition No. 29 15 of 1988.
One of the conditions for being eligible to be a member of the Society was that the person sought to be enrolled as a member of the Society had to file an affidavit that he or she did not own a residential house or plot either in his or her name or in the name of his or her spouse, parents or dependent relations.
15 persons had not, in their affidavits filed along with their applications for membership, given full particulars in this behalf.
It appears that subsequent ly this lacuna having come to its notice the Society kept their membership in abeyance and gave them an opportunity to file fresh affidavits giving full particulars which they did and on that basis their membership was regularised.
In the writ petition giving rise to this appeal Shri S.C. Saxena, Secretary of the Society had filed an affidavit which contained three lists.
List 'A ' contained the names of 572 persons whose membership had been cleared both by the Registrar of Cooperative Societies and the Ministry of Home Affairs (Department of Rehabilitation) in accordance with the dates of their enrolment.
List 'B ' contained the names of 26 members who were employees of the Ministries in Delhi/ New Delhi which were under the charge of the Minister/Minis ter of State of Rehabilitation Ministry.
List 'C ' on the other hand contained the names of such persons who were employees in the subordinate 845 offices of the Ministry/Department of Rehabilitation and were posted outside Delhi but wanted to settle in Delhi/New Delhi after retirement.
The appellants as noticed earlier fell in the category of members shown in List 'C '.
Their membership had, in pursuance of the order of the Lt. Gover nor dated 9th June, 1977 referred to above, been approved by the Society in the meeting of its Managing Committee held on 17th November, 1979.
In the same meeting by another Resolu tion the membership of the 15 persons referred to above as persons falling in the third category was also regularised on the basis of the fresh affidavits filed by them.
As regards those members whose names were mentioned in List 'B ' aforesaid it has been pointed out by the High Court in the judgment appealed against that "there is no dispute that the membership of these 26 persons mentioned in List 'B ' was either approved by the General Body in the meeting held on 8th July, 1970 or approved by the Managing Committee on 22nd March, 1974 or by the Administrator on or before 9th June, 1976.
" As regards members mentioned in List 'B ' the grievance of the appellants before the High Court was that the order of the Lt. Governor expressed in the Notification dated 27th October, 1987 was ultra vires his powers in so far as it made the amended bye law 5(1)(a)(iii) effective retrospec tively from 10th January, 1968.
As regards 15 persons of the third category referred to above the grievance of the appel lants before the High Court on the other hand was that they having filed fresh affidavits after the appellants had been enrolled as members could not be given seniority over the appellants in the matter of drawing of lots.
These conten tions having been repelled by the High Court by the orders appealed against the appellants have preferred this civil appeal in which subsequently various interlocutory applica tions for impleadment and other directions were made which too are being considered hereinafter along with the appeal.
In the appeal the real question which arises for consid eration is about the seniority of the members of the Society which constitutes the basis for allotment of plots at the time of drawing of lots.
As regards the seniority of the 15 members who have been referred to above as members falling in third category namely those who had been accepted as members of the society but subsequently whose membership was kept in abeyance on some defects being notices in their affidavits and who on an opportunity being given in this behalf filed fresh affidavits giving full particulars and were on the basis of such affidavits treated as regular members, the appellants ' grievance has been, as noticed earlier, that they having filed fresh affidavits after the appellants had 846 been enrolled as members could not be given seniority over the appellants.
The High Court in the orders appealed against has pointed out that the cases of these 15 persons were scrutinised by the screening committee Who recommended that they should be treated as regular member of the society and share certificates be issued to them.
It has, further, been found by the High Court that these 15 persons were admitted as members of the society either by the Managing Committee or the General Body or the Administrator prior to 17th November, 1979 and that the record indicated that their membership was kept in abeyance because of full information not being furnished in their affidavits.
It has held that since the membership of 26 persons falling in category 'C ' including the appellants was for the first time approved by the Managing Committee in its meeting held on 17th NOvember 1979 and the 15 persons referred to above had been admitted as members prior to 17th November 1979 and in the meeting held on 17th November, 1979 their membership was only regu larised, the 26 persons of Category 'C ' including the appel lants would obviously be junior tO the 15 members referred to above.
In our opinion, the view taken by the High Court in this behalf does not suffer from any such error which may justify interference under Article 136 of the Constitution.
Indeed no serious argument was addressed on this point on behalf of the appellants.
Now, we advert to the main submission made on behalf of the appellants with regard to the validity of the Order of the Lt. Governor indicated in the notification dated 27th October, 1987 giving the amended Bye law No. 5(1)(a)(iii) retrospective effect from 10th January 1968.
Before dealing with this plea, however, it is necessary to point out that during the pendency of the special leave petition giving rise to this appeal, the Lt. Governor issued another notifi cation dated 29th August, 1990, the relevant portion of which reads as hereunder: DELHI ADMINISTRATION, DELHI (COOPERATIVE DEPARTMENT) OLD COURT 'S BUILDING PARLIAMENT STREET: NEW DELHI Dated the 29th August, 1990 NOTIFICATION No. F. 46/2007/115/85/Bye laws/Coop./The Lt. Governor of the Union Territory of Delhi is pleased to rescind his notifica tion No. 27th October, 1987, issued under Section 88 of the Delhi Cooperative Societies Act, 1972 by which the Rehabilitation Ministry Employees Cooperative House Building Society Ltd. was exempted from the provisions of Section 12 of the said Act in respect of the amended bye law No. 5(1)(a)(iii) of the said Society.
with retrospective effect from 10.1.1968 instead of 18.2.1986.
By order and in the name of the Lt. Governor of the Union Territory of Delhi.
(A.C. KHER) Spl.
(Cooperation) Delhi Administration, Delhi.
" By Order dated 30th August, 1990 and a subsequent Order dated 7th April, 1991 passed by this Court, the parties were permitted to challenge the validity of this notification and IA No. 13/1991 has been filed by Shri B.R. Puri and six others in this behalf.
It has been urged by learned counsel for the appellants that if the subsequent notification dated 29th August, 1990 is held to be valid the orders appealed against passed by the High Court deserve to be set aside on that ground alone inasmuch as they are based on the earlier notification dated 27th October, 1987 which has been rescinded.
In the alterna tive, it has been urged that if the notification dated 29th August, 1990 is held to be invalid, the orders appealed against yet deserve to be set aside inasmuch as the earlier notification dated 27th October, 1987 which forms the basis of these orders is ultra vires.
Since the validity of the notification dated 29th Au gust, 1990 would to a large extent depend upon the true nature and import of the earlier notification dated 27th October, 1987 we propose to consider the question of the validity of the notification dated 27th October, 1987 first.
As noticed earlier, it was in pursuance of the order passed by the Lt. Governor on 19th August, 1985 that the amended bye law 5(1)(a)(iii), was registered and incorporated in the Bye laws by the Registrar on 10th March 1986.
This order had been passed by Lt. Governor in an appeal filed by the Socie ty against the order of the Registrar refusing to register the aforesaid amendment and rejecting the proposal made in this behalf by the Society.
This appeal had obviously been filed under Section 76(1)(b) of the Act and was entertained 848 and decided by the Lt. Governor in view of the provision contained in this behalf in Section 76(2)(c) of the Act.
It cannot be disputed that the jurisdiction which the Lt. Governor exercised in entertaining and deciding the appeal was of a quasi judicial character.
For allowing the appeal the Lt. Governor in his order dated 19th August, 1985 gave the following reasons: "The rest of the proposed amendments, which are based on model bye laws, with certain modifications, are designed to regularise such of the members, as were not the employees of the Department of Rehabilitation, but were employees of the Ministries, of which the Department of Rehabilitation had been a part, from time to time, under one Minister/Minister of State.
As these persons, whose number is stated to be not large, became members of the society many years ago, and their names also figured, as has been stated by the counsel for the appellant, in the list of members which was supplied by the society to the Department of Rehabilitation, and which formed the basis for the allotment of land to the society by the Ministry of Rehabilitation, it would be neither fair nor just to leave them in the lurch now, by depriving them of their member ship, when they cannot become members of any other society.
" It would, thus, appear that what weighed with the Lt. Governor apart from the other considerations stated in his order was that the proposed amendment to the bye laws was "designed to regularise such of the members" . . "whose number is stated to be not ' large" and who "became members of the Society many years ago" and that "it would neither be fair nor just to leave them in the lurch now, by depriving them of their membership, when they cannot become members, of any other society".
If these were the considra tions which ' weighed with the Lt. Governor in allowing the proposed amendment it can hardly be denied that the purpose of the order was not to give effect to the amended bye law from the date on which it was registered as contemplated by Section 12 of the Act, which date in the instant case came to be 10th March; 1986 but from the date on which the first person under this category was enrolled as a member, for otherwise the purpose of the order Was bound to be frustrat ed and the order would in that event be hit by the doctrine of brutum fulmen.
This quasi judicial order passed by the Lt. Governor has become final and 849 it was really to give effect to this order that the order of the Lt. Governor referred to in the notification dated 27th October, 1987 was passed.
In the normal course, it would not be just and proper to interfere with such an order under Article 136 of the Constitution.
Learned counsel for the appellants has, however, strenu ously urged that the notification dated 27th October, 1987 is ultra vires the powers of the Lt. Governor.
He pointed out that Section 88 of the Act under Which the said notifi cation was issued does not authorise the issue of a notifi cation such as the notification dated 27th October, 1987.
Having given our anxious consideration to the submissions made by learned counsel in this behalf, we find it difficult to agree with them.
Section 88 of the Act may usefully be reproduced here.
It reads: "88.
Power to extempt cooperative societies from provisions of the Act.
The Lt. Governor may, by general order, to be published in the.
Delhi Gazette, exempt any cooperative society or any class of cooperative societies from any of the provisions of this Act, or may direct that such provisions shall apply to such societies or class of societies with such modifications as may be specified in the order.
" The notification dated 27th October, 1987 has already been quoted above.
Its perusal indicates that by its earlier part the Lt. Governor has exempted the society from the provision of Section 12 of the Act.
This was clearly permis sible on a plain reading of Section 88.
By its later part the notification provides that the amended bye law 5(1)(a)(iii) "will have retrospective effect with effect from 10.1.
" The word "Which" seems to have been omit ted after "as registered on 10.3.86" and before "will have retrospective effect".
It is clear not only from the context of the notification but also from its Hindi version a photo stat copy whereof has been produced before us.
Transliterat ed in Roman Script, it reads: "Dilli ke up Rajyapal, Dilli Sahkari Samitiyan Adhiniyam 1972 ki dhara 88 ke Antargat pradatt Shaktiyon ka prayog karte hue the Rehabilita tion Ministry Employees Cooperative Society Ltd. naee Dilli ko ukta Adhiniyam ki dhara 12 me diye gaye pravidhan.
ke anusar ukta Samiti ko bye laws me dhara 5(1)(a) tatha (iii) me sanshodhan dinank 10.3.86 ki apeksha 10.1.68 se lagu hone ki chhut dete hain." According to the Hindi version, the Society has been permit ted 850 to enforce the amended bye law 5(1)(a)(iii) with effect from 10.1.68.
Section 12 contemplates "unless it is expressed to come into operation on a particular day".
The notification really permits to express 10.1.68 as the particular day on which the amended bye law aforesaid is to come into opera tion.
Suppose the notification dated 27th October, 1987 had said "At the end of Section 12 of the Act add provided that the amendement of the bye law made by the Rehabilitation Ministry.
Employees Cooperative House Building Society Ltd. , New Delhi, shall come into force on 10.1.68".
Could it be said that this would be beyond the power con ferred by Section 88 of the Act? The answer would have to be in the negative on a plain reading of Section 88.
Except for the unhappy language used therein the notification dated 27th October, 1987, does not seem to have been issued by the Lt. Governor in excess of the powers conferred on him by Section 88 of the Act.
In such matters, substance has to prevail over the form.
We have been informed by learned counsel for the appplicants in IA No. 13 of 1991 that 10th January, 1968 mentioned in the notification dated 27th October, 1987 is the date on which the first member failing in category 'B ' referred to above had applied for enrolment.
As indicated above this was really the purpose of the quasi judicial order dated 19th August, 1985 passed by the Lt. Governor in the appeal filed by the Society and the notification has obviously been issued to subserve that purpose.
In so far as we have taken the view that the word "which" seems to have been omitted in the Notification dated 27th October, 1987 and it has to be read there, we may point out that in Surjit Singh vs Kalra, ; it has been held in paragraph 19 of the Report: "True it is not permissible to read words in a statute which are not there, but "where the alternative lies between either supplying by implication words which appear to have been accidentally omitted, or adopting a construc tion which deprives certain existing words of all meaning, it is permissible to supply the words" (Craies Statute Law, 7th edn., p. 109).
Similar are the observations in Hameedia Hardware Stores vs
B. Mohan Lal Sowcar; , where it was observed that the court construing a provision should not easily read into it words which have not been expressly enacted but having regard to the context in which a provision appears and the object of the statute in which the said provision is enacted the court should construe it in a harmonious way to make it meaningful.
An attempt must always be made so to reconcile the relevant provisions as to advance the remedy intended by the 851 statute.
(See: Sirajul Haq Khan vs Sunni Central Board of Waqf, Learned counsel for.the appellants then urged that a delegated legislation could not be given retrospective effect unless it was specifically provided for.
He relied on the following passages from Wade on Administrative Law (Fifth Edition): "It follows likewise that the courts must determine the validity of delegated legisla tion by applying the test of ultra vires, just as they do in other contexts.
Delegated legis lation in no way partakes of the immunity which Acts of Parliament enjoy from challenge in the courts, for there is a fundamental difference between a sovereign and a subordi nate law making power.
Acts of Parliament have sovereign force, but legislation made under delegated power can be valid only if it con forms exactly to the power granted." (page 748).
"Whether delegated legislation can have retrospective operation without express Parliamentary sanction is a question upon which there is scant authority.
It is natural to presume that Parliament is unlikely to confer a power which it uses only most spar ingly itself." (page 751).
"Just as with other kinds of admin istrative action, the courts must sometimes condemn rules or regulations for unreasonable ness.
In interpreting statutes it is natural to make the assumption that Parliament could not have intended powers of delegated legisla tion to be exercised unreasonably, so that the legality of the regulations becomes dependent upon their content." (page 752).
Reference was made to similar passages even from Maxwell on the Interpretation of Statutes and Vepa P. Sarthi 's Interpretation of Statutes.
Certain decisions of this Court were.
also cited in support of the above propositions Relying on Partap Singh vs State of Punjab, ; it was further urged that mala fides vitiates an order.
Even though there can be no dispute with the legal propositions enunciated above we find it difficult to apply them in the instant Case to nullify the notification dated 27th October, 1987.
Firstly, the power exercised by the Lt. Governor as indicated earlier was within the ambit 852 of and permissible under Section 88 of the Act, Secondly, keeping in view the facts of the instant case and the pur pose of amending bye law 5(1)(a)(iii) we find that the notification is neither unreasonable nor can any mala fide be attributed in issuing the same.
In Kruse vs Johnson, , it was held that in determining the validity of bye laws made by public representative bodies, such as county councils, the Court ought to be slow to hold that a bye law is void for unrea sonableness.
A bye law so made ought to be supported unless it is manifestly partial and unequal in its operation be tween different classes, or unjust, or made in bad faith, or clearly involving an unjustifiable interference with the liberty of those subject to it.
In view of this legal posi tion the notification dated 27th October, 1987 deserves to be upheld as, in our opinion, it does not fall within any of the exceptions referred to in the case of Kurse vs Johnson (supra).
Learned counsel for the appellants further submitted that the notification dated 27th October, 1987 had the effect of defeating the purpose of the Act and was conse quently bad.
Reliance was placed on Registrar of Cooperative Societies, Trivandrum and Anr.
vs K. Kunhambu & Ors.
, [ ; at p. 267 where with reference to Section 60 of the Madras Cooperative Societies Act, 1932, it was held: "Section 60 empowers the State Government to exempt a registered society from any of the provisions of the Act or to direct that such provision shall apply to such society with specified modifications.
The power given to the Government under Section 60 of the Act is to be exercised so as to advance the policy and objects of the Act, according to the guidelines as may be gleaned from the preamble and other provisions which we have already pointed out, are clear.
" We are of the view that the said Notification cannot be held to be bad on this score as well for the simple reason that the bye law 5(1)(a)(iii) introduced by amendment consequent upon the quasijudicial order of the Lt. Governor passed in appeal on 19th August, 1985 has not been challenged on the ground that it was beyond the power conferred by the Act.
What has been challenged is the retrospective operation thereof.
As seen above, if the amended bye law was not made retrospective its very purpose was to stand defeated.
So far as the Notification dated 27th October, 1987 is concerned, it really subserves the purpose of the amended bye law made under the Act 853 and does not defeat it.
Lastly, it was urged by learned counsel for the appel lants that at worst the effect of the Notification is that the amended bye law 5(1)(a)(iii) would be deemed to be there with effect from 10.1.68 but from that fact alone the re spondents could not become members unless their membership was approved as contemplated by Rule 24 of the Delhi Co operative Societies Rules, 1973.
Suffice it to point out so far as this submission is concerned that with regard to members whose names were mentioned in List 'B ' of the affi davit.filed by Shri S.C. Saxena before it, the High Court, as already noticed earlier, has held in the judgment ap pealed against that "there is no dispute that the membership of these 26 persons mentioned in List 'B ' was either ap proved by the General Body in the meeting held on 8th July, 1970 or approved by the Managing Committee on 22nd March, 1974 or by the Administrator on or before 9th June, 1976.
" If the Notification dated 27th October, 1987 is valid it had by legal fiction the effect of making persons mentioned in List 'B ' aforesaid eligible for membership of the Society with effect from 10th January, 1968 and the approval of the membership of these persons on various dates as pointed out by the High Court could not be held to be invalid simply because those dates happened to be prior to the date on which bye law 5(1)(a)(iii) was actually incorporated in the bye laws of the Society.
As pointed out by Lord Asquith in East End Dwellings Co. Ltd. vs Finisbury Borough Council, [1952] Appeal Cases 109 at p. 132, if you are bidden to treat an imaginary state of affairs as real, you must sure ly, unless prohibited from doing so, also imagine as real the consequences and incidents which, if the putative state of affairs had in fact existed, must inevitably have fol lowed from or accompanied it and that when the statute says that you must imagine a certain state of affairs, it does not say that having done so, you must cause or permit your imagination to boggle when it comes to the inevitable corol laries of that state of affairs.
Learned counsel for the appellants, however, urged that the aforesaid principle of legal faction cannot be invoked to put life in a still born action and relied on the deci sion of this Court in B. Shama Rao vs The Union Territory of Pondicherry, ; Having gone through the decision we are of the view that it is clearly distinugisha ble.
The facts of that case were that the legislative assem bly for the Union Territory of Pondicherry passed the Pondi cherry General Sales Tax Act (10 of 1965) which was pub lished on June 30, 854 1965.
Section 1 (2) of the Act provided, that it would come into force on such date as the Pondicherry Government may, by notification, appoint and section 2(1) provided that the Madras General Sales Tax Act, 1959, as in force in the State of Madras immediately before the commencement of the Pondi cherry Act, shall be extended to Pondicherry subject to certain modifications, one of which related to the constitu tion of the Appellate Tribunal.
The Act also enacted a Schedule, giving the description of goods, the point of levy and the rates of tax.
The Pondicherry Government issued a notification on March 1, 1966, appointing April 1,.
1966 as the date of commencement.
Prior to the issue of the notifi cation, the Madras legislature had amended the Madras Act and consequently it was the Madras Act as amended up to April 1, 1966 which was brought into force in Pondicherry.
When the Act had come into force, the petitioner was served with a notice to register himself as a dealer and he thereupon filed a writ petition challenging the validity of the Act.
After the petition was filed, the Pondicherry Legisla ture passed the Pondicherry General Sales Tax (Amendment) Act ', 13 of 1966, whereby section 1(2) of the principal Act was amended to read that the latter Act "shall come into force on the 1st day of April 1980", it was also provided that all taxes levied or collected and all proceedings taken and things done were to be deemed valid as if the principal Act as amended had been in force in all material times.
On these facts it was held that the Act of 1965 was void and still born and could not be revived by the amendment Act of 1966.
In this connection it was pointed out at page 660: "In the present case it is clear that the Pondicherry legislature not only adopted the Madras Act as it stood at the date when it passed the Principal Act but also enacted that if the Madras legislature were to amend its Act prior to the date when the Pondicherry government would issue its notification it would be the amended Act which would apply.
The legislature at that stage could not antic ipate that the Madras Act would not be amended nor could it predicate what amendment or amendments would be carried out or whether they would be of a sweeping character or whether they would be suitable in Pondicherry.
In point of fact the Madras Act was amended and by reason of section 2(1) read with sec tion 1(2) of the Principal Act it was the 855 amended Act which was brought into operation in Pondicherry.
The result was that the Pondi cherry legislature accepted the amended Act though it was not and could not be aware what the provisions of the amended Act would be.
There was in these circumstances a total surrender in the matter of sales tax legisla tion by the Pondicherry Assembly in favour of the Madras legislature and for that reason we must agree with Mr. Desai that the Act was void or as is often said 'still born '.
" Such is obviously not the position in the instant case.
In view of what has been discussed above no exception can be taken to the view of the High Court holding the said Notifi cation to be valid.
The question of validity of the subsequent Notification dated 29th August, 1990 whereby the earlier Notification dated 27th October, 1987 was rescinded may now be consid ered.
As noticed earlier, the Lt. Governor had passed the quasi judicial order on 19th August 1985 in an appeal flied by the society against the order of the Registrar declining amendment of the bye law concerned.
Relevant findings of the Lt. Governor along with the reasons there for have already been extracted above.
We have already pointed out that what weighed with the Lt. Governor in passing that order was that persons for whose benefit the bye law was sought to be amended had become members of the society many years ago, that their names figured even in the list of members which was supplied by the society to the Department of Rehabilita tion and which formed the basis for allotment of land to the society and that it would be neither fair nor just to leave them in the lurch now by depriving them of their membership when they cannot become members of any other society.
It was pointed out by the Lt. Governor that the proposed amendment in the bye law was "designed to regularise such of the members".
From the tenor of this order there can be no manner of doubt that the order was passed with a view to ensure that the persons who had become members of the socie ty many years ago should get the benefit of the amended bye law by having their membership regularised.
Such members could obviously get the benefit of the bye law only if it was made retrospectively effective.
The order of the Lt. Governor did not contemplate fresh enrolment of those per sons as members after the passing of that order and the bye law being amended in consequence thereof but it contem plated regularisation of their membership.
This clearly indicated that those persons were sought to be treated as members as from the dates on which they had factually become members 856 of the society.
We have also pointed out above that in our opinion in having the notification dated 27th October, 1987 issued, the Lt Governor only took steps to give effect to the quasi judicial order could be achieved.
This being the true nature of the notification dated 27th October, 1987, the Lt. Governor cannot be said to have in any manner re viewed the quasi judicial order dated 19th August, 1985.
On the other hand, the subsequent notification dated 29th August, 1990 even though purported to rescind that earlier notification dated 27th October, 1987 only it had keeping in view the nature and purpose of the notification dated 27th October, 1987 really the effect of reviewing and nullifying the quasi judicial order passed by the Lt. Governor on 19th August, 1985.
In a matter such as this, it is the substance and the consequence of the notification dated 29th August, 1990 which has to be kept in mind while considering the true import of that notification.
It is settled law that a quasi judicial order once passed and having become final cannot be reviewed by the authority passing that order unless power of review has been specifically conferred.
The qausijudical order dated 19th August, 1985, as seen above, had been passed by the Lt. Governor under Section 76 of the Act.
No power to review such an order has been conferred by the Act.
In G.V. Rao vs Govt.
of Andhra Pradesh and Ors.
, [1966] 2 SCR, p. 172, an order had been passed by the Gov ernment under Section 62 of the Andhra Pradesh Panchayat Samithies and Zila Parishads Act.
1959, it was subsequently reviewed.
The validity of this order of review was in ques tion in that case.
No power of review had been conferred for review of an order passed under Section 62.
What was, howev er, argued was that the Government was competent to review that order in exercise of power conferred by Section 13 of the Madras General Clauses Act, 1891.
Repelling this argu ment, it was held: "The learned counsel for the State then con tended that the order dated April 18, 1963, could itself be sustained under section 62 of the Act.
Reliance is placed upon section 13 of the Madras General Clauses Act, 1891, whereunder if any power is conferred on the Government, that power may be exercised from time to time as occasion requires.
But that section cannot apply to an order made in exercise of a quasi judicial power.
Section 62 of the Act confers a power on the Government to cancel or suspend the resolution of a Panchayat Samithi, in the circumstances mentioned therein, after giving an opportunity for explanation to the Panchay at Samithi.
If the Government in exercise of that power cancels or confirms a resolution to the Panchayat 857 Samithi, qua that order it becomes functus officio.
Section 62, unlike section 72 of the Act does not confer a power on the Government to review its orders.
Therefore, there are no merits in this contention.
" We are aware that the notification dated 29th August, 1990 purports to rescind the earlier notification dated 27th October, 1987 only and does not speak in clear terms that the quasi judicial order dated 19th August, 1985 was also being rescinded.
On the facts and circumstances of this case, as emphasised above, we are of the opinion that this circumstance hardly makes any difference inasmuch as even though the quasi judicial order dated 19th August, 1985 has not been expressly nullified, it has certainly for all practical purposes been nullified by necessary implication.
This, in our opinion, could not be done and the notification dated 29th August, 1990 is ultra vires on this ground alone.
The matter can be looked at from another angle also.
It cannot be disputed that as a consequence of the quasi judi cial order of the Lt. Governor dated 19th August, 1985 and the notification dated 27th October, 1987, a substantive right was created in favour of the 26 persons whose names had been mentioned in list 'B ' of the affidavit by Shri S.C. Saxena filed in the High Court.
The challenge to that noti fication had already failed before the High Court and the matter was subjudice before this Court in special leave petition giving rise to this civil appeal when the notifica tion dated 29th August, 1990 was issued.
The notification dated 27th October, 1987 had specifically been issued under section 88 of the Act.
Even though the subsequent notification dated 29th August, 1990 does not disclose the source of the power under which it had been issued, learned counsel for the appellants traced its source to section 88 itself read with the powers to add, to amend, vary or rescind notifications, orders, rules or bye laws contained in section 21 of the .
In State of Kerala and Ors.
vs K.G. Madhavan Pillai and Ors., [1988] 4 SCR p. 669, it was held by the High Court that if in pursuance of an earlier order passed by the Government some person acquires a right en forceable in law, the said right cannot be taken away by a subsequent order under general power of rescindment avail able to the Government under the and that the said power of rescindment had to be determined in the light of the subject matter, context and the effect of the relevant provisions of the statute.
The view taken by the High Court was upheld by this Court in paragraph 27 of the report.
The notification dated 29th August, 1990, would, therefore, be invalid on this ground also.
In view of the foregoing discussion, the civil appeal deserves to be dis missed.
858 At this place we consider it proper to make a note that learned counsel for the applicants in IA 13 of 1991 had attacked the Notification dated 29th August, 1990 on two other grounds also.
One was that the said Notification was vitiated for breach of principles of natural justice, it having taken away vested rights of the applicants created by the quasi judicial order of the Lt. Governor dated 19th August, 1985 and the Notification dated 27th October, 1987, and the other that the effect of dismissal of an earlier Special Leave Petition by this Court on 19th March, 1990 could not be nullified by the Notification dated 29th Au gust, 1990, In the view we have taken we have not found it necessary to go into these questions.
We now take up Interlocutory Applications made in the appeal.
Some of these applications have already been dis posed of by various orders passed from time to time.
The only applications which are surviving are IA No. 1/89, IA Nos. 4 and 5/89, IA Nos.
6 and 8/89 and IA No. 13/91.
The nature and purpose of IA No. 13/91 has already been indicat ed above: Since the notification dated 29th August, 1990 has been, found by us to be ultra vires and the civil appeal is being dismissed, this application deserves to be allowed.
So does IA No. 1/89 also which has been made by the same cate gory of members Who have made IA No. 13/91.
The applicants in IA Nos. 6 and 8/89 have taken the same stand as the appellants and their learned counsel has before us also adopted the arguments made by learned counsel for the appel lants.
Since the appeal is being dismissed, no further order on IA Nos. 6 and 8/89 is necessary.
The appellant in IA Nos. 4 and 5/89 was really aggrieved by the interim order passed by this Court in the special leave petition on 19th July, 1989 and since with the dismissal of the appeal the said interim order will automatically stand vacated, no further order in these applications also is necessary.
In the result, the appeal fails and is dismissed.
Orders on the interim applications aforementioned shall be as already indicated hereinabove.
They are disposed of accord ingly.
In the circumstances of the case, however, the par ties shall bear their own costs.
, Y.Lal.
Appeal dismissed.
| Respondent No. 1 is a Cooperative House Building Society registered under the Delhi Cooperative Societies Act, 1972.
It was formed in October 1959, with a view to procure land, which the Central Government proposed to allot for the resettlement of displaced persons.
The members of the Socie ty fail in three categories viz., (i) employees of the Ministry of Rehabilitation, New Delhi (ii) employees of the MiniStries in Delhi/New Delhi which were under the charge of the Minister/Minister Of State of Rehabilitation Ministry and (iii) employees working in the subordinate offices of the Ministry/Department of Rehabilitation who were posted outside Delhi/New Delhi and wanted to settle in Delhi after their superannuation.
It may be mentioned that the members in the third category were enrolled as members pursuant to the amended bye law 5(1)(a) (iii), at the Society 's Managing Committee 's meeting held on 17.11.1979.
At the said meeting the cases of 15 other members were also regularised, as the affidavits furnished by them earlier were on scrutiny found defective, which they had replaced by filing fresh affida vits.
The Society proceeded to make allotment of land to its members and draw of lots was held on 14.12.1988.
The draw of lots was challenged by the appellants before the Delhi High Court on the ground that they are senior to 15 persons aforementioned and others.
The appellants also challenged ,the validity of the Notification dated 27th October 1987 insofar as it made the amended bye law 5(1)(a)(iii) effec tive retrospectively.
The High Court having dismissed the petition, the appellants have filed this appeal after ob taining special leave, and the question involved for deter mination in the appeal inter alia relates to the seniority of the members of the society which constitutes the basis for allot 840 ment of plots at the time of drawing of lots.
DiSmissing the appeal, this Court, HELD: The notification dated 27th October, 1987, indi cates that by its earlier part the Lt. Governor has exempted the society from the provision of Section 12 of the Act.
This was clearly permissible on a plain reading of Section 88.
By its later part the notification provides that the amended bye law 5(1)(a) i(iii) "will have retrospective effect with effect from 10.1.1968.
" The word "which" seems to have been omitted after "as registered on 10.3.86" and before "will have retrospective effect".
It is clear not only from the context of the notification but also from its Hindi version.
[849E F] What weighed with the Lt. Governor in passing the order dated 10.8.1985 was that persons for whose benefit the bye law was sought to be amended had become members of the society many years ago, that their names figured even in the list of members which was supplied by the Society to the Department of Rehabilitation and which formed the basis for allotment of land to the society and that it would be neither fair nor just to leave them in the lurch now by depriving them of their membership when they cannot become members of any other society.
It was pointed out by the Lt. Governor that the proposed amendment in the bye law was "designed to regularise such of the members." [855E F] The notification dated 29.8.1990 purports to rescind the earlier notification dated 27th October 1987 only and does not speak in clear terms that the quasi judicial order dated 19.8.1985 was also being rescinded.
On the facts and circum stances this hardly makes any difference inasmuch as even though the quasi judicial order dated 19th August 1985 has not been expressly nullified, it has certainly for all practical purposes been nullified by necessary implication.
This could not be done and the notification dated 29th August 1990 is ultra vires on this ground alone.
[857B C] A quasi judicial order once passed and having become final cannot be reviewed by the authority passing that order unless power of review has been specifically conferred.
[856C] The quasi judical order dated 19th August, 1985 had been passed by the Lt. Governor under Section 76 of the Act.
No power to review such an order has been conferred by the Act.
[856D] 841 Partap Singh vs State of Punjab, ; ; Kruse vs Johnson, ; Registrar of Cooperative Societies, Trivandrum & Anr.
K. Kunhambu & Ors., ; at p. 267 and State of Kerala & Ors.
K.G. Madhhvan Pillai & Ors., , referred to.
|
Criminal Appeal No. 304 of 1991.
From the Order dated 17.12.
1990 of the Delhi High Court in Criminal Misc.
No. 2656 of 1990.
Anand Dev Giri, Solicitor General, Ram Jethmalani, K.G. Bhagat, P.S. Pottv, Prashant Bhushan, Jayant Bhushan, Ms. Deepa Bhushan, P.K. Dey, Ms. Lata Krishnamurti, M.N. Shroff, A.K. Khare, Ms. Kamini Jaiswal, P.K. Monohar, R. Sasiprabhu, Ms. A. Subhashini, A. Subba Rao, Ashok Bhan, Ms. Anil Kati yar, P.N. Bhan, R.K. Dixit and A.M. Khanwilkar for the appearing parties.
Nalla Thampy Thera petitioner in person.
The following Order of the Court was delivered: section RATNAVEL PANDIAN, J. A brief resume of the facts which has given rise to the above appeals and Writ Petition would be necesSary to appreciate the unsavorous controver sies created by way of public interest litigations, though 0we have decided to give only our conclusions now and the detailed reasons later in order to avoid any delay in this matter for the reasons,, namely, (1) in the application for direction filed by the Union of India through C.B.I. on 12.7.91 it is submitted that "the Swiss authorities would remove the blocking order on 31.8.91 and the account holders would withdraw the large funds, running into millions of dollars (equivalent to crores of rupees)" and 757 prayed that the judgment may be pronounced by the end of August 1991 lest miscarriage of justice would be caused, and (2) that the learned 'Additional SoliCitor General, Mr. Altar Ahmed appearing on behalf of the Union of India and CBI on 10.8.91 reaffirmed the above statement of the Union of India and requested that the C.B.I. should be allowed to proceed with the investigation without any interruption or ' hin drance so that the investigation may be speeded up thereby meaning that the wheels of investigation already started moving on, should be permitted to be proceeded with unfet tered and untrammelled so that the valuable evidence may be obtained from the Swiss Bank through their authorities without further loss of time, otherwise the account.
in the Swiss Bank now frozen may be defrozen.
The Central Bureau of Investigation/Delhi police Estab lishment/Anti Corruption Unit IV; New Delhi registered the First Information Report dated 22.1.90 relating to Crime No. RCI(A)/90 ACU IV under Section 120 B read with Sections 161, 162, 163, 164 and 165A of the Indian Penal Code read with Sections 5(2), 5(1)(d) and 5(2)/5(1)(c) of the Preven tion of Corruption Act 1947 (herein referred to as P.C. Act) read with sections 409,420,468 and 471 of the Indian Penal Code against 14 accused of whom 3 are named, they being (1) Shri Martin Ardbo, former President of M/s A.B. Bofors, SWeden (Accused No. 1); (2) Shri Chadha alias Win Chadha, s/o Shri Assa Nand, President of M/s Anatronic General Corporation/ Anatronic General Companies Ltd., C/4, Main Market, Vasant Vihar, New Delhi (Accused No. 3) and Shri G.P. Hinduja, New Zealand House, Hay market, London SW 1 (Accused No. 7).
The rest of the 11 accused are stated in general as Directors/employees/holders/beneficiaries of account code and public servants of the Government of India.
The core of the allegations is that these accused, named and unnamed, entered into a criminal conspiracy, obtained ille gal gratification in the form of money from BOFORS, a Swed ish company through the agent firms/companies/persons as motive or reward for such public servants who by corrupt or illegal means or by otherwise dishonestly using their.
official position as public servants caused pecuniary advan tage to themselves, BOFORS, the agents and others in award ing contracts to BOFORS for the supply of guns to the Gov ernment of India and in the transaction also committed the offences of criminal breach of trust, cheating of Union of India, ' forgery and using of forged documents etc.
It ap pears that the C.B.I. has commenced its investigation during the course of which it has recorded statements of witnesses and took into their custody various documents and files relating to this Bofors deal.
While it is so, the C.B.I. moved an application before the Special 758 Judge, namely, Shri R.C. Jain stating inter alia that the investigation of the case is to be conducted not only in India, but also in Switzerland, Sweden and other countries, that an important aspect of the investigation which is to be conducted in Switzerland is to collect documentary and oral evidence relating to all aspects of the accounts in banks in Switzerland to which remittances were made by M/s A.B. Bofors from Sweden, that in particular, the authorised signatories and the beneficiaries of the said accounts have to be traced by such investigation as they are, in fact, the ultimate beneficiaries of the payments '1 made by M/s A.B. Bofors and that under the procedure followed by banks in Switzerland, an authorised signatory can operate an account for the benefit of certain other persons regarding whom the authorised signatory has to submit certain declarations to the concerned bank and, therefore, it is very essential for the investigation of this case that the documentary and oral evidence should be collected regarding this ' as well as the other aspects of the bank accounts in Switzerland.
In the said application after referring to the exchange of letters dated 20.2.89 between the Government of India and Switzer land for mutual assistance agreeing that the Authorities of both the countries shall provide to each other the widest measure for assistance in the investigation of criminal matters, it has been stated that the competent authority to ask for assistance in India and abroad is the Court/Tribu nal/Judge or Magistrate exercising jurisdiction.
The Direc tor of the C.B.I. sent a request dated 23.1.1990 and supple mented by another request dated 26.1.1990 to the concerned authorities in Switzerland for freezing/blocking certain bank accounts relevant to this case and the Federal Depart ment of Justice and Police, Switzerland moved Shri Parrau din, Judge of Geneva and the concerned Judge 'of Zurich who, on being prima facie convinced of dual criminality and the need for investigation in Switzerland, froze the relevant bank accounts in this regard on 26.1.
1990 as intimated by the Federal Department of Justice and Police through the Embassy of India in Switzerland and that as per this infor mation, the relevant accounts in the bank have been blocked upto 28.2.1990 and that request for judicial assistance from Switzerland in this matter, therefore, should be made by 28.2.1990 failing which the Swiss Law obliges the withdrawal of instructions to block the accounts and that .the Federal Department of Justice and Police at Berne which corresponds to the Ministries of Law and Home, Government of India, have assured that the Swiss authorities would render assistance in the investigation in Switzerland in accordance with the mutual assistance agreement dated 20.2.1989 only on receipt of a Letter Rogatory from the competent judicial authorities in India.
On the above pleadings, the C.B.I. requested the Special Judge 759 to send a Letter Rogatory/request.
to Switzerland urgently for getting the necessary assistance in the investigation to be conducted in Switzerland lest very important and relevant evidence would remain uncollected and the cause of justice would be frustrated.
The Special Judge after hearing Shri Arun Jaitley, the then Additional Solicitor General of India and Shri K.N. Sharma, Deputy Legal Adviser, CBI andShri Baljit Singh, Senior Public Prosecutor by its considered order dated 5.2.1990 allowed the application of the C.B.I., the relevant portion of which reads thus: "In the result, the application of the CBI is allowed to the extent that a request to con duct the necessary investigation and to col lect necessary evidence which can be collected in Switzerland and to the extent directed in this order shall be made to the Competent Judicial Authorities of the Confederation of Switzerland through the Ministry of External Affairs, 'Government of India subject to the filing of the requisite/proper undertaking required by the Swiss Law and assurance for reciprocity.
" The Special Judge also directed certain documents to be sent ' along with his letter of request, such as the copy of the FIR dated 22.1.90, mutual assistance agreement dated 20.2.89 etc.
The Court finally made a note reading thus: "Needless to mention that no observation made in this order shall tantamount to expression of opinion at any subsequent stage of enquiry or trial.
" When the matter stood thus, Shri V.S. Aggarwal on the strength of the notification issued by the Administrator of the Union Territory of Delhi assumed charge as a Special Judge inplaCe of Shri R.C. Jain.
Before Shri Aggarwal, the Special Judge, Shri Harinder Singh Chowdhary, an Advocate filed a Public Interest Litigation by filing Criminal Mis cellaneous Case No. 12/90 under Article 51 A of the Consti tution of India seeking the following prayers which we are reproducing hereunder: "In the premises your petitioners humbly request that in order to maintain the dignity, prestige and the fair name of the country and the ideals enshrined in the Constitution that no rogatory letter be issued on the formal request of the CBI unless the allegations against named persons are 760 established to the satisfaction of this Hon ' ble Court: ' It is further requested that no request for Rogatory or freezing bank account be made to Swiss Govt.
unless the concerned persons are noticed and heard on the subject: It is further requested that the petitioner may be permitted to join during inquiry before this Hon 'ble Court in the capacity of public interest litigant.
It is further requested that inquiry u/s 340 Cr.
P.C. be held to determine the alleged offence committed by various persons and till then all proceedings of Rogatory be stopped.", The Special Judge, namely, Shri V.S. Aggarwal by his considered judgment dated 18.8.1990 dismissed the petition holding "this request of the learned counsel cannot be accepted.
" Finally, the learned Judge made the following note: "Put up on 30.9. 1990 for arguments on the question as to whether any action under Sec tion 340 of the Code of Criminal Procedure is to be initiated or not.
No opinion on the merits of the main case is being expressed.
" The Special Judge then issued ( '1) Note of Compliance and (2) Amended letter rogatory on 22.8.90.
Shri Harinder Singh Chowdhary, the public interest litigant on being aggrieved by the order dated 18.8.90 of the Special Judge filed a criminal revision before the High Court of Delhi under Sections 397/ 482 of the Code of Crimi nal Procedure and raised several questions of law challeng ing the legality and validity of the impugned order and made the following prayers: (a) to quash the entire FIR No. RCI (A)90/ACU IV dated 22.1.90 and criminal pro ceedings covered by the same.
(b) or remand the case to the Special Judge permitting the petitioner to argue his case before the lower court and also direct the court below to decide the petition on merits.
761 (c) direct the court that no request for rogatory letters be.
made to Swiss Government, till the petitioner is heard on his applica tion.
(d)the petitioner may be permitted to join during the inquiry to determine the question of dual criminality before the learned Special Judge in the capacity of public interest litigant, and also direct the learned Special Judge to decide the question of dual criminal ity before issuing the letter rogatory.
(e) direct the learned Special Judge not to issue any ro.gatory letter on the formal request of the CBI unless the allegations against named persons is established to the satisfaction of the Special Judge by cogent evidence.
This revision ' petition has been registered as Criminal Miscellaneous (Main) NO.
1821 of 1990 on the file of the High Court of Delhi.
During the hearing of the above case before the High Court, several applications seeking implead ment/intervention were filed in the proceedings among which one was filed by Mr. Prashant Bhushan, another by Mr. N. Ram and some more by various political parties.
Mr. Justice M.K. Chawla who heard the Crl.
(M)No. 1821/90 passed an order dated 3.12.90 directing all the applications for intervention to be kept on record and observed.
"The interveners will be heard only if the Court feels the necessity of hearing further arguments after the conclusions of the arguments of ASG appearing for the GOI and the CBI".
Thereafter on 6th and 7th December 1990, Mr. Justice M.K. Chawla heard the arguments advanced on behalf of the CBI as well of the Union of India.
While it was so, the Janata Dal etc.
approached this Court by filing a Spe cial Leave Peti.tion (Criminal) No. 2320 of 1990 and this Court on 10.12.90 upon being mentioned and hearing the learned counsel for the parties, passed the following order: "We find on 3.12.90 the learned Judge indicat ed in his order that several applications had been filed by different people for implead ment/intervention in the proceedings and the learned Judge observed that these applications would be heard and if necessary arguments on 'behalf of the intervener could be permitted after other counsel are heard.
Grievance has been made that these applications 762 have not been formally disposed of by the Court.
We are of the view that the learned Judge should dispose of these applications by a judicial order before the matter is reserved for judgment and in case the applications are not accepted, judgment should not be delivered for at least 2 days after such an order on these writ ,petitions is made to enable them to move this Court.
" It appears that in compliance of the above directions of this Court, Mr. Justice Chawla heard Mr. Ram Jethmalani who appeared on behalf of Janata Dal and Mr. Prashant Bhushan on 11.12.90.
The learned counsel, Mr. Jethmalani orally re quested Justice Chawla to recuse himself from the case which request was rejected by the learned Judge.
Thereafter, a petition for recusation was filed which was also dismissed on 17.12.90.
After hearing the learned counsel for Mr. H.S. Chowdhary as well for the interveners, the final order was passed by Mr. Justice Chawla on 19.12.90, the relevant portion of which reads thus: "In my opinion, the case of the petitioner does not fail within the ambit and scope of the law laid by the Supreme Court in Bandhua Mukti Morcha (supra).
So, I hold that the petitioner has no locus standi to file the present revision petition and is thus not maintainable on his behalf.
The same is hereby dismissed.
As a consequent of the dismissal of the present petition, holding that the petitioner has no locus standi, the applicants have no right to be impleaded and their impleadment/ intervention applications are also rejected.
So, I suo moto take cognizance while exercis ing my powers under Sections 397 and 401 read with Section 482 of the Code, and direct the office to register the case under the title, Court on its own motion vs State and CBI.
Consequently, I call upon the CBI and the State to show cause as to why the proceedings initiated on the filing of FIR No. RCI (A)/90/ACU IV dated 22.1.90 pending in the Court of Shri V.S. Aggarwal, Special Judge, Delhi be not quashed.
763 The sum and substance of the above order is that in the opinion of Mr. Justice Chawla, the petitioner Sh.
Harindcr Singh Chowdhary has no locus standi to maintain the petition and consequently interveners also have no right to seek for impleadment or intervention and that the learned Judge having held so, took suo rnoto cognizance of the matter for the reasons assigned in his order and directed issue of show cause notice to the CBI and the State (Union of India) as to why the proceedings initiated on the strenth of the FIR dated 22.1.90 pending before the Special Judge be not quashed.
It was at this stage, all these criminal appeals and the writ petition have been filed in this Court.
This Court on 20.12.90 in Criminal Appeal No. 304/91 (arising out of SLP Crl.
No. 2476/90 filed by the Janata Dal) passed the following order granting interim stay: " .
In the meantime, the reasons leading to registra tion of the suo moto proceedings would not be operative.
There shall be interim stay of proceedings including hearing before the High Court.
" In order to understand the scope of each of the criminal appeals and the prayer made therein, we are presently giving a brief note of the appeals and the writ petition.
Criminal Appeal No. 304/91 This appeal.
is preferred by the Janata Dal against the order dated 17.12.90 passed by the High Court rejecting its application Crl.
(M) No. 2656/90 in Crl.
(M) No. 182 1/90 filed before the High Court requesting the learned Judge to recuse himself from the proceedings.
Criminal Appeal No. 305/91 This appeal is filed by the Janata Dal against the order of the High Court dated"19.12.90 rejecting the application for impleadment of the appellant and other intervences and also issuing suo moto notice to the State and the CBI.
Criminal Appeal No. 306/91 This appeal is directed by Mr. Harinder Singh Chowdhary (the original petitioner who filed the public interest litigation before the Special Judge) challenging the first part of the order of the High Court 764 dated 19.12.90 dismissing his petition on the ground that he has no locus standi to file the petition.
Criminal Appeal No. 307/91 This appeal is preferred by the Janata Dal questioning the correctness of the earlier order dated 3.12.90 passed by the High Court refusing ' to allow the appellant 's applica tion for impleadment/ intervention.
Criminal Appeal No. 308/91 The Communist Party of India (Marxist) has directed this appeal against the order of the High Court dated 3.12.90 refusing to allow its application for impleadment/interven tion.
Criminal Appeal No. 309/91 This appeal is preferred by Indian Congress (Socialist) against the main order of the High Court dated 19.12.90 dismissing his application for impleadment and taking up suo moto cognizance for quaShing the FIR.
,Criminal Appeal No. 310/91 This appeal is filed by the Union of India canvassing the legality and correctness of the order dated 5.9.90 passed by the High Court and praying for a direction direct ing the High Court to decide the maintainability of the public interest litigation as a preliminary question.
In that appeal, the learned Solicitor General requested for the deletion of the second respondent, Mortin ' Ardbo, former President, M/O A.B. Bofors, Sweden (who is only a proforma respondent) from the array of parties and accordingly the permission was granted by this Court 's order dated 13.3.
Criminal Appeal No. 311/91 This appeal 'is filed by the Union of India and the CBI questioning the said second part of the order dated 19.12.90, namely taking suo ' moro cognizance and issuing notice calling upon the CBI and the State to show cause as to why the proceedings initiated on the strength of the FIR be not quashed.
It may be noted that the appellants in this appeal have impleaded the High Court through its Registrar as a respondent.
765 Writ Petition No. 114/91.
This petition is filed by one Dr. P. Nalla Thampy Thera seeking certain directions relating to Bofors matter and for quashing the later part of the order dated 19.12.90 of the High Court.
Mr. Anand Dev Giri, the learned Solicitor General as sisted by M/s Anil Katyar and Ashok Bhan and thereafter the present Additional Solicitor General Mr. Altar Ahmed, Mr. A. Subba Rao and Mr. A.M. Khanwilkar, Advs.
appearing on behalf of the Union of India as well as the CBI; Mr. Ram Jethmalani and Mr. Shanti Bhushan, both learned senior counsel assisted by Mr. Prashant Bhushan appearing in Criminal Appeal Nos. 304,305 and 307 of 1991 and Mr. K.G. Bhaghat, the learned senior counsel appearing in Criminal Appeal Nos. 306 and 305 of 1991 on behalf of Mr. H.S. Chowdhary assisted by Mr. M.N. Shroff, besides a battery of lawyers advanced their respec tive arguments raising manifold questions of law with refer ence to the various provisions of the Constitution of India, Indian Penal Code, Code of Criminal Procedure and.other Acts and the Memorandum of Under standing etc.
for a very considerable length of time totally running for 34 full days and laid stress upon a host of decisions in sup port of their respective cases.
The introverted and extro verted rhetorical submis sions made by all the learned counsel were punctuated sometimes with inflammatory re marks, occasionally with discordant and embittered notes as well as esoteric statements, intermittently with political, over tones, but at the same time with admirable ability exhibiting their profound knowledge in criminal law.
In fact, each one of them was trying to outwit and score a march over the other.
In this connection, it may be pointed out that the present Additional Solicitor General.
Mr. A|tar Ahmed has declared unambiguously and p, erspicuously that he is in full agreement with the argument of the former Solici tor General Mr. A.D. Giri and that his present articulation serves only as supplement to that of the former Solicitor General.
Though the entire submissions made by the former Solicitor General are not being extracted in this short order, we feel that it would be appropriate to briefly refer to the core of the submissions of the learned Solicitor General, Mr. A.D. Giri.
The learned Solicitor General stren uously urged that Mr. H.S. Chowdhary claiming to be a public interest litigant has filed the original petition before the Special Judge as a proxy of the accused who are all behind the curtain and who by this perilous proceeding are trying to evade the dragnet of the investigation and of whom even the named accused are maintaining stoic silence all through unmindful of all the proceedings till date and that the CBI though subjected to 766 increasing uncharitable and unwarranted criticism and vili fication and also scurrilous attack, with remarkable resil ience is relentlessly attempting to collect all available materials by unearthing the wider conspiracy and well knitted illegal transaction within its legally permis sible limits.
It is pertinent to mention that Mr. Altar Ahmed the learned Additional Solicitor General appearing on behalf of the Union of India and CBI after Mr. A.D. Giri (the former Solicitor General) has relinquished his office, reinforced the same arguments and further pleaded that the matter should be disposed of before the end of August 199 1 for the reasons stated supra so that the CBI may effectively carry on with the investigation.
However, we are not at present giving the details of the points urged except observing that the ques tion as to whether the laws are so petrified as to unable to respond to the challenges made will be dealt with in detail in our main judgment.
As mentioned albeit we, in order to avoid further delay in these matters, are inclined to give only our conclusions, the reasons in support of which will follow in our detailed judgment at a later stage.
It is most relevant to note that none of the appellants before this Court save the Union of India and CBI is con nected in any way with the present criminal proceeding initiated on the strength of the First Information Report which is now sought to be quashed by Mr. H.S. Chowdhary.
Although in the F.I.R., the names of three accused are specifically mentioned none of them has been impleaded as a respondent to these proceedings by anyone of the appellants.
Even Mr. Martin Ardbo, former President of M/s A.B. Bofors, who was impleaded as a proforma respondent in Criminal Appeal No. 310/91 has been given up by the Solicitor Gener al.
Therefore, under these circumstances, one should not lose sight of the significant fact that in case this Court pronounces its final opinion or conclusions on the issues other than the general issues raised by the appellants as public interest litigants, without hearing the really af fected person/persons such opinion or conclusions may, in future, in case the investigation culminates in filing a final report become detrimental and prejudical to the in dicted accused persons who would be totally deprived of challenging such opinion or conclusions of this 'apex Court, even if they happen to come in possession of some valuable material to canvass the correctness of such opinion or conclusions and consequently their vested legal right to defend their case in their own way would be completely nullified by the verdict now sought to be obtained by these public interest litigants.
Even if there are million questions of law to be deeply gone into 767 and examined in a criminal.
case of this nature registered against specified accused persons, it is for them and them alone to raise all such questions and challenge the proceed ings initiated against them at the appropriate time before the proper forum and not for third parties under the garb of public interest litigants. ' We, in the above background of the case, after bestow ing our anxious and painstaking consideration and careful thought to all aspects of the case and deeply examining the rival contentions of the parties both collectively and individually give our conclusions as follows: 1.
Mr. H.S. Chowdhary has no locus standi (a) to file the petition under Article 51 A as a public interest litigant praying that no letter rogatory/request be issued at the request of the CBI and he be permitted to join the inquiry before the Special Court which on 5.2.90 directed issuance of letter rogatory/request to the Competent Judicial Author ities of the .Confederation of Switzerland; (b) to invoke the revisional jurisdiction of the High Court under Sections 0397 read with 401 of the Code of Criminal Procedure chal lenging the correctness, legality or propriety of the order dated 18.8.90 of the Special Judge and (c) to invoke the extraordinary jurisdiction of the High Court under Section 482 of the Code of Criminal Procedure for quashing the First Information Report .dated 22.1.90 and all other proceedings arising therefrom on the plea of preventing the abuse of the process of the Court.
In our considered opinion, the initiation of the present proceedings by Mr. H.S. Chowdhary under Article 51 A of the Constitution of India cannot come within the true meaning and scope of public interest litigation.
Consequent upon the above conclusions (1) and (2), the appellants namely, Janata Dal, Communist Party of India (Marxist) and Indian Congress (Socialist) who are before this Court equally have no right of seeking their implead ment/ intervention.
For the same reasons, Dr. P. Nalla Thampy Thera also has no right to file the Writ Petition (Crl.) No. 114 of 1991 as a public interest litigant.
Having regard to the facts and circumstances of the case, the suo moto action of Mr. Justice M.K. Chawla in taking cogni 768 zance in exercise of the powers under Sections 397 and 401 read with SeCtion 482 of the Code based on the convoluted and strained reasoning and directing the office of the High Court of Delhi to register a case under the title Court on its motion vs State and CBI cannot be sustained.
Consequent upon the above conclusion No. (.4), we hold that the directions of Mr. Justice M.K. Chawla calling upon the CBI and the State to show cause as to why the proceed ings initiated on the strength of the First Information Report dated 22.1.90 be not quashed, cannot be sustained.
In the result, we agree with ' the first part of the Order dated 19.12.90 of Mr. Justice M.K. Chawla holding that Mr. H.S. Chowdhary and other intervening parties have no locus standi.
We, however, set aside the second part of the impugned order whereby he has taken suo moto cognizance and issued show cause notice to the State and CBI and according ly the Show cause notice issued by him is quashed.
In view of the above conclusions, all the proceedings initiated in pursuance of the First Information Report dated 22.1.90 relating to Crime No. RCI(A)/90 ACU IV on the file of the Special Judge, Delhi including the issuance of the letter rogatory/request as they stand now, remain unaffected and they can be proceeded with in accordance with law.
In Summation: Criminal Appeal Nos. 304,305,306, 307,308 and 309 of 1991 are dismissed.
Criminal Appeal No. 310 of 1991 filed by the Union of India against .the order dated 5.9.90 of the High Court is dismissed in view of the fact that the said order does not survive for consideration on the passing of the final order dated 19.12.90.
The Writ Petition No. 14 of 1991 is also dismissed.
Criminal Appeal No. 311 of 1991 filed by Union of India and CBI is allowed for the reasons stated above.
V.P.R. Crl.
A. Nos.
304 310/1991 and W.P. No. 114/91 dismissed Crl.
A. No. 311/91 allowed.
| On 22.1.90 a First Information Report was registered under section 120 B read with sections 161, 162, 163, 164 and 165A of the Indian Penal Code read with Sections 5(2), 5(1)(d) and 5(2)/5(1)(c) of the PreventiOn of Corruption Act, 1947 read with sections 409, 420, 468 and 471 of the Indian Penal Code against 14 accused alleging that theyent ered into a criminal conspiracy, obtained illegal gratifica tion in the form of money from BOFORS, a Swedish company through the agent firms/companies/persons as motive or reward for such public servants who by corrupt or illegal means or by otherwise dishonestly using their official position as public servants caused pecuniary advantage to themselves, BOFORS, the agents and others in awarding con tracts to BOFORS for the supply of guns to the Government of India and in the transaction also committed the offences of criminal breach of trust, heating of Union of India, forgery and using of forged documents etc.
The C.B.I. commenced its,investigation during the course of which statements of.witnesses were recorded and took into their custody 753 various documents and files relating to this BOFORS deal.
The C.B.I. moved an application before the Special Judge stating that the investigation of the case was to be con ducted not only in India, but also in Switzerland, Sweden and other countries, that an important aspect of .the inves tigation which was to be conducted in Switzerland was to collect documentary and oral evidence relating to all as pects of the accounts in banks in Switzerland to which remittances were made by ' M/s. A.B. Bofors from Sweden; that the, Director of the C.B.I. requested the concerned authori ties in Switzerland for freezing/blocking certain bank accounts relevant to this case and the Federal Depart .
ment of Justice and Policy, Switzerland moved Judge of Geneva and the concerned Judge of Zurich; that the relevant accounts in the bank had been blocked upto 28.2.1990 and that request for judicial assistance from Switzerland in this ' matter, therefore, should be made by 28.2.1990 failing which the Swiss Law obliges the withdrawal of instructions to block the accounts the Swiss authorities would render assistance in the investigation in Switzerland in accordance with the mutual assistance agreement dated 20.2.1989 only on receipt of a Letter Rogatory from the competent judicial authorities in India.
The C .B.I. requested the Special Judge to send a Letter Rogatory/ request to Switzerland urgently for getting the necessary assistance in the investigation to be conducted in Switzerland lest very important and relevant evidence would remain uncollected and the cause of justice would be frus trated.
The Special Judge allowed the application of the C.B.L Before the new Special Judge who assumed charge of the office from the previous Special Judge, the appellant in Crl.
A. No. 306/91 filed a Public Interest Litigation under Article 51 A of the Constitution of India praying that no Rogatory letter be issued on the formal request of the CBI unless the allegations against named persons were estab lished to the satisfaction of the Court; that no request for Rogatory or 'freezing bank account be made to Swiss Govt.
unless the concerned persons were noticed and heard on the subject; that the petitioner be permitted to join during inquiry in the capacity of public interest litigant; that inquiry section 340, Cr.
P.C. be held to determine the alleged offence committed by various persons and till then all proceedings of Rogatory be stopped.
The Special Judge dismissed the petition and issued Note of Compliance and amended Letter Rogatory.
754 The public interest litigant filed a criminal revision before the High Court.
During the hearing of the case before the High Court, several applications seeking impleadment/intervention were filed.
Dismissing the revision, the High Court held that the petitioner has no locus standi to maintain the petition and consequently the interveners also had no right to seek for impleadment or intervention and taking suo moto cognizance of the matter for the reasons assigned.
in his order the judge directed issue of show cause notice to the CBI and the State (Union of India) as to why the proceedings initiated on the strength of the FIR dated 22.1.90 pending before the Special Judge be not quashed; against which the criminal appeals and the writ petition were filed in this Court.
CrI.A. No. 304/91 is preferred by the Janata Dal against the order passed by the High Court rejecting its application filed before the High Court requesting the Judge to recuse himself from the proceedings.
CrI.A. No. 305/91 is filed by the Janata Dal against the order of the High Court rejecting the application for impleadment of the appellant and other interveners and also issuing suo moto notice to the State and the CBI.
A. No. 306/91 is directed by the original petition er who filed the public interest litigation before the Special Judge challenging the first part of the order of the High Court dated 19.12.90 .dismissing his petition on the ground that he had no locus standi to file the petition.
CrI.A. No. 307/91 is preferred by the Janata Dal ques tioning the correctness of the earlier order passed by the High Court refusing to allow the appellant 's application for impleaament/intervention.
A. No. 308/91 has been directed by the Communist Party of India (Marxist) against the order of the High Court refusing to allow its application for impleadment/interven tion.
CrI.A. No. 309/91 is preferred by india Congress (So cialist) against the main order of the High Court dated 19.12.1990 dismissing its application for impleadment and taking up suo moto cognizance for quashing the FIR.
CrI.A. No. 310/91 is filed by the 'Union of India can vassing the legality and correctness of the order dated 5.9.90 passed by the High Court and praying for a direction directing the High Court to decide the 755 maintainability of the public interest litigation as a preliminary question, and for the deletion of the second respondent.
The permission for deletion was granted.
CrI.A. No. 311/91 is filed by the Union of India and the CBI questioning the second part of the order of the High Court dated 19.12.90 namely taking suo moto cognizance and issuing notice calling upon the CBI and the State to show cause as to why the proceedings.
initiated on the strength of the FIR be no quashed.
The appellants in this appeal impleaded the High Court through its Registrar as a respondent.
W.P. No. 114/91 is filed seeking certain directions relating to Bofors matter and ' for quashing the later part of the order dated 19.12.90 of the High Court.
Dismissing CrI.A. Nos.
304 310/1991 and the Writ Peti tion No. 114/91 and allowing Crl.
A. No. 311/91, this Court, HELD: 1.
Even if there are million questions of law to be deeply gone into and examined in a criminal case regis tered against specified accused persons, it is for them and them alone to raise all such questions and challenge the proceedings initiated against them at the appropriate time before the proper forum and not for third parties under the garb of public interest litigants.
[766H 767A] 2.
The appellant in CrI.A. No. 306/91 has no locus standi to file the petition under Article 5 1 A as a public interest litigant, to invoke the revisional jurisdiction of the High Court under Sections 397 read with section 401 of the* Code of Criminal Procedure challenging the correctness, legality or propriety of the order of the Special Judge and to invoke the extraordinary jurisdiction of the High Court under Section 482 of the Code of Criminal Procedure for quashing the First Information Report and all other proceed ings arising therefrom on the plea of preventing the abuse of the process of the Court.
[767C E] 3.
The initiation of the present proceedings by the public interest litigant under Article 51.A of the Constitu tion of India cannot come within the true meaning and scope of public interest litigation.
[767F] 4.
The appellants namely, Janata Dal, Communist Party of India (Marxist) and Indian Congress (Socialist) equally have no right of seek 756 ing their impleadment/intervention.
For the same reasons, the petitioner in W.P. (Crl.) No. 114/91, has no right to file the Writ Petition as a public interest litigant.
1767G] 5.
The suo moto action of the High Court in taking cognizance in exercise of the powers under Sections 397 and 401 read with Section 482 of the Code based on the convolut ed and strained reasoning and directing the office of the High Court to register a case under the title Court on its motion vs State and CBI cannot be sustained.
[767H 768A] 6.
The directions of the High Court calling upon the CBI and the State to show cause as to why the proceedings initiated on the strength of the First Information Report dated 22.1.90 be not quashed, cannot be sustained.
[768B] 7.
All the proceedings initiated in pursuance of the First Information Report dated 22.1.90 relating to Crime No. RCI(A)/90 ACU IV on the file of the Special Judge including the issuance of the Letter Rogatory/request as they stand now, remain unaffected and they can be proceeded with in accordance with law.
[768D E]
|
ivil Appeal No. 3504 of 1991.
the Judgment and Order dated 5.10.1990 of the Bombay High Court in W.P. No. 210 of 1990.
Dhruv Mehta, S.K. Mehta and Aman Vachher for the Appellants.
Jitender Sharma for the Respondents.
The Judgment of the Court was delivered by SHARMA, J.
Special leave is granted.
The appellant was injured in a road accident and his claim petition has been dismissed as being barred by limita tion.
The accident took place on 22.1.1989.
The Motor Vehi cles Act, 1939 was repealed by section 217(1) of the which came into force on 1.7.1989.
The period of limitation for filing a claim petition both under the old Act and the new Act being six months expired on 22.7.1989.
The claim petition of the appellant, however, was filed belatedly on 15.3.1990 with ,a prayer for condonation of delay.
The Accident Claims Tribunal held that in view of the provisions of subsection (3) of section 166 of the new , the delay of more than six months could not be condoned.
The application was accordingly dismissed.
The appellant unsuccessfully challenged the decision before the High Court.
915 3.
It has been contended that since the accident took place when the old was in force, the proceeding before the Accident Claims Tribunal must be held to be governed by the old Act, and his petition cannot be dismissed on the basis of the provisions in the new Act.
The period of limitation for filing a claim petition both under the old Act and the new Act is six months from the date of the accident.
The difference in the two Acts, which is relevant in the present case, is in regard to the provisions relating to condonation of delay.
In view of the proviso to sub section (3) of section 166 of the new Act, the maximum period of delay which can be condoned is six months, which expired on 22.1.1990.
If the new Act is held to be applicable, the appellant 's petition filed in March had to be dismissed.
The case of the appellant is that the accident having taken place before the new Act came into force, the proceeding is governed by the old Act, where there was no such restriction as in the new Act.
The ques tion is as to which Act is applicable; the new Act or the old.
It has been contended by the learned counsel that under the old Act the appellant had a right to file a claim petition even more than six months after the expiry of the period of limitation, and this right is preserved by reason of the provisions of section 6 of the .
Reliance has been placed on clauses (c) and (e).
The relevant portion of the section reads thus: "6.
Effect of repeal Where this Act, or any Central Act or Regulation made after the commencement of this Act, repeals any enact ment hitherto made or hereafter to be made, then, unless a different intention appears, the repeal shall not (a). . (b). . (c) affect any right, privilege, obligation or liability acquired, accrued or incurred under any enactment so repealed; or (e) affect any investigation, legal proceeding or remedy in 916 respect of any such right, privilege, obliga tion, liability, penalty, forfeiture or pun ishment as aforesaid; and any such investigation, legal proceeding or remedy may be instituted, continued or enforced, and any such penalty, forfeiture or punishment may be imposed as if the repeating Act or Regulation had not been passed.
" We are unable to agree.
Clause (e) is not attracted because, by the enactment of the new law the remedy of the appellant has not been affected at all.
His right to claim compensa tion by filing the claim within the same period of limita tion has been preserved.
And there was no application for condonation of delay in a proceeding pending at the time of repeal so as to allow him to claim any privilege available under the old Act.
So far the applicability of clause (c) is concerned, the question depends on whether the appellant had got an accrued right or privilege under the old law which he could not have been deprived of by the repealing legisla tion.
Even independent of the , it is firmly established that unless a new statute expressly or by necessary implication says so, it will not be presumed that it deprives a person of an accrued right.
On the other hand, a law which is procedural in nature, and does not affect the rights, has to be held to be retrospectively applicable.
The question is whether the appellant has been deprived of an accrued right or privilege in the present case 7.
It is true that the appellant earlier could file an application even more than six months after the expiry of the period of limitation, but can this be treated to be a right which the appellant had acquired.
The answer is in the negative.
The claim to compensation which the appellant was entitled to, by reason of the accident was certainly en forceable as a right.
So far the period of limitation for commencing a legal proceeding is concerned, it is adjectival in nature, and has to be governed by the new Act subject to two, conditions.
If under the repealing Act the remedy suddenly stands barred as a result of a shorter period of limitation, the same cannot be held to govern the case, otherwise the result will be to deprive the suitor of an accrued right.
The second exception is where the new enactment leaves the claimant with such a short period for commencing the legal proceeding so as to make it impractical for him to avail of the remedy.
This principle has been followed by this Court in many cases and by way of illustra tion we would like to mention New India Insurance Co. Ltd. vs Smt.
Shanti 917 Misra; , The husband of the respondent in that case died in an accident in 1966.
A period of two years was available to the respondent for instituting a suit for recovery of damages.
In March, 1967 the Claims Tribunal under section 110 of the was con stituted, barring the jurisdiction of the civil court and prescribing 60 days as the period of limitation.
The re spondent filed the application in July, 1967.
It was held that not having filed a suit before March, 1967 the only remedy of the respondent was by way of an application before the Tribunal.
So far the period of limitation was concerned, it was observed that a new law of limitation providing for a shorter period cannot certainly extinguish a vested right of action.
In view of the change of the law it was held that the application could be filed within a reasonable time after the constitution of the Tribunal; and, that the time of about four months taken by the respondent in approaching the Tribunal after its constitution, could be held to be either reasonable time or the delay of about two months could be condoned under the proviso.to section 110A(3).
The learned counsel strenuously contended that the present case must be considered as one where an accrued right has been affected, because the option to move an application for condonation of delay belatedly filed should be treated as a right.
This cannot be accepted.
There is a vital difference between an application claiming compensa tion and a prayer to condone the delay in filing such an application.
Liberty to apply for a right is not in it selt an accrued right or privilege.
To illustrate the point, we may refer to some cases.
In Director of Public Works and Another vs Ho Po Sang and Others, ; a Crown lessee in respect of certain premises which were in occupation of tenants and sub tenants entered into an agreement with the appellant Director for developing the site by erecting buildings.
The erection of the new buildings necessitated the demolition of the existing buildings.
Under the provisions of an Ordinance a Crown lessee was entitled to recover vacant possession of the premises if he obtained a re building certificate from the Director.
On the application of the Crown lessee a proceeding for grant of the certificate was started and the Director issued a notice under the Ordinance indicating his intention to grant the re building certificate.
Before the certificate could be finally issued, the relevant provision of the Ordinance entitling the lessee to recover vacant possession of the premises was repealed.
The lessee claimed the right to vacant possession by relying on certain provi sions dealing with rules of interpretation similar in terms to section 6 of our .
The plea 918 was rejected on the ground that although the lessee was entitled to make an application for vacant possession before the Ordinance was repealed, it did not amount to an accrued right or privilege, capable of being preserved after the repeal of the Ordinance, as the right was dependent on the actual issuance of a certificate.
In an earlier case of Abbott vs Minister of Lands, the appellant was entitled to make purchases of Crown land adjoining his holding by virtue of certain statutory provisions, which were repealed before he could effectively enforce his right.
Besides raising other grounds in respect of his claim, he argued that the right which he had under the repealed enactment was a "right accrued" and of which he could not be deprived of by the repeal.
Reject ing the plea, it was observed that the mere right existing in a class of persons to take advantage of an enactment, cannot in absence of any act done by the claimant towards availing himself of that right be deemed a "right accrued".
In Isha Valimohammad & Anr.
vs Haji Gulam Mohammad & Haji Dada Trust, [1975] 1 SCR 720 the respondents let out the premises in question to the appellants in 1951 in a place where, by the Saurashtra Rent Control Act, sub letting by a tenant was prohibited.
The appellants sub let the premises at a time when the Act was in force.
In 1963 the Act was repealed and the Bombay Rent Act was made applica ble, under which there was no such prohibition against sub letting.
In a suit for eviction filed subsequently the High Court assumed that a notice under the Transfer of Property Act was necessary to terminate the tenancy which had not been done before the repeal, but still held that since the respondents had an accrued right within the meaning of section 51 of the Bombay Rent Act (the provisions whereof were similar to those in section 6 of the ) the respondents were entitled to a decree.
The decree was confirmed by the Supreme Court but not on the above ground.
This Court held that a notice under the Transfer of Properties Act was not necessary and in that view it con firmed the decree of the High Court.
With respect to the finding of the High Court regarding the respondents acquir ing an accrued right even on the assumption that a notice under the Transfer of Properties Act was necessary, it was held that the right of a landlord to recover possession is not an accrued right before the issue of a notice if under any law it was necessary for the landlord to issue the notice to determine the tenancy.
The principle laid down there supports our view.
919 A question, though not identical, but somewhat similar Came up for consideration by this Court in Lalji Raja and Sons vs Firm Hansraj Nathuram, ; The appel lants had obtained a money decree against the respondents in a court in West Bengal in 1949, and got it transferred for execution to the court at Morena in the then State of Madhya Bharat.
On the respondents objection on the ground of lack of jurisdiction the Madhya Bharat Court dismissed the execu tion petition.
The matter was thereafter taken to the High Court and this Court, but without any success.
The decision partly rested on the ground that the Indian Code of Civil Procedure was not applicable to the State of Madhya Bharat.
Subsequently the Code was extended tO that area which had become a part of the State of Madhya Pradesh and a fresh order was passed by the West Bengal Court transferring the decree to Morena Court.
The judgment debtors challenged the jurisdiction of the court on various grounds.
One of the points which was urged was that in view of section 20 clause (b) of the Code of Civil Procedure (amendment) Act, 1951 by which the Code was extended to Madhya Bharat and other areas, the Judgment debtors ' right to resist the execution was protected.
Reliance was placed on the proviso to the repeal clause in the section which declared that the repeal would not affect any fight, privilege, obligation or liabil ity acquired accrued or incurred under the repealed clause.
The judgment debtors objection was over ruled by this Court.
Relying on several English decisions including that in Abbott vs Minister for Lands, , it was observed that the mere right existing at the date of the repeal of statute, to take advantage of provisions of the statute repealed is not a "right accrued" within the meaning of the usual saving clause.
In the case before us the period of limitation for lodging the claim under the old as well as the new Act was same six months which expired three weeks after coming in force of the new Act.
It was open to the appellant to file his claim within this period or even later by 22.7.1989 with a prayer to condone the delay.
His right to claim cOmpensa tion was not affected at all by the substitution of one Act with another.
Since the period of limitation remained the same there was no question of the appellant being taken by surprise.
So far the question of condonation of six months delay was concerned, there was no change in the position under the new Act.
In this background the appellant 's fur ther default has to be considered.
If in a given case the accident had taken place more than a year before the new Act coming in force and the claimant had actually filed his petition while the old Act was in force but after a period of one year, the position could be different.
Having actual ly initiated the proceeding when the old Act 920 covered the field a claimant could say that his right which had accrued on filing of the petition could not be taken away.
The present case is different.
The right or privilege to claim benefit of a provision for condonation of delay can be governed only by the law in force at the time of delay.
Even the hope or expectation of getting the benefit of an enactment presupposes applicability of the enactment when the need arises to take its benefit.
In the present case the occasion to take the benefit of the provision for condona tion of delay in filing the claim arose only after repeal of the old law.
Obviously the ground for condonation set up as 'sufficient cause ' also relates to the time after the re peal.
The benefit of the repealed law could not, therefore, be available simply because the cause of action for the claim arose before repeal. 'Sufficient cause ' as a ground of condonation of delay in filing the claim is distinct from 'cause of action ' for the claim itself.
The question of condonation of delay must, therefore, be governed by the new law.
We accordingly hold that the High Court was right in its view that the case was covered by the new Act, and delay for a longer period than six months could not be condoned.
The appeal is dismissed, but in the circumstances, without costs.
G.N. Appeal dis missed.
| The appellant was injured in a road accident on 22.1.1989, and a claim petition was filed belatedly on 15.3.1990 with a prayer for condonation of delay, before the Claims Tribunal.
Meanwhile, the was repealed and the came into force with effect from 1.7.1989.
The Claims Tribunal held that in view of the provisions of sub section (3) of Section 166 of the new Act, the delay of more than six months could not be condoned, and dismissed the claim.
Before the High Court the appellant challenged the Tribunal 's decision, but was not successful.
Thereafter, he preferred this appeal by special leave.
On behalf of the appellant, it was contended that since the accident took place when the old Act was in force, the proceeding before the Accident Claims Tribunal must be held to be governed by the old Act under which the appellant had a right to file a claim petition even more than six months after the expiry of the period of limitation and this right is preserved by reason of the provisions of Section 6 of the ; and that his claim could not have been rejected on the ground of limitation under the new Act.
Dismissing the appeal, this Court, HELD: 1. 'The High Court was right in taking the view that the case was covered by the new Act, and delay for a longer period than six months could not be condoned.
[920D] 2.
The claim to compensation which the appellant was entitled to, by reason of the accident was certainly en forceable as a right.
So far the 913 period of limitation for commencing a legal proceeding is concerned, it is adjectival in nature, and has to be gov erned by the new Act subject to two conditions.
If under the repealing Act the remedy suddenly stands barred as a result of a shorter period of limitation, the same cannot be held to govern the case, otherwise the result will be to deprive the suitor of an accrued right.
The second exception is where the new enactment leaves the claimant with such a short period for commencing the legal proceeding so as to make it impractical for him to avail of the remedy.
[916F G] New India Insurance Co. Ltd. vs Smt.
Shanti Misra, ; , relied on.
There is a vital difference between an application claiming compensation and a prayer to condone the delay in filing such an application.
Liberty to apply for a right is not in itself an accrued right or privilege.
[917E] Isha Valimohammad & Anr.
vs Haji Gulam Mohammad & Haji Dada Dust, [1975] 1 SCR 720 and Lalji Raja and Sons vs Firm Hansraj Nathuram, ; , relied on.
Director of Public Works and Anr.
vs Ho Po Sang and Ors., ; and Abbott vs Minister of Lands, , referred to.
In the instant case the period of limitation for lodging the claim under the old as well as the new Act was the same viz., six months which expired three weeks after coming into force of the new Act.
It was open to the appel lant to file his claim within this period or even later by 22.7.1989 with a prayer to condone the delay.
His right to claim compensation was not affected at all by the substitu tion of one Act with another.
Since the period of limitation remained the same there was no question of the appellant being taken by surprise.
So far the question of condonation of six months delay was concerned, there was no charge in the position under the new Act.
The right or privilege to claim benefit of a provision for condonation of delay can be governed only by the law in force at the time of delay.
Even the hope or expectation of getting the benefit of an enact ment presupposes applicability of the enactment when the need arises to take its benefit.
The occasion to take the benefit of the provision for condonation of delay in filing the claim arose only after repeal of the old law.
Obviously the ground for condonation set up as 'sufficient cause ' also relates to the time after the repeal.
The 914 benefit of the repealed law could not, therefore, be avail able simply because the cause of action for the claim arose before repeal. 'Sufficient cause ' as a ground of condonation of delay in filing the claim is distinct from `cause of action ' for the claim itself.
The question of condonation of delay must, therefore, be governed by the new law.
[919F H; A C 920A] 5.
Clause (e) of Section 6 of is also not attracted because, by the enactment of the new law, viz., the remedy of the appellant has not been affected at all.
Appellant 's right to claim compensation by filing the claim within the same period of limitation has been preserved.
And there was no application for condonation of delay in a proceeding pending at the time of repeal so as to allow him to claim any privilege avail able under the old Act.
[916C]
|
Vil Appeal No. 6071 (NM) of 1990.
From the Order dated 31.5.90 of the Customs, Excise and Gold (Control) Appellate Tribunal, New Delhi in Appeal No. E/2586/86 C with E/Cross/478/86 C. (Order No. 541/90 C).
M. Gauri Shankarmurthy, K. Swamy and P. Parmeshwaran for the Appellant.
Santosh Hegde and K.R. Nambiar for the Respondent.
The Judgment of the Court was delivered by V. RAMASWAMI, J.
The short question of law that arises for consideration in this appeal is as to what is the rele vant date for the purpose of calculation of the period of one year provided under section 35E(3) of The Central Ex cises & Salt Act, 1944 (hereinafter called the Act).
Briefly stated the question arises in the following circumstances.
By order in Original No. 34 of 1984 dated 28.11.1984, the Collector of Central Excise, Madras as an adjudicating authority within the meaning of the Act, held as barred by limitation the demand from the respondent towards excise duty on biaxially oriental polypropylene films as set out in the show cause notice dated 25.10.1983 and dropped further proceedings against the respondent.
A copy of this order was attested by the Superintendent of the office on 21.12.1984 and despatched to the respondent.
It was received by the respondent on 21.12.1984.
The Central Board of Excise and Customs (hereinafter called the.
Board), after consideration of the order, on 11.12.1985 directed the Collector of Cen tral Excise, Madras under the provisions of Section 35E(1) to apply to the Customs, Excise & Gold (Control) Appellate Tribunal, New Delhi, for correct determination of the points arising out of the aforesaid order and accordingly the Collector filed the application before the Tribunal 'as provided under Section 35E(4) of the Act.
Before the Tribunal the respondent urged that the rele vant date of the Collector 's (adjudicating authority) order for the purposes of Section 35E(3) should be taken as 28.11.1984 and not 21.12.1984 when it was received by the respondent and on that basis the order of the Board under Section 35E(1) of the Act should be held as beyond the 866 period of one year from the date of the decision or order of the adjudicating authority and therefore the application before the Tribunal was incompetent.
The Tribunal accepted this contention and held that the application was not main tainable.
In this appeal filed under Section 35L of the Act the learned counsel for the appellant contended that mere writ ing an order in file kept in the office is no order in the eye of law in the sense of affecting the rights of the parties for whom the order is meant and that though the order of the adjudicating authority was made on 28.11.1984 a copy of the same was sent to the respondent only on 21.12.1984 and received by him on the very day and that therefore the limitation would start only at the earliest from 21.12.1984.
He stated that the order was received by the Board also only subsequent to 21.12.1984.
His further submission was that enabling the giving of the direction under Section 35E(1) and the application under Section 35E(4) in pursuance of that direction shall be treated as if a right of appeal given to the department.
On this basis his argument was that the departmental authorities and the private parties are to be treated equally as aggrieved persons for the purposes of calculating the time for making the direction under Section 35E(3) of the Act.
Before we discuss the arguments of the learned counsel, it is necessary to set out some relevant provisions in the Act.
Section 35 of the Act, provides for an appeal to a person aggrieved by any decision or order passed under the Act by a Central Excise Officer lower than a Collector of Central Excise ' and that such an appeal will have to be filed "within three months from the date of the communica tion to him of such decision or order".
Clause 5 of Section 35A requires that on the disposal of the appeal, the Collec tor (Appeals) shall communicate the order passed by him to the Appellant, the adjudicating authority and the Collector of Central Excise Section 35B provides for a right of appeal to any person aggrieved by, among other orders, (1) an order passed by the Collector (Appeals) under Section 35A and (2) a decision or order passed by the Collector of Central Excise as an adjudicating authoritY. Such an appeal will have to be filed "within three months from the date on which the order sought to be appealed against is communicat ed to the Collector of Central Excise or as the case may be the other party preferring the appeal.
" The Appellate Tribu nal also is required to send a copy of the order passed in the appeal to the Collector of Central Excise and the other party to the appeal.
Section 35E(1) authorises the Board "of its own motion, call for and examine the record of any proceeding in which a Collector of Central Excise as 867 an adjudicating authority has passed any decision or order under this Act for the purpose of satisfying itself as to the legality or propriety of any such decision or order and may, by order, direct such Collector to apply to the Appel late Tribunal.
or as the case may be the Customs and Excise Revenues Appellate Tribunal established under Section 3 of the for the determination of such points arising out of the decision or order as may be specified by the Board in its order.
" As sub section (2) is also relevant for considera tion that may also be set here and that reads: "2.
The Collector of Central Excise may, of his own motion, call for and examine the record of any proceeding in which an adjudi cating authority subordinate to him has passed any decision or order under this Act for the purpose of satisfying himself as to the legal ity or propriety of any such decision or order and may, by order, direct such authority to apply to the Collector (Appeals) for the determination of such points arising out of the decision or order as may be spcified by the Collector or Central Excise in his order.
It may be seen that the direction to file an appeal under these two sub sections by the Board and the Collector, as the case may be, is to the very adjudicating authority who would otherwise be bound by his own order and not ex pected to be aggrieved by the same.
When an appeal is filed on such direction, the appellant will be the adjudicating authority himself and not the authority who gave the direc tion.
Sub Section (3) of Section 35E of the Act which deals with the limitation for exercise of the powers under sub sections (1) and (2) of the Act and which is the relevant provision for consideration in this appeal reads as follows: "No order shall be made under sub section (1) or subsection (2) after the expiry of one year from the date of the decision or order of the adjudicating authority.
" At this stage itself we may state that sub section (4) of the Act provides that the adjudicating authority shall file the application before the Tribunal in pursuance of the order made under sub section (1) or sub section (2)"within a period of.
three months from the date of communication of the order under sub section (1) or sub section (2) to the adjudicating authority.
" 868 The words "from the date of decision or order" used with reference to the limitation for filing an appeal or revision under certain statutory provisions had come up for consider ation in a number of cases.
We may state that the ratio of the decisions uniformly is that in the case of a person aggrieved filing the appeal or revision, it shall mean the date of communication of the decision or order appealed against.
However, we may note a few leading cases on this aspect.
Under section 25 of the Madras Boundary Act, 1860 the starting point of limitation for appeal byway of suit al lowed by that section was the passing of the Survey Offi cer 's decision and in two of the earliest cases, namely, Annamalai Chetti vs Col.
J.G. Cloete, Mad. 189 and Sesharnrna vs Sankara, Mad. 1, it was held that the decision was passed when it was communicated to the parties.
In The Secretary of State for India in Council vs Gopisetti Narayanaswami Naidu Guru, ILR 34 Madras 151, construing a similar provision in the Survey and Boundary Act, 1897 the same High Court held that a decision cannot properly be said to be passed until it is in some way pro nounced or published under such circumstances the parties affected by it have a reasonable opporunity of knowing what it contains.
"Till then though it may be written out, signed and dated, it is nothing but a decision which the officer intends to pass.
It is not passed so long it is open to him to tear off what he has written and write something else." In Raja Harish Chandra Raj Singh vs The Deputy Land Acquisi tion Officer & Anr., [1962] 1 SCR 676 construing the proviso to Section 18 of the Land Acquisition Act which prescribed for applications seeking reference to the Court, a time limit of six weeks of the receipt the notice from the Col lector under Section 12(2) or within six months from the date of the Collector 's award whichever first expires, this Court held that the six months period will have to be calcu lated from the date of communication of the award.
In Asstt.
Transport Commissioner (Administration) U.P. & Ors.
vs Sri Nand Singh, construing the provision of Section 15 of the U.P. Motor Vehicle Taxation Act, it was held that for an aggrieved party the limitation will run from the date when the order was communicated to him.
The ratio of these judgments were applied in interpret ing section 33A(2) of the Indian Income Tax Act, 1922 in Muthia Chettiar vs CIT, ILR with reference to a right of revision provided to an aggrieved assessee.
, Section 33A(1) of the Act on the other hand authorised the Commissioner to suo moto call for the records of any pro ceedings under the Act in which an order has been passed by any 869 authority subordinate to him and pass such order thereon as he thinks fit.
The proviso, however, stated that the Commis sioner shall not revise any order under that sub section" if the order (sought to be revised) has been made more than one year previously".
Construing this provision the High Court in Muthia Chettiar 's case held that the power to call for the records and pass the order will cease with the lapse of one year from the date of the order by the subordinate authority and the ratio of date of the knowledge of the order applicable to an aggrieved party is not applicable for the purpose of exercising suo moto power.
Similarly in another decision reported in Viswanathan Chettiar vs Commis sioner of Income Tax, Madras, construing the time limit for completion of an assessment under section 34(2) of the Income Tax Act, 1922, which provided that it shall be made "within four years from the end of the year in which the income, profit and gains were first assessable," it was held that the time limit of four years for exercise of the power should be calculated with reference to the date on which the assessment or reassessment was made and not the date on which such assessment or reassessment order made under Section 34(2) was served on the assessee.
It may be seen therefore, that, if an authority is authorised to exercise a power or do an act affecting the rights of parties, he shall exercise that power within the period of limitation prescribed there for.
The order or decision of such authority comes into force or becomes operative or becomes an effective order or decision on and from the date when it is signed by him.
The date of such order or decision is the date on which the order or decision was passed or made: that is to say when he ceases to have any authority to tear it off and draft a different order and when he ceases to have any locuspaetentiae.
Normally that happens when the order or decision is made public or notified in some form or when it can be said to have left his hand.
The date of communication of the order to the party whose rights are affected is not the relevant date for purposes of determining whether the power has been exercised within the prescribed time.
So far as the party who is affected by the order or decision for seeking his remedies against the same, he should be made aware of passing of such order.
Therefore Courts have uniformly laid down as a rule of law that for seeking the remedy the limitation starts from the date on which the order was communicated to him on the date on which it was pronounced or published under such circumstances that the parties affected by it have a reasonable opportunity of knowing of passing of the order and what it contains, The knowledge of the party 870 affected by Such a decision, either actual or constructive is thus an essential element which must be satisfied before the decision can be said to have been concluded and binding on him.
Otherwise the party affected by it will have no means of obeying the order or acting in conformity with it or of appealing against it or otherwise having it set.
This is based upon, as observed by Rajamanner, CJ in Muthia Chettiar vs CIT, supra "a salutary and just principle".
The application ' of this rule so far as the aggrieved party is concerned is not dependant on the provisions of the particu lar statute, but it is so under the general law.
In Muthia Chettiar 's case (supra) both these aspects came up for consideration.
The relevant provisions consid ered therein were Section 33A(1) and (2) of the ' Indian Income Tax Act, 1922, which read as follows: "33A. (1) The Commissioner may of his own motion call for the record of any proceeding under this Act in which an order has been passed by any authority subordinate to him and may make such inquiry or cause such. inquiry to be made and, subject to the provisions of this Act, may pass such order thereon, not being an order prejudicial to the assessee as he thinks it: Provided that the Commissioner shall not revise any order under this sub section if (a) x x x (b) x x X x (c) the order has been made more than one year previously." "(2) The Commissioner may, on application by an assessee for revision of an order under this Act, passed by any authority subordinate to the Commissioner, made within one year from the date of the order,. call for the record of the proceeding in which such order was passed, and. . may pass such order thereon. as he thinks fit: Interpreting these provision the Court observed: "In a case falling under sub section (1) the Commissioner acts of his own motion.
There is no question of the 871 aggrieved party invoking his jurisdiction, there can therefore be no occasion to apply the rule enunciated in Secretary of State for India in Council vs Gopisetti Narayanaswami Naidu, Mad, 15 1.
It may be said that the Commissioner 's power to call for the record ceases with the lapes of one year from the date of the order by the subordinate authority.
But in a case failing under sub section (2) the party aggrieved has got to take the step of applying for revision and he is allowed one year from the date of the order.
The provision is, therefore, certainly in the nature of a time limit for the applica tion for revision." The decision in Viswanathan Chettiar 's case (supra) related to the reassessment power under Section 34(2) of the Income Tax Act, 1922 which read as follows: "No order of assessment under Section 23 or of assessment or reassesment under sub section (1) of this section shall be made after the expiry, in any case to which clause (c) of sub section (1) of section 28 applies, of eight years and in any other case, of four years from the end of the year in which the income, profits or gains were first assessa ble." After referring to some of the provisions in the Act and some of the earlier decisions and in particular Muthia Chettiar 's case (supra) the learned judges observed: "As we have already pointed out, the time limit of four years for which sub section (2) of Section 34 provided was the period within which the Income tax Officer had to complete one stage of the proceedings, that is, the assessment of the income and determination of the tax payable, and that stage could be completed by the Income tax Officer himself, even if the terms of the order of assessment were not communi cated within that period of four years to the assessee.
The rights of the assessee aggrieved by such an order of assessment have been specifically provided for by other sections of the Act.
" Thus if the intention or design of the statutory provision was to protect the interest of the person adverse ly affected, by providing a remedy against the order or decision any period of limitation prescribed with reference to invoking such remedy shall be read as com 872 mencing from the date of communication of the order.
But if it is a limitation for a competent authority to make an order the date of exercise of that power and in the case of exercise of suo moto power over the subordinate authorities ' orders, the date on which such power was exercised by making an order are the relevant dates for determining the limitation.
The ratio of this distinction may also be found ed on the principle that the Government is bound by the proceedings of its officers but persons affected are not concluded by the decision.
Section 35E comes under the latter category of an au thority exercising its own powers under the Act.
It is not correct to equate the Board, as contended by Sri Gaurishan kar Murthy, to one of the two parties to a quasi judicial proceeding before the Collector and the Board 's right under Section 35E to the exercise of the right of appeal by an aggrieved assessee from an order passed to its prejudice.
The power under Section 35E is a power of superintendence conferred on a superior authority to ensure that the subor dinate officers exercise their powers under the Act correct ly and properly.
Where a time is limited for the purposes by the statute, such power, as under Section 33A(2) of the Indian Income tax Act, 1922 referred to in Muthia Chettiar (supra), should be exercised within the specified period from the date of the order sought to be reconsidered.
To hold to the contrary would be inequitable and will also introduce uncertainties into the administration of the Act for the following reason.
There appears to be no provision in the Act requiring the endorsement, by a Collector, of all orders passed by him to the Board.
If there is such a prac tice in fact or requirement in law, the period of one year from the date of the order is more than adequate to ensure action in appropriate cases particularly in comparison with the much shorter period an assessee has within which to exercise his right of appeal.
If, on the other hand, there is no such requirement or practice and the period within which the Board can interfere is left to depend on the off chance of the Board coming to know of the existence of a particular order at some point of time, however, distant, only administrative chaos can result.
We are, therefore, of the opinion that the period of one year fixed under sub section (3) of Section 35E of the Act should be given its literal meaning and so construed the impugned direction of the Board was beyond the period of limitation prescribed therein and therefore invalid and ineffective.
For the foregoing.
reasons we are of the view that the Tribunal was right in holding that the application before them was out of time.
This appeal is accordingly dismissed.
There will be no order as to costs.
V.P.R. Appeal dis missed.
| The appellant, an adjudicating authority held the demand from the respondent towards excise duty on biaxially orien tal polypropylene films as set ant in the show cause notice dated 25.10.1983 as barred by limitation and dropped further proceedings.
A copy of the order despatched on 21.12.1984 was received by the respondent on 21.12.1984.
The Central Board of Excise and Customs after considera tion of the order, on 11.12.198S directed the appellant to apply under Section 3SE(1) of the Central Excises & Salt Act, 1944, to the Customs, Excise & Gold (Control) Appellate Tribunal for correct determination of the points arising out of the order dated 21.12.1984 and the appellant filed the application under section 35E(4) of the Act.
Before the Tribunal the respondent urged that the rele vant date of the Collector 's (adjudicating authority 's) order for the purposes of Section 35E(3) should he taken as 28.11.1984 and not 21.12.1984 when it was received by the respondent and on that basis the order of the Board under Section 35E(1) of the Act should he held as beyond the period of one year from the date of the decision or order of the adjudicating authority and therefore the application before the Tribunal was incompetent.
863 The Tribunal dismissed the application holding that the application was not maintainable.
In this appeal tided under Section 35L of the Act, the appellant contended that mere writing an order in file kept in the office was no order in the eye of law in the sense of affecting the rights of the parties for whom the order was meant and that though the order of the adjudicat ing authority was made on 28.11.1984 a copy of the same was sent to the respondent only on 21.12.1984 and received by him on the very day and that therefore the limitation would start only at the earliest from 21.12.1984; that enabling the giving of the direction under Section 35E(1) and the application under Section 35E(4) in pursuance of that direc tion should he treated as if a right of appeal given to the department; that the departmental authorities and the pri vate parties were to he treated equally as aggrieved persons for the purposes of calculating the time for making the direction under Section 35E(3) of the Act.
On the question, what is the relevant date for the purpose of calculation of the period of one year provided under Section 35E(3) of the Central Excises & Salt Act, 1944, dismissing the appeal, this Court, HELD: 1.
If an authority is authorised to exercise a power or do an act affecting the rights of parties, he shall exercise that power within the period or limitation pre scribed therefore.
The order or decision of such authority comes into force or becomes operative or becomes an effec tive order or decision on and from the date when it is signed by him.
The date of such order or decision is the date on which the order or decision was passed or made; that is to say when he ceases to have any authority to tear it off and draft a different order and when.he ceases to have any locuspaetentiae.
Normally that happens when the order or decision is made public or notified in some form or when it can he said to have left his hand.
The date of communication of the order to the party whose rights are affected is not the relevant date for purposes of determining whether the power has been exercised within the prescribed time.
[869D F] 2.
If the intention or design of the statutory provi sion was to protect the interest of the person adversely affected, by providing a remedy against the order or deri sion any period of limitation prescribed with reference to invoking such remedy shall he read as commencing from the date of communication of the order.
But if it is a limita tion for a competent authority to make an order the date of exer 864 cise of that power and in the case of exercise, of suo moto power over the subordinate authorities ' orders, the date on which such power was exercised by making an order are the relevant date for determining the limitation.
[871H 872B] 3.
Section 35E comes under the latter category of an authority exercising its own powers under the Act.
It is not correct to equate the Board to one of the two parties to a quasi judicial proceeding before the Collector and the Board 's right under Section 35E to the exercise of the right of appeal by an aggrieved assessee from an order passed to its prejudice.
[872B C] 4.
The power under Section 35E is a power of superin tendence conferred on a superior authority to ensure that the subordinate officers exercise their powers under the Act correctly and properly.
Where a time is limited for the purposes by the statute, such power should he exercised within the specified period from the date of the order sought to he reconsidered.
To hold to the contrary would he inequitable and will also introduce uncertainties into the administration of the Act.
[872C E] 5.
The direction to file an appeal under Sections 35E(1)(2) of the Act by the Board and the Collector, as the case may he, is to the very adjudicating authority who would otherwise he bound by his own order and not expected to he aggrieved by the same.
When an appeal is filed on such direction, the appellant will be the adjudicating authority himself and not the authority who gave the direction.
[867D E] 6.
The period of one year fixed under sub section (3) of Section 35E of the Act should he given its literal meaning and so construed the impugned direction of the Board was beyond the period of limitation prescribed therein and therefore invalid and ineffective.
[872G] Annamalai Chetti vs Col.
J.G. Cloete, Mad. 189, Seshamma vs Sankara, Mad. 1; The Secre tary of State for India in Council vs Gopisetti Narayanaswa mi Naidu Guru, ILR 34 Madras 151; Raja Harish Chandra Raj Singh vs The Deputy Land Acquisition Officer & Anr., [1962] 1 SCR 676; Asstt.
Transport Commissioner (Administration) U.P. & Ors.
vs Sri Nand Singh, ; Muthia Chettiar vs CIT, ILR and Viswanathan Chettiar vs Commissioner of Income Tax, Madras, , referred to. 865
|
vil Appeal Nos.
3236 39 of 1984.
From the Judgment and Order dated 7.2.
1983 of the Bombay High Court in F.C.A. Nos.
35/B, 36/B, 37/B & 38/B of 1981.
Ashok H. Desai, Solicitor General, Ravinder Narain, Aditya Narain, Rajan Narain, section Sukumaran, D.N. Mishra and Pallav Sishodia for the Appellant.
G.L. Sanghi, S.K. Mehta, Dhruv Mehta and Aman Vachher for the Respondent.
The Judgment of the Court was delivered by RAY, J.
The above four appeals on special leave by the appellant were filed against the judgment and order dated February 7, 1983 made by the Panaji Bench of the Bombay High Court in First Civil Appeal Nos.
35/B to 38/B of 1981 dis posing of all the four appeals field by the appellant against the judgment and order of the learned Civil Judge, Senior Division, Panaji, Goa dated 26.8.1981 confirming four different awards by an arbitrator appointed in pursuance to the agreement between the parties.
Appeal No. 35 of 1981 relates to the award, awarding to the respondent against the appellant Rs.2,75,091.13.
Appeal No. 36 of 1981 relates to an award, awarding to the respondent a sum of Rs.1,88,968.36.
Appeal No. 37 of 1981 relates to an award, awarding to the respondent Rs.3,36,230.36 and Appeal No. 38 of 1981 relates to an award, awarding to the respondent Rs.46,321.32.
The facts leading to these appeals are as follows: The appellant Goa, Daman & Diu Housing Board entered into two contracts on 15.3.72, and one contract each on 11.7.73 and on 4.7.73 with the respondent for the construc tion of tenements at Vasgoda Gama, Goa.
The appellant ac cepted two tenders of the respondent on 9.3.72 and remaining two on 24.2.73.
There was a time limit in all the aforesaid four contracts for the completion of the work referred to therein.
Several extensions were granted to the respondent for completing the work out the respondent failed to com plete the construction 907 work undertaken by him under the said four contracts.
On July 1, 1975 the appellant issued a notice to the respondent under clause 3 of the said contract for exercising the right of termination in view of the fact that the respondent was unable to fulfil the contractual obligation of completing the construction work in spite of the various extensions granted to the respondent.
On July 14, 1975, the Engineer in Charge of the appellant Board exercised its unilateral right of terminating the contract under clause 3 of the agreement in view of the fact that the respondent did not complete the work of construction undertaken by him in spite of various extentions granted to him.
On July 31, 1975, the Chairman of the appellant board confirmed that all the four contracts stood rescinded.
On May 17, 1976, the respondent served a notice to the appellant on the ground that the appellant had rescinded the work contracts.
The respondent stated therein various reasons why the work could not be completed.
Thereafter in April, 1978, the appellant filed a suit claiming damages for a sum of Rs.4,38,786.96 with interest against the respondent in the Court of the Civil Judge, Senior Division, Panaji, Goa.
Subsequently, an application was filed by the respondent under section 34 of the for stay of the suit.
Respondent also made another application to the Court under section 20 of the for directing the Housing Board to file the arbitration agreement in Court and in pursuance of clause 25 of the agreement to appoint an arbitrator.
Accord ingly, the Court by its order dated 28.2.1979 had the agree ment between the parties filed in court and directed the Housing Board to appoint an arbitrator.
On March 29, 1979 Shri J.S. Pinto, retired Superintending Engineer w.as ap pointed as Arbitrator.
The Arbitrator on March 23, 1981 submitted four awards granting the claims of the respondent as stated hereinbefore on the basis that the appellant was responsible for the slow progress and non completion of work and the work could not be completed as the contract was terminated by the appel lant, the Housing Board.
The said award was filed in the Court of Civil Judge, Senior Division, Panaji, by the Arbi trator on 31st March, 1981 for making the award Rule of the Court.
The appellant submitted his objections for setting aside the awards on April 27, 1981 on the grounds inter alia that the Arbitrator had misconducted himself by not framing the main issue i.e. whether or not the claimant abandoned the work and thereby committed breach of the agreement.
The Arbitrator misconducted himself by ignoring the letter of termination wherein it Was clearly stated that the termina tion has been done on account of the abandonment of the work by the claimants; the learned Arbitrator failed to decide upon the 908 question of the abandonment of work and has wholly side tracked the issue; the learned Arbitrator misconducted himself by not giving reasons for the award as required under the agreement under which he was appointed.
The learned Civil Judge, Senior Division, Panaji by his Order dated 26th August, 1981 rejected all the objections raised on behalf of the appellant against the said awards and confirmed the same.
All the four impugned awards have been made Rule of the Court.
The appellant thereafter filed the aforesaid First Civil Appeal Nos. 35/B, 36/B, 37/B and 38/B of 1981 against the said Order of the learned Civil Judge, Senior Division, Panaji, Goa on the ground that the Civil Judge did not consider that the Arbitrator misconducted himself in making the awards without recording any reasons for the same, even though the claim was Rs.50,000 and above as provided in clause 25 of the agreement between the parties and as such the awards should have been set aside by the Court.
The High Court held that having regard to the clause 25 of the terms of the agreement specifically providing that in all cases where amount of claim in dispute is Rs.50,000 and above the arbitrator was bound to give reasons for his award.
The statements that has been made by the Arbitrator while giving his findings could not be considered to be the reasoning for his finding of the award.
The Court also held that: "The award no where contains any reasoning for the same nor does it even obliquely mentions that in giving his findings the Arbitrator has even sought to adopt the reasoning of either of the parties.
In our view as the obligation of the Arbitrator under Clause 25 of the agreement stands, the reasons should appear to be so in this case.
" It was further held that as the arbitrator failed to give reasons for the award it would be a misconduct on his part and the award was liable to be vitiated on that ground.
The Court allowed all the appeals.
The order of the lower court was set aside and the awards were remanded back to the arbitrator for giving reasons for the same as required under clause 25 of the arbitration agreement and thereafter to file the same in the court of Civil Judge, Panaji, within eight weeks after the order is served on him.
909 Against this judgment and order the impugned appeals by special leave were filed.
The learned counsel on behalf of the appellants has contended that the High Court acted illegally in not consid ering at all that the arbitrator did not record any reasons for making awards allowing the claims each of which exceeds Rs.50,000 as provided under clause 25 of the arbitration agreement and as such the arbitrator has misconducted him self in the proceedings and instead of sending the awards made by the arbitrator to him for recording his reasons ought to have set aside the awards under section 30 of the .
It has also been contended that the High Court though it held that the arbitrator was guilty of misconduct and the awards made by him were liable to be vitiated on that ground yet inspite of setting aside the awards they were sent to the arbitrator for recording rea sons which is totally unwarranted by law.
The learned counsel appearing on behalf of the respond ent, on the other hand, submitted that the awards made by the arbitrator after hearing the parties cannot be said to be illegal or unwarranted as the same were made after con sidering all papers and documents filed by the parties and after duly hearing the parties.
As such there was no ille gality nor any misconduct committed in making the awards.
The arbitrator has fairly considered the issues and made the awards in question.
The misconduct, if any, on the part of the arbitrator does not concern with the probity and impar tiality of the arbitrator.
The only allegation against the arbitrator is that he has not recorded the reasons for the awards made by him as per term of clause 25 of the arbitra tion agreement.
It has, therefore, been contended by the learned counsel on behalf of the respondent that the order of the High Court in remanding the awards to the arbitrator for recording reasons clearly fails within the purview of section 16(1)(c) of the as the objec tion to the legality of the award is apparent on the face of it.
It does not fail within the provision of section 30 of the said act in as much as the arbitrator has not miscon ducted himself or the proceedings and the awards in question have not been improperly procured.
Several decisions have been cited at the bar in support of the respective conten tions advanced by the counsel for the parties.
Before considering the question whether the directions made by the High Court in remitting the award to the Arbi trator for giving reasons do fall within the purview of Section 16 of the , it is appropriate to set out the relevant provisions of section 16(1): 910 "Sec.
16(1): The Court may from time to time remit the award or any matter referred to arbitration to the arbitrators or umpire for reconsideration upon such terms as it thinks fit (a) where the award has left undetermined any of the matters referred to arbitration, or where it determines any matter not referred to arbitration and such matter cannot be separat ed without affecting the determination of matters referred; or (b) where the award is so indefinite as to be incapable of execution; or (c) where an objection to the legality of the award is apparent upon the face of it.
" Section 16 empowers the Court to remit the award to the Arbitrator for reconsideration only in three cases specified therein.
Clause (c) of Section 16(1) provides that the award shall be remitted to the Arbitrator by the Court where an objection to the legality of the award is apparent on the face of it.
Of course, the High Court has come to a finding that the Arbitrator was guilty of misconduct for his failure to give reasons as required.
There is, however, nothing to show that the Arbitrator misconducted himself or the pro ceedings in any other manner nor there is anything to show that the awards have been improperly procured.
There is no allegation, far less, any finding, that the Arbitrator was biased or unfair or he has not heard both the parties or he has not fairly considered the submissions of the parties in making the awards in question.
In our opinion, it is evident from the four awards made by the Arbitrator that the Arbi trator has considered all the specific issues raised by the parties in the arbitration proceedings and came to his finding after giving cogent reasons.
The above awards cannot under any circumstances be considered to be made by the Arbitrator without recording any reasons for the same.
Therefore, in such circumstances, it is not proper to hold that the Arbitrator has misconducted himself or in the proceedings in the matter of giving the awards.
In these circumstances, we are unable to hold that the four awards made by the Arbitrator are bad for not recording reasons.
We, therefore, uphold the said awards and we do not think it necessary to decide the question as regards the scope of Section 30 or Section 16of 911 the .
The decision of the High Court remit ting the awards back to the Arbitrator for giving reasons is set aside and the awards made by the Arbitrator are upheld.
Let these awards be made rule of the Court.
The appeals are, therefore, dismissed.
There will be no order as to costs.
N.P.V. Appeals dis missed.
| The appellant Housing Board, which had entered into four contracts with the respondent for construction of tenements within a certain time limit, terminated them after giving notice on the ground that the respondent had failed to complete the construction work despite several extensions granted to him, and filed a suit in the Court of Civil Judge claiming damages of over Rs.4 lakhs.
The respondent filed appllcations under Sections 34 and 20 of the , for stay of the suit and for directions to the appellant Board for filing the arbitration agreement in the Court and also for appointing arbitrator in terms of clause 25 of the agreement.
As per Court 's order, the appellant filed the agreement in the Court and appointed the Arbitra tor.
The Arbitrator made four awards granting the claims of the respondent to the extent of over Rs.8 lakhs and filed them in the Court for making them Rule of the Court.
The appellant 's objections for setting aside the awards on the ground that the Arbitrator had misconducted himself by not framing the main issue, viz., whether or not the claimant abandoned the work and thereby committed the breach of the agreement, by ignoring the letter of termination where in it was clearly stated that the termination had been done on account of the abandonment of the work by the claimant, and failed to decide upon the question of the abandonment of work and wholly side tracked the issue and also by not giving reasons for the award as required under the agree ment, under which he was appointed, were rejected by the Civil Court, which confirmed the awards and made them the Rule of the Court.
The appellant 's appeals against this decision was allowed by the High Court, which set aside the Civil Court 's order and sent back the awards to the arbitra tor for giving reasons, as required under clause 25 of the agreement which specifically provided that in all cases where amount of 905 claim was Rs.50,000 and above, the Arbitrator was bound to give reasons.
In the appeal before this Court, on behalf of the appellant Housing Board it was contended that having held that the arbitrator was guilty of misconduct and the awards were liable to be vitiated on that ground, the High Court ought to have set aside the awards instead of sending them back for recording reasons, which was totally unwarranted by law.
On behalf of the respondent, it was contended that the High Court 's order remanding the awards for recording rea sons clearly fell within the purview of Sec. 16(1)(c) of the , as the objection to the legality of the award was apparent on the face of it, and not within the provisions of Sec.
30 of the Act, inasmuch as the arbitrator had not misconducted himself or the proceedings and the awards in question had not been improperly procured.
Dismissing the appeals and confirming the awards, this Court, HELD: 1.1 Section 16 empowers the Court to remit the award to the Arbitrator for reconsideration only in three cases specified therein.
Clause (c) of Sub Section (1) provides that the award shall be remitted to the Arbitrator by the Court where an objection to the legality of the award is apparent on the face of it.
[710D] 1.2 No doubt, in the instant case, the High Court has come to a finding that the Arbitrator was guilty of miscon duct for his failure to give reasons as required but there is nothing to show that the Arbitrator misconducted himself or the proceeding in any other manner, nor is there anything to show that the awards have been improperly procured nor any allegation, far less, any finding, that the Arbitrator was biased or unfair or he had not heard both the parties or he had not fairly considered the submissions of the parties in making the awards in question.
[710E] 1.3 It is evident from the four awards made by the Arbitrator that the Arbitrator has considered all the spe cific issues raised by the parties in the arbitration pro ceedings and came to his finding after giving cogent rea sons.
The awards cannot under any circumstances be consid ered to be made by the Arbitrator without recording any reasons for the same.
In such circumstances, it cannot be held that the Arbitrator has misconducted himself or in the proceedings in the matter 906 of giving the awards.
The decision of the High Court remit ting the awards back to the Arbitrator for giving reasons is set aside and the awards made by the Arbitrator are upheld and made Rule of the Court.
[710F G, 711A]
|
ivil Appeal No. 3573 of 1991.
From the Judgment and Order dated 25.6.1991 of the Bombay High Court in W.P. No. 1926 of 1991.
G. Ramaswamy, Attorney General, K.K. Jain, G. Banerjee, Pramod Dayal and Ajay K. Jain for the Appellants.
S.V. Mehta, A.K. Sanghi, Manjul Bajpai and section Grover for the Respondent.
Gopal Subramanium, Manjul Bajpai and section Grover for the Intervenor.
The Judgment of the Court was delivered by KANIA, J.
Leave granted.
Counsel heard.
This appeal is being disposed of, by consent, at the stage of granting of special leave in view of the urgency.
Appellant No. 1 is the Institute of Chartered Accountants of India, a body incorporated under the , (hereinafter referred to as "the Act").
Appellant No. 2 is the Secretary of Appellant No.1, Institute.
Appel lant No. 1 was formed with the object of regulating the profession of the Chartered Accountants.
Section 9 of the Act provides for the constitution of the Council of Appel lant No.1, Institute, and prescribes that the affairs of the said Institute shall be managed by the said Council which comprises not more than 24 persons elected by the fellows of the Institute and 6 persons nominated by the Central Govern ment.
Sub section (1) of Section 10 of the Act provides that the election of the said Council shall be conducted in the prescribed manner.
Section 30 of the Act confers powers upon the Council to make regulations for the purpose of carrying out the objects of the Act.
In exercise of the said powers, the Council framed regulations known as "the Chartered Accountants Regulations" (hereinafter referred to as "the Regulations").
Chapter VI of the said Regulations 924 deals with the topic of "Elections".
Regulation 82 provides that the Council shall notify in the Gazette of India, at least three months before the 'date of an election, the dates fixed for various stages of election of the members of the Council, like receipt of nominations.
scrutiny of nomi nations, withdrawal of nominations, polling dates and so on.
Regulation 87(1) provides that the Council shall publish in the Gazette of India a notice, setting out the number of members to be elected and calling for nominations of candi dates for election by a specified date, at least three months prior to the date of election.
Sub regulation (2) of Regulation 87 which is the regulation coming up for con struction before us reads as follows: (2) The nomination of a candidate shall be (i) In the appropriate form duly signed by the candidate and by the proposer and the seconder both of whom shall be persons entitled to vote in the election in the relevant regional constituency; and (ii) forwarded by registered post to the Secretary by name so as to reach him not later than 5 p.m. on the specified date.
Provided that a nomination delivered against an acknowledgement before the afore said time and date shall be deemed to have been so forwarded and so having reached if the Secretary is satisfied that the nomination has been duly fowarded by registered post at least 48 hours before the aforesaid time and date.
" Sub regulation (3)of Regulation 87 provides inter alia for the contents of the nominations.
We are not concerned with the rest of the regulations for the purpose of this appeal.
The final time for the receipt of the nominations ,was fixed as 5.00 p.m. on 20th May, 1991, and it was extended to 5.00 p.m. on 21st May, 1991.
The respondent forwarded his nominations by registered post to the Secretary on May 17, 1991, and May 18, 1991, respectively.
The nominations, however, did not reach the Secretary by 5.00 p.m. on May 21, 1991, being the final time and date prescribed for the receipt of the nominations.
Actually, they were received by the Secretary of 925 the Council by registered post on May 23, 1991, and May 27, 1991, respectively.
These nominations were rejected on the ground that they were received after the time fixed for the receipt of the nominations and the name of the respondent was not included in the list of the candidates who had filed their nominations for election to the Council.
Being ag grieved, the respondent filed a writ petition in the Bombay High Court seeking a writ of certiorari to quash the order rejecting his nominations.
The Division Bench of the Bombay High Court, which decided the writ petition, took the view that a plato reading of subregulation (2) of Regulation ' 87 made it clear that the Only mode prescribed by the Regula tions is to tender the nomination by registered post and the rigour of the rule that the nominations must reach before the specified date and specified time, Was relieved by the insertion of the proviso.
It was held by the Division Bench that once the Secretary was satisfied that a nomination had been duly fowarded by registered post to him at least 48 hours before the specified date and time, it must be deemed to have been received within the time provided.
On the basis of this conclusion the High Court made the rule absolute.
It is the correctness of this decision which is sought to be challenged before us.
It was submitted by learned 'Attorney General who ap peared on behalf of the appellants that under sub regulation (2) of Regulation 87, the general rule is that the nomina tions must be forwarded by registered post and must reach the Secretary of the Council not later than 5.00 p.m. on the specified date, the specified date in this case being May 21, 1991.
It was further urged by him that the proviso which, to a certain extent, relaxed this rule came into play only where a nomination was delivered to the Secretary against an acknowledgement before the specified time and specified date and the Secretary was satisfied that a valid nomination had been duly fowarded by registered post to him at least 48 hours before the specified date and time.
It was contended by learned Attorney General that the learned Judges of the Bombay High Court had erred in disregarding the opening part of the proviso which read "provided that a nomination delivered against an acknowledgement before the aforesaid time and date. . " In our view, there is a considerable force in the sub mission of learned Attorney General.
It is trite to say that in construing any regulation or rule it would not be proper to ignore any part of it except in special circumstances.
Moreover, accepting the construction placed by the Bombay High Court on the said proviso would lead to a startling result; for examle, a nomination might have to be treated as 926 received within the specified the and.date even though it might never have reached the Secretary at all or might reach the Secretary after the date of the election, merely because the Secretary is satisfied that the nomination had been duly forwarded to him by registered post at least 48 hours before the specified time and date.
1 is not unknown that the letters sent by registered post are occasionally received after a long delay of several weeks and on some occasions they do not reach at all.
If the construction placed on the said proviso in the impugned judgment were accepted, in such a case as aforestated the entire election would have to be set aside leading to great confusion and hardship.
This consequence must necessarily follow if the view taken by the Bombay High Court were to be accepted in our opinion,the entire scheme of sub regulation (2) and the proviso shows that one of the main pre conditions required before a nomi nation can be said to have been duly received, is that a valid nomination must be received by the Secretary before the specified time and date.
It is true that the rule, in terms, requires that the nominations should be sent by registered post, but taking into account the fact that such a nomination might not be received by the Secretary even though posted more than 48 hours before the specified time and date, it was provided that if the nomination was delivered, let us say, by hand to the Secretary before the specified time and date against acknowledgement, that nomination would be treated as having been validly received provided the Secretary was satisfied that the nomination was forwarded by registered post to him by the candidate 48 hours prior to the specified time and date.
It was contended on behalf of the respondent that in the light of the proviso to sub regulation (2) of Regulation 87 what was intended to be prescribed by the use of the expression so as to reach him not later than 5.00 p.m. on the specified date in clause (ii) of sub regulation (2) of Regulation 87, was that the nominations which had been forwarded by registered post to the Secretary 48 hours before the specified time and date of the election must be deemed to have reached the Secretary in time.
In our view, this contention is fallacious.
What is meant by the use of the aforesaid expression in sub regulation (2) of Regulation 87 is that the nomination must be forwarded by registered post to the.
Secretary so as to reach him in fact or actually reach him not later than 5.00 p.m. on the specified date.
The rigour of the rule is relaxed by the proviso under which if the nomination was delivered against an acknowledgement before the specified time and date, it would be deemed to have been forwarded and to have reached as provided in clause (ii) of sub regulation (2) referred to earlier pro vided the Secretary was satisfied that the nomi 927 nation had been duly forwarded by registered post at least 48 hours before the aforesaid time and date.
In view of the reasoning set out earlier, we set aside the judgment and order passed by the Bombay High Court and we hold that the nomination of the respondent was liable to be rejected on the ground that it was not received in time, as the respondent had failed to deliver to the Secretary against an acknowledgment a nomination before the specified time and date.
However, we find that, in the present case, the elections have already been postponed and the proposed dates for elections will now to be probably fixed in October or November, 1991.
In these circumstances, we direct that all the nominations received upto the end of August 1991 must be treated as received in time provided that the Secre tary is satisfied that they were forwarded by registered post 48 hours before the time and date specified earlier.
The Council may fix the elections on any date they consider proper.
The appeal is allowed to the extent aforesaid.
Looking to the facts and circumstances of the case, there will be no order as to costs.
We may suggest that if the Council so thinks, the regu lations may be suitably amended so as to leave no room for ambiguity, a difficult task indeed.
V.P.R. Appeal allowed.
| The Respondent forwarded his nominations for election to the Council of the appellant No. 1 Institute by registered post to the Secretary, Appellant No. 1, on May 17, 1991, and May 18, 1991.
They were received on May 23, 1991, and May 27, 1991 respectively and were rejected on the ground that they were received after the time and date fixed for the reciept of the nominations, i.e., 5.00 p.m. on May 21, 1991.
Being aggrieved, the respondent filed a writ petition in the High Court seeking a writ of certiorari to quash the order rejecting his nominations.
The Division Bench of the High Court allowed the writ petition holding that once the Secretary was satisfied that a nomination had been duly forwarded by the registered post to him at least 48 hours before the specified date and time, it must be deemed to have been received within the time provided.
The Institute and its Secretary flied the SLP in this Court contending that under Regulation 87(2),the nominations must be forwarded by registered post and must reach the Secretary of ' the Council not later 922 than 5.00 p.m. on the specified date, i.e., May 21, 1991; that the proviso came into play only when a nomination was delivered to the Secretary against an acknowledgement before the specified time and specified date and the Secretary was satisfied that a valid nomination had been duly forwarded by registered post to him at least 48 hours before the speci fied date and time; and that the High Court had erred in disregarding the opening part of the proviso which read "Provided that a nomination delivered against an acknowl edgement before the aforesaid time and date. " The respondent contended that what was intended to be prescribed by the use of expression, "so as to reach him not later than 5.00 p.m. on the specified date" in clause (ii) of sub regulation (2) of Regulation 87, was that the nomina tions which had been forwarded by registered post to the Secretary 48 hours before the specified time and date of the election must be deemed to have reached the Secretary in time.
Allowing the appeal, this Court, HELD: 1.
The entire scheme of sub regulation (2) of Regulation 87 and the proviso shows that one of the main pre conditions required before a nomination can be said to have been duly received, is that a valid nomination must be received by the Secretary before the specified time and date.
[926C] 2.
It is true that the rule, in terms, requires that the nominations should be sent by registered post, but taking into account the fact that such a nomination might not be received by the Secretary even though posted more than 48 hours before the specified time and date, it was provided that if the nomination was delivered by hand to the Secre tary before the specified time and date against acknowledge ment, that nomination would be treated as having been valid ly received provided the Secretary was satisfied that the nomination was forwarded by registered post to him by the candidate 48 hours prior to the specified time and date.
[926D E] 3.
What is meant by the use of the expression, "so as to reach him not later than 5.00 p.m. on the specified date" in sub regulation (2) of Regulation 87, is that the nomination must be forwarded by registered post to the Secretary so as to reach him in fact or actually reach him not later than 5.00 p.m. on the specified date.
The rigour of the rule is relaxed by the proviso under which if a proper nomination was 923 delivered against an acknowledgement before the specified time and date, it would be deemed to have been forwarded and to have reached within the time prescribed provided the Secretary was satisfied that the nomination had been duly forwarded by the registered post at least 48 hours before the specified time and date.
[926G 927A]
|
Criminal Appeal No. 538 of 1983.
From the Judgment and Order dated 6.4.1982 of the Andhra Pradesh High Court in Crl.
A. No. 469 of 1981.
G. Narasimhulu for the Appellants.
T.V.S.N. Chari, Ms. Suruchi Aggarwal and Ms. Manjula Gupta for the Respondent.
The Judgment of the Court was delivered by KULDIP SINGH, J.
Nethala Pothuraju, Nethala Dhananjaya, Nethala Remudu and four others (hereinafter referred to as 'A 1 to A 7 ') were tried for the offences under Sections 147, 148, 323, 379 and 302 read with Section 149 I.P.C. on the allegations that they caused the death of Madda Laksha mandas of village Ramaraogudem on November 1, 1980 near the Tobacco garden of A 1.
The Trial Court acquitted A 7 of all the charges A 1 to A 6 were, however, found guilty for the offences punishable under Sections 148 and 302 read with section 149 I.P.C. They were sentenced to imprisonment for life.
On appeal, the High Court confirmed the conviction and sentence of A 1 to A 3.
The conviction and sentence of A 4 to A 6 was set aside by the High Court and they were acquit ted on the following reasoning: . . .
We feel that it would be safe to accept the evidence of P.Ws. 1 and 2 to the extent it is corroborated by the evidence 6 of P.W.3 in so far as the presence and partic ipation of the accused in the attack on the deceased is concerned.
Accepting the evidence of P.W.3 we hold that the identity of A 1 to A 3 in the unlawful assembly consisting of A 1. to A 3 and some other unidentified persons is satisfactorily established.
The manner in which the attack was made on the deceased can only lead to one inference namely that the common object of the unlawful assembly was to kill the deceased.
We accordingly confirm the conviction and sentence of A 1 to A 3 under Sections 148 and 302 read with 149 I.P.C. We set aside the conviction and sentence of A 4 to A 6 under Sections 148 and 302 read with 149 I.P.C. and acquit them." This Court granted leave to appeal on the limited ques tion of applicability of Section 149 I.P.C.
The learned counsel for the appellants has contended that after the acquittal of four accused persons by the courts below the conviction of the appellants under Section 148 and on applying 149 I.P.C. cannot be sustained.
It is argued that the appellants, being three in number, could not have formed an unlawful assembly within the definition of Section 141 I.P.C.
In our view, there is force in the contention of the learned counsel for the appellants.
The appellants being only three in number, there was no question of their forming an unlawful assembly within the meaning of Section 141 I.P.C.
It is not the prosecution case that apart from the seven accused persons there were some other unidentified persons who were involved in the crime.
The High Court clearly fell into error in confirming the conviction and sentence of the appellants under Sections 148 and on apply ing 149 I.P.C. on the ground that they formed an unlawful assembly alongwith some unidentified persons.
The prosecu tion case from the very beginning was that A1 to A7, the named persons, formed the Unlawful assembly.
A 4 to A 7 having been acquitted, the remaining three appellants cannot be convicted under Sections 148 and on applying 149 I.P.C. We, therefore, set aside the conviction of the appellants under the said sections.
The question still remains as to whether the appellants can be convieted under Section 302 read with Section 34 I.P.C.
Both Sections 149 and 34 I.P.C. deal with a combina tion of persons who become liable to be punished as sharers in the commission of offences.
The non applicability of Section i49 I.P.C. is, therefore, no bar in convicting the appellants under 7 Section 302 read with section 34 I.P.C. if the evidence discloses commission of an offence in furtherance of the common intention of them all.
PW 1, the wife of the deceased, PW 2, the daughter of the deceased and PW 3, an adjoining land owner, are the three eye witnesses to the occurrence.
It is in evidence that the complainant and the accused belonged to opposite factions and there was long standing enmity between the parties.
During the last 30 years, there had been murders and rioting between the two factions.
The deceased Madda Lakshamandas was undergoing life imprisonment for the murder of one of the persons belonging to the group of the accused.
He had come on parole.
On the day of occurrence at about 7.00 A.M. when he was passing near the field of A 1 he was attacked by the accused party.
According to the eye witness es, A 1 and A 3 were armed with spears, A 2, A 4, A 5 and A 6 with knives and A 7 was armed with a stick.
All of them way laid the deceased and dragged him into the Tobacco garden of A 1.
It is in evidence that all the accused indis criminately inflicted injuries on the deceased with their respective weapons.
When the deceased fell down the ac cused kept on giving him spear, knife and stick blows.
The deceased was crying for water and when his daughter brought water A 2 caught hold of her and pushed her aside.
She was also given beating by fists.
Thereafter, A 1 left the spear and took a stick and gave beating to the deceased on his heals and chest and A 3 chopped of the fingers of left hand of the deceased with the knife.
A 2 further gave blows to the deceased on his head.
The deceased died instantaneously on the spot.
Thereafter, at the asking of A 1, A 2 and A 3 dragged the dead body from the field of A 1 and placed the same on the road.
There were as many as 18 injuries on the person of the deceased.
Seven of those were deep penetrating wounds, 8 lacerated wounds and remaining were abrasions.
The injuries caused fracture on the right perietal bone result ing in the opening of the skull.
The fourth rib was broken and there was an injury to the lung.
There were injuries all over the body.
Keeping in view the manner of attack as disclosed by the eye witnesses and the number and nature of injuries, we have no hesitation in holding that the appellants made the mur derous attack on the deceased and caused his instantaneous death.
We are satisfied that the appellants acted in fur therance of their common intention of murdering the de ceased.
We, therefore, hold the appellants guilty under Section 302 read with Section 34 I.P.C. 8 Accordingly, we convert the conviction of the appellants to one under Section 302 read with section 34 I.P.C. and keep them sentenced to fife imprisonment.
Appellants A 1 and A 3 are on bail under orders of this Court.
We cancel the bail order.
These appellants shall surrender to their bail bonds to undergo the sentence of imprisonment.
T.N.A Appeal disposed of.
| Appellants (A1 to A3) were tried for the offences under Sections 147, 148, 323 and 309 read with section 149 of the Indian Penal Code.
The Trial Court acquitted A 7 of all the charges but convicted A 1 to A 6 under sections 148 and 302 read with section 149 and sentenced them to imprisonment for life.
On appeal the High Court acquitted A 4 to A 6 but confirmed the conviction and sentence of the appellants.
In appeal to this Court it was contended on behalf of the appellants that in view of the acquittal of four ac cused, the appellant 's conviction under section 148 and on applying section 149 cannot be sustained.
The appellants being three in number could not have formed unlaWful assem bly under section 141 IPC.
Disposing the appeal, this Court, HELD: 1.
The High Court erred in confirming the convic tion and sentence of the appellants under Section 148 and on applying 149 I.P.C. on the ground that they formed an unlaw ful assembly alongwith some unidentified persons.
The prose cution case was that the seven named accused formed the unlawful assembly and not that apart from the seven accused persons there were some other unidentified persons who were involved in the crime.
Four accused having been acquitted there was no question of the remaining three appellants forming an unlawful assembly within the meaning of section 141 of the Indian Penal Code.
Accordingly the appellants cannot be convicted under section 148 and an applying 149 I.P.C. Their conviction under the said sections is set aside.
[6F G] 5 2.
Both sections 149 and 34 I.P.C. deal with a combina tion of persons who become liable to be punished as sharers in the commission of offences.
The non applicability of Section 149 I.P.C. is, therefore, no bar in convicting the accused under Section 302 read with section 34 I.P.C. if the evidence discloses commission of offence in furtherance of the common intention of them all.
[6H, 7 A] 2.1 Keeping in view the manner of attack and the number and nature of injuries there is no hesitation in holding that the appellants acted in furtherance of their common intention, made the murderous attack on the deceased and caused his instantaneous death.
Therefore, they are held guilty under Section 302 read with Section 34 I.P.C. and are sentenced to life imprisonment.
[7G H]
|
Criminal Appeal No. 393 of 1979.
From the Judgment and Order dated 26.4.1979 of the Tamil Nadu High Court in Criminal Appeal No. 197 of 1978 and Crl.
Revision Case No. 833 of 1977.
U.R. Lalit and K.R. Choudhary for the Appellants.
K.V. Venkataraman for the Respondent.
The Judgment of the Court was delivered by KULDIP SINGH, J.
Parusuraman @ Velladurai, Karuppaiah, Nagasundaram and four others (hereinafter referred to as A1 to A7) were tried for the murder of one Jawahar.
Three charges were framed against them.
A7 was charged under Section 302 read with Section 109, I.P.C. for instigating A1 to 6 to commit the murder.
The second charge related to rioting wherein A1, A2, A4, A5 and A3, A6 were tried under Sections 147 and 148 I.P.C. respectively.
The third charge under Section 302 read with Section 149, I.P.C. was against Al to A6 on the allegations that Al, A2, A4 and A5 armed with sticks, A3 armed with aruval (bill hook) and A6 armed with vel stick (spear stick), attacked Jawahar at about 8.30 A.M. on January 2.8, 1977 and caused him multiple injuries as a result of which he died on the same day.
All the ac cused persons were acquitted by the learned Trial Judge.
On appeal the High Court maintained the acquittal of A4 to A7 but reversed the findings in respect.
of A1to A3.
Believing the prosecution evidence, the High Court came to the conclusion that the commission of offence by A1 to A3 was proved.
They were convicted under Section 304 Part I read with Section 34, I.P.C. and were sentenced to undergo rigor ous imprisonment for five years.
This appeal by A1 to A3 via special leave petition is against the judgment of the High Court.
While granting special leave to appeal this Court by its order dated August 10, 1979 allowed bail to the appel lants.
We have heard learned counsel for the parties.
We agree with the High Court that the participation of the appellants in the occurrence which resulted in the death of Jawahar has been proved beyond doubt.
We are, however, of the view that keeping in view the nature of injuries on the person of the deceased and the facts and circumstances of this case the 3 offence committed by the appellants come within the mischief of Section 325 read with 34, I.P.C. Thirteen external in juries were found on the dead body of Jawahar.
Out of those 11 were on lower legs and arms.
The High Court while consid ering the nature of offence observed as under: "These accused and their associates who be set themselves on Jawahar could never have intend ed to cause the death of Jawahar for, if such was their intention, they could have certainly killed him especially after carrying him into the cholam field and left him dead there instead of merely causing simple and grievous injuries to him.
Even with reference to the aspect whether the accused persons could have, intended to cause such injuries as would be sufficient, in the ordinary course of nature, to cause death, we are not able to give a finding in favour of the prosecution.
Even according to Jawahar 's statement (Exhibit P 6) all that first accused had remarked was that the attack on him was in retaliation for the injuries Jawahar had caused on the first accused a few weeks earlier.
" Agreeing with the above observations of the High Court we are of the opinion that the intention of the appellants was to cause grievous hurt and as such the offence committed by them comes within the parameters of Section 325, I.P.C. We, therefore, set aside the conviction and sentence of the appellants under Section 304 Part I, I.P.C. read with Sec tion 34, I.P.C. and instead convict them under Section 325, I.P.C. read with Section 34, I.P.C. We impose the sentence of imprisonment already undergone by the appellants.
We also impose the sentence of Rs. 7,000 each as fine on the appel lants.
The appellants shall deposit Rs. 7,000 each before the Trial Court within four months from today.
In the event of non payment of fine the appellants shall undergo rigorous imprisonment for five years.
The amount of Rs. 21,000 rea lised as fine from the appellants be paid to the father/mother of deceased Jawahar.
In the event of none of them surviving the amount shall be paid to Indra sister of deceased Jawahar.
The appeal is disposed of in the above terms.
V.P.R Appeal disposed of.
| Three charges were framed against the appellants A1 to A7.
A7 was charged under Section 302 read with Section 109, I.P.C. for instigating A1 to 6 to commit the murder Al, A2, A4, A5 and A3, A6 were tried under Sections 147 and 148 IP.C., respectively and the third charge under section 302 read with Section 149, I.P.C. was against A1 to A6 on the allegations that Al, A2, A4 and A5 armed with sticks, A3 armed with/ aruval (bill hook) and A6 armed with vel stick (spear stick), attacked the deceased at about 830 A.M. on January 28, 1977 and caused him multiple injuries, as a result of which he died on the same day.
All the accused persons were acquitted by the learned Trial Judge, against which when appeal was filed, the High Court maintained the acquittal of A4 to A7 but reversed the findings in respect of A1 to A3 and were convicted under Section 304 Part I read with Section 34, I.P.C. and were sentenced to undergo rigorous imprisonment for five years, against that, this appeal was filed by the appellants A1 to A3 via Special Leave Petition.
Disposing the appeal, by modifying the sentence, this Court, HELD: 1.
Thirteen external injuries were found on the dead body of the deceased.
Out of these 11 were on lower legs and arms.
The intention of the appellants was to cause grievous hurt and as such the offence committed by them comes within the parameters of Section 325, I.P.C. Keeping in view the nature of injuries on the person of the deceased and the facts and circumstances of this case the offence committed by the appellants comes within the mischief of Section 325 read with 34, I.P.C. and convicted them under Section 325, I.P.C. read with Section 34, I.P.C. imposing the sentence of imprisonment already undergone by them, and the sentence of Rs. 7,000 each as fine, to be deposited before the Trial Court, within four months, which be paid to the father/mother of deceased. 2 In the event of non payment of fine the appellants shall undergo rigorous imprisonment for five years.
[3A, 3D F]
|
ivil Appeal No. 3674 of 1988.
From the Judgment and Order dated 15.3.1988 of the Allahabad High Court in Civil Misc.
Writ Petition No. 20328 of 1986.
V.C. Mahajan, C.V.S. Rao and A. Subba Rao for the Appel lants.
Deoki Nandan Aggarwal in person and Mrs. section Dixit for the Respondents.
The Judgment of the Court was delivered by V. RAMASWAMI, J.
The respondent was elevated as Judge of the Allahabad High Court on November 17, 1977.
He retired on October 3, 1983 on superannuation at the age of 62.
He had elected to receive his pension under Part I of the First Schedule to the High 878 Court Judges (Conditions of Service) Act, 1954.
As he had put in only a period of five years 10 months and 17 days service as a Judge.
of the High Court, under paragraph 9 Part I of the First Schedule pension payable was determined at the rate of Rs.8,400 per annum and the family pension in the event of his death earlier than his wife at Rs.250 per month in the letter of Accountant General, Allahabad dated December 2, 1983.
The gratuity was worked out at Rs. 11,665.66 P. in lump sum under Section 17A(3) also on the ground that he had put in only five completed years of service.
The pension was payable with effect from October 4, 1983.
The Act was amended by the Amending Act No. 38 of 1986 providing for an increased pension with effect from November 1, 1986.
On December 10, 1986 the petitioner filed a writ petition before the Allahabad High Court under Article 226 of the Constitution praying for an order or directions declaring (i) that he was entitled to refixation of his pension from the date of his retirement, namely, October 4, 1983 to October 31, 1986 at Rs.9,600 per annum plus dearness allowance admissible under the rules from 'time to time on the basis that the period of his service for pension was fit to be enlarged to six years, by addition of 1 month and 13 days to the 5 years 10 months and 17 days; (ii) for refixa tion of pension for the period from November 1, 1986 at Rs.20,580 per annum plus dearness allowance or other allow ances as may be admissible under the rules from time to time, at the rate of Rs.3,430 per annum for six completed years of service as stated above; (iii) to retix the family pension admissible to his wife on the scale allowed under Section 17A as amended by Act 38 of 1986 again taking the period of completed years of service as 6 years and not as total service of 5 years, 10 months, and 17 days.
During the pendency of the writ petition the respondent made representations to the Government of India stating that since the respondent fell short for 6 completed years of service only by one month and 13 days, the President may be pleased to allow him to add the period so as to calculate the pension, gratuity and family pension on the basis of 6 completed years of service as a Judge.
By its order dated April 16, 1987 the Government of India rejected the repre sentation of the respondent among other grounds that the request was belated.
By its judgment dated March 15, 1988 the High Court allowed the writ petition directing the Government to retix his pension, his family pension and gratuity treating him as having put in six completed years of service and in the manner provided in the judgment.
The main grievance of Union of India in this appeal is that the High Court has rewritten the retirement benefit provisions of the First 879 Schedule to tile Act which it was not entitled to and the refixation of the pension on that basis was wholly illegal and unconstitutional.
Since the High Court issued the manda mus directing the Union of India to add one month and 13 days to the total length of service renderred by the re spondent as Judge of the Allahabad High Court for the com puting the pension under Section 16 of the Act, during the pendency of the appeal in this Court in the proceedings dated December 15, 1988 the Government directed, after obtaining the necessary sanction from the President under Section 16 of the Act, the addition of one month and 13 days "subject to the final decision of this Court in Special Leave Petition 6798 of 1988 (CA No. 3674 of 1988).
" However, they added that the period shall be disregarded in calculat ing additional pension, if any, under Part I and Part II and Part HI of the First Schedule of the Said Act.
In order to appreciate the argument of the learned counsel for the appellant Union of India it is necessary to set out certain provisions relating to pension payable to a Judge of the High Court on his retirement.
Clause 17 of the Government of India (High Court Judges) Order, 1937 relating to pension payable to a Judge on his retirement which was in force prior to the coming into force of the Constitution provided that "a pension shall be payable to a Judge on his retirement if, but only if, either: "(a) he has completed not less than 12 years ' service for pension; or (b) he has completed not less than 7 years ' service for pension and has attained the age of sixty; or (c) he has completed not less than 7 years ' service for pension and his retirement is medically certified to be necessitated by ill health.
" Thus it may be seen that under the provisions then existing a Judge who had completed less than seven years of service was not allowed any pension.
As we are concerned in this case to the provisions applicable to a Judge to whom Part I of the First Schedule of the is applicable either by reason of his appointment directly to the High Court from the Bar or who has elected to receive pension payable under that part we need to set out 880 only relevant provisions relating to pension in of the First Schedule.
Paragraphs 2, 3, 4, 5, and 9 as stood prior to its amendment by Act 35 of 1976 read as follows: "2.
Subject to the other provisions of this part, the pension payable to a Judge to whom this Part applies and who has completed not less than seven years of service for pension shall be the basic pension specified in para graph 3 increased by the additional pension, if any, to which he is entitled under para graph 5. 3.
The basic pension to which such a Judge shall be entitled shall be (a) for the first seven completed years of service for pension, Rs.5,000 per annum; and (b) for each subsequent completed year of service for pension, a further sum of Rs. 1,000 per annum: provided that the basic pension shall in no case exceed Rs. 10,000 per annum.
For the purpose of calculating additional pensions, service as a Judge shall be classi fied as follows: Grade I. Service as Chief Justice in any High Court; Grade II.
Service as any other Judge in any High Court.
For each completed year of service for pension in either of the grades mentioned in paragraph 4, the Judge who is eligible for a basic pension under this Part shall be enti tled to the additional pension specified in relation to that grade in the second column of the table annexed hereto.
provided that the aggregate amount of his basic and additional pension shall not exceed the amount specified in the third column of the said table in relation to the higher grade in which he has rendered service for not less than one completed year.
881 TABLE Service Additional pension Maximum aggregate per annum pension per annum Rs. Rs. Grade I 740 20,000 Grade II 740 16,000 9.
Where a Judge to whom this Part applies, retire or has retired at any time after the 26th January, 1950 without being eligible for a pension under any other provision of this Part, then, notwithstanding anything contained in the foregoing provisions, a pension of Rs.6,000 per annum shall be payable to such a Judge.
Provided that nothing in this paragraph shall apply (a) to an additional Judge or acting Judge; or (b) to a Judge who at the time of his appoint ment is in receipt of a pension (other than a disability or wound pension) in respect of any previous service under the Union or a State.
Note: The Proviso was added by Act No. 46 of 1958.
" By the Amending Act 35 of 1976 the First Schedule was amended by substituting paragraphs 2 and 9 and deleting paragraphs 3, 4 and 5.
The substituted paragraphs 2 and 9 read as follows: "2.
Subject to the other provisions of this Part, the pension payable to a Judge to whom this Part applies and who has completed not less than seven years of service for pension shall be (a) for service as Chief Justice in any High Court, Rs.2,400 per annum; and (b) for service as any other Judge in any High Court, Rs. 1,600 per annum: provided that the pension shall in no case exceed Rs.28,000 per annum in the case of a Chief Justice and Rs.22,400 per annum in the case of any other Judge.
882 9.
Where a Judge to whom this Part ap plies, retires or has retired at any time after the 26th January, 1950 without being eligible for pension under any other provision of this part, then, notwithstanding any thing contained in the foregoing provi sions, a pension of Rs.8,400 per annum shall be payable to such a Judge.
Provided that nothing in this paragraph shall apply (a) to an additional Judge or acting Judge; or (b) to a Judge who at the time of his appoint ment is in receipt of a pension (other than a disability or wound pension) in respect of any previous service under the Union or a State." These amended provisions Were held applicable in respect of all the Judges of the High Court who have retired irre spective of their dates of retirement in the decisions of this Court in Union of.
India vs B. Malick, ; and N.L. Abhyankar vs Union of India, ; However the increased pension was payable only with effect from October 1, 1974, Part I of the First Schedule was further amended by Act 38 of 1986 with effect from November 1, 1986 and the amended paragraph 2 reads as follows: "2.
Subject to the other provisions of this Part, the pension payable to a Judge to whom this Part applies, and who has completed not less than seven years of service for pension shall be (a) for service as Chief Justice in any High Court, Rs.4,500 per annum for each completed year of service; (b) for service as any other Judge in any High Court, RS.3,430 per annum for each completed year of service: provided that the pension shall in no case exceed Rs.54,000 per annum in the case of a Chief Justice and Rs.48,000 per annum in the case of any other Judge.
" The Act further amended paragraph 9 by substituting Rs. 15,750 for the figure Rs.6,000 883 At this stage itself, we may note that this Amending Act 38 of 1986 provided that the amended liberalised pension scheme would apply only to a Judge "who has retired on or after the commencement of the High Court and Supreme Court Judges (Conditions of Service) Amendment Act, 1986." A similar provision which made the amendment by Act 35 of 1976 applicable Only to those judges who have retired on or after October 1, 1974 was held ultra vires and struck down in the two decisions of this Court above referred to and it was held that the benefit of the amendment was available to all the retired judges irrespective of the date of retirement but subject to the condition that the enhanced pension was payable only with effect from October 1, 1974.
That was also ratio of the decision of the Constitution Bench of this Court in D.S. Nakara vs Union of India, ; On the same reasoning and logic we have to hold that Amending Act.
38 of 1986 could not restrict the applicability of the amended provision to only those who have retired on or after the commencement of the Amending Act.
The resultant position would be that the provisions of pension in Part I of First Schedule as amended by Act 38 of 1986 would be applicable to all the Judges irrespective of the dates of retirement and they would be entitled to be paid pension at the rates provided therein with effect from NOvember 1, 1986, As already stated, the respondent retired from service on October 3, 1983.
For the period from October 4, 1983 till October 31, 1986 the respondent claimed that he is entitled to be paid at the rate of Rs.9,600 and at the rate of Rs.20,580 per year from November 1, 1986 when the Amending Act 38 of 1986 came into force, plus the usual dearness allowance admissible from time to time.
This claim was made on the ground that the power of the President under Section 16 of the Act though discretionary could not be exercised arbitrarily or on extraneous or other unsupportable grounds that on the facts and circumstances the refusal to include the period of one month and 13 days to the length of his service by the order of 'the Government dated April 16, 1987 was illegal and on the facts and circumstances, his case is a fit one for enlarging the period of his service to six years.
On the assumption that he is entitled for such en largement and the had completed six years of service, the further case of the respondent was that he is entitled for calculation on the pension at the rate of Rs. 1,600 for each completed year of service and for six.years at Rs.9.600 per annum for the period prior to November 1, 1986.
He further contended that in paragraph 2 of Part I of the First Sched ule the words "who has completed not less than seven years of service for pension ' ' shall be read as "who has completed more than five years of service for pension" on 884 the ground that while a Judge who has completed seven years of service is permitted to calculate at the rate of Rs. 1,600 for each completed years of service, a person who had not completed seven years of service could not be denied that benefit.
But finding that a person who had completed only five years of service or less than five years of serv ice, if the pension is to be calculated at the rate of Rs. 1,600, would get Rs.8,000 or less than Rs.8,000 though Rule 9 provided for a fixed pension of Rs.8,400 per annum for those who had not completed seven years of service, he wanted to read "not less than five years" of service in paragraph 2 as "more than five years" of service.
This argument was accepted by the High Court on the ground that there is no rational basis for depriving a Judge who had put in six completed years of service to calculate the benefit of pension at the rate of Rs. 1,600 per year of service which was provided for those who had completed seven years of service.
The High Court was of the view denying the benefit of calculation at the rate of Rs. 1,600 per year would lead to the striking down of the provision as a dis criminatory piece of legislation and that however the provi sion can be saved by "reading down paragraph 2 of Part I of the First Schedule to the Act and reading 'more than five years ' in the place of not less than seven years.
" In that view the High Court amended paragraph 2 so to say by substi tuting the words "not less than 7 years" as "more than 5 years" and allowed the claim for payment of pension at Rs.9,600 per annum for the period from 4.10.1983 to 31.10.1986.
As already stated as per the Amending Act 38 of 1986 the pension payable for those who have completed 7 years of service was to be calculated at the rate of Rs.3,430 for each completed year of service and for those who have not completed 7 years of service a sum of Rs.15,750 was payable as pension.
On the same reasoning which prompted the High Court to read "less than seven years" as "more than five years" in the provision which was in force prior to November 1, 1986 the High Court further held that since in four years service the Judge would have earned Rs. 13,720 and on com pletion of five years service he would have earned Rs.17,150 calculated at the rate of Rs.3430 per annum as against a sum of Rs.15,750 provided in paragraph 9, necessarily paragraph 2 will have to be read down by providing instead of "not less than seven years" as "more than four years".
The learned Judges read the provisions in the manner as was amended by them and calculated the pension payable to the respondent at Rs.20,580 per annum for the period November 1, 1986.
Consequential relief relating to the payment of the gratuity and family pension in the light of the relief granted relating to pension was also directed to be given.
885 We are at a loss to understand the reasoning of the learned Judges in reading down the provisions in paragraph 2 in force prior to November 1, 1986 as "more than five years" and as "more than four years" in the same paragraph for the period subsequent to November 1, 1986.
It is not the duty of the Court either to enlarge the scope of the legislation or the intention of the legislature when the language of the provision is plain and unambiguous.
The Court cannot re write, recast or reframe the legislation for the very good reason that it has no power to legislate.
The power to legislate has not been conferred on the courts.
The Court cannot add words to a statute or read words into it which are not there.
Assuming there is a defect or an omission in the words used by the legislature the Court could not go to its aid to correct or make up the deficiency.
Courts shall decide what the law is and not what it should be.
The Court of course adopts a construction which will carry out the obvious intention of the legislature but could not legislate itself.
But to invoke judicial activism to set at naught legislative judgment is subversive of the constitutional harmony and comity of instrumentalities.
Vide P.K. Unni vs Nirmala Industries, at 488; Mangilal vs Suganchand Rathi, ; Sri Ram Ram Narain Medhi vs The State of Bombay, [1959] Supp. 1 SCR 489; Smt.
Hira Devi & Ors.
vs District Board, Shahjahanpur, ; at 113 1; Nalinkhya Bysack vs Shyam Sunder Haldar & Ors., ; at 545; Gujarat Steel Tubes Ltd. vs Gujarat Steel Tubes Mazdaor Sabha, ; ; section Narayanaswa mi vs G. Pannerselvam & Ors., ; at 182; N.S. Vardachari vs G. Vasantha Pai & Anr., ; ; Union of India vs Sankal Chand Himatlal Sheth & Anr., ; and Commissioner of Sales Tax, U.P.v.
Auriaya Chamber of Commerce, Allahabad; , at 438.
Modifying and altering the scheme and applying it to others who are not otherwise entitled to under the scheme, will not also come under the principle of affirmative action adopted by courts some times in order to avoid discrimination.
If we may say so, what the High Court has done in this case is a clear and naked usurpation of legislative power.
The view of the High Court that paragraph 2 discrimi nates between those who have completed seven years of serv ice and those who have not completed that much service is in our opinion not correct.
It is a well known practice in pensionary schemes to fix a minimum period for purposes of pension.
What shall be the minimum period for such pension will depend on the particular service, the age at which a person could enter into such service, the normal period which he is expected to serve before his retirement on superannuation, and vari 886 ous other factors.
There is nothing in evidence to suggest that the period of seven completed years of service fixed for pension is arbitrary.
So far as the Judges of the High Court is concerned as we have noticed earlier even under the Government of India Act a period of seven completed years of service before superannuation was prescribed for eligibility for pension.
In fact no pension was provided for those who had not completed seven years of service under preconstitu tion scheme.
Thus we have history or historical grounds or reasons for fixing not less than seven years of service for pension.
Part I deals with a pensionary scheme.
Prescribing a minimum period of service before retirement on superannua tion, for pension is the very scheme itself and not a clas sification.
It is so to say a qualification for eligibility.
It is different from computation of pension.
All those who satisfy that condition are eligible to get pension.
Even those who had completed seven years of service were not given pension for all the completed years of serv ice at the rate Rs. 1,600 per annum and a maximum limit has been fixed for purposes of pension.
If we calculate the maximum amount provided with reference to the rate per year roughly in about 14 years of service one would have reached the maximum amount.
Any service above that period is not taken into account.
Thus a person who had put in the minimum period for getting the maximum pension could be said to be favourably treated against the person who had put in more number of years of service than needed for the maximum pension and thereby discriminated.
Thus the reasonableness of the provision in the pensionary scheme cannot be consid ered in this line of reasonings.
It is not impossible to visualise a case where the pension payable would be more than the last drawn pay if the maximum limit had not been fixed.
It is also not correct to state that the amount of pension provided in paragraph 9 is minimum pension.
The said paragraph does not use the word 'minimum ' but only state that if a Judge retires without being eligible for pension under any of the provisions, notwithstanding anything con tained in the other provisions, the pension of a particular amount mentioned therein shall be paid to the Judge.
This amount is not calculated or has any reference to any period of service.
For instance a Judge who had put in only two years of service before retirement will also receive the same amount as that of a Judge who have completed six years of service.
Again if we run down the provision and strike as unconstitutional the condition relating to completion of seven years of service in paragraph 2 all those who had put in less than six completed years of service would be seri ously affected and 887 paragraph 9 also would become inapplicable.
Further if we amend paragraph 2 of Part I of the First Schedule of the Act as done by the High Court it may be open to those who have ' put in more than five years or more than four years as the case may be to, contend that they are discriminated against because persons who had put in less than that period will get pension at much higher rate.
We have, therefore, no doubt that the High Court had exceeded its jurisdiction and power in amending and altering the provisions of paragraph 2 by substituting different minimum period for eligibility of pension in paragraph 2 of Part I. Since the respondent has not put in seven completed years of service for pension he will be eligible for pension at the rates provided in paragraph 9 of Part I of the First Schedule to the Act, that is to say for the period from 4.10.1983 to 31.10.1986 at the rate of Rs.8,400 per annum and for the period on and from November 1, 1986 at the rate of Rs. 15,750 per annum.
We have already noticed that during the pendency of the appeal in this Court in the proceedings dated December 15, 1988 the Government of India communicated to the Chief Secretary, Government of Lucknow, in compliance with the mandamus issued by the High Court, that the President of India was pleased to sanction the addition of one month and 13 days to the service of the respondent to make it six years of completed service subject to the final decision in this appeal.
In the circumstances however and in the view we have expressed earlier on the question of pension, we do not want to go into the question whether the High Court was right in setting aside the earlier rejection for addition of the period.
Since the addition of one month and 13 days does not make any difference in calculation of pension as we have already stated, this Presidential sanction has become rele vant only for the purpose of calculating the gratuity under section 17A(3) of the Act.
As the period is less than three months and as the President was pleased to sanction the addition in exercise of his power under Section 16 of the Act though subject to the final decision of this Court we would consider it just and necessary to allow this addition remain in force for the purposes of calculation of gratuity, and family pension only though not for pension.
The appeal is accordingly allowed and the order of the High Court is set aside.
The respondent will however be entitled to fixation of family pension and for payment of gratuity calculated on the basis of his having completed six years of service.
There will be no orders as to costs.
G.N. Appeal al lowed.
| The Respondent retired as Judge of the High1 Court on 3.10.1983 on superannuation and elected to receive his pension under of the First SChedule to the .
As a Judge of the High Court, he had put in service of 5 years 10 months and 17 days and his pension was determined at Rs.8,400 p.a. and family pension at Rs.250 p.m.
In 1986, the Act was amended providing for an increased pension from 1.11.1986.
Thereafter, the Respondent filed a Writ Petition before the High Court praying for directions that he was entitled to refixation of his pension from the date of his retirement at Rs.9,600 per annum on the basis that the period of his service for pension was fit to be enlarged to six years, by addition of 1 month and 13 days; that from November 1, 1986 his pension may be refixed at Rs.20,580 per annum at the rate of Rs.3,430 for six complet ed years of service; and that the family pension admissible to his wife be calculated on the basis that he had completed six years of service.
During the pendency of the Writ Petition the Respondent made representations to the Government of India that since the respondent fell short of 6 completed years of service only by 1 month and 13 days, the President may be pleased to allow him to add the period so as to 874 caluclate the pension, gratuity and family pension on the basis of 6 completed years of service as a Judge.
By its order dated April 16, 1987 the Government of India rejected the representation of the respondent among other grounds that the request was belated.
By its judgment dated March 15, 1988 the High Court allowed the Writ Petition directing the Government to retix his pension, family pension and gratuity treating him as having put in six completed years of service.
The Union of India has preferred the present appeal, by special leave against the High Court 's order.
It was contended on behalf of the appellants that the High Court has re written the retirement benefit provisions of the First Schedule to the Act which it was not entitled to and hence the refxation of the pension on that basis was wholly illegal and unconstitutional However, during the pendency of the appeal this Court in its proceedings dated December 15, 1988 the Government directed, after obtaining the necessary sanction from the President under Section 16 of the Act, the addition of 1 month and 13 days subject to the final decision of this Court in the appeal.
However, it was added that the period shall be disregarded in calculating additional pension.
if any, under , and of the First Sched ule of the said Act.
Allowing the appeal, this Court.
HELD: 1.
It is a well known practice in pensionary schemes to fix a minimum period for purposes of pension.
What shall be the minimum period for such pension will depend on the particular service, the age at which a person could enter into such service.
the normal period which he is expected to serve before his retirement on superannuation, and various other factors.
There is nothing in evidence to suggest that the period of seven completed years of service fixed for pension is arbitrary.
So far as the Judges of the High Court are concerned even under the Government of India Act a period of seven completed years of service before superannuation was prescribed for eligibility for pension.
In fact no pension was provided for those who had not com pleted seven years of service under pre constitutional scheme.
Thus there are historical grounds or reasons for fixing not less than seven years of service for pension.
Part I deals with pensionary scheme.
Prescribing a minimum period of service before retirement on superannuation, for pension is the very scheme itself and not a classification.
It is a qualification for eligibility.
It is different from computation of pension.
All those who 875 satisfy that condition are eligible to get pension.
[885G H; 886A C] 2.
Even those who had completed seven years of service were not given pension for all the completed years of serv ice at the rate of Rs.1,600 per annum and a maximum limit has been fixed for purposes of pension.
If one calculates the maximum amount provided with reference to the rate per year roughly in about 14 years of service one would have reached the maximum amount.
Any service above that period is not taken into account.
Thus a person who had put in the minimum period for getting the maximum pension could be said to be favourably treated against the person who had put in more number of years of service than needed for the maximum pension and thereby discriminated.
[886D E] 3.
It is not correct to state that the amount of pension provided in paragraph 9 is minimum pension.
The said para graph does not use the word 'minimum ' but only states that if a Judge retires without being eligible for pension under any of the provisions.
notwithstanding anything contained in the other provisions.
the pension of a particular amount mentioned therein shall be paid to the Judge.
This amount is not calculated or has any reference to any period of serv ice.
A Judge who had put in only two years of service before retirement will also receive the same amount as that of a Judge who has completed six years of service.
If the provision is struck down as unconstitutional the condition relating to completion of seven years of service in para graph 2, all those who had put in less than six completed years of service would be seriously affected and paragraph 9 also would become inapplicable.
Further, it may be open to those who have put in more than five years or more than four years as the case may be.
to contend that they are discrimi nated against because persons who had put in less than that period will get pension at much higher rate.
[886F H: 887A] 4.
The Amending Act 38 of 1980 provided that the amend ed liberalised pension scheme would apply only to a Judge who has retired on or after the commencement of the High Court and Supreme Court Judges (Conditions of Service) Amendment Act.
A similar provision which made the amendment 01 1976 applicable only to those Judges who have retired on or after October 1.
1974 was struck down as ultra vires and it was decided that the benefit of the amendment was available to.
all the retired Judges irrespective of the date of retirement but subject to the condition that the enhanced pension was payable only with effect from October 1, 1974.
The Amending Act of 1986 could not restrict the applicability of the amended provision to only those who have retired on or after the commencement of the Amending Act.
It 876 would be applicable to all the Judges irrespective of the dates of retirement and they would be entitled to be paid pension at the rates provided therein with effect from November 1, 1986.
[883A D] Union of India vs B. Malick. ; ; N.L. Abhyankar vs Union of India, ; and D.S., Nakara vs Union of India, ; , referred to.
In the instant case.
High Court had exceeded its jurisdiction and power in amending and altering the provi sions of paragraph 2 by substituting different minimum period for eligibility for pension in paragraph 2 of Part I. Since the respondent has not put in seven completed years of service for pension he will be eligible for pension at the rates provided in paragraph 9 of Part I of the First Sched ule to the Act, that is to say for the period from 4.10.1983 to 31.10.1986 at the rate of Rs.8,400 per annum and for the period on and from November 1, 1986 at the rate of Rs. 15,750 per annum.
[887B C] 6.
Since in compliance with the mandamus issued by the High Court, the President of India was pleased to sanction the addition of one month and 13 days to the service of the respondent to make it six years of completed service subject to the final decision in this appeal, this Court does not go into the question whether the High Court was right in set ting aside the earlier rejection for addition of the period.
The addition of one month and 13 days does not make any difference in calculation of pension it is relevant only for the purpose of calculating the gratuity under section 17A(3) of the Act.
As the period was less than three months and as the President was pleased to sanction the addition in exer cise of his power under Section 16 of the Act though subject to the final decision of this Court it is just and necessary to allow this addition to remain for the purposes of calcu lation of gratuity, and family pension only though not for pension.
The respondent will be entitled to fixation of family pension and for payment of gratuity calculated on the basis of his having completed six years of service.
[887D H] 7.1.
It is not the duty of the Court either to enlarge the scope of the legislation or the intention of the legis lature when the language of the provision is plain and unambiguous.
The Court cannot rewrite, recast or reframe the legislation for the very good reason that it has no power to legislate.
The power to legislate has not been conferred on the courts.
The Court cannot add words to a statute or read words into it which are not there.
Assuming there is a defect or an omission in the 877 words used by the legislature the Court could not go to its aid to correct or make up the deficiency.
Courts shall decide what the law iS. and not what it should be.
The Court of course adopts a construction which will carry out the obvious intention of the legislature but could not legislate itself.
But to invoke judicial activism to set at naught legislative judgment is subversive of the constitutional harmony and comity of instrumentalities.
[885A D] 7.2 Modifying and altering the scheme and applying it to others who are not otherwise entitled to under the scheme, will not also come under the principle of affirmative action adopted by courts some times in order to avoid discrimina tion.
What the High Court has done in this case is a clear and naked usurpation of legislative power.
[885F] P.K. Unni vs Nirmala Industries, ; Mangilal vs Suganchand Rathi, ; Sri Ram Ram Narain Medhi vs The State of Bombay, [1959] Supp. 1 SCR 489; Smt.
Hira Devi & Ors.
vs District Board, Shahjahanpur, ; ; Nalinakhya Bysack vs Shyam Sunder Haldar & Ors., ; ; Gujarat Steel Tubes Ltd. vs Gujarat Steel Tubes Mazdoor Sabha, ; ; section Narayanaswa mi v.
G. Pannerselvam & Ors., ; ; N.S. Varda chari vs G. Vasantha Pai & Anr., ; ; Union of India vs Sankal Chand Himatlal Sheth & Anr., ; and Commissioner of Sales Tax, U.P.v.
Auriaya Chamber of Commerce, Allahabad; , , relied on.
|
ivil Appeal No. 3574 of 1991.
From the Judgment and Order dated 5.9.1990 of the Punjab and Haryana High Court in L.P.A. No. 127 of 1983.
S.K. Mehta, Dhruv Mehta and Aman Vachher for the Appel lant.
O.P. Sharma, K.R. Gupta, Vivek Sharma, R.C. Gubrele and Ms. Nanita Sharma for the Respondents.
The Judgment of the Court was delivered by KANIA, J.
Leave granted.
Counsel heard.
The appellant, Bhatinda Improvement Trust, framed a development scheme under the Punjab Town Improvement Act, 1922 (referred to hereinafter as "the said Act").
Notices under Section 36 of the said Act in respect of the said scheme, setting out the particulars referred to in the said Section, were published in the Daily Tribune on May 31, 1977, June 7, 1977, and June 14, 1977.
The said notices were also published in the local daily Ajit on May 30, 1977, June 6, 1977, and June 13, 1977 and in Punjab Government Gazette on June 17, 1977, June 24, 1977 and July 1977, respectively.
A Notification as required under Section 42 of the said Act was published on June 30, 1980 sanctioning the said develop ment scheme.
The said Notices and 931 Notifications were challenged by the respondents in Civil Writ No. 2508 of 1982 filed in the High Court of Punjab and Haryana, inter alia, on the ground that the Notification under Section 42 was not issued within the stipulated period of three years from the first publication of the Notice under Section 36 and on that account it was bad in law.
This contention found favour with the learned Single Judge of Punjab and Haryana High Court who allowed the writ petition and set aside the Notification under Section 42 which was issued on June 30, 1980.
A Letters Patent Appeal preferred against the said Judgment was dismissed by a Division Bench of the said High Court and the present petition is directed against the aforesaid judgment of the Division Bench, dis missing the said Letters Patent Appeal.
It was submitted by Mr. Mehta, learned Counsel for the appellant that the time limit of three years for the issue of the Notification under Section 42 of the said Act was not prescribed under the said Act and that the first proviso to Section 6 of the Land Acquisition Act.
1894, was not ap plicable to the scheme in question.
It was submitted by him that the provisions of Section 6 of the Land Acquisition Act were, in effect, incorporated into the said Act which was enacted in 1922 from the very time of its enactment and hence, any amendment to the said section after that date would not be applicable to acquisitions under the said Act.
It was pointed out by him that the aforesaid time limit of three years was inserted in the Land Acquisition Act in 1984, long after the said Act was enacted as set out partic ularly, hereinafter and hence, it could not have any appli cation to the acquisitions made for the purposes of the said Act.
In order to examine the correctness of the submissions of Mr. Mehta, it is necessary to take note of the relevant provisions of the said Act and the Land Acquisition Act.
Section 28 of the said Act sets out the matters which may be provided for in a scheme.
Under sub section (2) clause (i) of the said section it is inter alia provided that a scheme under said Act may provide for the acquisition under the Land Acquisition Act as modified by the said Act.
Section 36 of the said Act provides that when a scheme under the said Act has been framed, the trust shall prepare a notice set ting out the particulars contained in the said section.
The relevant part of sub section (2) of the said Section runs as follows: (2) The trust shall: "(a) notwithstanding anything contained in Section 78 932 cause the said notice to be published weekly for three consecutive weeks in the official Gazette and in a newspaper or newspapers with a statement of the period within which objec tions will be received. ".
Sub section (1) of Section 42 provides that the State Government shall notify the sanction of every scheme under the said Act and the trust shall forthwith proceed to exe cute the scheme and so on.
Subsection (2) of the said Sec tion provides that a Notification under subsection (1) thereof shall be conclusive evidence that the scheme has been framed and sanctioned.
Section 58 provides for the constitution of a tribunal for the purposes of performing the functions of a court in a reference to acquisition of land for improvement trust under the Land Acquisition Act.
Section 59 provides for modification of the Land Acquisition Act, as set out therein for the purposes of acquiring the land under the Land Acquisition Act for the said trust.
We are not concerned with the actual modifications referred to in Section 59.
We need only note that under sub section (b) of Section 59 it is provided that the Land Acquisition Act may be subject to further modifications as indicated in the Schedule to the said Act.
Sub clause (1) of Clause 2 of the Schedule to the said Act, referred to in Section 59, runs as follows: "(2) Notification under section 4 and declara tion under section 6 to be replaced by notifi cation under sections 36 and 42 of this Act (1) The first publication of a notice of any improvement scheme under section 36 of this Act shall be substituted for and have the same effect as publication in the Official Gazette and in the locality of a notification under subsection (1) of section 4 of the said Act, except where a declaration under section 4 or section 6 of the said Act has previously been made and is still in force.
" Sub section (1) of Section 4 of the Land Acquisition Act, inter alia, provides that whenever it appears to the appro priate Government that land in any locality is needed or is likely to be needed for any public purpose, a notification to that effect shall be published in the Official Gazette as prescribed in the said section.
Section 5 A deals with hearing of objections.
Sub section (1) of Section 6, inter alia provides that when the appropriate Government is satis fied after considering the 933 report, if any, made under Section 5 A, sub section (2), that any particular land is needed for a public purpose, a declaration to that effect shall be made as prescribed in the said section.
The relevant part of the first proviso to the said sub section as substituted by Act 68 of 1984 runs as follows: "Provided that no declaration in respect of any particular land covered by a notification under Section 4, sub section (1) (i) published after the commencement of the Land Acquisition (Amendment and Validation) Ordinance, 1967 (1of 1967), but before the commencement of the Land Acquisition (Amend ment) Act, 1984, shall be made after the expiry of three years from the date of the publication of the notification; or".
It was by this substituted proviso that the said time limit of three years was prescribed.
Sub section (2) of Section 6 provides for the publication of the declaration under Section 6 and prescribes the manner in which the same shall be done.
It is the submission of learned Counsel for the appel lant that by the aforesaid provisions, and in particular, Sections 28, 58 and 59 of the said Act certain provisions of the Land Acquisition Act, and particularly, Section 6 there of were, in effect, incorporated into the said Act by refer ence and hence, it is only such provisions of the Land Acquisition Act as were in existence at the time when the said Act was enacted in 1922 which could be said to be incorporated into the said Act.
In support of his submission he placed strong reliance on the decision of a Bench com prising three learned Judges Bench of this Court in the case of Mahindra and Mahindra Ltd. vs Union of India and Another., ; In that case it has been point ed out that Section 55 of the (referred to hereinafter as the "MRTP Act") provides that any person aggrieved by the order made by the Central Government or the Commission (The Monop olies and Restrictive Trade Practices Commission) under Section 13 or Section 37 of the MRTP Act may prefer an appeal to the Supreme Court on one or more of the grounds specified in Section 100 of the Code of Civil Procedure.
It was pointed out in the judgment that on the date on which the MRTP Act came into force, Section 100 of the Code of Civil Procedure specified 3 grounds on which a second appeal could lie to the High Court, one of them being that the decision appealed against, was contrary to law.
By 934 an amendment made in 1976, Section 100 of the Code was subsituted by a new section which provides that a second appeal shall lie to the High Court only if the High Court is satisfied that the case involves a substantial question of law.
The appellant took the stand that under the provisions of Section 100 of the Civil Procedure Code, as it stood when the MRTP Act was enacted, the appeal was clearly maintain able as the impugned order was contrary to law.
The respond ents contended that, although this might be so, no substan tial question of law was involved in the second appeal and hence, the appeal was not maintainable.
It was submitted by the respondents that the maintainability of the appeal would have to be determined on the basis of Section 100 of the Code as amended.
This Court took the view that the appeal was maintainable.
It was held that on a proper interpreta tion of Section 55 it must be held that the grounds speci fied in Section 100 of the Code as it stood when the MRTP Act was enacted in 1969, were incorporated in Section 55 of the MRTP Act and the substitution of the new Section 100 did not affect or restrict the grounds as incorporated in Sec tion 55.
In the said judgment this Court cited with approval the judgment of the Privy Council in Secretary of State for India in Council vs Hindustan Co operative Insurance Society Ltd., [1958] I.A. 259 at 267.
where the Judicial Committee observed: "In this country it is accepted that where a statute is incorporated by reference into a second statute, the repeal of the first stat ute does not affect the second; (see the case collected in Craies on Statute Law, 3rd edn.
pp. 349,350)".
We find ourselves unable to accept the submissions of learned Counsel for the appellant.
As pointed out by the Supreme Court and the Judicial Committee in the aforesaid decisions, it is well settled law that where a statute is incorporated by a reference into a second statute, the repeal of the first statute does not affect the second.
Similarly, in a case where a statute is incorporated by a reference into another statute an amendment of the statute so incorporated after the date of incorporation does not affect the second statute and the provisions of the latter statute remain the same as they were at the time of incorpo ration.
It is again well settled that where one statute is referred to in another, it may be merely by way of reference or by way of incorporation of the same.
This depends on the language used in the latter statute and other relevant circumstances.
In the present case, however, we find that there is no question of incorporation of any of the provi sions of the Land Acquisition Act into the said Act at all.
The said Act does not deal with acquisition of land for the purposes of a 935 scheme as contemplated under the said Act.
The acquisition of such land for the purposes of the scheme is left to the general law of the land in that connection, namely, the Land Acquisition Act, which has to be resorted to for the pur poses of acquisition of land for the purposes of the schemes contemplated under the said Act.
The only difference is that some of the provisions of the Land Acquisition Act, as referred to in the relevant sections of the said Act are given effect to as amended by the relevant sections of the said Act.
In these circumstances, it cannot be held that any provisions of the Land Acquisition Act have been incorporat ed into the said Act and the provisions of the Land Acquisi tion Act which have to be applied, are the provisions as they stand at the relevant time, namely, at the time of acquisition, in the absence of a contrary intention.
There is nothing to indicate that there was any such contrary intention in the present case.
In these circumstances, the notification under Section 42 should have been published within the period of three.
years of the date of publication of the notification under Section 4(1) of the Land Acquisi tion Act, as required under the first proviso to Section '6 of the Land Acquisition Act.
Under sub clause (1) of clause (2) of the Schedule to the said Act, which we have referred to earlier, the first publication of a notice of any im provement scheme under Section 36 of the said Act, is sub stituted for and has the same effect as the publication in the Government Gazette of a notification under sub section (1) of Section 4 of the Land Acquisition Act.
The notice under section 36 of the said Act is required to be pub lished, inter alia, in a newspaper or newspapers as set out in section 36(2)(a) of the said Act.
In the present case, such a notice was first published in the daily 'Ajit ' on May 30, 1977, and hence, the notification under Section 42 of the said Act should have been published on or before May 30, 1980.
In fact, the notification under Section 42 of the said Act, admittedly, was published on June 30, 1980, and hence, was clearly beyond time.
In these circumstances, the notice under Section 36 of the said Act lapsed on the expiry of three years from May 3G, 1977, and no action pursuant to the said notice could be taken thereafter.
The notification under Section 42 of the said Act was clearly beyond time and bad in law, as it was not published within the period pro vided.
The acquisition proceedings lapsed.
The submission of learned Counsel for the appellant must be rejected.
No other point was canvassed before us.
In the result, the appeal fails and is dismissed with costs.
V.P.R. Appeal dis missed.
| The appellant the Improvement Trust framed a develop ment scheme under the Punjab Town Improvement Act, 1922 and notices under Section 36 of the Act were published in the Daily Tribune on May 31, 1977, June 7, 1977 and June 14, 1977 and in the local Daily Ajit on May 30, 1977, June 6, 1977 and June 13, 1977 and in the Punjab Government Gazette on June 17, 1977, June 24, 1977 and July 1977, respectively.
A notification as required under Section 42 of the Act was published on June 30, 1980 sanctioning the development scheme.
The notification was challenged by the Respondents in a writ petition in the High Court on the ground that the notification was not issued within the stipulated period of three years from the first publications of the notice.
The Single Judge of the High Court allowed the writ application and the Division Bench of the High Court dis missed the Letters Patent Appeal, against which the present petition has been filed by the Improvement Trust, contending that the time limit of three years for the issue of the notification under section 42 of the Act was not prescribed under the Act; that the first proviso to section 6 of the Land Acquisition Act, 1894, was not applicable to the scheme in question, and; that the provisions of Section 6 of the Land Acquisition Act were 929 incorporated in the Act from the very time of its enactment and hence, any amendment to the said section after that date would not be applicable to acquisitions under Act.
Dismissing the appeal, this Court, HELD: 1.
In a case where a statute is incorporated by a reference into another statute, an amendment of the statute so incorporated after the date of incorporation does not affect the second statute and the provisions of the latter statute remain the same as they were at the time of incorpo ration.
[934F G] 2.
Where one statute is referred to in another, it may be merely by way of reference or by way of incorporation of the same.
This depends on the language used in the latter statute and other relevant circumstances.
[934G] 3.
In the present case, there is no question of incorpo ration of any of the provisions of the Land Acquisition Act into the Punjab Improvement Act 1922 at all as the latter Act does not deal with acquisition of land for the purposes of a scheme as contemplated under the Act.
The acquisition of such land for the purposes of the scheme is left to the general law of the land in that connection, namely, the Land Acquisition Act, which has to be resorted to for the pur poses of acquisition of land for the purposes of a scheme as contemplated under the Punjab Town Improvement Act.
The only difference is that some of the provisions of the Land Acqui sition Act, as referred to in the relevant sections of the Act, are given effect to as amended by the relevant sections of the Act.
In these circumstances, it cannot be held that any provisions of the Land Acquisition Act have been incor porated into the Act and the provisions of the Land Acquisi tion Act which have to be applied, are the provisions as they stood at the relevant time, namely, at the time of acquisition, in the absence of a contrary intention.
[934G C] 4.
The notification under Section 42 should have been published within the period of three years of the date of publication of the notification under Section 4(1) of the Land Acquisition Act, as required under the first proviso to Section 6 of the Land Acquisition Act.
Under sub clause (1) of Clause (2) of the Schedule to the said Act, the first publication of a notice of any improvement scheme under section 36 of the said Act, is 930 substituted for and has the same effect as the publication in the Government Gazette of a notification under sub sec tion (1) of Section 4 of the Land Acquisition Act.
The notice under section 36 of the said Act is required to he published, inter alia, in a newspaper or newspapers as set out in section 36(2)(a) of the said Act.
In the present case, such a notice was first published in the daily 'Ajit ' on May 30, 1977, and hence, the notification under Section 42 of the said Act should have been published on or before May 30, 1980.
In fact, the notification under Section 42 of the said Act, admittedly, was published on June 30, 1980 and hence, was clearly beyond time.
[935C F] Mahindra and Mahindra Ltd. vs Union of India and Anoth er; , and Secretary of State for India in Council vs Hindustan Cooperative Insurance Society Ltd., [1958] IA 259 at 267, referred to.
|
ivil Appeal No. 3838 of 1988.
From the Judgment and Order dated 22.6.1987 of the Tamil Nadu High Court in W.A. No. 555 of 1984.
K.T.S. Tulsi, Additional Solicitor General, B.K. Prasad, A.K. Srivastava, P. Parmeshwaran for the Appellants.
A.T.M. Sampath and K.V. Sreekumar for the Respondents.
The Judgment of the Court was delivered by VERMA, J.
This matter brings to the fore once again the ineptitude with which litigation is conducted quite often on behalf of the Government of India and State Governments even when important issues having lasting and wide repercussions are involved.
The point in this case relates to the validity of a policy of the railway administration and is likely to affect the staff pattern in several units.
Inspite of this fact, to support validity of the impugned policy the re quired materials were not produced in the High Court and to overcome the adverse decision several opportunities given by us to produce the entire relevant record were not availed.
The learned Additional Solicitor General informed us after several adjournments that better performance is not possi ble.
We, therefore, concluded the hearing and proceed to decide on the available materials.
It is indeed fortunate for the appellants that our conclusion is in their favour.
The railway administration with its countrywide network can help to improve this situation by a genuine effort in this direction and thereby contribute also to saving of needless expense and time.
We, therefore, direct that a copy of this judgment be sent to the Chairman, Railway Board, Ministry of Railways, Government of India.
In view of the situation indicated above, we are mentioning only 898 those facts which are necessary for deciding this matter and which are accepted by both the sides.
It is not unlikely that there may be more material in the available records of the appellants to support our conclusion.
Briefly stated the controversy in this matter relates only to the employees working in the Inspection Wing of the Production Control Organization (for short 'P.C.O. ') of the Integral Coach Factory, Perambur.
The grievance of these employees in the Inspection Wing is to the implementation of the circular dated 8.6.1982 of the General Manager 's Office (Personnel Branch/Fur.), Madras of the Integral Coach Factory issued in supersession of the earlier circulars on the subject with the Railway Boards approval to treat the Progress Wing alone of the P.C.O. as a separate cadre.
The grievance of the employees in the Inspection Wing is that there is no reasonable basis for this classification of the Progress Wing of the P.C.O. separately denying the same benefit to those in the Inspection Wing.
In short, the employees of the Inspection Wing of the P.C.O. also want to be in a separate cadre like those in the Progress Wing and absorbed perma nently in the P.C.O. without the risk of being reverted to the shop floor from which they had been taken and where their lien continues.
A brief history of the Production Control Organization in the Integral Coach Factory, Perambur, may now be given.
The P.C.O. of the Integral Coach Factory was constituted to ensure quality control of the production in the factory.
It comprises of four wings which include the Progress and Inspection Wings.
It appears that the policy for manning the different wings of the P.C.O. remained nebulous for quite long and several changes therein were made from time to time to accommodate the staff 's point of view.
To begin with, persons from different trades in the shop floor were taken on deputation for the different wings of the P.C.O. For the Progress Wing of the P.C.O., there was also some direct recruitment, but the same was stopped after some time proba bly in the year 1958 and it was decided that the posts in the Progress Wing be filled by taking persons on deputation from the shop floor.
On 22.4.1963, the Railway Board laid down uniform policy for the P.C.Os.
in all units of the Indian Railways according to which all the posts in the P.C.Os. were made ex cadre and every employee posted in the P.C.O. was to be from a trade in shop floor.
The employees transferred from the shop floor to the P.C.O. were to retain their lien in the shop floor and deemed to be on temporary transfer.
This gave rise to some practical difficulty and the permanently absorbed staff in the P.C.O. were given option to revert to the 899 shop floor.
The staff directly recruited in the P.C.O. were to be allotted a trade and given the option for getting absorbed in the shop floor.
On 13.10.1964, a modification was made which is contained in the G.M. (P) 's letter No. PB(S)/M/6/ATC which refers to the Railway Board 's letter No. E(NG) 59SR 6 22 dated 22.4.
This was the first stage, as described by the learned Additional Solicitor General, for the employees in the P.C.O. of the Integral Coach Facto ry, Perambur.
At the next stage.
this policy was further modified for the Inspection Wing by a circular dated 13.8.1965 of the Office of the GM/PB/Shell of the Integral Coach Factory.
This was a half way measure implemented straightaway in the Inspection Wing, but could not be imple mented in the other three wings, namely, Progress, Planning and Time Study, because of certain practical difficulties therein.
According to this modification, the Inspection Wing was to form a separate ex cadre unit and the employees in the Inspection Wing were given proforma position in the cadre posts in their trade and could be reverted to their parent cadre in the shop floor in the position which they occupied in the shop floor.
This again met with difficulty in implementation giving rise to circular dated 29.9.1967 of the Office of the General Manager/Personnel Branch `Staff ' of the Integral Coach Factory.
Option was given to the staff in the Progress, Planning and Time Study Wings of the P.C.O. to get absorbed and interpolated in the shop floor leaving the Inspection Wing separate.
This circular dated 29.9.
1967 was struck down by the Madras High CoUrt vide its order dated 22.8.
1975 in a petition filed by employees of the shop floor on the ground that the General Manager of the Integral Coach Factory had no power to act inconsistently with the Railway Board 's circular and the remedy is to modify the Railway Boards circular dated 22.4.1963.
Accord ingly, the procedure laid down in the order dated 29.9.
1967 was cancelled and all posts in the P.C.O. were declared ex cadre by a circular dated 28.8. 1977 of the General Manag er 's Office (Personnel Branch/Fur.) of the Integral Coach Factory.
A modification m the earlier proposal was made by this order.
All employees were to be allotted a trade and given option either to go to the shop floor or remain perma nently in the P.C.O. However, this too could not be imple mented on account of the protest of the staff and the unions representing them.
At the next stage, a proposal was made by the Integral CoaCh Factory to the Railway Board which is contained in the letter dated 1.3.
1982 from the Chief Personnel Officer, Integral Coach Factory to the Joint director, Establishment, Railway Board.
This was in pursu ance to the suggestion of the staff itself that the Progress Wing alone be treated as separate cadre in the P.C.O. and not the remaining wings.
Reasons in support of the proposal were also given therein.
The Railway Board 900 conveyed its approval to this proposal in its letter No. E(NG) dated 20.3.
This led to the issuance of the order dated 8.6.1982 by General Manager, Integral Coach Factory, stating that in accordance with the Railway Board 's approval, the Progress Wing alone of the P.C.O. would be a separate cadre and not the remaining wings.
As a result of this decision, the Inspection Wing is not treated as a separate cadre unlike the Progress Wing.
This is the basis of the grievance of the employees of the Inspection Wing which led to the filing of the writ petition giving rise to this appeal.
Writ Petition No. 4468 of 1982 filed in the Madras High Court by the respondents was allowed by the learned Single Judge on 7.4.1984.
Thereafter, another step was taken by the railway administration which may be mentioned.
The Integral Coach Factory issued a circular on 21.9.1984 conveying Railway Board 's decision contained in the letter dated 13.9.1984 regarding the staffing pattern of the P.C.Os.
in the workshops including the Integral Coach Factory.
Accord ing to this decision, all posts in the P.C.O. except the Progress Wing continued to be ex cadre posts and the tenure of these posts was directed to be strictly adhered to.
The existing position regarding en cadering of the posts in the P.C.O. in all wings of Southern Railway and Progress Wing of Integral Coach Factory was allowed to be continued.
In short, it was a reversion to the initial stage contained in the order dated 22.4.1963 of the Railway Board except for the Progress Wing.
The writ appeal of the railway adminis tration was thereafter dismissed by the High Court on 22.6.1987.
The further facts are not material for deciding the point in controversy.
In short, the employees of the Inspection Wing which include the respondents, contend that they are entitled to be treated similarly as the employees of the Progress Wing, whose continuance in the P.C.O. without the risk of rever sion to the shop floor is assured by the adoption of this policy.
This contention of the respondents has been accepted by the High Court.
The acceptance of the respondents claim results in striking down the Railway 's policy to this extent of not treating the Inspection Wing also as a separate cadre like the Progress Wing.
It also affects the prospects of those in the shop floor who are denied the chance of being taken in the Inspection Wing of the P.C.O. because of the continuance permanently of those already there retaining their lien in the shop floor.
It is admitted that the serv ice conditions in the P.C.O. are better than those of the corresponding posts in the shop floor.
This is the reason for those in the P.C.O. not wanting to revert to the shop floor and the keenness of persons from the shop 901 floor to go to the P.C.O.
Some employees working in the shop floor have preferred S.L.P. (Civil) No. 9774 of 1990 arising out of a connected matter and have supported the stand of the railway administration taken in Civil Appeal No. 3838 of 1988.
It is common ground before us that the Inspection Wing of the P.C.O. performs the function of inspecting the quali ty of the products of the Integral Coach Factory and thereby ensures quality control of the products.
The Progress, Planning and Time Study Wings of the P.C.O. are involved in the manufacture of these products and come at the stage relating to manufacture of the products.
There is thus an intelligible differentia between the function of the Inspec tion Wing on one side and the remaining wings of the P.C.O. on the other.
The background indicated earlier leading to the decision by the Railway Board that the Progress Wing alone would be treated as a permanent cadre in the Integral Coach Factory and not the others, was reached on the basis of experience over a long period and was in consonance with the opinion of the Staff Council representing the views of the staff of the Integral Coach Factory.
It appears that continuity in Progress Wing and rotation in the Inspection Wing was considered desirable for better efficiency.
The Railway Board being competent to effect necessary changes in the staff pattern of the various units under its control for the purpose of streamlining the Organisation and improving their efficiency, took this decision for this purpose which is consistent with the view of the staff Council represent ing the interest of the entire staff in the P.C.O.
It does appear that the railway administration did want at one time to treat all units in the P.C.O. as separate permanent cadres but practical difficulty in the implementation of that policy and opposition by the staff impelled it to give up the same.
Even here we find that while those already in the Inspection Wing want to remain there permanently, the others who are in the shop floor and would be denied the prospect of being taken in the Inspection Wing of the P.C.O. if the respondents ' contention is upheld, are opposed to this view.
The decision of the Railway Board, therefore, takes into account all points of view and makes an attempt to reconcile the conflicting interests while ensuring im provement in the efficiency of the unit.
If as a matter of policy the Railway Board approved the proposal made by the management of the Integral Coach Factory to treat the Progress Wing alone of the P.C.O. as a separate cadre and not so the remaining wings including the Inspection Wing, the same cannot be faulted unless it is held to be discrimi natory or arbitrary.
In view of the nature of functions performed by the four different wings of the P.C.O., we are unable to agree with the High Court 's view that the Inspec tion 902 Wing and the Progress Wing of the P.C.O. must be classified together and treated as separate cadres.
It is significant that even at some of the earlier stages, Inspection Wing was treated differently as a matter of policy.
The work of the Inspection Wing, as indicated earlier on the basis of undisputed facts before us, is to inspect the quality of the manufactured products to ensure quality control, while the Progress Wing is concerned with the stage prior to manufacture of the products.
For the efficiency of the Inspection Wing which performs the duty of exercising vigilance over the production for the sake of ensuring quality of the products, it is not unreasonable to think that a periodic rotation of its personnel would be conducive to efficient functioning of the Inspection Wing.
The perma nency of personnel in the Inspection Wing can promote leth argy in them and may also tend to create vested interests.
The possibility of change therein makes the existing person nel more vigilant to avoid any lapse which could be discov ered by the replacement.
The highest possible standards of vigilance by them is achieved by the possibility of rever sion to the shop floor against their will if the required degree of efficiency and standard in performance of the duty is not maintained.
The work of the Inspection Wing being at the end point with no further scrutiny thereafter, rotation of its personnel is likely to promote the efficiency of the unit.
This factor is sufficient to provide a reasonable basis for classification of the Inspection Wing differently from the Progress Wing and there is no ground to complain of discrimination, if according to the Railway Board 's policy, the Inspection Wing is not treated as a separate cadre like the Progress Wing.
The power of the railway administration to formulate such a policy provided it is not discriminatory being rightly not challenged, this conclusion alone is sufficient to uphold the action of the railway administra tion.
The contrary view taken by the High Court cannot, therefore, be sustained.
We find that the competence of the Railway Board to change the staff pattern of the P.C.O. in the Kharagpur Railway Workshop of South Eastern Railway, was challenged before the Central Administrative Tribunal.
The decision there was contained in a Memorandum of 1979 declaring that the posts in the P.C.O. in the Kharagpur Railway Workshop would be treated as 'ex cadre ' differently from the policy in Integral Coach Factory.
The Tribunal rejected the chal lenge based on discrimination between two units and a spe cial leave petition filed in this Court was dismissed.
This Court in S.K. Chakraborthy and Ors.
vs Union of India & Ors.
, [1988] Supp. 1 S.C.R. 425 upheld the 903 authority of the Railway Board to adopt such a policy to bring about the necessary changes in the staff pattern for improving the efficiency of the administration of units under its control and for the purpose of streamlining the Organisation provided there was no discrimination.
Consequently, the appeal is allowed and the impugned judgment of the High Court is set aside resulting in the dismissal of the Writ Petition filed in the High Court.
No costs.
A copy of this judgment be sent to the Chairman, Railway Board as directed.
V.P.R. Appeal allowed.
| The P.C.O. of the Integral Coach Factory comprises of four wings which include the Progress and Inspection Wings.
The order dated 8.6.1982 by General Manager stated that in accordance with the Railway Board 's approval, the Progress Wing alone of the P.C.O. would be a separate cadre and not the remaining wings.
The Inspection Wing was not treated as a separate cadre unlike the Progress Wing.
Being aggrieved, the respondents the employees in the Inspection Wing filed Writ Petition in the High Court which was allowed by the Single Bench.
Meanwhile the Integral Coach Factory issued a circular on 21.9.1984 conveying Railway Board 's decision dated 13.9.1984 regarding the staffing pattern of the P.C.Os.
in the workshops including the Integral Coach Factory.
Accord ing to this decision, all posts in the P.C.O. except the Progress Wing continued to be ex cadre posts and the tenure of these posts was directed to be strictly adhered to.
The existing position regarding en cadering of the posts in the P.C.O. in all wings of Southern Railway and Progress Wing of Integral Coach Factory was allowed to be continued.
The writ appeal of the railway administration was dis missed by the Division Bench of the High Court, against which the present appeal by special leave was preferred by the Railway Administration.
896 It was contended that the Inspection Wing performed the function of inspecting the quality of the products of the Integral Coach Factory and thereby ensured quality control of the products, whereas the Progress, Planning and Time Study Wings of the P.C.O. were involved in the manufacture of these products and there was thus an intelligible differ entia between the function of the Inspection Wing on one side and the remaining Wings on the other.
Allowing the appeal of the Railway Administration, this Court, HELD: 1.
In view of the nature of functions performed by the four different wings of the P.C.O., the High Court 's view that the Inspection Wing and the Progress Wing of the P.C.O. must be classified together and treated as separate cadres, cannot be accepted.
It is significant that even at some of the earlier stages, Inspection Wing was treated differently as a matter of policy.
[901H 902A] 2.
The work of the Inspection Wing, is to inspect the quality of the manufactured products to ensure quality control, while the Progress Wing is concerned with the stage prior tO manufacture of the products.
For the efficiency of the Inspection Wing which performs the duty of exercising vigilance over the production for the sake of ensuring quality of the products, it is not unreasonable to think that a periodic rotation of its personnel would be conducive to efficient functioning of the Inspection Wing.
The perma nency of personnel in the Inspection Wing can promote leth argy in them and may also tend to create vested interests.
The possibility of change therein makes the existing person nel more vigilant to avoid any lapse which could be discov ered by the replacement.
The highest possible standards of vigilance by them is achieved by the possibility of rever sion to the shop floor against their will if the required degree of efficiency and standard in performance of the duty is not maintained.
[902B D] 3.
The work of the Inspection Wing being at the end point with no further scrutiny thereafter, rotation of its personnel is likely to promote the efficiency of the unit.
This factor is sufficient to provide a reasonable basis for classification of the Inspection Wing differently from the Progress Wing and there is no ground to complain of discrim ination, if according to the Railway Board 's policy, the Inspection Wing is not treated as a separate cadre like the Progress Wing.
The power of the railway administration to formulate such a policy provided it is not discriminatory being rightly not challenged, this conclusion alone is sufficient to uphold the action of the railway administra tion.
[902D F] 897 4.
The authority Of the Railway Board to adopt the policy to bring about the necessary changes in the staff pattern for improving the efficiency of the administration of units under its control and for the purpose of streamlin ing the Organisation provided there was no discrimination is undoubted.
[903A] S.K. Chakarborthy and Ors.
vs Union of India & Ors.
, [1988] Supp. 1 S.C.R. 425, referred.
|
erred Case No. 2 of 1991.
(Under Article 139 A(1) of the Constitution of India) Salman Khurshid, Madhan Panikkar, Mrs. Vimla Sinha and Gopal Singh for the Appellant.
Kapil Sibal and Arun Jaitley, Additional Solicitor Generals, Ms. Kamini Jaiswal and C.V.S. Rao for the Respond ents.
The Judgment of the Court was delivered by section RATNAVEL PANDIAN, J.
The above case has been regis tered in pursuance of our order dated 23.11.90 in Transfer Petition (Civil) No.546/90 transferring O.A.No.191 of 1990 under Article 139 (A) of the Constitution of India from the file of the Central Administrative Tribunal, Patna Bench, Patna.
the appellant 's prayer is to dispose of the above case along with Civil Appeal Nos.
5439 52/90 (arising out of SLP (Civil) Nos.
13525 38 of 1990).
The relief sought for by the appellant before the CAT, Patna Bench was similar to the one before the CAT, Principal Bench, Delhi that being to declare the second proviso to Rule 4 of C.S.E. as violative of Articles 14 and 16 of the Constitution of India.
On 29.8.90 the 114 Patna Bench in M.P. No. 36/90 granted an interim relief which reads thus: "Heard the learned counsel for the applicant.
The applicant may be allowed to appear at the Civil Services Main Examination, 1990, subject to result of the final orders in the original application.
The respondents are directed accordingly.
Copy be given to the parties today." Mr. Salman Khurshid appearing for the appellant submit ted that the interim direction given by the Patna Bench if covered by the directions given in paras 5(ii) and 6 of the order of CAT, Delhi he has no further submission to be made, and the implementation of those directions will satisfy his relief.
We in our order dated 7.12.1990 have clarified certain directions given by the CAT, Delhi with reference to the various interim orders passed by it in a number of OAs and finally gave the following direction: "Hence we permit all those candidates falling under Para Nos. 5 (ii), 6 and 7 to sit for the main examination subject to the condition that each candidate satisfies the Secretary, Union public Service Commission that he/she falls within these categories and that the concerned candidates have passed the preliminary exami nation of 1990 and have also applied for the main examination within the due date.
This permission is only for the ensuing examina tion.
, As we are now permitting those who have passed the preliminary examination of 1990 and have applied for the main examination on the basis of the unquestioned and unchallenged directions given under paras 5(ii), 6 and 7 of the judgment of the CAT, Principal Bench, New Delhi, the same benefit is extended to the other appellants also who satisfy those condi tions as mentioned under paras 5 (ii), 6 and 7.
" The above direction virtually confirms the direction given by the Patna Bench in M.P. No.36/90 allowing the appellant therein to sit for C.S.E. (Main) of 1990.
However, we have not subjected our direction with any rider in the sense that that direction will be subjected to the result of the appeals.
In fact, we have in the judgment rendered today in Civil Appeal Nos.
5439 52/90 and batches given a direction to the respondents inclusive of the Union Public Service Commission that "all those candidates who have appeared for the Civil Services (Main) Examination, 1990, pursuant to our permission given in the order dated 7.12.90 and who have 115 come out successfully in the said examination and thereby have qualified themselves for the interview, shall be per mitted to appear for the interview test and that if those candidates completely and satisfactorily qualify themselves by getting through the written examinations as well as the interview shah be given proper allocation and appointment on the basis of their rank in the merit list notwithstanding the restriction imposed by the second proviso and our present judgment upholding the validity of the said proviso since the respondents have not questioned and challenged the directions given by CAT, Principal Bench, Delhi in para graphs 5(ii), 6 and 7 of its judgment dated 20.8.1990.
We would like to make it clear that the unchallenged directions given by the CAT in its judgment as well as directions given by us in our order dated 7.12.90 are not.controlled by any rider in the sense that the said directions were subject to the result of the cases and hence those directions would be confined only to those candidates who appeared for CSE, 1990 and no further.
The seniority of those successful candidates in CSE, 1990 would depend on the service to which they have qualified.
The seniority of the left out candidates would be maintained in case they have joined the service to which they have been allocated on the result of previous CSE and such candidates will not be subjected to suffer loss of seniority as held by the CAT, Delhi in its judgment".
Therefore, we hold that this appellant is also entitled for the same above benefit.
In other respects, this trans ferred case is dismissed for the reasons mentioned in the main judgment in Civil Appeal Nos.
5439 52/90 and batches.
No order as to costs.
R.P. Appeal dismissed.
| The appellant filed an application before the Central Administrative Tribunal, Patna Bench, for a declaration that the second proviso to rule 4 of Civil Services Examination Rules was violative of Articles 14 and 16 of the Constitu tion of India.
By an interim order the Tribunal allowed the appellant to appear at the Civil Services (Main) Examina tion, 1990, subject to the result of the final orders in the original application.
The said application was transferred to this Court.
In a bunch of similar cases, the Central Administrative Tribunal, Delhi upheld the validity of Rule 4 of Civil Services Examination Rules.
In appeal to this Court (Civil Appeal Nos. 5439 52/90)** by an interim order dated 7.12.1990, the appellants therein were allowed to appear in Civil Services (Main) Examination, 1990; and while finally disposing of the appeals, the judgment of CAT, Delhi was affirmed.
Dismissing the case of the appellant in view of the judgment in C.As Nos.
5439 52/90,** this Court, HELD: The appellant was also entitled to the same benefits as granted to the appellants in Civil Appeals No. 5439 52/90, namely: (i) All those candidates who appeared for the Civil Services (Main) Examination, 1990, pursuant to this Court 's order dated 7.12.90 and qualified themselves for the inter view, shall be permitted to appear for the interview test and that if those candidates completely and satisfactorily qualify themselves by getting through the written examina tions as well as the interview shall be given proper alloca tion and appointment on the basis of their rank in the merit list notwithstanding the restriction imposed by the second proviso to rule 4 and this Court 's judgment 113 upholding the validity of the said proviso since the re spondents have no/ questioned and challenged the directions given by C.A.T. Principal Bench, Delhi in its judgment dated 20.8.1990.
(ii) The un challenged directions given by the C.A.T. in its judgment as well as directions given by this Court in its order dated 7.12.90 were not controlled by any rider in the sense that the said directions were subject to the result of the cases and hence those directions would be confined only to those candidates who appeared for C.S.E. 1990 and no further.
The seniority of those successful candidates in C.S.E. 1990 would depend on the service to which they have qualified.
The seniority of the left out candidates would be maintained in ease they have joined the service to which they have been allocated on the result of previous C.S.E. and such candidates will not be subjected to suffer loss of seniority as held by the C.A.T. Delhi in its judgment.
[pp 114 H, 115A D] **Mohan Kumar Singhania & Ors.
vs Union of India, [1991] Supp. 1 SCR 46
|
(c) No. 75 Of 1991.
(Under Article 32 of the Constitution of India) R.P. Singh for the Petitioners.
G. Ramaswamy, Attorney General, A.K. Srivastava and Ms. A. Subhashini (N.P.) for the Respondents.
The Judgment of the Court was delivered by RANGANATH MISRA, CJ.
This is an application under Arti cle 32 of the Constitution by 55 persons both men and women claiming the benefit of the scheme of pension for Freedom Fighters.
It is the common contention of the petitioners that they had joined the Arya Samaj movement in the late 1930s within the erstwhile Nizam 's State of Hyderabad and each of them had been convicted under different provisions of the crimi nal law then prevailing within the Nizam 's State and sen tenced to various terms of imprisonment.
In the case of most of them the term of imprisonment was around two years.
They maintained that the Arya Samaj movement has been equated with the freedom struggle and the benefit of the pension scheme is admissible to those who had participated in the movement as Arya Samajists.
According to them, in the prime of youth the petitioners had been motivated by the call of Mahatma Gandhi, the Father of the Nation and leaders like the late Pt.
Jawaharlal Nehru, Dr. Rajendra Prasad and others and had given up their home and hearth and had joined the agitation within the Nizam 's State and suffered the consequences.
Since their claim for pension had not been accepted by the Government of India they have applied to this Court for appropriate direction for being admitted to the benefits of the scheme.
A counter affidavit has been filed on behalf of the respondents by Under Secretary Alam in the Ministry of Home Affairs who while not disputing the assertion of the peti tioners that the Union of India had accepted the Arya Samaj movement to be a part of the freedom struggle has disputed the entitlement of pension in the case of most of the peti tioners.
118 Petitioners have relied upon the decision of this Court dated July 16, 1991, in Writ Petition No. 1190/89 Duli Chand & Ors.
vs Union of India & Ors.) where similar relief claimed by 41 persons had been accepted.
That case, accord ing to the counter affidavit, was disposed of ex pane and by accepting all the allegations of the petitioners therein.
In view of the dispute now raised in the counter affidavit, particularly with reference to the factual aspects, we do not think it would be appropriate to dispose of the present petition by adopting the order of this Court in the said writ petition.
It is the accepted position that if petitioners suffered the minimum sentence of six months of imprisonment on ac count of their participation in the Arya Samaj movement they would be entitled to pension under the Swatantrata Sainik Samman Pension Scheme.
The question for examination, there fore, is whether petitioners did suffer such sentence.
As we have already mentioned most of the petitioners have produced material to show that they had participated as alleged and were sentenced to imprisonment for terms exceed ing six months.
While they were undergoing sentence, without their praying for any remission, a general amnesty was declared by the then Nizam on his birthday and the sentence was reduced and the petitioners were set free.
Freedom Fighters ' Pension Scheme of 1972 was renamed as "Swatantrata Sainik Samman Pension Scheme 1980".
The bro chure published by the Union of India indicates: "A person who had suffered a minimum imprisonment for six months in the mainland jails before independence in the struggle for independence is eligible to be admitted to the benefits of the pension".
It has already been indicated that each of the petitioners had been convicted and was ordered to suffer imprisonment of more than six months.
The petitioners ' assertion that they did not claim remission has not been doubted or disputed.
In the facts of the case it would be appropriate to hold that each of the petitioners satisfied the condition for earning the benefit of pension and the fact that while undergoing sentence which was for a period beyond six months remission had been granted and they were let off earlier would not take away their right to earn pension.
Learned Attorney General appearing for the respond ents has accepted this construction of the entitlement clause.
The writ petition is accordingly allowed and the re spondents are directed to admit each of the petitioners to pension under the Scheme within two months hence.
The pen sion be paid with effect from 1st August 1990 as in the connected case.
No costs.
V.P.R. Petition allowed.
| In the Application under Article 32 of the Constitution by 55 persons claiming the benefit of the scheme of pension for Freedom Fighters, the petitioners contended that they had joined the Arya Samaj movement in the late 1930s within the erstwhile Nizam 's State of Hyderabad and were convicted under different provisions of the criminal law and sentenced to various terms of imprisonment; that the Arya Samaj move ment had been equated with the freedom struggle and the benefit of the pension scheme was admissible to those who had participated in the movement.
The respondents while not disputing the assertion of the petitioners that the Union of India has accepted the Arya Samaj movement to be a part of the freedom struggle, has disputed the entitlement of pension in the case of most of the petitioners.
Allowing the petition, this Court, HELD: 1.
Freedom Fighters ' Pension Scheme of 1972 which was renamed as "Swatantrata Sainik Samman Pension Scheme 1980" indicates: "A person who has suffered a minimum im prisonment for six months in the mainland jails before independence in the struggle for independence is eligible to be admitted to the benefits of the pension.
" Each of the petitioners had been convicted and was ordered to suffer imprisonment of more than six months.
While they were under going sentence, without their praying for any 'emission, a general amnesty was declared by the then Nizam on his birth day and the sentence was reduced and the petitioners were set free.
[118 E F,D] 2.
In the facts of the case it would be appropriate to hold that each of the petitioners satisfied the condition for earning the benefit of pension and the fact that while undergoing sentence which was for a period beyond 117 six months remission had been granted and they were let off earlier would not take away their right to earn pension.
[118F] Duli Chand & Ors.
vs Union of India & Ors.
,W.P.No.
1190/89, dated, July 16, 1991 by the Supreme Court of India, followed.
|
mpt notices does not absolve the officers of their misconduct.
The State Govern ment is directed to proceed with the disciplinary proceed ings for taking appropriate action.
[1000B] & ORIGINAL JURISDICTION: Writ Petition (CRL.) No. 517 of 1989 etc.
(Under Article 32 of the Constitution of India).
J. Sorabjee, Attorney General, Ashok H. Desai, Addl.
Solicitor General, R.K. Garg, G. Ramaswamy, F.S. Nariman, Dr. L.M. Singhvi, G.A. Shah, T.U. Mehta, V.M. Tarkunde, B.K. Mehta S.S. Ray, A.K. Gupta, S.K. Dhingra, T.C. Sharma, Kishan Dutt, R.J. Trivedi, Manoj Swarup, M.N. Shroff, Sudarsh Menon, Sushil Kumar Jain, Bahl Singh Malik, Gopala Subramanium, Ms. Binu Tamta, Shahid Rizi.
D.K. Singh, T. Ray, Pramod Swarup, Praveen Swarup, 955 P.H. Parekh, Sunil Dogra, C.L. Sahu, G.L. Gupta, Brij Bhu shan, N.S. Das Bahl, Mrs. H. Wahi, Harish Javeri and section Ganesh.
T.C. Sharma for the appearing parties.
The Judgment of the Court was delivered by K.N. SINGH, J.
On 25th September, 1989, a horrendus incident took place in the town of Nadiad, District Kheda in the State of Gujarat, which exhibited the berserk behaviour of Police undermining the dignity and independence of judi ciary.
S.R. Sharma, Inspector of Police, with 25 years of service posted at the Police Station, Nadiad, arrested, assaulted and handcuffed N.L. Patel, Chief Judicial Magis trate, Nadiad and tied him with a thick rope like an animal and made a public exhibition of it by sending him in the same condition to the Hospital for medical examination on an alleged charge of having consumed liquor in breach of the prohibition law enforced in the State of Gujarat.
The In spector S.R. Sharma got the Chief Judicial Magistrate photo graphed in handcuffs with rope tied around his body along with the constables which were published in the news papers all over the country.
This led to tremors in the Bench and the Bar throughout the whole country.
The incident undermined the dignity of courts in the country, Judicial Officers, Judges and Magistrates all over the country were in a state of shock, they felt insecure and humiliated and it appeared that instead of Rule of Law there was Police Raj in Gujarat.
A number of Bar Associations passed Resolutions and went on strike.
The Delhi Judicial Service Association, the All India Judges Association, Bar Council of Uttar Pradesh, Judicial Service of Gujarat and many others approached the Apex Court by means of telegrams and petitions under Article 32 of the Constitution of India for Saving the dignity and honour of the judiciary.
On 29.9.1989, this Court took cognizance of the matter by issuing notices to the State of Gujarat and other Police Officers.
The Court appealed to the Members of the Bar and Judiciary to resume work to avoid inconvenience to the litigant public.
Subsequently, a number of petitions were filed under Article 32 of the Constitution of India for taking action against the Police Officers and also for quashing the criminal proceedings initiated by the Police against N.L. Patel, Chief Judicial Magistrate.
A number of Bar Associations, Bar Councils and individuals appeared as interveners condemning the action of the police and urging the Court for taking action against the Police Officers.
956 In Petition No. 5 18 of 1989 alongwith Contempt Petition No. 6 of 1989 filed by the President, All India Judges Association, notices for contempt were issued by this Court on 4.10.1989 to seven Police Officials, D.K. Dhagal, D.S.P., A.M. Waghela, Dy.
S.P., S.R. Sharma, Police Inspector, Kuldeep Singh Lowchab, Police Inspector (Crime), K.H. Sadia, Sub Inspector of Police, Valjibhai Kalabhai, Head Constable and Pratap Singh, Constable.
N.L. Patel, CJM, Nadiad also filed an application in W.P. No. 517 of 1989 with a prayer to quash the two FIRs lodged against him, to direct the trial of the complaint filed by him as State case and to award compensation.
On 13.2.1990 notices from contempt were issued to.
K. Dadabhoy, exhibit D.G.P., Gujarat, Dr. Bhavsar, Senior Medical Officer of Govt.
Hospital Nadiad and M.B. Savant, Mamlatdar, Nadiad.
The Court during the proceedings also issued notices to R. Bala Krishnan, Additional Chief Secretary (Home), Government of Gujarat and S.S. Subhalkar, District Judge, Nadiad to show cause why action be not taken against them in view of the Report of Justice Sahai.
N.L. Patel was posted as Chief Judicial Magistrate at Nadiad in October, 1988.
He soon found that the local Police was not cooperating with the courts in effecting service of summons, warrants an notices on accused persons, as a result of which the trials of cases were delayed.
He made complaint against the local Police to the District Superintendent of Police and forwarded a copy of the same to the Director General of Police but nothing concrete happened.
On account of these complaints S.R. Sharma, Police Inspector Nadiad was annoyed with the Chief Judicial Magistrate, he withdrew constables posted in the CJM Court.
In April, 1989 Patel filed two complaints with the Police against Sharma and other Police Officials, Nadiad for delaying the process of the court.
On 25 July, 1989 Patel directed the Police to register a criminal case against 14 persons who had caused obstruction in judicial proceedings but subsequently since they tendered unqualified apology, the CJM directed the Police Inspector to drop the cases against those persons.
Sharma reacted strongly to Patel 's direction and he made complaint against the CJM to the Registrar of the High Court through District Superintendent of Police.
These facts show that there was hostility between the Police of Nadiad and the CJM.
On 25.9.
1989, S.R. Sharma met Patel, CJM in his Chambers to discuss the case of one Jitu Sport where the Police had failed to submit charge sheet within 90 days.
During discussion Sharma invited the CJM to visit the Police Station to see the papers and further his visit would mollify the sentiments of the Police Officials.
It is al leged that at 957 8.35 p.m. Sharma sent a Police Jeep at Patel 's residence, and on that vehicle Patel went to the Police Station.
What actual happened at the Police Station is a matter of serious dispute between the parties.
According to the CJM, he ar rived in the Chamber of Sharma in the Police Station, he was forced to consume liquor and on his refusal he was assault ed, handcuffed and tied with rope by Sharma, Police Inspec tor, Sadia Sub Inspector, Valjibhai Kalajibhai, Head Consta ble and Pratap Singh, Constable.
It is further alleged that Patal was sent to Hospital for Medical examination under handcuffs where he was made to sit on a bench in the varanda exposing him to the public gaze.
Sharma, Police Inspector and other Police Officers have disputed these allegations.
According to Sharma, Patel entered his chamber at the Police Station at 8.45 p.m. on 25.9.
1989 in a drunken state, shouting and abusing him, he caught hold of Sharma and slapped him, since he was violent he was arrested, hand cuffed and sent to Hospital for medical examination.
Patel himself wanted to be photographed while he was handcuffed and tied with ropes, a photographer was arranged to take his photograph which was published in the newspapers.
Since, there was serious dispute between the parties with regard to the entire incident, the Court appointed Justice R.M. Sahai senior puisne Judge of the Allahabad High Court (as he then was) to inquire into the incident and to submit report to the Court.
Justice Sahai was appointed to hold the inquiry on behalf of this Court and not under the provisions of the Commission of Inquiry Act.
Justice Sahai visited Nadiad and held sittings there.
The learned Commis sioner/Judge invited affidavits/statements, and examined witnesses including S.R. Sharma the Police Inspector, D.K. Dhagal, D.S.P. and other Police Officers, lawyers, N.L. Patel, CJM, and Doctors and other witnesses.
Justice Sahai afforded full opportunity to all the concerned persons including the State Government, Police Officers and lawyers to lead evidence and to cross examine witnesses.
He submit ted a detailed Report dated 28.11.1989 to this Court on 1.12.1989.
On receipt of the Report this Court directed copies to be delivered to concerned parties and permitted the parties and the contemners to file their objections, if any, before this Court.
The objections were filed by the Police Officers and the contemners disputing the findings recorded by the Commissioner, On 12.12.1989, when the matter came up for final dispos al the Court issued notices to the Attorney General and Advocate General of the State of Gujarat.
On 10.1.1990 the Court directed the State of Gujarat to file affidavit stat ing as to what action it had taken or pro 958 posed to take against the officers in the light of the Report of Justice Sahai.
The Court further issued notices to R. Bala Krishnan, Additional Chief Secretary (Home), Govern ment of Gujarat, K. Dadabhoy, Director General of Police, S.S. Sudhalkar, District Judge, to show cause as to why action should not be taken against them in view of the Report of Justice Sahai.
The State Government was further directed to explain as to why action against D.K. Dhagal, DSP, S.R. Sharma, Police Inspector and other police officers had not been taken.
On 13.2.
1990 a notice for contempt of this Court was issued to K. Dadabhoy on the same date in view of the findings recorded by Justice Sahai, notices for contempt of court were issued to Dr. Bhavsar and M.B. Sa vant, Mamlatdar, Nadiad also.
in his affidavit, S.R. Sharma, Police Inspector has raised a number of objections to the findings recorded by the Commissioner.
The objections are technical in nature, chal lenging the authority and jurisdiction of the Commissioner in collecting evidence and recording findings against him.
Sharma has further stated in his objections that the Commis sioner acted as if he was sitting in judgment over the case.
Other Police Officers have also raised similar objections.
We find no merit in the objections raised on behalf of Sharma, Police Inspector and other contemners.
The Commis sioner had been appointed by this Court to hold inquiry and submit his report to the Court.
Justice Sahai was acting on behalf of this Court and he had full authority to record evidence and cross examine witnesses and to collect evidence on behalf of this Court.
Since, the main incident of Chief Judicial Magistrate 's arrest, assault, handcuffing and roping was connected with several other incidents which led to the confrontation between the Magistracy and local po lice, the learned Commissioner was justified in recording his findings on the background and genesis of the entire episode.
The Police Inspector Sharma raised a grievance that he was denied opportunity of cross examination of Patel, CJM and he was not permitted to produce Dr. Jhala as a witness, Sharma 's application for the recall of CJM for further cross examination and for permission to produce Dr. Jhala, retired Deputy Director, Medical and Health Services, Guja rat, was rejected by a well reasoned order of the Commis sioner dated 9.11.1989.
We have gone through the order and we find that the Commissioner has given good reasons for rejecting the recall of CJM for further cross examination, as he had been crossexamined by the counsel appearing on behalf of the Police officials including Sharma.
The Police Officers and the State Government and CJM were represented by counsel before the Commissioner and every opportunity was afforded to them for cross examining the witnesses.
959 Dr. Jhala 's evidence was not necessary, the Commissioner rightly refused Sharma 's prayer.
On behalf of the contemners it was urged that in the absence of any independent testimony the Commission was not justified in accepting interested version of the incident as given by the CJM with regard to his visit to the Police Station and the incident which took place inside the Police Station.
There was oath against oath and in the absence of any independent testimony the Commission was not justified in accepting the sole interested testimony of Patel, CJM.
We find no merit in this objection.
The learned Commissioner has considered the evidence as well as the circumstances in support of his findings that Patel had been invited by Sharma to visit the Police Station and he had sent a Police jeep on which Patel went to the Police Station.
This fact is supported by independent witnesses as discussed by the Commissioner.
If Patel had gone on the invitation of Sharma on Police jeep and not in the manner as alleged by Sharma, Patel could not be drunk and there appears no reason as to why he would have assaulted Sharma as alleged by the Police.
The circumstances as pointed out by the Commissioner fully justify the findings recorded against the Police Officers.
It is settled law that even in a criminal trial, accused is convicted on circumstantial evidence in the absence of an eye witness, Learned Commissioner acted judicially in a fair and objective manner in holding the inquiry, he afforded opportunity to the affected Police Officers and other per sons and submitted his Report based on good reasons in respect of his findings which are amply supported by the material on record.
The Commissioner did a commendable job in a record time.
After hearing arguments at length and on perusal of the statements recorded by the Commissioner and the documentary evidence submitted by the parties, and a careful scrutiny of the affidavits and objections filed in this Court, we find no valid ground to reject the well reasoned findings recorded by the learned Commissioner.
The Commissioner 's Report runs into 140 pages, which is on record.
The contemners and other respondents have failed to place any convincing material before the Court to take a different view.
We accordingly accept the same.
After hearing learned counsel for the parties and on perusal of the affidavits, objections, applications and the Report of the Commissioner, we hold that the following facts and circumstances are fully proved: (1) N.L. Patel, Chief Judicial Magistrate found that the Police of 960 Nadiad was not effective in service of summons and it had adopted an attitude of indifference to court orders.
He tried to obtain the assistance of the District Superintend ent of Police in February, 1989 and addressed a letter to the Director General ' of Police but no response came from the Police Authorities, even though the Government had reminded D.K. Dhagal, D.S.P., Kheda to do the needful.
Patel, the CJM filed two complaints against Police Officers of Nadiad Police Station and the Inspectors, and forwarded it to the District Superintendent of Police on 19th and 24th July, 1989 for taking action against them.
Sharma, the Police Inspector who had by then been posted at Nadiad reacted to the CJM 's conduct by withdrawing constables working in the courts of Magistrates on the alleged pretext of utilising their services for service of summons.
This led to confrontation between the local Police and the Magistracy commenced.
(2) On 25th July, 1989, the CJM had directed the regis tration of a case against 14 accused persons for misbeha viour and causing obstruction in the judicial proceedings.
Since the accused persons had later expressed regret and tendered unqualified apology to the court, the CJM sent a letter to the Police Inspector, Sharma to drop proceedings.
Sharma went out of his way, to send a complaint to the High Court through the D.S.P. saying that Patel was functioning in an illegal manner in the judicial discharge of his du ties.
The action of Sharma, Police Inspector was highly irresponsible and Dhagal, D.S.P. should not have acted in a casual manner in forwarding Sharma 's letter to the Registrar of the High Court directly.
(3) Remand period of Jitu Sport was to expire on 27th September, 1989, the CJM directed the Police Inspector to produce complete papers before the expiry of the period of remand but he applied for the extension of the judicial remand.
The CJM directed the Police Inspector to produce papers on 22.9.1989, Sharma did not appear before the CJM as directed, on the contrary he interpolated the order, sent to him indicating that he was required to appear before the CJM on 23.9.1989, which was admittedly a holiday.
(4) On 25th September, 1989, Sharma met the CJM in his Chamber and as a pretext requested him to come to the Police Station to see the papers which could not be brought to the Court, as that could satisfy him that the Police was doing the needful for complying with the orders of the Court.
Sharma pleaded with CJM that his visit to Police Station will remove the feeling of confrontation between the Police and Magistracy.
The CJM agreed to visit the Police Station and 961 Sharma offered to send police jeep to CJM 's house for bring ing him to the Police Station.
(5) On 25.9.89 after the Court hours the CJM went to the officers ' club where he remained in the company of Sudhal kar, District Judge and Pande, Civil Judge till 8,30 p.m.
Thereafter, he went to his residence.
A Police jeep came to his residence at about 8.40 p.m. in the Officers Colony, he went on that Police jeep to the Police Station situated at a distance of about 2 kms.
Patel had not consumed liquor before he went to the Police Station.
(6) The Police version that Patel had consumed liquor before coming to the Police Station and that he assaulted the Police Inspector Sharma and misbehaved with him at the Police Station is a cooked up story.
Patel did not go to the Police Station on foot as alleged by Sharma, instead, he went to the Police Station in a Police jeep on Sharma 's invitation.
Patel was handcuffed and tied with rope, and he received injuries at the Police Station, he was assaulted and forced to consume liquor after he was tied to the chair on which he was sitting, Police Inspector Sharma, Sub In spector Sadia, Head Constable Valjibhai Kalabhai and Consta ble Pratap Singh took active part in this episode.
They actively participated in the assualt on Patel and in forcing liquor in his mouth.
They acted in collusion with Sharma to humiliate and teach a lesson to Patel.
(7) On the direction of Sharma, Police Inspector, Patel was handcuffed at the Police Station and he was further tied up with a thick rope by the Police Inspector, Sharma, Sadia, Sub Inspector, Valjibhai Kalabhai, Head Constable and Pratap Singh, Constable.
This was deliberately done in defiance of Police Regulations and Circulars issued by the Gujarat Government and the law declared by this Court in Prern Shankar Shukla vs Delhi Administration.
, ; Patel had not committed any offence nor he was violent and yet he was handcuffed and tied up with rope without there being any justification for the same.
There were seven police personnel present at the Police Station and most of them were fully armed while Patel was empty handed, there was absolutely no chance of Patel escaping from the custody or making any attempt to commit suicide or attacking the Police Officers and yet he was handcuffed and tied up with a thick rope like an animal with a view to humiliate and teach him a lesson.
For this wanton act there was absolutely no justification and pleas raised by Sharma that Patel was violent or that he would have escaped from the custody are figment of imagination made for the purpose of the case.
962 (8) The panchnama showing the drunken state of Patel prepared on the dictation of Sharma, Police Inspector, and signed by Sharma as well as by two panches, M.B. Savant, Mamlatdar and P.D. Barot, Fire Brigade Officer, Nadiad, did not represent the correct facts, instead, it was manufac tured for the purpose of preparing a false case against CJM PateI, justifying his arrest and detention.
(9) On examination at the Civil Hospital Patel 's body was found to have a number of injuries.
The injury on the left eye was very clear which appeared to have been caused by external force.
His body had bruises and abrasions which could be caused by fists and blows.
While in the casualty ward of the Civil Hospital, Patel requested the Doctors to contact the District Judge and inform him about the inci dent.
Dr. Parashar tried ' to ring up the District Judge but he was prevented from doing so by Sharma and other Police Officers who were present there.
Dr. Parashar and Dr. Bhav sar found the speech of Patel normal, gait steady, he was neither violent, nor he misbehaved.
His blood was taken for chemical examination but the Forms used were not according to the rules and the blood was not taken in accordance with procedure prescribed by the Rules and the Circulars issued by the Director of Medical Services, Gujarat.
The chemical examination of the blood sample taken in the Civil Hospital was not correctly done.
The blood sample was analysed by a teenager who was not a testing officer within the Bombay Prohibition Act and necessary precautions at the time of analysis were not taken.
The phial in which the blood sample had been sent to the Chemical Examiner did not contain the seal on phial and the seal was not fully legible.
The Chemi cal Examiner who submitted the report holding that the blood sample of Patel contained alcohol on the basis of the calcu lation made by him in the report clearly admitted before the Commission that he had never determined the quantity of liquor by making calculation in any other case and Patel 's case was his first case.
(10) When Patel was taken to Civil Hospital handcuffed and tied with thick rope he was deliberately made to sit outside in the Varanda on bench for half an hour in public gaze, to enable the public to have a full view of the CJM in that condition.
A Press photographer was brought on the scene and the Policemen posed with Patel for the press photograph.
The photographs were taken by the Press Reporter without any objection by the Police, although a belated justification was pleaded by the Police that Patel desired to have himself photographed in that condition.
This plea is totally false.
The photographs taken by the Press Reporter were published in `Jan Satta ' and 'Lokmat ' on 26th 963 September.
1989 showing Patel handcuffing and tied with rope and the Policemen standing beside him.
This was deliberately arranged by Sharma to show to the public that Police weilded real power and if the CJM took confrontation with Police he will not be spared.
(11) At the initial stage, one case was registered against Patel by the Police under the Bombay Prohibition Act.
Two Advocates Kantawala and Brahmbhatt met Sharma at 11.30 p.m. for securing Patel 's release on bail, as offences under the Prohibition Act were bailable.
The lawyers re quested Sharma to allow them to meet the CJM who was in the police lock up but Sharma did not allow them to do so.
With a view to frustrate lawyers ' attempt to get Patel released on bail.
Sharma registered another case against Patel under Sections 332 and 506 of Indian Penal Code as offence under Section 332 is non bailable.
(12) D.K. Dhagal, the then District Superintendent of Police, Kheda exhibited total indifference to CJM 's com plaint regarding the unsatisfactory state of affairs in the matter of execution of court processes.
Dhagal identified himself with Sharma, Police Inspector who appeared to be his favourite.
Instead of taking corrective measures in the service of processes, he became party along with Sharma in forwarding his complaint to the High Court against Patel 's order in a judicial matter.
The incident which took place in the night of 25/26 September 1989, had the blessing of Dhagal.
He did not take any immediate action in the matter instead he created an alibi for himself alleging that he had gone to Lasundara and then to Balasinor Police Station and stayed there in a Government Rest House.
The register at the Rest House indicating the entry regarding his stay was manipulated subsequently by making interpolation.
On the direction of Additional Chief Secretary (Home) Dhagal sub mitted his report on 27.9.
1989 but in that report he did not make any reference of handcuffing and roping of the CJM although it was a matter of common knowledge and there was a great resentment among the judicial officers and the local public.
Dhagal 's complicity in the sordid episode is further fortified by the fact that he permitted Sharma, the main culprit of the entire episode to carry on investigation against Patel in the case registered against him by Sharma and also in the case registered by Patel against Sharma.
(13) Police Inspector Sharma had pre planned the entire incident and he had even arranged witnesses in advance for preparing false case against N.L. Patel, CJM, as M.B. Sa vant, Mamlatdar in the 964 Police Station, immediately on the arrival of PateI, CJM, and they acted in complicity with Sharma in preparing the panchnama which falsely stated that Patel was drunk.
M.B. Sawant and P.D. Barot both were hand in glove with Sharma to flasely implicate Patel in Prohibition Case.
Learned Commissioner has adversely commented upon the conduct of various officers including K. Dadabhoy, the then Director General of Police, Gujarat, Kuldip Singh Lowchab, CID Inspector, Dr. Bhavsar, Senior Medical Officer, Nadiad, M.B. Savant, Mamlatdar, P.D. Barot, Fire Brigade Officer and A.N. Patel, Chemical.
Examiner, Nadiad.
After considering the material on record, we agree with the view taken by the Commissioner that ,their conduct was not above board as expected from responsible officers.
We do not consider it necessary to burden the judgment by referring to the details of the findings as the same are contained in the Commis sioner 's Report.
Mr. Nariman contended on behalf of the Po1ice Officers that the findings recorded by the Commission cannot be taken into account as those findings are hit by Article 20(3) of the Constitution.
Inspector Sharma and other Police Officers against whom criminal cases have been registered were com pelled to be witnesses against themselves by filing affida vits and by subjecting them to cross examination before the Commissioner.
Any finding recorded on the basis of their evidence is violative of Article 20(3) of the Constitution.
Article 20(3) of the Constitution declares that no person accused of any offence shall be compelled to be a witness against himself.
In order to avail the protection of Article 20(3) three conditions must be satisfied.
Firstly, the person must be accused of an offence.
Secondly, the element of compulsion to be a witness should be there and thirdly it must be against himself.
All the three ingredients must necessarily exist before protection of Article 20(3.) is available.
If any of these ingredients do not exist, Article 20(3) cannot be invoked see: Balkishan Devidayal vs State of Maharashtra., ; In the instant case this Court had issued notices for contempt to Sharma, Police Inspector and other contemners.
Mere issue of notice or pendency of contempt proceedings do not attract article 20(3) of the Constitution as the contemners against whom notices were issued were not accused of any offence.
A criminal contempt is punishable by the superior courts by fine or imprisonment, but it has many characteristics which distin guishes it from ordinary offence.
An offence under the criminal jurisdiction is tried by a Magistrate or a Judge and the procedure of trial is regulated by the ' Code of Criminal Procedure, 1973 which provides as elaborate 965 procedure for flaming of charges, recording of evidence, crossexamination, argument and the judgment.
But ' charge of contempt is tried on summary process without any fixed procedure as the court is free to evolve its own procedure consistent with fair play and natural justice.
In contempt proceedings unlike the trial for a criminal offence no oral evidence is ordinarily recorded and the usual practice is to give evidence by affidavits.
Under the English Law a crimi nal offence is tried by criminal courts with the aid of Jury but a criminal contempt is tried by courts summarily without the aid and assistance of Jury.
Ordinarily, process of trial for contempt is summary.
A summary form of trial is held in the case of civil contempt and also in the case of criminal contempt where the act is committed in the actual view of the court or by an officer of justice.
The summary procedure is applicable by immemorial usage when criminal contempt was committed out of court by a stranger.
The practice of pro ceeding summarily for the punishment of contempt out of court has been the subject of comment and protest, but the practice is founded upon immemorial usage, it has, since the eighteenth century, been generally assumed.
We do not con sider it necessary to refer to decisions from English Courts which have been discussed in detail in the History of Con tempt of Court by Fox JC 1927.
Proceedings for contempt of Court are not taken in the exercise of original criminal jurisdiction.
Proceedings for contempt of Court are of a peculiar nature; though it may be that in certain aspects they are quasi criminal, but in any view they are not exer cised as part of the original criminal jurisdiction of the Court, as was held in re: Tushar Kanti Ghosh and Another.
AIR 1935 Calcutta 419.
The High Court held that since the proceedings for contempt of Court do not fall within the original criminal jurisdiction of the Court no leave could be granted for appeal to Privy Council under Clause 41 of the Letters Patent of that Court.
In Sukhdev Singh Sodhi vs The Chief Justice and Judges of the PEPSU High Court, ; Sukhdev Singh Sodhi approached this Court for transfer of contempt proceedings from PEPSU High Court to any other High Court under Section 527 of the Criminal Procedure Code, 1898.
This Court.
re jected the application holding that Section 527 of the Criminal Procedure Code did not apply to the contempt pro ceedings as the contempt jurisdiction is a special jurisdic tion which is inherent in all courts of record and the Cr.
P.C. excludes such a special jurisdiction from the Code.
The Court further held that notwithstanding the provisions contained in the Contempt of Courts Act, 1926 making an offence of contempt, punishable, the Act does not confer any jurisdiction or create the offence, it merely limits the 966 amount of the punishment which could be awarded and it removes a certain doubt.
The jurisdiction to initiate the proceedings and take seisin of the contempt is inherent in a court of record and the procedures of the Criminal Procedure Code do not apply to contempt proceedings.
Section 5 of the Code of Criminal Procedure lays down that nothing contained in this Code shall, in the absence of a specific provision to the contrary, affect any special or local law for the time being in force, or any special jurisdiction or power conferred, or any special form of procedure prescribed, by any other law for the time being in force.
The power to take proceedings for the contempt of Court is an inherent power of a Court of record, the Criminal Procedure Code does not apply to such proceedings.
Since, the contempt proceedings are not in the nature of criminal proceedings for an of fence, the pendency of contempt proceedings cannot be re garded as criminal proceedings merely because it may end in imposing punishment on the contemner.
A contemner is not in the position of an accused, it is open to the Court to cross examine the contemner and even if the contemner is found to be guilty of contempt, the Court may accept apology and discharge the notice of contempt, whereas tendering of apology is no defence to the trial of a criminal offence.
This peculiar feature distinguishes contempt proceedings from criminal proceedings.
In a criminal trial where a person is accused of an offence there is a public prosecutor who prosecutes the case on behalf of the prsecution against the accused but in contempt proceedings the court is both the accuser as well as the judge of the accusation as ob served by Hidayatullah, CJ in Debabrata Bandopadhyaya 's, case AIR 1969 SC I89.
Contempt proceeding is sui generis, it has peculiar features which are not found in criminal pro ceedings.
In this view the contemners do not stand in the position of a person accused of an offence" merely on ac count of issue of notice of contempt by this Court and the Commission which was acting on behalf of this Court had full authority to reord the testimony of the contemners.
Commis sion issued notice and directed Sharma, Police Inspector and other Police Officials to place their version of the inci dent before it and there was no element of compulsion.
In this view there has been no violation of Article 20(3) of the Constitution and Commission 's findings are not vitiated.
Mr. F.S. Nariman contended that this Court has no jurisdiction or power to indict the Police Officers even if they are found to be guilty as their conduct does not amount to contempt of this Court.
He urged that Article 129 and 215 demarcate the respective areas of jurisdiction of the Su preme Court and the High Courts respectively.
967 This COurt 's Jurisdiction under Article 129 is confined to the contempt of itself only and it has no jurisdiction to intict a person for contempt of an inferior court subordi nate to the High Court.
The Parliament in exercise of its legislative power under Entry 77 of List 1 read with Entry 14 of List III has enacted Contempt of.
Courts Act 1971 (hereinafter referred to as the 'Act ') and that Act does not confer any jurisdiction on this Court for taking action for contempt of subordinate courts.
Instead the original juris diction of High Courts in respect of contempt of subordinate courts is specificially preserved by Sections 11 and 15(2) of the Act.
The Supreme Court has only appellate powers under Section 19 of the Act read with Articles 134(1)(c) and 136 of the Constitution.
The Constitutional and statutory provisions confer exclusive power on the High Court for taking action with regard to contempt of inferior or subor dinate court, and the Supreme Court has no jurisdiction in the matter.
Shri Nariman further urged that in our country there is no court of universal jurisdiction, and the juris diction of all courts including Supreme Court is limited and this Court can not enlarge its jurisdiction.
Shri Soli J. Sorabji learned Attorney General (as he then was) urged that power to punish contempt is a special jurisdiction which is inherent in a court of record.
A superior court of record has inherent power to punish for contempt of itself and it necessarily includes and carries with it the power to punish for contempt committed in respect of subordinate or inferior courts.
A superior court of record having power to correct the order of inferior court has power to protect that court by punishing those who interfere with the due administration of justice of the court.
Articles 129 and 2 15 do not confer any additional jurisdiction on the Supreme Court and the High Court.
The constitutional provisions as well as the legislative enactment "The Contempt of Courts Act" recognise and preserve the existing contempt jurisdiction and power of the court of record for punishing for contempt of subordi nate or inferior courts.
The Act has not affected or re stricted the suo moto inherent power of the Supreme Court being a court of record which has received constitutional sanction under Article 129.
Mr. Sorabji further urged that even otherwise the Act does not restrict or affect the suo moto exercise of power by the Supreme Court as a court of record in view of Section 15(1) of the Act.
The Supreme Court as the Apex Court is the protector and guardian of justice throughout the land, therefore, it has a right and also a duty to protect the courts whose orders and judgments are amenable to correction, form commission of contempt against them.
This right and duty of the Apex Court is not abrogated merely because the High Court also has this right and duty of protection of the subordinate courts.
The juris dictions are concurrent and not exclusive or antagonistic.
968 The rival contentions raise the basic question whether the Supreme Court has inherent jurisdiction or power to punish for contempt of subordinate or inferior courts under Article 129 of the Constitution and whether the inherent jurisdiction and power of this Court is restricted by the Act.
The answer to the first question depends upon the nature and the scope of the power of this Court as a court of record, in the background of the original and appellate jurisdiction exercised by this Court under the various provisions of the Constitution.
It is necessary to have a look at the constitutional provisions relating to the origi nal and appellate jurisdiction of this Court.
Article 124 lays down that there shall be a Supreme Court of India consisting of Chief Justice of India.and other Judges.
Article 32 confers original jurisdiction on this Court for enforcement of fundamental rights of the citizens.
This jurisdiction can be invoked by an aggrieved person even without exhausting his remedy before other courts.
Article 129 provides that the Supreme Court shall be a court of record and shall have all the powers of such a court includ ing the power to punish for contempt of itself.
Article 13 1 confers original jurisdiction on the Supreme Court in cer tain matters.
Article 132 confers appellate jurisdiction on this Court against any judgment, decree or final order of the High Courts in India.
Articles 133, 134 and 134A confer appellate jurisdiction in the Supreme Court in appeals from High Courts in regard to civil and criminal matters respec tively on certificate to be issued by the High Court.
Arti cle 136 provides for special leave to appeal before the Supreme Court, notwithstanding the provisions of Articles 132, 133, 134 and 134A. Article 136 vests this Court with wide powers to grant special leave to appeal from any judg ment, decree determination sentence or order in any cause or matter passed or made by any court or tribunal in the terri tory of India except a court or Tribunal constituted by or under any law relating to the Armed Forces.
The Court 's appellate power under Article 136 is plenary, it may enter tain any appeal by granting special leave against any order made by any Magistrate.
Tribunal or any other subordinate court.
The width and amplitude of the power is not affected by the practice and procedure followed by this Court in insisting that before invoking the jurisdiction of this Court under Article 136 of the Constitution, the aggrieved party must exhaust remedy available under the law before the appellate authority or the High Court.
Self imposed restric tions by this Court do not divest it of its wide powers to entertain any appeal, against any order or judgment passed by any court or Tribunal in the country without exhausting alternative remedy before the appellate authority or the High Court.
The power of this Court under Article 136 is unaffected by Article 132, 133, 134 and 134(A) in view of the expression 969 "notwithstanding anything in this Chapter" occurring in Article 136.
This Court considered the scope and amplitude of plenary power under Article 136 of the Constitution in Durga Shankar Mehta vs Thakur Raghuraj Singh & Ors., [1955] 1 SCR 267.
Mukherjee, J. speaking for the Court observed: "The powers given by Article 136 of the Con stitution however are in the nature of special or residuary powers which are exercisable outside the purview of ordinary law, in cases where the needs of justice demand interference by the Supreme Court of the land.
The article itself is worded in the widest terms possible.
It vests in the Supreme Court a plenary juris diction in the matter of entertaining and hearing appeals, by granting of special leave, against any kind of judgment or order made by a court or Tribunal in any cause or matter and the powers could be exercised in spite of the specific provisions for appeal contained in the Constitution or other laws.
The Constitu tion for the best of reasons did not choose to fetter or circumscribe the powers exercisable under this Article in any way.
" In Arunachalam v.P.S.R. Sadhanantham & Anr., ; this Court entertained an appeal under Article 136 of the Constitution of India by special leave at the in stance of a complainant against the judgment and the order of acquittal in a murder case and on appraisal of evidence, it set aside the order of acquittal.
Objections raised on behalf of the accused relating to the maintainability of the special leave petition under Article 136 of the Constitu tion, was rejected.
Chinnappa Reddy, J. speaking for the Court held as under: "Article 136 of the Constitution of India invests the Supreme Court with a plentitude of plenary, appellate power over all courts and Tribunals in India.
The power is plenary in the sense that there are no words in Article 136 itself qualifying that power.
But, the very nature of the power has led the court to set limits to itself within which to exercise such power.
It is now the well established practice of this Court to permit the invoca tion of the power under ArtiCle 136 only in very exceptional circumstances, as when a question of law of general public importance arises or a decision shocks the conscience of the Court.
But, within the restrictions im posed by itself, this Court has the 970 undoubted power to interfere even with find ings of fact, making no distinction between judgments of acquittal and conviction, if the High Court, in arriving at those findings, has acted "perversely or otherwise improperly".
" With regard to the competence of a private party, distin guished from the State, to invoke the jurisdiction of this Court under Article 136 of the Constitution, the Court observed: "Appellate power vested in the Supreme Court under Article136 of the Constitution is not to be confused with ordinary appellate power exercised by appellate courts and appellate tribunals under specific statutes.
As we said earlier, it is a plenary power, exercisable outside the purview of ordinary law ' to meet the pressing demands of justice (vide Durga Shankar Mehta vs Thakur Raghuraj Singh,).
Article 136 of the Constitution neither con fers on anyone the right to invoke the juris diction of the Supreme Court nor inhibits anyone from invoking the Court 's jurisdiction.
The power is vested in the Supreme Court but the right to invoke the Court 's jurisdiction is vested in no one.
The exercise of the power of the Supreme Court is not circumscribed by any limitation as to who may invoke it.
" There is therefore no room for any doubt that this Court has wide power to interfere and correct the Judgment and orders passed by any court or Tribunal in the country.
In addition to the appellate power, the Court has special residuary power to entertain appeal against any order of any court in the country.
The plenary jurisdiction of this Court to grant leave and hear appeals against any order of a court or Tribunal, confers power of judicial superintendence over all the courts and Tribunals in the territory of India including subordinate courts of Magistrate and District Judge.
This Court has, therefore, supervisory jurisdiction over all courts in India.
Article 129 provides that the Supreme Court shall be a court of record and shall have all the powers of such a court including the power to punish for contempt of itself.
Article 215 contains similar provision in respect of High Court.
Both the Supreme Court as well as High Courts are courts of record having powers to punish for contempt in cluding the power to punish for contempt of itself.
The Constitution does not define "Court of Record".
This expres sion is well recognised in jurisdical world.
In Jowitt 's Dictionary of English Law, "Court of Record" is defined as: 971 "A court whereof the acts and judicial pro ceedings are enrolled for a perpetual memorial and testimony, and which has power to fine and imprison for contempt of its authority.
" In Wharton 's Law Lexicon, Court of Record is defined as: "Courts are either of record where their acts and judicial proceedings are enrolled for a perpetual memorial and testimony and they have power to fine and imprison; or not of record being courts of inferior dignity, and in a less proper sense the King 's Courts and these are not entrusted by law with any power to fine or imprison the subject of the realm, unless by the express provision of some Act of Parliament.
These proceedings are not enrolled or recorded.
" In Words and Phrases (Permanent Edition) Vol.
10 page 429, "Court of Record" is defined as under: "Court of Record is a court where acts and judicial proceedings are enrolled in parchment for a perpetual memorial and testimony, which rolls are called the "record" of the court, and are of such high and supereminent authori ty that their truth is not to be questioned.
" Halsbury 's Laws of England Vol.
10 page 319, states: "Another manner of division is into courts of record and courts not of record.
Certain Courts are expressly declared by statute to be courts of record.
In the case of courts not expressly declared to be courts of record, the answer to the question whether a court is a court of record seems to depend in general upon whether it has power to fine or imprison, by statute or otherwise, for contempt of itself or other substantive offences; if it has such power, it seems that it is a court of record. . proceedings of a Court of record preserved in its archives are called records, and are conclusive evidence of that which is recorded therein." In England a superior court of record has been exercised power to indict a person for the contempt of its authority and also for the contempt of its subordinate and inferior courts in a summary manner 972 without the aid and assistance of Jury.
This power was conceded as a necessary attribute of a superior court of record under Anglo Saxon System of Jurisprudence.
The con cept of inherent power of the superior court of record to indict a person by summary procedure was considered in detail in Rex vs Almon, ; commonly known as Aimon 's case.
In that case King 's Bench initiated proceedings for contempt against John Almon, a book seller for publishing a libel on the Chief Justice, Lord Mansfied.
On behalf of the contemner objection was taken to the summary procedure followed by the Court.
After lengthy arguments judgment was prepared by Chief Justice Wilmot holding that a libel on a Judge was punishable by the process of attachment without the intervention of a Jury, as the summary form of procedure was founded upon immemorial usage.
The judgment prepared with great learning and erudition could not be delivered as the proceedings were dropped following the change of Govern ment.
After long interval Wilmot 's judgment was published in 1802.
The judgment proceeded on the assumption that the superior Common Law Courts did have the power to indict a person for contempt of court, by following a summary proce dure on the principle that this power was 'a necessary incident to every court of justice '.
Undelivered judgment of Wilmot, J. has been subject of great controversy in England ' and Sir John Fox has severely criticised Almon 's case, in his celebrated book "The History of Contempt of Court ', The Form of Trial and Mode of Punishment: In spite of serious criticism of the judgment of Wilmot, J. the opinion ex pressed by him has all along been followed by the English and Commonwealth Courts.
In Rainy vs The Justices of Seirra Leone, 8 Moors PC 47 at 54 on an application for leave to appeal against the order of the Court of Seirra Leone for contempt of court, the Privy Council upheld the order on the ground that the court of Seirra Leone being a Court of Record was the sole and exclusive judge of what amounted to contempt of court.
In India, the courts have followed the English practice in holding that a court of record has power of summarily punishing contempt of itself as well as of subordinate courts.
In Surendra Nath Banerjee vs The Chief Justice and Judges of the High Court at Fort William in Bengal, ILR to Calcutta 109 the High Court of Calcutta in 1883 convicted Surendra Nath Banerjee, who was Editor and Proprietor of Weekly newspaper for contempt of court and sentenced him to imprisonment for two months for publishing libel reflecting upon a Judge in his judicial capacity.
On appeal the Privy Council upheld the order of the High Court and observed that the High Courts in Indian Presidencies were superior courts of record, and the powers of the High 973 Court as superior courts in India are the same as in Eng land.
The Privy Council further held that by common law every court of record was the sole and exclusive judge of what amounts to a contempt of court.
In Sukhdev Singh Sodhi 's case this Court considered the origin, history and development of the concept of inherent jurisdiction of a court of record in India.
The Court after considering Privy Council and High Courts decisions held that the High Court being a court of record has inherent power to punish for contempt of subordinate courts.
The Court further held that even after the codification of the law of contempt in India the High Court 's jurisdiction as a court of record to initi ate proceedings and take seisin of the matter remained uneffected by the Contempt of Courts Act, 1926.
Mr. Nariman contended that even if the Supreme Court is a court of record, it has no power to take action for the contempt of a Chief Judicial Magistrate 's court as neither the Constitution nor any statutory provision confer any such jurisdiction or power on this Court.
He further urged that so far as the High Court is concerned, it has power of judicial and administrative superintendence over the subor dinate courts and further Section 15 of the Act expressly confers power of the High Court to take action for the contempt of subordinate courts.
This Court being a court of record has limited jurisdiction to take action for contempt of itself under Article 129 of the Constitution, it has no jurisdiction to indict a person for the contempt of subordi nate or inferior courts.
The question whether in the absence of any express provision a Court of Record has inherent power in respect of contempt of subordinate or inferior courts, has been consid ered by English and Indian Courts.
We would briefly refer to some of those decisions.
In the leading case of Rex vs Parke, at 442.
Wills, J. observed: "This Court exercises a vigilant watch over the proceedings of inferior courts and suc cessfully prevents them from usurping powers which they do not possess, or otherwise acting contrary to law.
It would seem almost a natu ral corollary that it should possess correla tive powers of guarding them against unlawful attacks and interferences with their independ ence on the part of others." In King vs Davies, Wills, J. further held that the Kings Bench being a court of record must protect the inferior courts 974 from unauthorised interference, and this could only be secured by action of the Kings Bench as the inferior courts have no power to protect themselves and for that purpose this power is vested in superior court of record.
Since the Kings Bench is the custos morum of the kingdom it must apply to it with the necessary adaptations to the altered circumstances of the present day to uphold the independence of the judiciary.
The principle laid down in Rex vs Davies, was followed in King vs Editor of the Daily Mail, where it was held that the High Court as a court of record has inherent jurisdiction to punish for contempt of a court martial which was an inferior court.
Avory, J. observed: "The result of that judgment (Rex vs Davies ) is to show that wherever this Court has power to correct an inferior court, it also has power to protect that court by punishing those who interfere with Due administration of ,justice in their court." In Attorney General vs B.B.C., ; 1 the House of Lords proceeded on the assumption that a court of record possesses protective jurisdiction to indict a person for interference with the administration of justice in the inferior courts but it refused to indict as it held that this protection is available to a court exercising judicial power of the State and not to a Tribunal even though the same may be inferior to the court of record.
These authori ties show that in England the power of the High Court to deal with the contempt of inferior court was based not so much on its historical foundation but on the High Court 's inherent jurisdiction being a court of record having juris diction to correct the orders of those courts.
In India prior to the enactment of the Contempt of Courts Act, 1926, High Court 's jurisdiction in respect of contempt of subordinate and inferior courts was regulated by the principles of Common Law of England.
The High Courts in the absence of statutory provision exercised power of con tempt to protect the subordinate courts on the premise of inherent power of a Court of Record.
Madras High Court in the case of Venkat Rao, held that it being a court of record had the power to deal with the contempt of subordinate courts.
The Bombay High Court in Mohandas Karam Chand Gandhi 's, [1920] 22 Bombay Law Reporter 368 case held that the High Court possessed the same powers to punish the contempt of subordinate courts as the Court of the King 's Bench Division had by virtue of the Common Law of England.
Similar view was expressed by the 975 Allahabad High Court in Abdul Hassan Jauhar 's, case AIR 1926 Allahabad 623 and Shantha Nand Gir vs Basudevanand., AIR 1930 Allahabad 225 (FB).
In Abdul Hassan Jauhar 's case (supra) a Full Bench of the Allahabad High Court after considering the question in detail held: "The High Court as a court of record and as the protector of public justice through out its jurisdiction has power to deal with con tempts ' directed against the administration of justice, whether those contempts are committed in face of the court or outside it, and inde pendently or whether the particular court is sitting or not sitting, and whether those contempts relate to proceedings directly concerning itself or whether they relate to proceedings concerning an inferior court, and in the latter case whether those proceedings might or might not at some stage come before the High Court.
" Similar view was taken by the Nagpur and Lahore High Courts in Mr. Hirabai vs Mangal Chand, AIR 1935 Nagpur 16; Harki shan Lal vs Emperor, AIR 1937 Lahore 197 and the Oudh Chief Court took the same view in Mohammad Yusuf vs Imtiaz Ahmad Khan., AIR 1939 Oudh 13 1.
But, the Calcutta High Court took a contrary view in Legal Remembrancer vs Motilal Ghosh, ILR holding that there was no such inherent power with the High Court.
Judicial conflict with regard to High Court 's power with regard to the contempt of subordinate court was set at rest by the Contempt of Courts Act 1926.
The Act resolved the doubt by recognising to the power of High Courts in regard to contempt of subordinate courts, by enacting Section 2 which expressly stated that the High Courts will continue to have jurisdiction and power with regard to contempt of subordinate courts as they exercised with regard to their own contempt.
Thus the Act reiterated and recognised the High Court 's power as a court of record for taking action for contempt of courts subordinate to them.
The only excep tion to this power, was made in subsection (3) of Section 2 which provided that no High Court shall take cognizance of a contempt alleged to have been committed in respect of a court subordinate to it where such contempt is an offence punishable under the Indian Penal Code.
Section 3 of the Act restricted the punishment which could be passed by the High Court.
Since doubt was raised whether the High Court as a court of record could punish contempt of itself and of courts subordinate to it if contempt was committed outside its territorial jurisdiction, the Parliament enacted the Con 976 tempt of Courts Act 1952 removing the doubt.
Section 3 of the 1952 Act again reiterated and reaffirmed the power, authority and jurisdiction of the High Court in respect of contempt of courts subordinate to it, as it existed prior to the enactment.
It provided that every High Court shall have and exercise the same jurisdiction, power and authority, in accordance with the same procedure and prac tice in respect of contempt of courts subordinate to it as it has and exercise in respect of contempt of itself.
Sec tion 5 further expanded the jurisdiction of the High Court for indicting a person in respect of contempt committed outside the local limits of its jurisdiction.
The Parliamen tary legislation did not confer any new or fresh power or jurisdiction on the High Courts in respect of contempt of courts subordinate to it, instead it reaffirmed the inherent power of a Court of Record, having same jurisdiction, power and authority as it has been exercising prior to the enact ments.
The effect of these statutory provisions was consid ered by this Court in Sukhdev Singh Sodhi 's case, and the Court held that contempt jurisdiction was a special one inherent in the very nature of a court of record and that jurisdiction and power remained unaffected even after the enactment of 1926 Act as it did not confer any new jurisdic tion or create any offence, it merely limited the amount of punishment which could be awarded to a contemner.
The juris diction of the High Court to initiate proceedings or taking action for contempt of its subordinate courts remained as it was prior to the 1926 Act.
In R.L. Kapur vs State of Tamil Nadu, ; the Court again emphasised that in view of Article 215 of the Constitution, the High Court as a court of record possesses inherent power and jurisdiction, which is a special one, not arising or derived from Contempt of Courts Act and the provisions of Section 3 of 1926 Act, do not affect that power or confer a new power or jurisdic tion.
The Court further held that in view of Article 215 of the Constitution, no law made by a Legislature could take away the Jurisdiction conferred on the High Court nor it could confer it afresh by virtue of its own authority.
The English and the Indian authorities are based on the basic foundation of inherent power of a Court of Record, having jurisdiction to correct the judicial orders of subor dinate courts.
The Kings Bench in England and High Courts in India being superior Court of Record and having judicial power to correct orders of subordinate courts enjoyed the inherent power of contempt to protect the subordinate courts.
The Supreme Court being a Court of Record under Article 129 and having wide power of judicial supervision over all the courts in the country, must possess and exer cise similar jurisdiction and power as the High Courts had prior to Contempt Legislation in 1926.
Inherent 977 powers of a superior Court of Record have remained unaffect ed even after Codification of Contempt Law.
The was enacted to define and limit the powers of courts in punishing contempts of courts and to regulate their procedure in relation thereto.
Section 2 of the Act defines contempt of court including criminal contempt.
Sections 5, 6, 7, 8, and 9 specify matters which do not amount to contempt and the defence which may be taken.
Section 10 which relates to the power of High Court to punish for contempt of subordinate courts.
Section 10 like Section 2 of 1926 Act and Section 3 of 1952 Act reiterates and reaffirms the jurisdiction and power of a High Court in respect of its own contempt and of subordinate courts.
The Act does not confer any new jurisdiction instead it reaf firms the High Courts power and jurisdiction for taking action for the contempt of itself as well as of its subordi nate courts.
We have scanned the provisions of the 1971 Act, but we find no provision therein curtailing the Supreme Court 's power with regard to contempt of subordinate courts, Section 15 on the other hand expressly refers to this Court 's power for taking action for contempt of subordinate courts.
Mr. Nariman contended that under Section 15 Parlia ment has exclusively conferred power on the High Court to punish for the contempt of subordinate courts.
The legisla tive intent being clear, this Court has no power under its inherent jurisdiction or as a court of record under Article 129 of the Constitution with regard to contempt of subordi nate courts.
Section 15 of the Act reads as under: "15.
Cognizance of criminal contempt in other cases (1) In the case of a criminal contempt, other than a contempt referred to in Section 14, the Supreme Court or the High Court may take action on its own motion or a motion made by (a) the Advocate General, or (b) any other person, with the con sent in writing of the Advocate General (or) (c) in relation to the High Court for the Union Territory of Delhi, such Law Officer as the Central Government may by notification in the official Gazette, specify in this behalf or any other person, with the consent in writing of such Law Officer.
(2) In the case of any criminal contempt of subordinate 978 court, the High Court may take action on a reference made to it by the subordinate Court or on a motion made by the Advocate General or, in, relation to a Union Territory, by such Law Officer as the Central Government may, by notification in the official Gazette, specify in this behalf.
(3) Every motion or reference made under this section shall specify the contempt of which the person charged is alleged to be guilty.
Explanation In this section, the expression "Advocate General" means (a) in relation to the Supreme Court, the Attorney General or the Solicitor General; (b) in relation to the High Court, the Advocate General of the State or any of the States for which the High Court has been established; (c) in relation to the Court of a Judicial Commissioner, such Law Officer as the Central Government may, by notification in the official Gazette, specify in this behalf.
Under sub section (1) the Supreme Court and High Court both have power to take cognizance of criminal contempt and it provides three modes for taking cognizance.
The Supreme Court and the High Court both may take cognizance on its own motion or on the motion made by the Advocate General or any other person with the consent in writing of the Advocate General.
Sub section (2) provides that in case of any crimi nal contempt of subordinate court, the High Court may take action on a reference made to it by the subordinate court or on a motion made by the Advocate General, and in, relation to a Union Territory, on a motion made by any officer as may be specified by the Government.
Thus Section 15 prescribes modes for taking cognizance of criminal contempt by the High Court and Supreme Court, it is not a substantive provision conferring power or jurisdiction on the High Court or on the Supreme Court for taking action for the contempt of its subordinate courts.
The whole object of prescribing proce dural modes of taking cognizance in Section 15 is to safe guard the valuable time of the ' High Court and the Supreme Court being wasted by frivolous complaints of contempt of court.
Section 15(2) does not restrict the power of the High Court to take cognizance of the 979 contempt of itself or of a subordinate court on its own motion although apparently the Section does not say so.
In S.K. Sarkar, Member, Board of Revenue, U.P. Lucknow vs Vinay Chandra Misra, ; this Court held that Section 15 prescribed procedure for taking cognizance and it does not affect the High Court 's suo moto power to take cogni zance and punish for contempt of subordinate courts.
Mr. Nariman urged that under Entry 77 of List I of the VIIth Schedule the Parliament has legislative competence to make law curtailing the jurisdiction of Supreme Court.
He further urged that Section 15 curtails the inherent power of this Court with regard to contempt of subordinate courts.
Entry 77 of List 1 states: "Constitution, organisation, jurisdiction and powers of the Supreme Court (including contempt of such Court), and the fees taken therein; persons entitled to practise before the Supreme Court." This Entry.
read with Article 246 confers power on the Parliament to enact law with respect to the constitution, organisation, jurisdiction and powers of the Supreme Court including the contempt of this court.
The Parliament is thus competent to enact a law relating to the powers of Supreme Court with regard to 'contempt of itself ' such a law may prescribe procedure to be followed and it may also prescribe the maximum punishment which could be awarded and it may provide for appeal and for other matters.
But the Central Legisla ture has no legislative competence to abridge or extinguish the jurisdiction or power conferred on this Court under Article 129 of the Constitution.
The Parliament 's power to legislate in relation to law of contempt relating to Supreme Court is limited, therefore the Act does not impinge upon this Court 's power with regard to the contempt of subordi nate courts under Article 129 of the Constitution.
Article 129 declares the Supreme Court a court of record and it further provides that the Supreme Court shall have all the powers of such a court including the power to punish for contempt of itself (emphasis supplied).
The expression used in Article 129 is not restrictive instead it is exten sive in nature.
If the Framers of the Constitution intended that the Supreme Court shall have power to punish for con ' tempt of itself only, there was no necessity for inserting the expression "including the power to punish for contempt of itself '.
The Article confers power on the Supreme Court to punish for contempt of itself and in addition, it confers some additional power relating to contempt as would appear from the expression '*including".
The expression "including" has been interpreted by courts, to extend and widen the 980 scope of power.
The plain language of Article clearly indi cates that this Court as a court of record has power to punish for contempt of itself and also something else which could fall within the inherent jurisdiction of a court of record.
In interpreting the Constitution, it is not permis sible to adopt a construction which would render any expres sion superfluous or redundant.
The courts ought not accept any such construction.
While construing Article 129, it is not permissible to ignore the significance and impact of the inclusive power conferred on the Supreme Court.
Since, the Supreme Court is designed by the Constitution as a court of record and as the Founding Fathers were aware that a superi or court of record had inherent power to indict a person for the contempt of itself as well as of courts inferior to it, the expression "including" was deliberately inserted in the Article.
Article 129 recognised the existing inherent power of a court of record in its full plenitude including the power to punish for the contempt of inferior courts.
If Article 129 is susceptible to two interpretations, we would prefer to accept the interpretation which would preserve the inherent jurisdiction of this Court being the superior court of record, to safeguard and protect the subordinate judici ary, which forms the very back bone of administration of justice.
The subordinate courts administer justice at the grass root level, their protection is necessary to preserve the confidence of people in the efficacy of Courts and to ensure unsullied flow of justice at its base level.
Disputing the inherent power of this Court with regard to the contempt of subordinate courts, Mr. Nariman contended that inherent powers are always preserved, but they do not authorise a court to invest itself with jurisdiction when that jurisdiction is not conferred by law.
He urged that the status of an appellate court like High Court, does not enable the High Court to claim original jurisdiction not vested by law.
Similarly, the Supreme Court having appellate jurisdiction under Section 19 of the , cannot invest itself with original jurisdiction for contempt of subordinate courts.
He placed reliance on the decision of this Court in Raja Soap Factory & Ors.
vs S.P. Shantharaj & Ors., ; We are unable to accept the contention.
In Raja Soap Factory 's case (supra), High Court had entertained an original suit and issued injunction under the although under the Act the suit was required to be instituted in the District Court.
In appeal before this Court, order of the High Court was sought to be justified on the ground of High Court 's power of transfer under Section 24 read with its inherent power under Section 151 of the Code of Civil Proce dure.
This Court rejected the submission on the ground that exercise 981 of jurisdiction under Section 24 of Code of Civil Procedure was conditioned by lawful institution of the proceeding in a subordinate court of competent jurisdiction, and transfer thereof to the High Court.
The Court observed that power to try and dispose of proceedings, after transfer from a court lawfully seized of it, does not involve a power to entertain a proceeding which is not otherwise within the cognizance of the High Court.
Referring to the claim of inherent powers under Section 151 to justify entertainment of the suit grant of injunction order, the Court observed that the inherent power could be exercised where there is a proceeding lawful ly before the High Court, it does not, however, authorise the High Court to invest itself with jurisdiction where it is not conferred by law.
The facts and circumstances as available in the Raja Soap Factory 's case, were quite dif ferent and the view expressed in that case do not have any bearing on the inherent power of this Court.
In Rata Soap Factory 's case there was no issue before the Court regarding the inherent power of a superior court of record instead the entire case related to the interpretation of the statutory provisions conferring jurisdiction on the High Court.
Where jurisdiction is conferred on a court by a statute, the extent of jurisdiction is limited to the extent prescribed under the statute But there is no such limitation on a superior court of record in matters relating to the exercise of constitutional powers.
No doubt this Court has appellate jurisdiction under Section 19 of the Act, but that does not divest it of its inherent power under Article 129 of the Constitution The conferment of appellate power on the court by a statute does not and cannot affect the width and ampli tude of inherent powers of this Court under Article 129 of the Constitution.
We have already discussed a number of decisions holding that the High Court being a court of record has inherent power in respect of contempt of itself as well as of its subordinate courts even in the absence of any express provi sion in any Act.
A fortiori the Supreme Court being the Apex Court of the country and superior court of record should possess the same inherent jurisdiction and power for taking action for contempt of itself, as well as, for the contempt of subordinate and inferior courts.
It was contended that since High Court has power of superintendence over the subordinate courts under Article 227 of the Constitution, therefore, High Court has power to punish for the contempt of subordinate courts.
Since the Supreme Court has no super visory jurisdiction over the High Court or other subordinate courts, it does not possess powers which High Courts have under Article 215.
This submission is misconceived.
Article 227 confers supervisory jurisdiction on the High Court and in exercise of that 982 power High Court may correct judicial orders of subordinate courts, in addition to that, the High Court has administra tive control over the subordinate courts.
Supreme Court 's power to correct judicial orders of the subordinate courts under Article 136 is much wider and more effective than that contained under Article 227.
Absence of administrative power of superintendence, over the High Court and subordinate court does not affect this Court 's wide power of judicial superintendence of all courts in India.
Once there is power of judicial superintendence, all the Courts whose orders are amenable to correction by this Court would be subordinate courts and therefore this Court also possesses similar inherent power as the High Court has under Article 215 with regard to the contempt of subordinate courts.
The jurisdic tion and power of a superior Court of Record 'to punish contempt of subordinate courts was not founded on the court 's administrative power of superintendence, instead the inherent jurisdiction was conceded to superior Court of Record on the premise of its judicial power to correct the errors of subordinate Courts.
Mr. Nariman urged that assumption of contempt jurisdic tion with regard to contempt of subordinate and inferior courts on the interpretation of Article 129 of the Constitu tion is foreclosed by the decisions of Federal Court, he placed reliance on the decisions of Federal Court in K.L. Gauba vs The Hon 'ble the Chief Justice and Judges of the High Court of Judicature at Lahore & Anr., AIR 1942 FC 1 and Purshottam Lal Jaitly vs The King Emperor., He urged that this Court being successor to Federal Court was bound by the decisions of the Federal Court under Arti cle 374(2) of the Constitution.
Mr. Sorabji, learned Attor ney General seriously contested the proposition, he contend ed that there is a marked difference between the Federal Court and this Court, former being established by a statute with limited jurisdiction while this Court is the Apex constitutional court with unlimited jurisdiction, therefore, the Federal Court decisions are not binding on this Court.
He urged that Article 374(2) does not bind this Court with the decisions of the Federal Court, instead it provides for meeting particular situation during transitory period.
In the alternative learned Attorney General urged that the aforesaid two decisions of Federal Court in Gauba 's case and Jaitly 's case do not affect the jurisdiction and power of this Court with regard to contempt of subordinate and infe rior courts as the Federal Court had no occasion to inter pret any provision like Article 129 of the Constitution in the aforesaid decisions.
Article 374 made provision for the continuance of Federal Court Judges as the Judges of the Supreme Court on the commencement of the Constitution and it also made 983 provisions for transfer of the proceedings pending in the Federal Court to the Supreme Court.
Clause (2) of Article 374 is as under: "All suits, appeals and proceedings, civil or criminal, pending in the Federal Court at the commencement of this Constitution shall stand removed to the Supreme Court, and the Supreme Court shall have jurisdiction to hear and determine the same, and the judgments and orders of the Federal Court delivered or made before the commencement of this Constitution shall have the same force and effect as if they had been delivered or made by the Supreme Court.
" On the promulgation of the Constitution, Federal Court ceased to exist and the Supreme Court was set up and with a view to meet the changed situation, provisions had to be made with regard to the matters pending before the Federal Court.
Article 374(2) made provision for two things, firstly it directed the transfer of all suits, appeals and proceed ings, civil or criminal pending before the Federal Court to the Supreme Court.
Secondly, it provided that any orders and judgments delivered or made by the Federal Court before the commencement of the Constitution shall have the same force and effect as if those orders or judgments had been deliv ered or made by the Supreme Court.
This was necessary for the continuance of the proceedings before the Supreme Court.
The Federal Court may have passed interlocutory orders, it may have delivered judgments in the matters pending before it and in order to maintain the continuance of validity of orders or judgments of Federal Court a legal fiction was created stating that those judgments and orders shall be treated as of Supreme Court.
Article 374(2) is in the nature of transitory provision to meet the exigency of the situa tion on the abolition of the Federal Court and setting of the Supreme Court.
There is no provision in the aforesaid Article to the effect that the decisions of the Federal Court shall be binding on the Supreme Court.
Similar view was taken by the Allahabad High Court in Om Prakash Gupta vs The United Provinces, AIR 195 1 Allahabad 205 para 43 and Bombay High Court in State of Bombay vs Gajanan Mahadev Badley., AIR 1954 Bombay 352 para 14.
The decisions of Federal Court and the Privy Council made before the com mencement of the Constitution are entitled to great respect but those decisions are not binding on this Court and it is always open to this Court to take a different view.
In The State of Bihar vs Abdul Majid, ; at 795 and Shrinivas Krishnarao Kango vs Narayan Devji Kango and Ors. ; at 24 and 25.
Federal 984 Court decisions were not followed by this Court.
There is, therefore, no merit in the contention that this Court is bound by the decisions of the Federal Court.
But even otherwise the decisions of Federal Court in K.L. Gauba 's case and Purshottam Lal Jaitly 's case have no bearing on the interpretation of Article 129 of the Consti tution.
In K.L. Gauba 's case the facts were that K.L. Gauba, an Advocate of Lahore High Court was involved in litigation of various kinds including a case connected with his insol vency.
A Special Bench of the High Court of Lahore was constituted to decide his matters.
His objection against the sitting of a particular Judge on the Special Bench, was rejected.
His application for the grant of certificate under Section 205 of the Government of India Act to file appeal against the order of the High Court before the Federal Court was refused.
Gauba filed a petition before the Federal Court for the issue of direction for the transfer of his case to Federal Court from High Court.
The Federal Court held that appeal against the order of the High Court refusing to grant certificate was not maintainable.
Gauba argued that the High Court was guilty of contempt of Federal Court as it had deliberately and maliciously deprived the Federal Court 's jurisdiction to hear the appeal against its orders.
Gwyer, CJ. rejected the contention in the following words: "We have had occasion more than once to con strue the provisions of Section 205, and we repeat what we have already said, that no appeal lies to this Court in the absence of the certificate prescribed by that Section: a certificate is the necessary condition prece dent to every appeal.
We cannot question the refusal of a High Court to grant a certificate or investigate the reasons which have prompted the refusal; we cannot even inquire what those reasons were, if the High Court has given none.
The matter is one exclusively for the High Court; and, as this Court observed in an earlier case, it is not for us to speculate whether Parliament omitted per incuriam to give a right of appeal against the refusal to grant a certificate or trusted the High Courts to act with reasonableness and impartiality: at page 16.
The jurisdiction of the Court being thus limited by the statute in this way, how could it be extended by a High Court acting even perversely or maliciously in withholding the certificate.
" In Purshottam Lal Jaitly 's case an application purporting to 985 invoke extraordinary original jurisdiction of the Federal Court under Section 2 10(2) of the Government of India Act, 1935 was made with a prayer that the Federal Court should itself deal directly with an alleged contempt of a Civil Court, subordinate to the High Court.
By a short order the Court rejected the application placing reliance on its decision in K.L. Gauba 's case.
The Court observed as under: "The expression "any contempt of court" in that provision must be held to mean "any act amounting to contempt of this Court".
This was the view expressed in Gauba 's case and we have been shown no reason for departing from that view.
Under the Indian Law the High Courts have power to deal with contempt of any Court subordinate to them as well as with contempt of the High Courts.
It could not have been intended to confer on the Federal Court a concurrent jurisdiction in such matters.
The wider construction may conceivably lead to conflicting judgments and to other anomalous con sequences.
" In the case of K.L. Gauba the Federal Court found itself helpless in the matter as the Government of India Act, 1935 did not confer any power on it to entertain an appeal against the order of High Court refusing to grant certifi cate.
The decision has no bearing on the question which we are concerned.
In Purshottam Lal Jaitly 's case the decision turned on the interpretation of Section 210(2) of the 1935 Act.
Section 2 10 made provisions for the enforcement of decrees and orders of Federal Court.
Sub section (2) provid ed that Federal Court shall have power to make any order for the purpose of securing the attendance of any person, the discovery or production of any documents or the investiga tion or "punishment of any contempt of court", which any High Court has power to make as respects the territory within its jurisdiction, and further the Federal Court shall have power to award costs and its orders shall be enforce able by all courts.
While interpreting Section 2 10(2) the Federal Court held that it had no power to deal with con tempt of any court subordinate to High Court and it further observed that the wider constructions may lead to conflict ing judgments and to other anomalous consequences.
It is not necessary for us to consider the correctness of the opinion expressed by the Federal Court, as in our view the Federal Court was a court of limited jurisdiction, it was not the Apex Court like this Court as against the judgment, order and decree of the Federal Court appeals lay to the Privy Council.
The Federal Court exercised limited jurisdiction as conferred on it by the 1935 Act.
The question regarding the inherent power of the 986 Superior Court of Record in respect of the Contempt of Subordinate court was neither raised nor discussed in afore said decisions.
The Federal Court observed that if the High Court and the Federal Court both have concurrent jurisdic tion in contempt matters it could lead to conflicting judg ments and anomalous consequences, that may be so under the Government of India Act as the High Court and the Federal Court did not have concurrent jurisdiction, but under the Constitution, High Court and the Supreme Court both have concurrent jurisdiction in several matters, yet no anomalous consequences follow.
While considering the decision of Federal Court, it is necessary to bear in mind that the Federal Court did not possess wide powers as this Court has under the Constitu tion.
There are marked differences in the constitution and jurisdiction and the amplitude of powers exercised by the two courts.
In addition to civil and criminal appellate jurisdiction, this Court has wide powers under Article 136 over all the courts and Tribunals in the country.
The Feder al Court had no such power, instead it had appellate power but that too could be exercised only on a certificate issued by the High Court.
The Federal Court was a court of record under Section 203 but it did not possess any plenary or residuary appellate power over all the courts functioning in the territory of India like the power conferred on this Court under Article 136 of the Constitution, therefore, the Federal Court had no judicial control or superintendence over subordinate courts.
Advent of freedom, and promulgation of Constitution have made drastic changes in the administration of justice neces sitating new judicial approach.
The Constitution has as signed a new role to the Constitutional Courts to ensure rule of law in the country.
These changes have brought new perseptions.
In interpreting Constitution, we must have regard to the social, economic and political changes, need of the community and the independence of judiciary.
The court cannot be a helpless spectator, bound by precedents of colonial days which have lost relevance.
Time has come to have a fresh look to the old precedents and to lay down law with the changed perceptions keeping in view the provisions of the Constitution.
"Law", to use the words of Lord Coler idge, "grows; and though the principles of law remain un changed, yet their application is to be changed with the changing circumstances of the time.
" The considerations which weighed with the Federal Court in rendering its deci sion in Guaba 's and Jaitley 's case are no more relevant in the context of the constitutional provisions.
987 Since this Court has power of judicial superintendence and control over all the courts and Tribunals functioning in the entire territory of the country, it has a corresponding duty to protect and safeguard the interest of inferior courts to ensure the flow of the stream of justice in the courts without any interference or attack from any quarter.
The subordinate and inferior courts do not have adequate power under the law to protect themselves, therefore, it is necessary that this court should protect them.
Under the constitutional scheme this court has a special role, in the administration of justice and the powers conferred on it under Articles 32, 136, 14 1 and 142 form part of basic structure of the Constitution.
The amplitude of the power of this Court under these Articles of the Constitution cannot be curtailed by law made by Central or State Legislature.
If the contention raised on behalf of the contemners is accept ed, the courts all over India will have no protection from this Court.
No doubt High Courts have power to persist for the contempt of subordinate courts but that does not affect or abridge the inherent power of this court under Article 129.
The Supreme Court and the High Court both exercise concurrent jurisdiction under the constitutional scheme in matters relating to fundamental rights under Article 32 and 226 of the Constitution, therefore this Court 's jurisdiction and power to take action for contempt of subordinate courts would not be inconsistent to any constitutional scheme.
There may be occasions then attack on Judges and Magistrate of subordinate courts may have wide repercussions through out the country, in that situation it may not be possible for a High Court to contain the same, as a result of which the administration of justice in the country may be paraly sed, in that situation the Apex Court must intervene to ensure smooth functioning of courts.
The Apex Court is duty bound to take effective steps within the constitutional provisions to ensure a free and fair administration of justice through out the country, for that purpose it must wield the requisite power to take action for contempt of subordinate courts.
Ordinarily, the High Court would protect the subordinate court from any onslaught on their independ ence, but in exceptional cases, extra ordinary situation may prevail affecting the administration of public justice or where the entire judiciary is affected, this Court may directly take cognizance of contempt of subordinate courts.
We would like to strike a note of caution that this Court will sparingly excercise its inherent power in taking cogni zance of the contempt of subordinate courts, as ordinarily matters relating to contempt of subordinate courts must be dealt with by the High Courts.
The instant case is of excep tional nature, as the incident created a situation where functioning of the subordinate courts all over the country was adversely affected, and the administration of justice was paralysed, 988 therefore, this Court took cognizance of the matter.
Mr. Nariman contended that in our country there is no court of universal jurisdiction, as the jurisdiction of all courts including the Supreme Court is limited.
Article 129 as well as the do not confer,any express power to this Court with regard to contempt of the subordinate courts, this Court cannot by construing Article 129 assume jurisdiction in the matter which is not entrusted to it by law.
He placed reliance on the observations of this Court in Naresh Shridhar Mirajkar & Ors.
vs State of Maha rashtra & Ors.
; , at 77 1.
We have carefully considered the decision but we find nothing therein to support the contention of Mr. Nariman.
It is true that courts constituted under a law enacted by the Parliament or the State Legislature have limited jurisdiction and they cannot assume jurisdiction in a matter, not expressly as signed to them, but that is not so in the case of a superior court of record constituted by the Constitution.
Such a court does not have a limited jurisdiction instead it has power to determine its own jurisdiction.
No matter is beyond the jurisdiction of a superior court of record unless it is expressly shown to be so, under the provisions of the Con stitution.
In the absence of any express provision in the Constitution the Apex court being a court of record has jurisdiction in every matter and if there be any doubt, the Court has power to determine its jurisdiction.
If such determination is made by High Court, the same would be subject to appeal to this Court, but if the jurisdiction is determined by this Court it would be final.
Halsbury 's Laws of England Vol.
10 Para 7 13, states: "Prima facie no matter is deemed to be beyond the jurisdiction of a superior court unless it is expressly shown to be so, while nothing is within the jurisdiction of an inferior court unless it is expressly shown on the face of the proceedings that the particular matter is within the cognizance of the particular court.
" The above principle of law was approved by this Court in Special Reference No. I of 1964 ; at 499 in holding that the, High Court being a superior court of record was entitled to determine its own jurisdiction in granting interim bail to a person against whom warrant of arrest had been issued by the Speaker of a State Legisla ture.
In Mirajkar 's case (supra) this Court again reiterated the principles that a superior court of record unlike a court of limited jurisdiction is entitled to determine about its own jurisdiction.
In Ganga Bishan vs Jai Narain, the Court emphasised that the 989 Constitution has left it to the judicial discretion of Supreme Court to decide for itself the scope and limits of its jurisdiction in order to render substantial justice in matters coming before it.
We therefore hold that this Court being the Apex Court and a superior court of record has power to determine its jurisdiction under Article 129 of the Constitution, and as discussed earlier it has jurisdiction to initiate or entertain proceedings for contempt of subor dinate courts.
This view does not run counter to any provi sion of the Constitution.
Constitutional hurdles over, now we would revert back to the incident which has given rise to these proceedings.
The genesis of the unprecedented attack on the subordinate judiciary arose out of confrontational attitude of the local police against the Magistracy in Kheda.
The Chief Judicial Magistrate is head of the Magistracy in the District.
Under the provisions of Chapter XII of the Code of Criminal Proce dure, 1973, he exercises control and supervision over the investigating officer.
He is an immediate officer on the spot at the lower rung of the administration of justice of the country to ensure that the Police which is the law enforcing machinery acts according to law m investigation of crimes without indulging into excesses and causing harass ment to citizens.
The main objective of Police is to appre hend offenders, to investigate crimes and to prosecute them before the courts and also to prevent commission of crime and above all to ensure law and order to protect the citi zens life and property.
The law enjoins the Police to be scrupulously fair to the offender and the Magistracy is to ensure fair investigation and fair trial to an offender.
The purpose and object of Magistracy and Police are complemen tary to each other.
It is unfortunate, that these objectives have remained unfulfilled even after 40 years of our Consti tution.
Aberrations of Police officers and Police excesses in dealing with the law and order situation have been the subject of adverse comments from this court as well as from other courts but it has failed to have any corrective effect on it.
The Police has power to arrest a person even without obtaining a warrant of arrest from a court.
The amplitude of this power casts an obligation on the Police to take maximum care in exercising that power.
The Police must bear in mind, as held by this Court that if a person is arrested for a crime, his constitutional and fundamental rights must not be violated.
See: Sunil Batra vs Delhi Administration & Ors.
, ; In Prem Shankar Shukla 's (supra) case 526, this Court considered the question of placing a prisoner under handcuff by the Police.
The Court declared that no prisoner shall be handcuffed or lettered routinely or merely for the convenience of custody or escort.
The Court empha sised that the Police did not enjoy any unrestricted or unlimited 990 power to handcuff an arrested person.
If having regard to the circumstances including the conduct, behaviour and character of a prisoner, there is reasonable apprehension of prisoner 's escape from custody or disturbance of peace by violence, the Police may put the prisoner under handcuff.
If a prisoner is handcuffed without there being any justifica tion, it would violate prisoner 's fundamental rights under Articles 14 and 19 of the Constitution.
To be consistent with Articles 14 and 19 handcuffs must be the last refuge as there are other ways for ensuring security of a prisoner.
In Prem Shankar Shukla 's case, Krishna Iyer, J. observed: "If today freedom of the ferlorn person fails to the police somewhere tomorrow the freedom of many may fall else where with none to whimper unless the court process invigilates and polices the police before it is too late." The prophetic words of Krishna Iyer, J. have come true as the facts of the present case would show.
In the instant case, Patel, CJM, was assaulted, arrested and handcuffed by Police Inspector Sharma and other Police Officers.
The Police Officers were not content with this, they tied him with a thick rope round his arms and body as if N.L. Patel was a wild animal.
As discussed earlier, he was taken in that condition to the hospital for medical examination where he was made to sit in varanda exposing him to the public gaze, providing opportunity to the members of the public to see that the Police had the power and privi lege to apprehend and deal with a Chief Judicial Magistrate according to its sweet will.
What was the purpose of unusual behaviour of the police, was it to secure safety and securi ty of N.L. Patel, or was it done to prevent escape or any violent activity on his part justifying the placing of handcuffs and ropes on the body of N.L. Patel.
The Commis sion has recorded detailed findings that the object was to wreck vengeance and to humiliate the CJM who had been polic ing the police by this judicial orders.
We agree with the findings recorded by the Commission that there was no justi fication for this extraordinary and unusual behaviour of Police Inspector Sharma and other Police Officers although they made an attempt to justify their unprecedented, dehuma nising behaviour on the ground that Patel was drunk, and he was behaving in violent manner and if he had not been hand cuffed or tied with ropes, he could have snatched Sharma 's revolver and killed him.
We are 991 amazed at the reasons given by Sharma justifying the hand cuffs and ropes on the body of N.L. Patel.
Patel was un armed, he was at the Police Station in a room, there were at least seven police officials present in the room who were fully armed, yet, there was apprehension about Patel 's escape or violent behaviour justifying handcuffs and roping.
The justification given by them is flimsy and preposterous.
S.R. Sharma acted in utter disregard of this Court 's direc tion in Prem Shankar Shukla 's case.
His explanation that he was not aware of the decision of this Court is a mere pre tence as the Commissioner has recorded findings that Gujarat Government had issued Circular letter to the Police incorpo rating the guide lines laid down by this Court in Prem Shanker Shukla 's case with regard to the handcuffing of prisoner.
What constitutes contempt of court? The Common Law definition of contempt of Court is: 'An act or omission calculated to interfere with the due administration of justice. ' (Bowen L.J. in Helmore vs Smith, [1886] 35 Ch.
D. 436 at 455.
The contempt of court as defined by the includes civil and criminal contempt.
Criminal contempt as defined by the Act: 'Means the publica tion whether by words, spoken or written, or by signs, or by visible representations, or otherwise of any matter or the doing of any other act whatsoever which scandalizes or tends to scandalize, or lowers or tends to lower the authority of, any court; or prejudices, or interferes or tends or to interfere with, the due course of any judicial proceeding; or interferes, or tends to interfere with, or obstructs or tends to obstruct, the administration of justice in any other manner.
The definition of criminal contempt is wide enough to include any act by a person which would tend to interfere with the administration of justice or which would lower the authority of court.
The public have a vital stake in effective and orderly administration of justice.
The Court has the duty of protecting the interest of the commu nity in the due administration of justice and, so, it is entrusted with the power to commit for contempt of court, not to protect the dignity of the Court against insult or injury, but, to protect and vindicate the right of the public so that the administration of justice is not pervert ed, prejudiced, obstructed or interfered with.
"It is a mode of vindicating the majesty of law, in its active manifesta tion against obstruction and outrage." (Frank Furter, J. in Offutt vs U.S.) ; The object and purpose of punishing contempt for interference with the administration of justice is not to safeguard or protect the dignity of the Judge or 992 the Magistrate, but the purpose is to preserve the authority of the courts to ensure an ordered life in society.
In AttOrney General vs Times Newspapers, at p. 302 the necessity for the law of contempt was summarised by Lord Morris as: "In an ordered community courts are estab lished for the pacific settlement of disputes and for the maintenance of law and order.
In the general interests of the community it is imperative that the authority of the courts should not be imperilled and that recourse to them should not be subject to unjustifiable interference.
When such unjustifiable inter ference is suppressed it is not because those charged with the responsibilities of adminis tering justice are concerned for their own dignity: it is because the very structure of ordered life is at risk if the recognised courts of the land are so flouted and their authority wanes and is supplanted." The Chief Judicial Magistrate is head of the Magistracy in the District who administers justice to ensure, protect and safeguard the rights of citizens.
The subordinate courts at the district level cater to the need of the masses in administering justice at the base level.
By and large the majority of the people get their disputes adjudicated in subordinate courts, it is, in the general interest of the community that the authority of subordinate.courts is pro tected.
If the CJM is led into trap by unscrupulous Police Officers and if he is assaulted, handcuffed and roped, the public is bound to lose faith in courts, which would be destrictive of basic structure of an ordered society.
If this is permitted Rule of Law shall be supplanted by Police Raj.
Viewed in this perspective the incident is not a case of physical assault on an individual judicial officer, instead it is an onslaught on the institution of the judici ary itself.
The incident is a clear interference with the administration of justice, lowering its judicial authority.
Its effect was not confined to one District or State, it had a tendency to affect the entire judiciary in the country.
The incident highlights a dangerous trend that if the Police is annoyed with the orders of a presiding officer of a court, he would be arrested on flimsy manufactured charges, to humiliate him publicly as has been done in the instant case.
The conduct of Police Officers in assaulting and humiliate the CJM brought the authority and administration of justice into disrespect, affecting the public confidence in the institution of justice.
"The summary power of punish ment for contempt has been conferred on the courts to keep a blaze of glory around them, to deter people from attempting to render 993 them contemptible in the eyes of the public.
These powers are necessary to keep the course of justice free, as it is of great importance to society." (Oswald on Contempt of Court).
The power to punish contempt is vested in the Judges not for their personal protection only, but for the protec tion of public justice, whose interest, requires that decen cy and decorum is preserved in Courts of Justice.
Those who have to discharge duty in a Court of Justice are protected by the law, and shielded in the discharge of their duties, any deliberate interference with the discharge of such duties either in court or outside the court by attacking the presiding officers of the court, would amount to criminal contempt and the courts must take serious cognizance of such conduct.
It takes us to the question against which of ' the con temners contempt is made out.
On behalf of the petitioners it was urged that the Police Officers ' conduct amounts to criminal contempt as their action lowered the authority of the Chief Judicial Magistrate and it further caused inter ference with the administration of justice.
Mr. Soli Sorab jee, learned Attorney General contended that all those who abetted and helped the Police Officers ' in their conduct and design are also guilty of contempt of court.
On behalf of the contemners it was urged that the incident which took place in the Police Station does not make out any contempt of court.
The Chief Judicial Magistrate had consumed liquor and in druken state he went to the Police Station and slapped the Police Inspector, Sharma, thereby he committed offence under the Bombay Prohibition Act as well as under Section 332, 504 and 506 of the Indian Penal Code.
Criminal cases have been registered against N.L. Patel, CJM and after investigation charge sheets have been submitted to the court.
In this context, it was urged that no action could be taken against the contemners as the facts in issue in the present proceedings are the same as involved in the criminal prosecutions pending against N.L. PateI, CJM.
The question raised on behalf of the contemners need not detain us long.
Proceedings for contempt of court are different than those taken for the prosecution of a person for an offence under the criminal jurisdiction.
Contempt proceedings are peculiar in nature although in certain aspects they are quasicriminal in nature but they do not form part of criminal jurisdiction of the court.
Criminal prosecution pending against the CJM or against the contemners has no bearing on the contempt proceedings initiated by this Court as the present proceed ings are not for the purpose of punishing the contemners for the offence of wrongful detention and assault on N.L. Patel, Chief Judicial Magistrate, instead these proceedings have been taken to protect the interest of the public in the 994 due administration of justice and to preserve the confidence of people in Courts.
We, accordingly, reject the contemner 's objection.
We have already recorded findings that Sharma, Police Inspector, Nadiad had preplanned the entire scheme, he deliberately invited Patel to visit Police Station where he was forced to consume liquor and on his refusal he was assaulted, arrested, handcuffed and tied with rope S.R. Sharma, K.H. Sadia, Sub Inspector, Valjibhai Kalajibhai, Head Constable and Pratap Singh, Constable, all took active part in this shameful episode with a view to malign and denigrade the CJM on accout of his judicial orders against the Police.
We, therefore, hold S.R. Sharma, Police Inspec tor, K.H. Sadia, Sub Inspector, Valujibhai Kalajibhai Head Constable and Pratap Singh, Constable guilty of contempt of court.
M.B. Savant, Mamlatdar had been summoned by Sharma, Police Inspector, to the Police Station in advance for purposes of being witness to the Panchnama drawn up by Sharma describing drunken condition of Patel, CJM.
The document was false and deliberately prepared to make out a Case against Patel, CJM.
M.B. Sawant was in complicity with Sharma, he actively participated in the preparation of the document to malign and humiliate the CJM and to prepare a false case against him, he is also, therefore, guilty of contempt of court.
As regards D.K. Dhagal, the then District Superintendent of Police, Kheda, we have already recorded findings that he was hand in glove with Sharma, Police Inspector.
The circum stances pointed out by the Commission and as discussed earlier, show that though D.K. Dhagal, had not personally participated in the shameful episode but his Conduct, act and omission establish his complicity in the incident.
It is difficult to believe or imagine that a Police Inspector would arrest, humiliate, assault and handcuff a CJM and the Police Chief in the District would be indifferent, or a mute spectator.
The circumstances unequivocally show that Sharma was acting under the protective cover of Dhagal as he did not take any immediate action in the matter instead he created an alibi for himself by interpolating the entries in the register at the Government Rest House, Balasinor.
In his report submitted to the Addl.
Chief Secretary (Home) on 27.9.1989, Dhagal did not even remotely mention the hand cuffing and roping of CJM.
It is unfortunate that Dhagal as the district Superintendent of Police did not discharge his duty like a responsible Police Officer instead he identi fied himself with Sharma, Police Inspector and actively abetted the commission of onslaught on the CJM.
We, accord ingly, hold D.K. Dhagal, the then D.S.P. Kheda guilty of contempt of court.
995 This takes us to the petition filed by N.L. Patel for quashing the criminal cases initiated against him on the basis of two First Information Reports made by Police In spector S.R. Sharma.
As noticed earlier Sharma, Police Inspector, had registered two FIRs on 25.9.1989 against N.L. Patel for the offences under Section 85(1)(3) read with Section 66(1)(b) and also under Section 110 of Bombay Prohi bition Act on the allegations that Patel had consumed liquor without permit or pass and under the influence of alcohol entered into Sharma 's chamber and behaved in an indecent manner.
The FIR further alleged that Patel caught hold of PoliCe Inspector Sharma and slapped him.
The second FIR was lodged by Sharma against Patel for offences under Sections 332,353, 186 and 506 of the Indian Penal Code on the same allegations as contained in the earlier FIR.
During the pendency of the contempt proceedings before this Court, the Police continued the investigation and submitted charge sheet in both the cases against N.L. Patel and at present Criminal Cases Nos.
1998/90 and 1999/90 are pending in the Court of Chief Judicial Magistrate, Nadiad.
These proceed ings are sought to be quashed.
On behalf of the State and the Police Officers, it was urged that since charge sheets have already been submitted to the Court, Patel will have full opportunity to defend himself before the court where witnesses would be examined and cross examined, therefore, this Court should not inter fere with the proceedings.
The gravamen of the charge in the two cases registered against N.L. Patel is that he had consumed liquor without a pass or permit and under the influence of liquor, he entered the chamber of Police In spector Sharma at the Police Station and assaulted him.
The Police over powered and arrested him and a panchnama was prepared and he was taken to the Hospital for medical exami nation, and the report of medical examination indicates that he had consumed liquor.
These very facts have been inquired into by the Commissioner and found to be false.
We have recorded findings that Police Inspector Sharma and other Police Officers manipulated records and manufactured the case against N.L. Patel with a view to humiliate and teach him a lesson as the Police was annoyed with his judicial orders.
We have already recorded findings holding S.R. Sharma, Police Inspector, Sadia, Sub Inspector, Valjibhai Kalabhai, Head Constable, Pratap Singh, Constable, M.B. Savant, Mamlatdar, and D.K. Dhagal, D.S.P. guilty of con tempt of court.
These very persons are specified as witness es in the two charge sheets.
The Commission 's as well as our findings clearly demonstrate that the allegations contained in the two FIRs are false.
If Police is permitted to prose cute Patel on those allegations merely on the basis 996 that charge sheets have been submitted by it, it would amount to gross abuse of the process of the Court.
In the circumstances, proceedings against N.L. Patel are liable to be quashed.
Learned counsel, appearing on behalf of the State of Gujarat and the Police Officers, urged that in the present proceedings this Court has no jurisdiction or power to quash the criminal proceedings pending against N.L. Patel, CJM.
Elaborating his contention, learned counsel submitted that once a criminal case is registered against a person the law requires that the court should allow the case to proceed to its ' normal conclusion and there should be no interference with the process of trial.
He further urged that this Court has no power to quash a trial pending before the criminal court either under the Code of Criminal Procedure or under the Constitution, therefore, the criminal proceedings pend ing against Patel should be permitted to continue.
Learned Attorney General submitted that since this Court has taken cognizance of the contempt matter arising out of the inci dent which is the subject matter of trial before the crimi nal court, this Court has ample power under Article 142 of the Constitution to pass any order necessary to do justice and to prevent abuse of process of the court.
The learned Attorney General elaborated that there is no limitation on the power of this Court under Article 142 in quashing a criminal proceeding pending before a subordinate court.
Before we proceed to consider the width and amplitude of this Court 's power under Article 142 of the Constitution it is necessary to remind ourselves that though there is no provision like Section 482 of the Criminal Procedure Code conferring express power on this Court to quash or set aside any criminal proceedings pending before a criminal court to prevent abuse of process of the court, but this Court has power to quash any such proceedings in exercise of its plenary and residuary power under Article 136 of the Consti tution, if on the admitted facts no charge is made out against the accused or if the proceedings are initiated on concocted facts, or if the proceedings are initiated for oblique purposes.
Once this Court is satisfied that the criminal proceedings amount to abuse of process of court it would quash such proceedings to ensure justice.
In State of West Bengal & Ors.
vs Swapan Kumar Guha & Ors., ; this Court quashed First Information Report and issued direction prohibiting investigation into the allegations contained in the FIR as the Court was satisfied that on admitted facts no offence was made out against the persons named in the FIR.
In Madhavrao Jivajirao Scindia & Ors.
vs Sambhajirao Chandrojirao Angre & Ors., ; criminal proceedings were quashed as this Court Was satis fied that the case was founded on false facts, and the proceedings 997 for trial had been initiated for oblique purposes.
Article 142(1) of the Constitution provides that Supreme Court in exercise of its jurisdiction may pass such decree or make such order as is necessary for doing complete jus tice in any 'cause ' or 'matter ' pending before it.
The expression 'cause ' or 'matter ' would include any proceeding pending in court and it would cover almost every kind of proceeding in court including civil or criminal.
The inher ent power of this Court under Article 142 coupled with the plenary and residuary powers under Article 32 and 136 em braces power to quash criminal proceedings pending before any court to do complete justice in the matter before this Court.
If the court is satisfied that the proceeding in a criminal case are being utilised for oblique purposes or if the same are continued on manufactured and false evidence or if.no case is made out on the admitted facts, it would be in the ends of justice to set aside or quash the criminal proceedings.
It is idle to suggest that in such a situation this Court should be a helpless spectator.
Mr. Nariman urged that Article 142(1) does not contem plate any order contrary to Statutory provisions.
He placed reliance on the Court 's observations in Prem Chand Garg vs Excise Commissioner.
U.P. Allahabad, [1963] Supp.
1 SCR 885 at 899 and, A.R. Antulay vs R.S. Nayak & Anr. ; where the Court observed that though the powers con ferred on this Court under Article 142(1) are very wide, but in exercise of that power the ' court cannot make any order plainly inconsistent with the express statutory provisions of substantive law.
It may be noticed that in Prem Chand Garg 's and Antulay 's case (Supra) observations with regard to the extent of this Court 's power under Article 142(1) were made in the context of fundamental rights.
Those obser vations have no bearing on the question in issue as there is no provision in any substantive law restricting this Court 's power to quash proceedings pending before subordinate court.
This Court 's power under Article 142(1) to do "complete justice" is entirely of different level and of a different quality.
Any prohibition or restriction contained in ordi nary laws cannot act as a limitation on the constitutional power of this Court.
Once this Court has seisin of a cause or matter before it, it has power to issue any order or direction to do "complete justice" in the matter.
This constitutional power of the Apex Court cannot be limited or restricted by provisions contained in statutory law.
In Har bans Singh vs U.P. State, ; at 243 the Court observed: "Very wide powers have been conferred on this Court for 998 due and proper administration of justice.
Apart from the jurisdiction and powers con ferred on this Court under Articles 32 and 136 of the Constitution I am of the opinion that this Court retains and must retain, an inher ent power and jurisdiction for dealing with any extra ordinary situation in the largest interests of administration of justice and for preventing manifest injustice being done.
This power must necessarily be sparingly used only in exceptional circumstances for furthering the ends of justice.
" No enactment made by Central or State Legislature can limit or restrict the power of this Court under Article 142 of the Constitution, though while exercising power under Article 142 of the Constitution, the Court must take into considera tion the statutory provisions regulating the matter in dispute.
What would be the need of "complete justice" in a cause or matter would depend upon the facts and circum stances of each case and while exercising that power the Court would take into consideration the express provisions of a substantive statute.
Once this Court has taken seisin of a case, cause or matter, it has power to pass any order or issue direction as may be necessary to do complete jus tice in the matter.
This has been the consistent view of this Court as would appear from the decisions of this Court in State of U.P. vs Poosu & Anr. ; ; Ganga Bishan & Ors.
vs Jai Narain, ; Navnit R. Kamani & Ors.
vs R.R. Kamani, ; ; B.N. Nagara jan & Ors.
vs State of Mysore & Ors., Special Reference No. I of 1964, (supra), and Harbans Singh vs State of U,P. Ors.
(supra).
Since the foundation of the criminal trial of N.L. Patel is based on the facts which have already been found to be false, it would be in the ends of justice and also to do complete justice in the cause to quash the criminal proceedings.
We accordingly quash the criminal proceedings pending before the Chief Judicial Magistrate, Nadiad in Criminal Cases Nos. 1998/90 and 1999/ 90.
The question arises what punishment should be awarded to the contemners found guilty of contempt.
In determining the punishment, the degree and the extent of part played by each of the contemners has to be kept in mind.
Sharma, Police Inspector who was the main actor in the entire incident and who had planned the entire episode with a view to humiliate the CJM in the publis eye is the main culprit, therefore, he deserves maximum punishment.
Sadia, Sub Inspector took active part in assaulting and tying the CJM at the behest of Sharma, Police Inspector.
Valijibhai Kalajibhai, Head Con stable and Pratap 999 Singh, Constable also took active part in handcuffing and tying the CJM with ropes, but as subordinate officials they acted under the orders of his superior officer.
M.B. Sawant, Mamlatdar was friendly to Sharma, Police Inspector, he had no axe to grind against the CJM but he acted under the influence of Sharma, Police Inspector.
So far as D.K. Dhagal is concerned, he actively abetted the commission of on slaught on the CJM.
Having regard to the facts and circum stances and individual part played by each of the aforesaid contemner we hold them guilty of contempt and award punish ment as under: S.R. Sharma, the then Police Inspector, Nadiad shall undergo simple imprisonment for a period of six months and he shall pay fine of Rs.2,000.
K.H. Sadia, Sub Inspector, Nadiad shall undergo simple imprisonment for a period of five months and will pay a fine of Rs.2000 and in default he will undergo one month 's simple imprisonment.
Valjibhai Kalajibhai, Head Constable and Pratap Singh, Constable, both are convicted and awarded simple imprisonment for a period of two months and a fine of Rs.500 each, in default they would undergo simple imprisonment for a further period of 15 days.
M.B. Savant, Mamlatdar is convicted and awarded two month 's simple imprisonment and a fine of Rs. 1000 and in default he would undergo one month 's simple imprisonment.
D.K. Dhagal, the then District Superintendent of Police, Kheda, is convicted and sentenced to imprisonment for a period of one month and to pay a fine of Rs. 1000 and in default to undergo simple imprisonment for 15 days.
So far as other respondents against whom notices of contempt have been issued by the Court, there is no adequate material on record to hold them guilty of contempt of court, we accord ingly discharge the notices issued to them.
Before we proceed further, we would like to express the Court 's displeasure on the conduct of K. Dadabhoy, the then Director General of Police, Gujarat.
As the head of the Police in the State he was expected to intervene in the matter and to ensure effective action against the erring Police Officers.
We are constrained to observe that he was totally indifferent to the news that a CJM was arrested, handcuffed, roped and assaulted.
He took this news as a routine matter without taking any steps to ascertain the correct facts or effective action against the erring Police Officers.
If the head of the Police administration in the State exhibits such indifference to a sensitive matter which shook the entire judicial machinery in the State, nothing better could be expected from his subordinate officers.
K. Dadabhoy did not act like a responsible officer.
The State Government should 1000 take action against him departmentaly on the basis of the findings recorded by the Commission.
The State Government has initiated proceedings against other erring officers in respect of whom the Commission has adversely commented, we would make it clear that discharge of contempt notices does not absolve those officers of their misconduct, the State Government is directed to proceed with the disciplinary proceedings for taking appropriate action against them.
We are constrained to observe that the State Government did not immediately take effective steps against the erring officials.
In spite of the direction issued by this Court the erring Police Officers were neither arrested nor placed under suspension.
It was only after this Court took serious view of the matter and directed the State Government to suspend the erring Police Officers and arrest them, the State Government moved in the matter.
The apathy of the State Government in taking effective action against the erring Police Officers leads to an impression that in the State of Gujarat, Police appears to have upper hand, as the administration was hesitant in taking action against the erring Police Officers.
If this practice and tendency is allowed to grow it would result in serious erosion of the Rule of Law in the State.
We hope and trust that the State Government will take effective measures to avoid re occur rence of any such instance.
The State Government should further take immediate steps for the review and revision of the Police Regulations in the light of findings recorded by the Commission.
The facts of the instant case demonstrate that a presid ing officer of a court may be arrested and humiliated on flimsy and manufactured charges which could affect the administration of justice.
In order to avoid any such situa tion in future, we consider it necessary to lay down guide lines which should be followed in the case of arrest and detention of a Judicial Officer.
No person whatever his rank, or designation may be, is, above law and he must face the penal consequences of infraction of criminal law.
A Magistrate, Judge or any other Judicial Officer is liable to criminal prosecution for an offence like any other citizen but in view of the paramount necessity of preserving the independence of judiciary and at the same time ensuring that infractions of law are properly investigated, we think that the following guidelines should be followed.
(A) If a judicial officer is to be arrested for some offence, it should be done under intimation to the District Judge or the High Court as the case may be.
1001 (B) If facts and circumstances necessitate the immediate arrest of a judicial officer of the subordinate judiciary, a technical or formal arrest may be effected.
(C) The facts of such arrest should be immedi ately communicated to the District and Ses sions Judge of the concerned District and the Chief Justice of the High Court.
(D) The Judicial Officer so arrested shall not be taken to a police station, without the prior order or directions of the District & Sessions Judge of the concerned District, if available.
(E) Immediate facilities shall be provided to the Judicial Officer to communication with his family members, legal advisers and Judicial Officers, including the District & Sessions Judge.
(F) No statement of a Judicial Officer who is under arrest be recorded nor any panchnama be drawn up nor any medical tests be conducted except in the presence of the Legal Adviser of the Judicial Officer concerned or another Judicial Office of equal or higher rank, it ' available.
(G) There should be no handcuffing of a Judi cial Officer.
If, however, violent resistance to arrest is offered or there is imminent need to effect physical arrest in order to avert danger to life and limb, the person resisting arrest may be over powered and ' handcuffed.
In such case, immediate report shall be made to the District & Sessions Judge concerned and also to the Chief Justice of the High Court.
But the burden would be on the Police to establish necessity for effecting physical arrest and handcuffing the Judicial Officer and if it be established that the physical arrest and handcuffing of the Judicial Officer was unjustified, the Police Officers causing or responsible for such arrest and handcuffing would be guilty of misconduct and would also be personally liable for compensation and/or damages as may be summarily determined by the High Court.
The above guidelines are not exhaustive but these are minimum safeguards which must be observed in case of arrest of a judicial officer.
These guidelines should be implement ed by the State Government as well as by the High Courts.
We, accordingly, direct that a copy of the guidelines shall be forwarded to the Chief Secretaries of all the State Governments and to all the High Courts with a direction that the 1002 same may be brought to the notice of the concerned officers for compliance.
We do not approve N.L. Patel 's conduct in visiting the Police Station on the invitation of Police Inspector Sharma.
In our opinion, no Judicial Officer should visit a Police Station on his own except in connection with his official and judicial duties and functions.
If it is necessary for a Judicial Officer or a Subordinate Judicial Officer to visit the Police Station in connection with his official duties, he must do so with prior intimation of his visit to the District & Sessions Judge.
Pursuant to this Court 's appeal made on September 29, 1989, the members of the Bar as well as the members of the Judiciary throughout the country refrained from going on strike as a result of which inconvenience to general public was avoided and the administration of justice continued.
The Court is beholden to the members of the Bar and members of the Judiciary for their response to this Court 's appeal.
We record our appreciation of the able assistance rendered to the Court by the learned counsel for the par ties.
We are beholden to Sri Soli Jl.
Sorabjee, the then Attorney General, who at our request ably assisted the Court in resolving complex questions of law.
The Writ Petitions, Contempt Petitions and Criminal Miscellaneous Petitions are disposed of accordingly.
N.V.K. Petitions disposed of.
| Mr. N.L. Patel was posted as Chief Judicial Magistrate at Nadiad in October, 1988.
He soon found that the local Police was not cooperating with the courts in efficting service of summons, warrants and notices on accused persons, as a result of which the trials of cases were delayed.
He made complaint against the local police to the District Superintendent of Police and forwarded a copy of the same to the Director General of Police but nothing concrete hap pened.
On account of these complaints, Mr. S.R. Sharma, Police Inspector, Nadiad was annoyed with the Chief Judicial Magistrate and he withdrew constables posted in the CJM Court.
In April 1989, the CJM filed two complaints with the Police against the Police Inspector and other Police Offi cials, Nadiad for delaying the process of the Court.
On 25th July, 1989, the CJM directed the police to register a crimi nal case against 14 persons who had caused obstruction in judicial proceedings but subsequently since unqualified apology was tendered, the CJM directed the Police Inspector to drop the cases.
The Police Inspector reacted strongly to the CJM 's direction and he made complaint against the CJM to the Registrar of the High Court through the District Super intendent of Police.
On account of the aforesaid facts there was hostility between the Police of Nadiad and the CJM.
939 On 25th September 1989, the Police Inspector met the CJM in his chambers to discuss a case where the Police had failed to submit the charge sheet within 90 days.
During discussion the Police Inspector invited the CJM to visit the police station to see the papers and assured him that he would mollify the sentiments of the police officials.
At 8.35 p.m. on the said date, the Police Inspector sent a Police Jeep to the CJM 's residence and he went to the Police Station.
According to the CJM when he arrived in the Police Station he was forced to consume liquor and on his refusal he was assulted, handcuffed and tied with rope by Police Inspector, Sub Inspector, Head Constable, and Constable and that he was sent to Hospital for Medical Examination under handcuffs.
A photographer was arranged to take his photo graph which was published in the newspapers.
The Police Inspector disputed these allegations and according to him the CJM entered his chamber at the Police Station in a drunken state, shouting and abusing him and since he was violent, he was arrested, handcuffed and sent to Hospital for Medical Examination.
He himself wanted to be photo graphed and that is why the photographs were taken by the press photographer.
As the incident undermined the dignity of courts in the country, Judicial Officers, Judges and Magistrates all over the country were in a state of shock, they felt insecure and humiliated.
A number of Bar Associations passed Resolutions and went on strike.
The Delhi Judicial Service Association, the All India Judges Association, Bar Council of Uttar Pradesh and many others approached this Court by means of telegrams and petitions under Article 32 for saving the dignity and honour of the judiciary.
The CJM also filed an application for quashing the two FIRs lodged against him and for directing the trial of his complaint as State case an award of compensation.
On 29.9.1989 this Court took cogni zance of the matter by issuing notices to the State of Gujarat and other Police Officers.
Since there was serious dispute between the parties with regard to the entire incident, the Court appointed the senior puisne Judge of the Allahabad High Court to inquire into the incident and to submit a report to the Court.
The inquiry was held on behalf of the Court and not under the provisions of the Commission of Inquiry Act.
A detailed report was submitted to this Court and the Court directed copies to be delivered to the concerned parties and permit ted the parties and the contemners to file their objections before this Court.
940 The Learned Commissioner 's Report establised the follow ing facts and circumstances: that the CJM found that the Police of Nadiad was not effective in service of summons and had adopted an attitude of indifference to the court 's orders, and as complaints were forwarded to the authorities by the CJM there was confrontation between the local police and the magistracy.
When the CJM visited the police station pursuant to the Police Inspector 's request to discuss the matter, he was forced to consume liquor and on his refusal he was assaulted.
He was tied up with a rope by the Police personnel and handcuffed deliberately in defiance of the state 's Police Regulations and Circulars and the decision of this Court in Prem Shankar Shukla vs Delhi Administration.
, A panchnama showing the drunken state of the CJM was pre pared by the Police Inspector and signed by two panchas a Mamlatdar and a Fire Brigade Officer.
A press photographer was brought on the scene, the police personnel posed with the CJM for the press photographer and the same was pub lished in newspapers.
A request made by the CJM to the Civil Hospital doctors to contact and inform the District Judge about the incident was not allowed.
On examination at the hospital, the body of the CJM was found to have a number of injuries.
His blood was taken and chemical examination conducted.
The Chemical Examiner submitted a report holding that the blood sample contained alcohol.
At the initial stage only one case was registered against the CJM by the Police under the Bombay Prohibition Act, but when lawyers met the Police Inspector for securing release of the CJM on bail, the offence being bailable, the Police Inspector, registered another case under Sections 332 and 506 IPC in order to frustrate the attempt.
The District Superintendent of Police did not take immediate action in the matter but created an alibi that he had gone elsewhere and stayed in the government Rest House there, the register of the Rest House however indicating that the entry regarding the stay was manipulated subsequently by making an interpolation.
On behalf of the contemners Police Officers it was contended that: (1) this Court had no jurisdiction or power to indict the Police Officers even if they are found to be guilty, as their conduct does not amount to contempt of this Court.
Articles 129 and 215 demarcate the respective areas of jurisdiction of the Supreme Court and the High Courts respectively, and this Court 's jurisdiction under Article 129 is confined to the contempt of itself only, and it has no jurisdiction to indict a person for contempt of an infe rior court subordinate to the.
High Court.
(2) Even if the Supreme Court is a court of record, it has no power to take action for the contempt of a Chief Judicial Magistrate 's court as neither the constitution nor any statutory provi sion confer any 941 such jurisdiction or power on this Court.
So far as the High Court is concerned, it has power of judicial and administra tive superintendence over the subordinate courts and Section 15 of the Contempts of Courts Act, 1971 expressly confers power on the High Court to take action for the contempt of subordinate courts.
(3) Under Entry 77 of List I of the Seventh Schedule, Parliament has legislative competence to make a law curtailing the jurisdiction of the Supreme Court and Section 15 of the Contempts of Courts Act 1971 curtails the inherent power of this Court with regard to contempt of subordinate courts.
Inherent powers are always preserved but they do not authorise a court to invest itself with juris diction when that jurisdiction is not conferred by law.
(4) Assumption of contempt jurisdiction with regard to contempt of subordinate and inferior courts on the interpretation of Article 129 of the Constitution is foreclosed by the deci sions of the Federal Court in K.L. Gauba vs The Honable the Chief Justice and Judges of the High Court o] ' judicature at Lahore & Anr., AIR 1942 FC 1.
This Court being the successor to the Federal Court was bound by the decisions of the Federal Court under Article 374(2) of the Constitution.
(5) In our country there is no court of universal jurisdiction, as the jurisdiction of all courts including the Supreme Court is limited.
(6) Article 142(1) does not contemplate any order contrary to statutory provisions.
(7) The findings recorded by the Commission cannot be taken into account as those findings are hit by Article 20(3) of the Constitution.
The Attorney General urged that the power to punish contempt is a special jurisdiction which is inherent in a Court of record, that a superior court of record has inher ent power to punish for contempt of itself and it necessari ly includes and carries with it the power to punish for contempt committed in respect of subordinate or inferior courts, that a superior court of record having power to correct the order of an inferior court has power to protect that court by punishing those who interfere with the due administration of justice of that court.
It was further urged that the recognises and preserves the existing contempt jurisdiction and power of the court of record for punishing for contempt of subordi nate or inferior courts, that the Act has not affected or restricted the suo motu inherent power of the Supreme Court being a court of record which has received constitutional sanction under Article 129, that since this Court has taken cognizance of the contempt matter arising out of the inci dent which is the subject matter of trial before the crimi nal court, this Court has ample power under Article 142 of the Constitution to pass any order necessary to do justice and prevent abuse of process of the court and that there is no limitation on the power of this Court under Article 142 942 in quashing a criminal proceeding pending before a subordi nate court.
The basic questions that arose for consideration of the Court were: (a) whether the Supreme Court has inherent jurisdiction or power to punish for contempt of subordinate or inferior courts under Article 129 of the Constitution, (b) whether the inherent jurisdiction and power of the Supreme Court is restricted by the , (c) whether the incident interfered with the due administration of justice and constituted contempt of court, and (d) what punishment should be awarded to the contemners found guilty of contempt.
Disposing of the writ petitions, Criminal Miscellaneous Petitions, and contempt petitions, this Court.
HELD: 1.1 Contempt of court is an act or commission calculated to interfere with the due administration of justice.
It includes civil and criminal contempt.
[991D] Bowen L.J. in Helmore vs Smith, at 455, referred to.
1.2 The definition of criminal contempt is wide enough to include any act by a person which would tend to interfere with the administration of justice or which would lower the authority of court.
The public have a vital stake in effec tive and orderly administration of justice.
The Court has the duty of protecting the interest of the community in the due administration of justice and, so, it is entrusted with the power to commit for contempt of court, not to protect the dignity of the Court against insult or injury, but, to protect and vindicate the right of the public so that the administration of justice is not perverted, prejudiced, obstructed or interfered with Offutt vs
U.S.; , , referred to.
[991F] 1.3 The power to punish contempt is vested in the Judges not for their personal protecting only, but for the protec tion of public justice, whose interest, requires that decen cy and decorum is preserved in Courts of Justice.
Those who have to discharge duty in a Court of Justice are protected by the law, and shielded in the discharge of their duties.
Any deliberate interference with the discharge of such duties either in court or outside the court by attacking the presiding officers of the court, would amount to criminal contempt and the courts must take serious cognizance of such conduct.
[993B] 943 The object and purpose of punishing contempt for interference with the administration of justice is not to safeguard or protect the dignity of the Judge or the Magis trate, but the purpose is to preserve the authority of the courts to ensure an ordered life in society.
[991H] Attorney General vs Times Newspapers, (1974] A.C. 273 at p. 302, referred to.
1.5 The Chief Judicial Magistrate is head of the Magis tracy in the District who administers justice to ensure, protect and safaguard the rights of citizens.
The subordi nate courts at the district level cater to the need of the masses in administering justice at the base level.
By and large the majority of the people get their disputes adjudi cated in subordinate courts.
It is, in the general interest of the community that the authority of subordinate courts is protected.
If the CJM is led into a trap by unscrupulous Police Officers, and if he is assaulted, handcuffed and roped, the public is bound to lose faith in Courts, which would be destructive of the basic structure of an ordered society.
If this is permitted Rule of Law shall be supplant ed by Police Raj.
[992D E] 1.6 The conduct of Police Officers in the instant case, in assaulting and humiliating the CJM brought the authority and administration of justice into disrespect, affecting the public confidence in the institution of justice.
[992G] 1.7 The incident is a clear interference with the admin istration of justice, lowering its judicial authority.
Its effect was not confined to one District or State, it had a tendency to affect the entire judiciary in the country.
The incident high lights a dangerous trend that if the Police is annoyed with the orders of a presiding officer of a court, he would be arrested on flimsy manufactured charges, to humiliate him publicly as has been done in the instant case.
[992F] 1.8 The facts of the instant case, demonstrate that a presiding officer of a court may be arrested and humiliated on flimsy and manufactured charges which could affect the administration of justice.
In order to avoid any such situa tion in future, it is necessary to lay down guidelines which should be followed in the case of arrest and detention of a Judicial Officer.
[1000F] 1.9 In view of ' the paramount necessity of preserving the independence of judiciary and at the same time ensuring that infractions of law are ' properly investigated the following guidelines are to be 944 followed: (a) If a judicial officer is to be arrested for some offence, it should be done under intimation to the District Judge or the High Court as the case may be.
(b) If facts and circumstances necessitate the immediate arrest of a judicial officer of the subordinate judiciary, a technical or formal arrest may be effected.
(c) The fact of such arrest should be immediately communicated.to the District and Sessions Judge of the concerned District and the Chief Justice of the High Court.
(d) The Judicial Officer so arrested shall not be taken to a police station, without the prior order or directions of the District & Sessions Judge of the concerned District, if available.
(e) Immediate facilities shall be provided to the Judicial Officer for communication with his family members, legal advisors and Judicial Officers, including the District & Sessions Judge.
(f) No statement of a Judicial Officer who is under arrest be recorded nor any panchnama be drawn up nor any medical test be conducted except in the presence of the Legal Advi sor of the Judicial Officer concerned or another Judicial Officer of equal or higher rank, if available.
(g) There should be no handcuffing of a Judicial Officer.
If, however, violent resistance to arrest is offered or there is imminent need to effect physical arrest in order to avert danger to life and limb, the person resisting arrest may be over powered and handcuffed.
In such case, immediate report shall be made to the District & Sessions Judge concerned and also to the Chief Justice of the High Court.
But the burden would be on the Police to establish the necessity for effecting physical arrest and handcuffing the Judicial Officer and if it be established that the physical arrest and hand cuffing of the Judicial Officer was unjustified, the Police Officers causing or responsible for such arrest and handcuffing would be guilty of misconduct and would also be personally liable for compensation and/or damages as may be summarily deter mined by the High Court.
[1000G 1001F] 1.10 These guidelines are not exhaustive but are the minimum safeguards to be observed in case of arrest of a Judicial Officer.
These should be implemented by the State Governments as well as by the High Courts.
[1001G] 1. 11 No judicial officer should visit a Police Sta tion on his own except in connection with his official and judicial duties and functions, and this also with prior intimation to the District and Sessions Judge.
[1002B] 2.1 The Supreme Court as the Apex Court is the protec tor and guardian of justice throughout the land, therefore, it has a right and also a duty to protect the courts whose orders and judgments are amenable to correction, from com mission of contempt against them.
This 945 right and duty of the Apex Court is not abrogated merely because the High Court also has this right and duty of protection of the subordinate courts.
The jurisdictions are concurrent and not exclusive or antagonistic.
[967G H] 2.2 Article 136 vests the Supreme Court with wide powers to grant special leave to appeal from any judgment, decree determination sentence or order in any cause or matter passed or made by any court or tribunal in the territory of India except a court or tribunal constituted by or under any law relating to the Armed Forces.
The Court 's appellate power under Article 136 is plenary, it may entertain any appeal by granting special leave against any order made by any Magistrate, Tribunal or any other subordinate court.
The width and amplitude of the power is not affected by the practice and prcedure followed in insisting that before invoking the jurisdiction under Article 136 the aggrieved party must exhaust remedy available under the law before the appellate authority of the High Court.
Self imposed restric tions do not divest it of its wide powers to entertain any appeal against any order or judgment passed by any court or tribunal in the country without exhausting alternative remedy before the appellate authority or the High Court.
The power of the Court under Article 136 is unaffected by Arti cles 132. 133 and 134(A) in view of the expression "notwith standing anything in this Chapter" occurring in Article 136.
[968E 969A] Durga Shankar Mehta vs Thakur Raghuraj Singh & Ors., [1955] 1 SCR 267 and Arunachalam vs P.S.R. Sadhananthm & Anr., ; , referred to.
2.3 In addition to the appellate power, the Supreme Court has special residuary power to entertain appeal against any order of any court in the country.
The plenary jurisdiction of the Court to grant leave and hear appeals against any order of a court or Tribunal, confers power of judicial superintendence over all the courts and Tribunals in the territory of India including subordinate courts of Magistrate and District Judge.
The Court has, therefore, supervisory jurisdiction over all courts in India.
[970F] 2.4 Article 129 provides that the Supreme Court shall be a court of record and shall have all the powers of such a court including the power to punish for contempt of itself.
Article 215 contains similar provision in respect of High Court.
Both the Supreme Court as well as High Courts are courts of record having powers to punish for contempt in cluding the power to punish for contempt of itself. [970G] 946 2.5 The Constitution does not define "Court Of Record".
A "Court of Record" is a court where acts and judicial proceedings are enrolled in parchment for a perpetual memo rial and testimony, which rolls are called the 'record ' of the court and.are conclusive evidence of that which is recorded therein.
[970H 971 E] ' Wharton 's Law Lexicon: Words & Phrases (Permanent Edi tion) vol.
10 p. 429: Halsbury 's Laws of England Vol.
10 p. 319.
2.6 In India prior to the enactment of the Contempt of Courts Act, 1926, High Court 's jurisdiction in respect of contempt of subordinate and inferior courts was regulated by the principles of Common Law of England.
The High Courts in the absence of statutory provision exercised power of con tempt to protect the subordinate courts on the premise of inherent power of a Court of Record.
[974F G] Rex vs Aimon, ; ; Rainy vs The Justices of Seirra Leone, 8 Moors PC 47 at 54; Surendra Nath Banerjee vs The Chief Justice and Judges of the High Court at Fort William in Bengal, ILR to Calcutta 109; Rex vs Parke, [1903] 2 K.B. 432 at 442; King vs Davies, ; King vs Editor of the Daily Mail, ; Attorney General vs B.B.C.; , ; Venkat Rao ; Mohandas Karam Chand Gandhi [1920] 22 Bombay Law Re porter 368; Abdul Hassan Jauhar 's AIR 1926 Allahabad 623; Shantha Nand Gir vs Basudevanand, AIR 1930 Allahabad 225 FB; Mr. Hirabai vs Mangal Chand, AIR 1935 Nagpur 46; Harkishan Lal vs Emperor, AIR 1937 Lahore 497; Mohammad Yusuf vs Imtiaz Ahmad Khan, AIR 1939 Oudh, 131 and Legal Remembrancer vs Motilal Ghosh, ILR , referred to.
2.7 The Kings Bench in England and High Courts in India being superior Court of Record and having judicial power to correct orders of subordinate courts enjoyed the inherent power of Contempt to protect the subordinate courts.
The Supreme Court being a Court of Record under Article 129 and having wide power of judicial supervision over all the courts in the country, must possess and exercise similar jurisdiction and power as the High Courts had prior to Contempt Legislation in 1926.
Inherent powers of a superior Court of Record have remained unaffected even after Codifi cation of Contempt Law.
[976G 977A] Sukhdev Singh Sodhi vs The Chief Justice and Judges of the PEPSU High Court, ; and R.L. Kapur vs State of Tamil Nadu, ; , referred to.
947 2.8 The was enacted to define and limit the powers of Courts in punishing contempts of courts and to regulate their procedure in relation there to.
There is no provision therein curtailing the Supreme Court 's power with regard to contempt of subordinate courts, Section 15 expressly refers to this Court 's power for taking action for contempt of subordinate courts.
The section prescribes modes for taking cognizance of criminal contempt by the High Court and Supreme Court.
It is not a substantive provision conferring power or jurisdiction on the High Court or on the Supreme Court for taking action for the contempt of its subordinate courts.
The whole object of prescribing procedural modes of taking cognizance in Section 15 is to safeguard to valuable time of the High Court and the Supreme Court being wasted by frivolous complaints of contempt of court.
Section 15(2) does not restrict the power of the High Court to the cognizance of the contempt of itself or of a subordinate court on its own motion although apparently the Section does not say so.
[977A C, 978G 979A] S.K. Sarkar, Member, Board of Revenue, U.P. Lucknow vs Vinay Chandra Misra; , , referred to.
3.1 Under Entry 77 of List I of the Seventh Schedule read with Article 246, Parliament is competent to enact a law relating to the powers of the Supreme Court with regard to 'contempt of itself '.
Such a law may prescribe procedure to be followed and it may also prescribe the maximum punish ment which could be awarded and it may provide for appeal and for other matters.
But the Central Legislature has no legislative competence to abridge or extinguish the juris diction or power conferred on the Supreme Court under Arti cle 129.
The Parliament 's power to legislate in relation to the law of contempt relating to the Supreme Court is limit ed, therefore the does not impinge upon the Supreme Court 's power with regard to the contempt of subordinate courts under Article 129.
[979C F] 3.2 Article 129 declares the Supreme Court a court of record and it further provides that the Supreme Court shall have all the powers of such a court including the power to punish for contempt of itself The expression used in Article 129 is not restrictive, instead it is extensive in nature.
If the Framers of the Constitution intended that the Supreme Court shall have power to punish for contempt of itself only, there was no necessity for inserting the expression "including the power to punish for contempt of itself.
" [979G] 3.3 Article 129 confers power on the Supreme Court to punish for 948 contempt of itself and in addition, it confers some addi tional power relating to contempt as would appear from the expression "including".
The expression "including" has been interpreted by courts, to extend and widen the scope of power.
The plain language of the Article clearly indicates that the Supreme Court as a Court of record has power to punish for contempt of itself and also something else which could fall within the inherent jurisdiction of a court of record.
[979H 980A] 3.4 In interpreting the Constitution, it is not permis sible to adopt a construction which would render any expres sion superfluous or redundant.
[980B] 3.5 While construing Article 129, it is not permissible to ignore the significance and impact of the inclusive power conferred on the Supreme Court.
[980B] 3.6 The conferment of appellate power on the Court by a statute section 19 of the does not and cannot affect the width and amplitude of inherent powers of this Court under Article 129 of the Constitution.
[981E] K.L. Gauba vs The Honable the Chief Justice and Judges of the High Court of Judicature at Lahore & Anr AIR 1942 FC 1, distinguished.
4.1 Article 374(2) is in the nature of a transitory provision to meet the exigency of the situation on the abolition of the Federal Court and setting up of the Supreme Court.
There is no provision in the said Article to the effect that the decisions of the Federal Court shall be binding on the Supreme Court.
The decisions of the Federal Court and the Privy Council made before the commencement of the Constitution are entitled to great respect but these decisions are not binding on the Supreme Court and it is always open to this Court to take a different view.
[983F G] Om Prakash Gupta vs The United Provinces, AIR 1951 Allahabad 205 and State of Bombay vs Gajanan Mahadev Badley, AIR 1954 Bombay 352, approved.
The State of Bihar vs Abdul Majid, ; and Shrinivas Krishnarao Kango vs Narayan Devji Kango & Ors., ; , referred to.
949 K.L. Gauba vs The Hon 'ble the Chief Justice and Judges or the High Court of Judicature at Lahore & Anr., AIR 1942 FC 1 and Purshottam Lal Jaitly vs The King Emperor, , explained and distinguished.
The Federal Court exercised limited jurisdiction as conferred on it by the Government of India Act 1935.
The question regarding the inherent power of the Supreme Court as a Court of Record in respect of the contempt of subordi nate Courts was neither raised nor discussed in its deci sions.
The Federal Court observed that if the High Court and the Federal Court both have concurrent jurisdiction in contempt matters, it could lead to conflicting judgments and anamolous consequences.
That may be so under the Government of India Act as the High Court and the Federal Court did not have concurrent jurisdiction, but under the Constitution, High Court and the Supreme Court both have concurrent juris diction in several matters, yet no anamolous consequences follow.
[985H 986B] 4.2 The Federal Court did not possess the wide powers as the Supreme Court has under the Constitution.
There are marked difference in the constitution and jurisdiction and the amplitude of powers exercised by the two courts.
In addition to civil and criminal appellate jurisdiction, the Supreme Court has wide powers under Article 136 over all the courts and Tribunals in the country.
The Federal Court had no such power, instead it had appellate power but that too could be exercised only on a certificate issued by the High Court.
The Federal Court was a court of record under Section 203 but it did not possess any plenary or residuary appel late power over all the courts functioning in the territory of India like the power conferred on the Supreme Court under Article 136 of the Constitution.
Therefore, the Federal Court had no judicial control or superintendence over subor dinate courts.
[986C E] 4.3 Advent of freedom, and promulgation of the Constitu tion have made drastic changes in the administration of justice necessitating new judicial approach.
The Constitu tion has assigned a new role to the Constitutional Courts to ensure rule of law in the country.
These changes have brought new perceptions.
In interpreting the Constitution, regard must be had to the social, economic and political changes, need of the community and the independence of the judiciary.
The Court cannot be a helpless spectator, bound by precedents of colonial days which have lost relevance.
Time has come to have a fresh look to tile old precedents and to lay down law with the changed perceptions keeping in view the provisions of the Constitution.
[986F G] 950 5.1 Courts constituted under a law enacted by the Par liament or the State Legislature have limited jurisdiction and they cannot assume jurisdiction in a matter, not ex pressly assigned to them, but that is not so, in the case of a superior court of record constituted by the Constitution such a court does not have a limited jurisdiction, instead it has power to determine its own jurisdiction.
No matter is beyond the jurisdiction of a superior court of record unless it is expressly shown to be so, under the provisions of the Constitution.
In the absence of any express provision in the Constitution, the Apex Court being a Court of record has jurisdiction in every matter and if there be any doubt, the Court has power to determine its jurisdiction.
If such determination is made by the High Court, the same would be subject to appeal to this Court, but if the jurisdiction is determined by this Court it would be final.
[988C E] Naresh Shridhar Mirajkar & Ors.
vs State of Maharashtra ; and Ganga Bishan vs Jai Narain, , referred to.
5.2 Since the Supreme Court has power of judicial super intendence and control over all the courts and Tribunals functioning in the entire territory of the country, it has a corresponding duty to protect and safeguard the interest of inferior courts to ensure the flow of the stream of justice in the courts without any interference or attack from any quarter.
The subordinate and inferior courts do not have adequate power under the law to protect themselves, there fore, it is necessary that this Court should protect them.
Under the constitutional scheme it has a special role in the administration of justice and the powers conferred on it under Article 32, 136, 141 and 142 form part of the basic structure of the Constitution.
The amplitude of the power of the court under these Articles of the Constitution cannot be curtailed by law made by Central or State Legislature.
[987A C] 5.3 The Supreme Court and the High Court both exercise concurrent jurisdiction under the constitutional scheme in matters relating to fundamental rights under Articles 32 and 226 of the Constitution.
Therefore, this Court 's jurisdic tion and power to take action for contempt of subordinate courts would not be inconsistent to any constitutional scheme.
[987D] 5.4 The Apex Court is duty bound to take effective steps within the constitutional provisions to ensure a free and fair administration of justice through out the country.
For that purpose it must wield the 951 requisite power to take action for contempt of subordinate courts.
Ordinarily, the High Court would protect the subor dinate courts from any onslaught on their independence, but in exceptional cases, extraordinary situation may prevail affecting the administration of public justice or where the entire judiciary is affected, this Court may directly take cognizance of contempt of subordinate courts.
[987F] 5.5 The Supreme Court will sparingly exercise its inher ent power in taking cognizance of the contempt of subordi nate courts, as ordinarily matters relating to contempt of subordinate courts must be dealt with by the High Courts.
The instant case is of exceptional nature as the incident created a situation where functioning of the subordinate courts all over the country was adversely affected and the administration of justice was paralysed, therefore, this Court took cognizance of the matter.
[987G 988A] 6.1 Though there is no provision like section 482 of the Criminal Procedure Code conferring express power on the Supreme Court to quash or set aside any criminal proceeding pending before a criminal court to prevent abuse of process of the court, but the Court has power to quash any such proceeding in exercise of its plenary and residuary powers under Article 136 of the Constitution, if on the admitted facts no change is made out against the accused or if the proceedings are initiated on concocted facts, or if the proceedings are initiated for oblique purposes.
[996E] Once the Supreme Court is satisfied that the criminal proceedings amount to abuse of process of court it would quash such proceedings to ensure justice.
[996G] State of West Bengal & Ors.
vs Swapan Kumar Guha & Ors., ; and Madhavrao Jivajirao Scindia & Ors.
vs Sambhajirao Chandrojirao Angre & Ors., ; , referred to.
6.2 The inherent power of the Supreme Court under Arti cle 142 coupled with the plenary and residuary powers under Articles 32 and 136 embraces power to quash criminal pro ceedings pending before any court to do complete justice in the matter before this Court.
If the court is satisfied that the proceedings in a criminal case are being utilised for oblique purposes or if the same are continued on manufac tured and false evidence or if no case is made out on the admitted facts, it would be in the ends of justice to set aside or quash the criminal proceeding.
It is idle to sug gest that in such a situation this Court should be a help less spectator.
[997B C] 952 6.3 The Court 's power under Article 142(1) to do "complete justice" is entirely of different level and of a different quality.
Any prohibition or restriction contained in ordinary laws cannot act as a limitation on the constitu tional power of this Court.
Once this Court has seisin of a cause or matter before it has power to issue any order or direction to do "complete justice" in the matter.
This constitutional power of the Apex Court cannot be limited or restricted by provisions contained in statutory law.
[997G] 6.4 What would be the need of "complete justice" in a cause or matter would depend upon the facts and circum stances of each case and while exercising that power the Court would take into consideration the express provisions of a substantive statute.
Once this Court has taken seisin of a case, cause or matter, it has power to pass any order or issue direction as may be necessary to do complete jus tice in the matter.
[998D] Prem Chand Garg vs Excise Commissioner, U.P. Allahabad, [1963] Supp. 1 SCR 885 and A.R. Antulay vs
R.S. Nayak & Anr., [ ; , referred to.
In the instant case, the foundation of the criminal trial of CJM NL Patel is based on facts which have been found to be false.
It would be in the ends of justice and also to do complete justice in the cause to quash the crimi nal proceedings.
[998F] 7.1 Article 20(3) of the Constitution declares that no person accused of any offence shall be compelled to be a witness against himself.
In order to avail the protection of Article 20(3) three conditions must be satisfied.
Firstly, the person must be accused of an offence.
Secondly, the element of compulsion to be a witness should be there, and thirdly it must be against himself.
All the three ingredi ents must necessarily exist before protection of Article 20(3) is available.
If any of these ingredients do not exist, Article 20(3) cannot be invoked.
[964E F] Balkishan Devidayal vs State of Maharashtra, ; , referred to.
7.2 Mere issue of notice or pendency of contempt proceedings do not attract Article 20(3) of the Constitution as the contemners against whom notices were issued were not accused of any offence.
A Criminal contempt is punishable by the superior courts by fine or imprisonment, but it has many characteristics which distinguishes it from an ordinary offence.
[964G] 953 7.3 The power to take proceedings for contempt of Court is an inherent power of a Court of record.
The Criminal Procedure Code does not apply to such proceedings.
Since the contempt proceedings are not in the nature of criminal proceedings for an offence, the pendency of contempt pro ceedings cannot be regarded as criminal proceedings merely because it may end in imposing punishment on the contemner.
A contemner it is not in the position of an accused.
It is open to the Court to cross examine the contemner and even if the contemner is found to be guilty of contempt, the Court may accept apology and discharge the notice of contempt, whereas tendering of apology is no defence to the trial of a criminal offence.
This peculiar feature distinguishes con tempt proceedings from criminal proceedings.
In a criminal trial where a person is accused of an offence there is a public prosecutor who prosecutes the case on behalf of the prosecution against the accused but in contempt proceedings the court is both the accused as well as the judge of the accusation.
[966C E] Debabrata Bandopadhyaya 's case; , , referred to.
7.4 In the instant case, the contemners do no stand in the position of a "person accused of an offence" merely on account of issue of notice of contempt by this Court and the Commission which was acting on behalf of this Court had full authority to record the testimony of the contemners.
There has, therefore, been no violation of Article 20(3) of the Constitution and the Commission 's finding are not violated.
[966F G] 8.1 In determining, what punishment should be awarded to contemners found guilty, the degree and the extent of part played by each of the contemners has to be kept in mind.
[998G] 8.2 In the instant case, Sharma, the Police Inspector was the main actor in the entire incident and who had planned the entire episode with a view to humiliate the CJM in the public eye is the main culprit and therefore, he deserves maximum punishment.
The Sub Inspector took an active part in assaulting and tying the CJM at the behest of the Police Inspector.
The Head Constable and Constable also took active part in handcuffing and tying the CJM with ropes, but as subordinate officials they acted under the orders of the superior officers.
The Mamlatdar was a friend of the Police Inspector, he had no axe to grind against the CJM but he acted under the influence of the Police Inspec tor.
So far as the DSP is concerned, he actively abetted the commission of onslaught on the CJM.
The contemners are held guilty of contempt and awarded punishment.
[998H 999B] 954 8.3 The Police Inspector to undergo simple imprisonment for a period of six months and to pay fine of Rs.2,000.
The Sub Inspector to undergo simple imprisonment for a period of five months and pay a fine of Rs.2,000 and in default one month 's simple imprisonment.
Head Constable and Constable, each to undergo simple imprisonment for two months and a fine of Rs.500 and in default 15 days simple imprisonment.
The Mamlatdar to undergo simple imprisonment for a period of two months and a fine of Rs.1,O00 and in default one month 's simple imprisonment.
The DSP is sentenced to imprisonment for a period of one month and a fine of Rs.1,O00 and in default simple imprisonment for 15 days.
So far as the other respondents against whom notices were issued no adequate material on record holds them guilty.
The contempt notices are therefore discharged.
[999C E] 9.1 The Court expressed displeasure on the conduct of the DGP.
As the head of the Police in the State, he was expected to intervene in the matter and to ensure effective action against the erring Police Officers.
He was totally indifferent to the news that a CJM was arrested, handcuffed, roped, and assaulted.
He took this news as a routine matter without taking any steps to ascertain the correct facts for effective action against the erring Police Officers.
If the head of the State Police Administration exhibits such indif ference to a sensitive matter which shook the entire judi cial machinery in the State, nothing better could be expect ed from his subordinate officers.
The State Government should take action departmentally on the basis of the find ings recorded by the Commission.
[999F 1000A]
|
Appeal No. 1934 of 1978.
From the Judgment and Order dated 21.12.1977 of the Allaha bad 11 High Court in Civil Misc.
Writ Petition No. 227 of 1977.
Ms. Rachna Gupta for the Appellant.
S.C. Manchanda and K.P. Bhatnagar for the Respondents.
The Judgment of the Court was delivered by RANGANATHAN, J.
The Income tax Act, 1961 replaced the Indian Income tax Act, 1922 w.e.f. 1.4.1962.
The repeal of the earlier Act necessitated the enactment of transitional provisions to facilitate the change over.
Perhaps the sim plest course would have been to provide that the new Act would apply to all proceedings for the assessment year 1962 63 and thereafter.
The legislature, however, evolved a more complicated procedure.
While section 297(1) of the new Act declared that the Indian Income tax Act, 1922 stood repealed by the new Act, sub section (2) of the above sec tion made detailed and meticulous provisions in clauses (a) to (m) as to whether the new Act or the old Act will govern in the various situations dealt with therein.
These provi sions have led to a lot of litigation and the controversy in this appeal also arises out of one such provision.
We are concerned here with the scope of proceedings for reassess ment in respect of assessment years prior to 1962 63 and the answer to the question before us turns on the provisions of the following two sections of the 1961 Act: Section 297 "297(1) xxx xxx xxx (2) Notwithstanding the repeal of the Indian Income tax Act, 1922 (11 of 1922) (hereinafter referred to as 'the repealed Act ') xxx xxx xxx xxx (d) where in respect of any assessment year after the year ending on the 31st day of March 1940 (i) a notice under section 34 of the re pealed Act had been issued before the com mencement of this Act, the proceedings in pursuance of such notice may be continued and disposed of as if this Act had not been passed; 12 (ii) any income chargeable to tax had es caped assessment within the meaning of that expression in section 147 and no proceedings under section 34 of the repealed Act in re spect of any such income are pending at the commencement of this Act, a notice under section 148 may, subject to the provisions contained in section 149 or section 150 be issued with respect to that assessment year and all the provisions of this Act shall apply accordingly.
" Section 150 "150(1) Notwithstanding anything contained in section 149, the notice under section 148 may be issued at any time for the purpose of making an assessment or reassessment or recom putation in consequence or, or to give effect to, any finding or direction contained in an order passed by any authority in any proceed ing under this Act by way of appeal, reference or revision." (underlining ours) We may proceed now to set out how the question arises in the present case: The appeal arises out of an order of the High Court in a writ petition filed by one Mahadeo Prasad Bais (since deceased, represented by his legal representa tives) challenging reassessment proceedings initiated against him for the assessment years 1953 54 to 1963 64.
The appeal is, however, restricted to the assessment years 1953 54 to 1961 62.
Upto assessment year 1948 49, the appel lant was being assessed as the Karta of a Hindu Undivided Family consisting of himself, his mother, his wife and three sons.
For the assessment year 1949 50 and subsequent years upto 1961 62 he had filed a return in his individual capaci ty on the footing that there had been a total partition of the family within the meaning of Section 25A of the Indian Income tax Act, 1922 and that he was assessable in respect of the income from the properties of the family allotted to him at the partition.
In the alternative, he claimed partial partition of some of the joint family properties.f Both these claims were initially negatived and the entire income was assessed in the hands of the Hindu Undivided Family.
The returns filed by the appellant in his individual capacity were finalised by holding that there was no income assessa ble in his individual capacity.
The Hindu Undivided Family went up in appeals and ultimately the Tribunal accepted the claim of partial partition in respect of some of the proper ties with effect from different dates.
This conclusion of the Tribunal was also affirmed by the High Court in the decision reported as Mahadeo Prasad Bais vs Income tax Officer, which related .
13 to the assessment years 1956 57 to 1958 59.
Consequent on these decisions of the Tribunal and the High Court, the income from some of the erstwhile family properties stood excluded from the assessment of the Hindu Undivided Family and became liable to be included in the hands of the present appellant.
The assessment for 1949 50 and subsequent years upto 1961 62 on the family had been completed and the ap peals and reference disposed of under the Indian Income tax Act, 1922.
The original assessments made on the appellant as an individual for the assessment years 1953 54 to 1961 62 had been completed under the Indian Income tax Act, 1922.
In these assessments no income from the erstwhile joint family properties had been included as the officer was of the view, as in 1949 50, that it was assessable in the hands of the family.
There were no proceedings initiated or pending under Section 34 of the 1922 Act in respect of these assessment years as on 1.4.1962.
Quite sometime after the High Court had decided the reference for 1949 50 in the case of the family, the Income tax Officer thought of steps to include the income assessable in the hands of the appellant conse quent on the decisions of the Tribunal and the High Court which he had failed 10 assess earlier.
He, therefore, served on the appellant on 19.3.1977 notices for reassessment, as required by section 297(2)(d)(ii), under section 148 of the 1961 Act.
The appellant resisted these proceedings, inter alia, on the ground that the notices were barred by limita tion.
The department, however, contended that, though nor mally reassessment proceedings had to be initiated within a period of four, eight or sixteen years as the case may be, under the then provisions of Section 149 of the 1961 Act, the reassessment proceedings in this case were saved by the provisions of Section 150(1) of the 1961 Act set out earli er.
This contention of the department has been accepted by the High Court in the decision under appeal before us which is reported in The issue involved in this appeal is basically a short one turning on the language of section 150(1).
Before con sidering the interpretation of this section, we may, howev er, point out that, on this question, there appears to be a conflict of judicial opinion between the several High Courts.
The Allahabad High Court, in the decision presently under appeal (1980)125 I.T.R. 49 and the Calcutta High Court in I.T.O. vs Eastern Coal Co. Ltd., have taken the view that a reassessment in such circumstances is saved by the provisions of Section 150(1) of the 1961 Act.
An earlier Allahabad decision in C.I.T. vs Kamalapat Moti lal, (1977)110 I.T.R. 769 and an earlier Bombay decision in Ambaji Traders vs 1.T.O., (1976)105 I.T.R. 273 took a simi lar view on the analogous provision contained in section 153(3) of the 1961 Act but a contrary view was taken by the latter 14 High Court in the latter case reported as CIT vs
T.P. Asrani, Both sets of decisions have placed reliance on certain observations of this Court in differing contexts.
But it will be best to have a look at the statuto ry provisions first, in the context of the facts of the present case.
To start with, there is no dispute that reassessment proceedings were rightly initiated under section 148 of the Act.
It is also common ground that on the language of sec tion 148, as it stood at the relevant time, no notice under section 148 could have been issued in March 1977 for the assessment years in question.
The Revenue can successfully support the validity of this notice only by reference to section 150 (1).
Two questions then arise: (i) Are the provisions of section 150 (1) attracted ? (ii) If yes, do they save the impugned proceedings ? The answer to the first question is furnished by section 297 (2) (d) (ii), the very clause which authorises the issue of the notice of reassess ment under section 148.
It permits the issue of the notice under section 148, "subject to the provisions contained in section 149 or section 150".
Though the words "subject to" may be appropriate in the context of section 149 and section 150 (2) (which place restrictions on the issue of the notice u/s 148), they are somewhat inappropriate a propos section 150 (1) which relaxes the conditions for issue.
But there is no doubt that the statute clearly intends that the benefit of enlargement of the time limited under section 149 should be available in respect of the notice issued under section 148 read with section 297 (2) (d) (ii).
The answer to the second question is furnished by section 150 (1).itself.
It removes the bar of time when the reassessment proceedings are initiated in consequence of or to give effect to a finding contained in an order passed by any authority in any proceeding by way of appeal, reference or revision.
There is no difficulty here for the orders of the Tribunal and the High Court for the several years between 1949 50 and 1961 62 were passed in proceedings by way of appeals and reference and there is no dispute that the reassessment proceedings have been initiat ed to give effect to findings in such orders.
There is, however, a catch in applying the terms of section 150(1) ' to this case.
There is no doubt that the whole idea of the sub section was to lift the embargo placed on initiation of reassessment proceedings and to remove the time limit where the notice of reassessment is issued with a view to give effect to a direction or finding contained in an appellate order or an order passed on revision or on reference.
Unfor tunately, however, in expressing its above intention, the legislature has worded the exemption from time limit so as to cover only cases where the finding or direction is con tained in an order passed by any such authority in any such proceeding "under this Act" i.e. the 1961 Act.
In the present case the assessments for 1949 50 and subsequent years in the case of the family were made under the old Act and were the subject matters of appeal to the 15 Appellate Assistant Commissioner and Tribunal and of refer ence to the High Court under the provisions of the 1922 Act.
In other words, the finding in consequence of which the assessments presently under consideration are being sought to be reopened is a finding contained in orders passed not 'under this Act ' but in orders passed under the 1922 Act.
Literally applied, therefore, the language of section 150 (1) does not help the department to overcome the bar of limitation otherwise imposed by Section 149.
Pressing for the literal construction of the sub sec tion, it is contended for the appellant that there are good reasons why this construction should be accepted: (1) To accept the contention of the depart ment would mean the virtual deletion of the words "under this Act" from section 150 (1); (2) It seems clear that the above words have not been inadvertantly used in the statute.
If one turns 10 s.153 (3), which is an extension of section 150 (1 ) removing the time ban for the completion of reassessments initiated for the same purpose, the legislature goes further than section 150 (1) and makes specific refer ence to particular provisions of the new Act; (3) The provisions of section 150 (1) will not become redundant if read in the manner con tended for by the assessee.
While no doubt the proceedings are initiated, in all cases cov ered by section 297 (2) (d) (ii), under the new Act, the orders, for giving effect to a finding or direction in which such proceedings are initiated, may belong to either category they may be orders passed under the old Act or they may be orders passed under the new Act.
The terms of section 150 (1) will be effective in the latter category of cases; and (4) The provisions contained in Ss. 150 (1) and 153 (3) are provisions exempting the applicability of a normal rule of limitation otherwise applicable to actions for reassess ment and such provisions should be construed strictly.
On the other hand, it is contended for the department that the object of the provision being very obvious, namely, that where reassessment proceedings are initiated to give effect to orders on appeal, reference or 16 revision, there should be no time limit tying down the hands of the Revenue as such orders are seldom likely to be passed within the limits of time mentioned in section 149, we should give effect to the clear intention of the legislature and should not frustrate its object.
It is, therefore, necessary to examine the provisions of section 297 (2) (d) (ii) and section 150 (1) a little more closely and examine which of the two interpretations is preferable.
Taking up the appellant 's interpretation first, it has no doubt the attractiveness of simplicity.
It is a strict and literal interpretation of section 150 (1).
This apart, learned counsel drew our attention to the fact that the decided cases have referred to certain decisions of this Court in this context.
We do not, however, think that the decisions of this Court in Jain vs Mahendra, and Govinddas vs I.T.O, (1976)103 ITR 123 cited by appellant 's counsel arc of any assistance to them.
In the former case, a notice u/s 34 had been issued before 1.4.1962 but it had been quashed as without jurisdiction as it was barred by time.
The question was whether the proceedings initiated by the notice can be said to have been pending as on 1.4.1962.
The Court answered the question in the affirma tive.
It held that, for purposes of section 297 (2) (d) (ii), all that had to be seen was whether proceedings under section 34 of the 1922 Act were factually pending on 1.4.1962.
That the notice issued before that date was barred by time and was held so later was immaterial.
The notice had in fact been quashed by the High Court in a writ only much later, on 6.3.1963, and so proceedings under section 34 were pending as on 1.4.1962.
We are unable to see how this decision is of any help here.
In the second case, the claim by the assessee, a Hindu undivided family, that there had been a partial parti tion on 15.11.1955 (as a result of which the share income from two firms had ceased to be the income of the family from that date) was accepted by the Income tax Officer.
Subsequently, the assessments of the two firms for the assessment years 1950 51 to 1956 57 had been reopened and reassessments were made on them enhancing their income.
Consequently action was also taken to reopen the assessments of the family (which, for the relevant previous years had a share in the firms ' income).
These assessments were initiat ed under the new Act in accordance with the provisions of section 297 (2) (d) (ii).
The assessee had no grievance thus far.
But, while completing the reassessment, the officer, in addition to reassessing the family, also took advantage of the provisions enacted in Ss. 171(6) and (7) of the 1961 Act which had no counter part in the 1922 Act and passed orders apportioning the tax assessed on the family amongst its members.
This was objected to by the assessee.
The department, referring to the language of section 297 (2) (d) (ii) "that all the provisions of this Act shall apply ac cordingly", contended that the I.T.O. could legitimately invoke the provisions of Ss. 171 (6) and (7) as well while 17 making the reassessments.
This contention was negatived.
The Court observed: "These words merely refer to the machinery provided in the new Act for the assessment of the escaped income.
They do not import any substantive provisions of the new Act which create rights or liabilities.
The word "ac cordingly" in the context means nothing more than "for the purpose of assessment" and it clearly suggests that the provisions of the new Act which are made applicable are those relating to the machinery of assessment.
" It will be at once clear that this line of approach can have no validity in the context of section 297 (2) (d) (ii).
Here there is no need to guess or speculate on which provi sions of the new Act are to apply.
The section itself, in so many words, provides that Ss. 148, 149 and 150 will apply to the initiation of a reassessment proceeding under section 297 (2) (d) (ii) and this cannot be negatived by the last few words of that clause.
On the contrary, as pointed out earlier, they place it beyond all doubt that the provisions of the 1961 Act have to be applied to the reassessment on the basis that Ss. 148 to 150 apply.
This case also does not, there fore, advance the case of the assessees.
It is next contended by the appellant 's counsel that the very issue before us had been considered in the decision of this Court in Seth Gujarmal Modi vs CIT, and this concludes the issue in his favour.
The second headnote at page 261 seems to bear out this contention.
It reads: " . .
Since the Appellate Assistant Com missioner 's order was not passed under the 1961 Act, the department could not take any support from section 150 (1) of the Act." A perusal of the decision shows, indeed, that this was the ground on which a separate contention urged on behalf of the department on the basis of section 150 (1) was repelled.
It is no doubt seen from the facts of the case that it was a case of reassessment under section 297 (2) (d) (i) of the Act and the Court specifically held that reassessment pro ceedings should have been initiated under section 34 of the 1922 Act and not under section 148 of the 1961 Act.
In view of this conclusion no question of drawing any support from section 150 (1) could at all arise.
Still an argument was addressed and was repelled on the basis of the words "under this 18 Act" used in section 150 (1) thus upholding the literal construction argument now addressed on behalf of the asses see.
We shall consider this decision later after considering the department 's contentions.
As against the above contentions, Sri Manchanda submits that the provisions of section 150 (1) should be applied not blindly but with necessary modifications to suit the situa tion.
In support of this plea, he relies strongly on the last few words of section 297 (2) (d) (ii).
It is urged that the expression :"all the provisions of this Act shall apply accordingly" should be so construed as to enable the Revenue to invoke reassessment proceedings on the footing that the orders on appeal or reference were ones passed "under this Act" within the meaning of section 150 (1).
Sri Manchanda cited two decisions in support of his contention.
In Third I.T.O. vs Damodar Bhat, the question was whether proceedings under section 226 (3) of the new Act would apply with respect to a tax liability incurred under the 1922 Act.
The answer to this question, in the affirmative, turned on the language of section 297 (2) (j).
which provided that any tax or other dues payable under the 1922 Act may, notwithstanding the repeal of the 1922 Act, be recovered under the Act.
The contrary interpretation accepted by the High Court in that case would have had the effect of nulli fying the provisions of section 297 (2)(j).
Again, in Jain Bros. v,.
Union of India; , , it was held that penalty could be imposed under section 271 (1) of the 1961 Act in respect of returns filed before 1.4.1962 and assessments completed after 1.4.1962 but under the 1922 Act.
This was because of section 297 (2) (g), the special transitory provision in this behalf, which provided that "any proceeding for the initiation of a penalty in respect of any assessment for the year ending on the 31st day of March 1962 or any earlier year, which is completed on or after the 1st day of April, 1962, may be initiated and any such penalty may be imposed under this Act.
" Here again section 297 (2) (g) had been enacted to provide for the exact situation in question and to have held to the contrary would have rendered the provisions of section 297 (2) (g) meaningless and redundant.
The position is no doubt a little different here.
The provisions of section 150 (1) have been specially made applicable and operative in respect of the notice under section 148 issued in pursuance of section 297 (2) (d)(ii) and, as pointed out earlier, the application of the provisions of section 297 (2)(d)(ii) gives rise to two sets of situations to one of which the language of section 150(1) would squarely apply and so the interpretation sought for by the appellant does not render the words of section 150 (1) redundant.
Despite this point of difference in the two situations, we think that the principle of the above decisions that the mutatis mutandis rule should be invoked in interpreting 19 section 297 (2) has application here also.
Not to do so would no doubt not make section 150(1) redundant but it will bring about an unintended and inequitable situation.
It is clear that section 150 (1) will operate to lift the time bar in cases where the reassessment is initiated under section 148 to give effect to an order passed under the 1961 Act.
Equal ly, where assessments had been reopened under section 34 of the 1922 Act before 1.4.1962 to give effect to orders passed under the 1922 Act and are continued after that date by virtue of section 297 (2) (d) (i), the provisions of the second proviso to section 34 (3) of that Act would preclude the operation of the normal rule of limitation for reassess ments.
In this situation, it will be a great anomaly to reach the conclusion that the time limit will operate in cases where proceedings under section 148 are initiated to give effect to an order on appeal, revision and reference merely because such order is one passed under the 1922 Act.
Neither reason nor rhyme can explain how the statue could have intended such anomaly or why it should be so interpret ed as to result in a discriminatory treatment only to this class of cases.
An interpretation which will result in such anomaly or absurdity should be avoided.
It is also necessary to remember that section 297 (2) is a provision enacted with a view to provide for continuity of proceedings in the context of repeal of one Act by a fresh one broadly containing analogous provisions and the transitory provisions should, as far as possible, be construed so as to effect such conti nuity and not so as to create a lacuna.
For these reasons we think that it will be appropriate to so read the words of section 297 (2)(d)(ii) as to permit the applicability of section 150 (or section 153) with the necessary modifica tions.
To paraphrase, the last words of section 297(2)(d)(ii) should be read to mean that where the proceedings initiated under section 148, subject to the relaxations and limitation of Ss. 149 and 150, all the provisions of the Act shall apply accordingly: that is to say, in the same manner as they would apply in case of proceedings normally initiated under these provisions.
Since reassessment proceedings so initiat ed to give effect to orders on appeal, revision or reference will not be subject to a time limit, the proceedings like wise initiated under section 297(2)(d)(ii) read with section 148 will also not be subject to any limitations save to the extent mentioned in section 150(2).
We would like to add that, even if section 150(1) is to be read literally and considered as posing a hurdle as contended for by the appellant, we think this result can be overcome by a liberal interpretation of section 297(2)(k).
This clause reads: "any agreement entered into, appointment made, approval given, recognition granted, direc tion, instruction, notification, 20 order, or rule issued under any provision of the repealed Act shall, so far as it is not inconsistent with the corresponding provision of this Act, be deemed to have been entered into, made, granted, given or issued under the corresponding provision aforesaid and shall continue in force accordingly;" This is principally a provision intended to save admin istrative steps taken under the 1922 Act by deeming them to be steps taken under the 1961 Act.
Strictly construed, the words "order issued" also would seem, prima facie, to carry only a similar connotation.
But we see no objection, for our present purposes, in the way of our construing these words liberally and consequently deeming the orders passed and issued by the Tribunal and the High Court in this case for the assessment year 1949 50 and subsequent assessment years as orders passed or issued under the corresponding provi sions of the new Act.
Once this deeming is made, there is no difficulty in the way of accepting the Revenue 's contention.
We think that the circumstances justify a slight straining of the language of this clause and applying it so interpret ed to the problem before us so as to avoid a meaningless anomaly.
Thus construed, the statute can be said not to have misfired in its application to the situation in the present case.
We should, before we conclude, refer to the decision of this Court in the Gujar Mat Modi case.
As we have pointed out earlier, the principal conclusion reached in that case was that proceedings under section 148 could not have been initiated as the case fell under the provisions of section 297(2)(d)(i).
It was, therefore, unnecessary to deal with the contention based upon section 150.
Moreover, this part of the decision was only based on a prima facie reading of section 150(1) and contains no discussion of the various aspects that need consideration and have been touched upon above.
We do not, therefore, think that the above decision can be treated as conclusive on the issue before us which, for the reasons discussed above, we think, should be an swered differently.
We affirm the conclusion of the High Court and dismiss the appeal.
No costs.
Y.L. Appeal dismissed.
| The appellant (since deceased) was being assessed as the Karta of the Hindu Undivided Family consisting of himself, his mother, his wife and three sons until the assessment years 1948 49.
For the assessment year 1949 50 and subse quent years upto 1961 62 he filed a return in his individual capacity claiming that there had been a total partition of the family and that he was assessable in respect of the income from the properties of the family that fell to his share on partition; in the alternative he claimed partial partition.
Both of his claims having been negatived, the entire income was assessed in the hands of the Hindu Undi vided Family and the returns filed by the appellant in his individual capacity were finalised on the footing that there was no income assessable in his individual capacity.
The Hindu Undivided Family went up in appeals and ultimately the Tribunal accepted the claim of partial partition in respect of some of the properties.
The conclusion of the Tribunal was affirmed by the High Court, with the result that the income from some of the erstwhile family properties stood excluded from the assessment of the Hindu Undivided Family and became liable to be included in the hands of the appel lant.
The original assessments made on the appellant as an individual for the assessment upto 1961 62 had been complet ed under the Income tax Act, 1922 and in these assessments no income from the erstwhile joint family properties had been included as the Income Tax Officer was of the view, as in 1949 50, that it was assessable in the hands of the family.
There were no proceedings initiated or pending under Section 34 of the 1922 Act in respect of these assessment years as on 1.4.1962, when the 1922 Act was repealed by the 1962 Act.
The Income Tax Officer therefore, served a notice for reassessment on the appellant, invoking the provisions of Section 297(2)(d)(ii) of the Act.
The appellant resisted the reassessment proceedings on the ground that notice was barred by limitation while the department contended that the reassessment proceedings in this case were saved by the provisions of Section 150(1) of the 1961 Act.
The High Court accepted the contention of the department.
10 Dismissing the assessee 's appeal, this Court, HELD: The provisions of Section 150(1) have been spe cially made applicable and operative in respect of a notice under section 148 issued in pursuance of Section 297(2)(d)(ii).
The application of the provisions of Section 297(2)(d)(ii) gives rise to two sets of situations to one of which the language of Section 150(1) would squarely apply.
Section 150(1) will operate to lift the time bar in cases where the reassessment is initiated under section 148 to give effect to an order passed under the 1961 Act.
Section 297(2) is a provision enacted with a view to provide for continuity of proceedings in the context of repeal of one Act by a fresh one broadly containing analogous provisions and the transitory provisions should as far as possible, be construed so as to affect such continuity and not so as to create a lacuna.
It will therefore be appropriate to so read the words of section 297(2)(d)(ii) as to permit the applica bility of section 150 (or section 153) with the necessary modifications.
[18 G, 19A B, D E] The last words of Section 297(2)(d)(ii) should be read to mean that where the proceedings initiated under Section 148, subject to the relaxations and limitation of Sections 149 and 150, all the provisions of the Act shall apply accordingly: that is to say, in the same manner as they would apply in case of proceedings normally initiated under these provisions.
Since reassessment proceedings so initiat ed to give effect to orders on appeal, revision or reference will not be subject to a time limit, the proceedings like wise initiated under Section 297(2)(d)(ii) read with Section 149 will also not be subject to any limitations save to the extent mentioned in Section 150(2).
[19 E F] Income Tax Officer vs Eastern Coal Co. Ltd., ; Commissioner of Income Tax ' vs Kamalapat Moti lal, ; Ambaji Traders vs Income Tax Officer, ; Commissioner of Income Tax vs
T.P. Asrani, ; Jain vs Mahendra, ; Govinddas vs Income Tax Officer, ; Seth Gujannal Modi vs Commissioner of Income Tax, ; Third Income Tax Officer vs Damodar Bhat, ; Jain Bros. vs Union of India, ; , referred to.
|
Appeal No. 1690 of 1981.
167 From the Judgment and order dated 10.4.1980 of the Delhi High Court in Civil Writ No. 450 of 1971.
H.K. Puri for the Appellant.
The Judgment of the Court was delivered by K. JAGANNATHA SHETTY, J.
Whether the National Council of Educational Research and Training (NCERT) is "State" as defined under Article 12 of the Constitution ? This is the only question that calls for decision in this appeal.
The appellant was an employee of the NCERT.
This services were terminated by the Secretary of NCERT.
Challenging the termi nation he moved the Delhi High Court under Article 226 of the Constitution.
The NCERT raised a preliminary objection as to the maintainability of the writ petition.
The objection was that the NCERT is not amenable to the writ jurisdiction of the High Court as it is not an instrumentality or other authority within the meaning of Article 12 of the Constitu tion.
The High Court has upheld the preliminary objection and dismissed the writ petition.
The decision of the High Court has been challenged in this appeal.
There are only general principles but not exhaustive test to determine whether a body is an instrumentality or agency of the Government.
Even in general principles, there is no cut and dried formula which would provide correct division of bodies into those which are instrumentalities or agencies of the Government and those which are not.
The powers, functions, finances and control of the Government are some of the indicating factors to answer the question whether a body is "State" or not.
Each case should be han dled with care and caution.
Where the financial assistance from the State is so much as to meet almost entire expendi ture of the institution, or the share capital of the corpo ration is completely held by the Government, it would afford some indication of the body being impregnated with govern mental character.
It may be a relevant factor if the in stitution or the corporation enjoys monopoly status which is State conferred or State protected.
Existence of deep and pervasive State control may afford an indication.
If the functions of the institution are of public importance and related to governmental functions, it would also be a rele vant factor.
These are merely indicative indicia and are by no means conclusive or clinching in any ease See Sukhdev Singh vs Bhagat Ram, ; ; R.D. Shetty vs Inter national Airport Authority, [1979]3 SCC 489; Ajay Hasia vs Khalid Mujib Sehravardhi, [1981]1 SCC 722 and Som Prakash Rekhi vs Union of India, [1981]1 SCC 449.
168 Article 12 should not be stretched so as to bring in every autonomous body which has some nexus with the Govern ment within the sweep of expression "State".
A wide enlarge ment of the meaning must be tempered by a wise limitation.
It must not be lost sight of that in the modern concept of Welfare State; independent institution, corporation and agency are generally subject to State control.
The State control does not render such bodies as "State" under Article 12.
The State control, however, vast and pervasive is not determinative.
The financial contribution by the State is also not conclusive.
The combination of State aid coupled with an unusual degree of control over the management and policies of the body, and rendering of an important public service being the obligatory functions of the State may largely point out that the body is "State".
If the Govern ment operates behind a corporate veil, carrying out govern mental activity and governmental functions of vital public importance, there may be little difficulty in identifying the body as "State" within the meaning of Article 12 of the Constitution.
See: P.K. Ramachandra lyer vs Union of India, [1984]2 SCC 141 Central Inland Water Transport Corporation vs Brojonath Gangoli, and Tekraj Vasandhi alias K.L. Basandhi vs Union of India, [1988]2 SCR 260.
The NCERT is a society registered under the Societies Registration Act.
Like all societies, it has a Memorandum of Association.
It has Rules for internal management.
The High Court has elaborately examined the Memorandum of Association and the rules of the NCERT.
The relevant part of the discus sion by the High Court is as follows: "The NCERT is governed by a Memorandum of Association subscribed to by seven officers of the Government of India on 6.6.1961.
Under clause 3.1 of the Memorandum of Association the object of the Council is to assist and advise the Ministry of Education and Social Welfare in the implementation of its policies and major programmes in the field of education particularly school education.
Under clause 3.2 the Council is empowered for the realisa tion of the above objectives to undertake several kinds of programmes and activities which include coordination or research, exten sion services and training, dissemination of improved educational techniques and practices in schools, collaboration in educational programmes, distribution of ideas and informa tion, preparation and publication of books, materials, periodicals and other literature and allied activities.
Under clause 5 the income and property of the Council is to be applied towards the promotion of its ob 169 jects and cannot be disposed of by way of dividends, bonus etc.
But under this clause, the Council is free to apply the income and property towards its objectives in such manner as it may think fit.
It is subject to the limitations placed by the Government of India in this regard only in respect of the expendi ture of grants made by the Government.
Under clause 6 the Government of India could review the work and progress of the Council and take appropriate action to give effect to the reports received on enquiries.
In addition, the Government could at any time issue direc tions to the Council on important matters of policy and programmes.
" Rule 3 of the Rules of the Council provides for Constitution of the Council which consists mainly of various Government officials but also includes the Chairman of the University Grants Commission, four Vice Chancellors and a number of nomi nees, four from school teachers and several others.
Rule 7 enables the Government to fix the period of appointment of the members and to extend it from time to time.
The council 's affairs are conducted by the Executive Commit tee whose constitution is outlined in Rule 23.
This includes various Government servants but it also includes four educationists and three Professors and Heads of Departments who may be nominated by the President.
Rule 37 provides that if there is any difference of opinion the view of the majority will prevail subject to a veto which could be exercised by the Govern ment of India within a month.
It also enables the President to refer any question for the decision of the Government.
Rule 40 enables the Executive Committee to frame and amend Regulations not inconsistent with the rules.
Rule 42 empowers the Executive Committee to enter into arrangements.
with Government, public or private organisations or individuals in furtherance of its objectives and implemen tation of its programmes.
Rule 57 provides that the funds of the council shall consist of (i) grants made by Government; (ii) contribu tion from other sources; (iii) Income from the assets of the Council; and (iv) Receipts of the Council from other sources.
" The object of the NCERT as seen from the above analysis is to assist and advise the Ministry of Education and Social Welfare in the implementation of the Governmental policies and major programmes in the field of education particularly school education.
The NCERT undertakes several kinds of programmes and activities connected with the coordination of , 170 research extension services and training, dissemination of improved educational techniques, collaboration in the educa tional programmes.
It also undertakes preparation and publi cation of books, materials, periodicals and other litera ture.
These activities are not wholly related to Government functions.
The affairs of the NCERT are conducted by the Executive Committee comprising of Government servants and educationists.
The Executive Committee would enter into arrangements with Government, public or private organisa tions or individuals in furtherance of the objectives for implementation of programmes.
The funds of the NCERT consist of: (i) grants made by the Government, (ii) contribution from other sources and (iii) income from its own assets.
It is free to apply its income and property towards the promo tion of its objectives and implementation of the programmes.
The Government control is confined only to the proper utili sation of the grant.
The NCERT is thus largely an autonomous body.
Almost a similar case was considered by this Court in Tekraj Vasandhi alias K.L. Basandhi vs Union of India, [1988]2 SCR 260.
This Court was required to determine wheth er the Institute of Constitutional and Parliamentary Studies (ICPS) was State under Article 12.
The ICPS was a registered society financed mostly by the Central Government and partly by gifts and donations from Indian and foreign agencies.
The first President of the society was the then Speaker of the Lok Sabha.
Out of the five vice presidents three were the then central ministers; the other two were the then Chief Justice of India and the Attorney General.
The objects of the society were to provide for constitutional and parlia mentary studies, promotion of research in constitutional law, setting up of legislative research and reference serv ice for the benefit of legislators, organisation of training programmes in matters of parliamentary interest and impor tance and publication of a journal.
The Court found that ICPS was born as a voluntary organisation.
It found further that though the annual financial contribution from the State was substantial, it was entitled to receive aid from the public and in fact received contributions from other sources.
Its objects were not governmental business.
As regards the argument that the government exercised pervasive control over ICPS, the Court said: "In a Welfare State . . . .
Gov ernmental control is very pervasive and touch es all aspects of social exist ence . . .
A broad picture of the matter has to be taken and a discerning mind has to be applied keeping the realities and human experiences in view so as to reach a reasonable conclusion." In the light of all these factors it has held that ICPS was not "State". 171 In the present case, the High Court has relied upon the Constitution Bench decision of this Court in Sabhjit Tewari vs Union of India and Ors., ; There it was held that the Council of Scientific and Industrial Research (CSIR), which was sponsored and controlled by the Central Government and registered under the Societies Registration Act was not "State" within the meaning of Article 12.
But this decision has been distinguished and watered down in the subsequent decisions particularly in Ajay Hasia and Ramchan dra lyer cases (supra).
Counsel for the appellant strongly relied upon the decision in P.K Ramchandra lyer case where this Court held that Indian Council for Agricultural Research (ICAR) was "State" under Article 12.
But it may be noted that ICAR was originally an attached office of the Government of India and its position was not altered when it was registered as a society.
That case, therefore is clearly distinguishable.
In our opinion, the case on hand, having regard to the indications to which we have called attention earlier, does not satisfy the requirements of "State" under Article 12 of the Constitution.
We, therefore, agree with the conclusion of the High Court and dismiss the appeal.
In the circum stances of the case, we make no order as to costs.
R.P. Appeal dis missed.
| In a writ petition challenging the termination of serv ices of the appellant, who was an employee in the National Council of Educational Research & Training (NCERT), the High Court upheld the preliminary objection that the writ peti tion was not maintainable as NCERT was not an instrumentali ty or authority within the meaning of article 12 of the Consti tution.
Aggrieved, the appellant filed the appeal by special leave to this Court.
On the question whether NCERT is "State" as defined under Article 12 of the Constitution, Dismissing the appeal, the Court, HELD: 1.1.
Like all societies, having a Memorandum of Association and Rules for internal management, the National Council of Educational Research and Training is a society registered under the Societies Registration Act.
[168 E] 1.2.
Having regard to the object, functions, activities, sources of funds of NCERT, freedom of application of its income and property towards the promotion of its objectives and implementation of programmes, confinement of Government control only to proper utilisation of the grant, and largely being an autonomous body, the institution does not satisfy the requirements of "State" under Article 12 of the Consti tution.
[169 G H; 170A C; 171 C D] Tekraj Vasandhi alias K.L. Basandhi vs Union of India ; , Sabhjit Tewari vs Union of India and Ors., ; , referred to.
166 Ajay Hasia vs Khalid Mujib Sehravardhi, ; P.K. Ramachandra Iyer vs Union of India, ; distinguished.
Article 12 should not be stretched so as to bring in every autonomous body which has some nexus with the Govern ment within the sweep of the expression "State".
A wide enlargement of the meaning must be tempered by a wise limi tation.
It must not be lost sight of that in the modern concept of Welfare State; independent institution, corpora tion and agency are generally subject to State control.
The State control does not render such bodies as "State" under Article 12.
The State control, however vast and pervasive, is not determinative.
The financial contribution by the State is also not conclusive.
[168 A B] 3.
The powers, functions, finances and control of the government are some of the indicating factors to answer the question whether a body is "State" or not.
These are merely indicative indicia and are by no means conclusive or clinch ing in any case.
Each case should be handled with care and caution.
[167 E G] Sukhdev Singh vs Bhagat Ram, ; ; R.D. Shetty vs International Airport Authority, [1979]3 SCC 489, and Sore Prakash Rekhi vs Union of India, ; , referred to.
4.1 The combination of State aid coupled with an unusual degree of control over the management and policies of the body, and rendering of an important public service being the obligatory functions of the State may largely point out that the body is "State".
[168 B C] 4.2.
If the Government operates behind a corporate veil, carrying out governmental activity and governmental func tions of vital public importance, there may be little diffi culty in identifying the body as "State", within the meaning of Article 12 of the Constitution.
[168 C] Central Inland Water Transport Corporation vs Brojo nath Gangoli, , Tekraj Vasandhi alias K.L. Basandhi vs Union.
of India, ; , referred to.
|
Appeal No. 1317 of From the Judgment and Order dated 21.1.1983 of the Madras High Court in C.R.P. No. 2797 OF 1979.
T.S. Krishnamurthy lyer, P.N. Ramalingam and A.T.M. Sampath for the Appellant.
section Balakrishnan, section Prasad, R. Raghavan and Vijay Kumar for the Respondent.
The Judgment of the Court was delivered by KANIA, J.
This is an appeal by special leave against the decision of a learned Single Judge of the Madras High Court in Civil Revision Petition No. 2792 of 1979 filed in that Court.
We propose to set out only the few facts necessary for the disposal of the appeal.
The appellant is the managing trustee of a trust.
The said trust owned two properties comprising 60 cents and 29 cents of land at Nagercoil in Tamil Nadu.
The said lands were leased by the appellant to one Padakalingam in 1930 who in turn assigned the lease in favour of one Ramaswamy Mudal iar in 1931.
Swami Mudaliar secured a further assignment of the said lease from the said Ramaswamy Mudaliar.
Swami Mudaliar put up a building on the said land and the respond ent herein purchased the building from him in 1943 for a sum of Rs. 4,475.
In 1944 the trust had leased out the said property in favour of the respondent for six years.
The terms of the lease are not relevant for the purposes of resolving the controversy raised before us.
As the respond ent failed to pay the rent to the Trust, the Trust fried a suit for ejectment against the respondent which suit was later transferred to the District Munsifs Court, Nagercoil.
The said suit was decreed by the learned District Munsif.
The decree for eviction was passed by the learned District Munsif on condition that the appellant will pay to the respondent the costs of the building or the superstructure.
This litigation was carried upto the High Court in Second Appeal.
The decree of the trial Court for eviction was upheld by the High 24 Court.
During the Pendency of the second appeal an applica tion was filed by the respondent under Section 9 of the Tamil Nadu Tenants Protection Act, 1921, as amended by Act XIX of 1955 and Tamil Nadu Adaptation of Laws Order, 1969 (hereinafter referred to as" the said Act").
The provisions of the said Act were extended to Nagercoil town in respect of non residential buildings by a government order which was published in the Gazette on June 29, 1975.
In the said application under Section 9 of the said Act the respondent claimed that the appellant should be directed to sell out of the said property, the land adjoining the said building and necessary for the beneficial enjoyment of the building on such terms and conditions as might be fixed by the Court.
This application was resisted by the appellant.
The District Munsif 's Court, Nagercoil, dismissed the said application of the respondent on the ground that a previous application with the said prayer had been dismissed and hence, a fresh application for the same relief was barred.
The respondent preferred an appeal to the SubCourt at Nagercoil which was allowed by the learned Subordinate Judge.
The High Court took the view that the decree in favour of the appellant was simple decree of ejectment and did not take away the right of the respondent to the building or superstructure.
It further took the view that the deposit of the amount of costs of the superstructure by the appellant did not affect the right of the respondent.
The respondent had not surren dered the possession of the property despite the deposit of amount of compensation by the appellant and the appellant had been compelled to resort to the court.
The execution proceedings were stopped.
The High Court held that in these circumstances, the respondent was entitled to make an appli cation under Section 9 of the said Act during the pendency of the execution proceedings.
The High Court also dismissed the review petition preferred by the appellant.
Only two submissions were made before us by Mr. Krishna murthy Iyer, learned Counsel for the appellant.
The first was that the respondent was not entitled to exercise his right to purchase the land immediately adjoining the super structure as might be required for the beneficial enjoyment of the said structure as the said structure had not been put up by him.
As we have already pointed out earlier, the said super structure was purchased by the respondent from Swami Mudali ar who had put up the said structure and was an assignee of the lease.
The respondent himself obtained a lease of the land subsequently.
We now come to the relevant provisions of the said Act.
We propose to set out the effect of the rele vant sections so far as it is necessary for the purposes of this case.
Under clause 25 (ii) (a) of sub section (4) of section 2, a person referred to in sub clause (i) who continues in possession after the determination of his tenancy agreement is included in the term 'tenant '.
The inclusive definition of the term 'tenant ' under Section 2(4)(ii)(a) takes within its ambit a tenant whose tenancy has been determined but continues to remain in possession.
Section 3 of the said Act provides that every tenant as defined under the said Act shall, on ejectment, be entitled to be paid as compensation the value of any build ing which may have been erected by him or by any of his.
predecessors in interest, or by any person not in occupation at the time of the ejectment who derived title from either of them, and for which compensation has not already been paid.
Again, very briefly stated, Section 9 prescribes that any tenant who is entitled to compensation under Section 3 and against whom a suit in ejectment has been instituted or proceedings under Section 41 of the , taken by the landlord may, within one month from the date of the Madras City Tenants ' Protection (Amend ment) Act, 1955, coming into force, or the date with effect from which this Act is extended to the municipal town or village in which the land is situated, or within one month after the service on him of summons, apply to the Court for an order that the landlord shall be directed to sell for a price to be fixed by the court, the whole or part of the extent of land specified in the application, as set out in the said section.
It may be mentioned that the land which the tenant is entitled to require to be sold to him is the minimum land required for the beneficial enjoyment of the building.
Section 10 of the said Act makes the provisions under Section 9 applicable to cases where decree for eject ment has not been executed before the date from which the provisions of the Act are extended to the area in question.
Thus, although the decree for ejectment was passed against the respondent, as he had continued to remain in possession of the property and the decree had remained unexecuted till the date on which the provisions of the said Act had been extended to the area in question, the right of the respond ent under Section 9 was not lost.
As far as the superstructure is concerned, the said superstructure was put up by Swamy Mudaliar from whom the respondent had purchased it as pointed out earlier.
Thus, as far as the building or superstructure is concerned, the High Court was/entitled to take the view that it was put up by a predecessor in interest of the respondent.
In these circum stances, the respondent was certainly a tenant entitled to compensation under Section 3 of the said Act and was enti tled to make an application under Section 9 of the said Act.
The submissions of Mr. Krishnamurthy lyer to the contrary cannot be accepted.
26 It was next submitted by Mr. Krishnamurthy Iyer that, as averred in the special leave petition, although the respondent might have been in possession at the relevant time yet he has lost possession thereafter and hence, he had lost his right under Section 9.
This fact has not been pleaded in or considered in any of the courts below and hence, we decline to permit Mr. Krishnamurthy Iyer to raise this contention before us.
In the result, the appeal fails and is dismissed.
There will be no order as to costs.
The application of the re spondent under Section 9 will be disposed of on merits and according to law.
The amount of compensation which will have to be paid by the respondent to the appellant will be deter mined as provided under the said Act.
N.P.V. Appeal dismissed.
| The lands in question owned by a Trust, of which the appellant was the Managing Trustee, were leased to respond ent.
On his failure to pay rent the Trust filed a suit for his ejectment.
The District Munsiff passed the decree on condition that the appellant would pay the respondent, costs of the building or superstructure, which had been built by the respondent 's predecessor in interest, and which the respondent had purchased from him.
The litigation went upto High Court, which ultimately upheld the decree.
During the pendency of second appeal, the respondent filed before the District Munsiff an application under Section 9 of the Tamil Nadu Tenants ' Protection Act, 1921 as amended by Act XIX of 1955 and Tamil Nadu Adaptation of Laws Order, 1969.
The provisions of the said Act were extended to the town in which the lands were situated.
In the said application he prayed for the issue of a direction to the appellant to sell to the respondent the said property, the land adjoining the building, as it was necessary for the beneficial enjoyment of the building.
The application was rejected on the ground that such a prayer had been rejected earlier.
The respond ent 's first appeal was allowed by the Subordinate Judge.
The respondent had not surrendered the possession of the proper ty despite the deposit of the compensation amount by the appellant and the execution proceedings had remained stayed.
Hence the appellant filed an appeal in .the
High Court which, however, held that the respondent was entitled to file the application under Section 9 of the Act during the pendency of the execution proceedings, and the right of the respondent had not been affected by the deposit of the compensation amount.
In the appeal before this Court, on behalf of the appel lant Managing Trustee, it was contended that the respondent was not entitled to exercise his right to purchase the land immediately adjoining the superstructure as might be re quired for the beneficial enjoyment of the said structure as the 22 said structure had not been put up by him, and 'that al though the respondent might have been in possession at the relevant time, he had lost the possession thereafter and hence he had lost his right under Section 9.
Dismissing the appeal, this Court, HELD: 1.1 Under Section 9 of the Tamil Nadu Tenants ' Protection Act, 1921, any tenant, as defined in Section 2(4)(ii)(a), who is entitled to compensation under Section 3, and against whom a suit in ejectment has been instituted or proceedings under Section 41 of the , taken by the landlord may, within one month from the date of the Madras City Tenants ' Protec tion (Amendment) Act, 1955, coming into force, or the date with effect from which this Act is extended to the municipal town or village in which the land is situated, or within one month after the service on him of summons, apply to the Court for an order that the landlord be directed to sell for a price to be fixed by the court, the whole or part of the extent of land specified in the application.
Section 10 of the Act makes the provisions under Section 9 applicable to cases where decree for ejectment has not been executed before the date from which the provisions of the Act are extended to the area in question.
[25 C E] 1.2 In the instant case, although the decree for eject ment was passed against the respondent, as he had continued to remain in possession of the property and the decree had remained unexecuted till the date on which the provisions of the said Act had been extended to the area in question, the right of the respondent under Section 9 was not lost.
[25 F] 1.3 As regards the superstructure, it was put up by the predecessor in interest from whom the respondent had pur chased.
Thus, the High Court was entitled to take the view that it was put up by a predecessor in interest of the re spondent.
[25 G] 1.4 In these circumstances, the respondent was certainly a tenant, within the meaning of Section 2(4)(ii)(a) of the Act, which takes within its ambit a tenant whose tenancy has been determined but continues to remain in possession, entitled to compensation under Section 3 of the Act and was, therefore, entitled to make an application under Section 9 of the Act.
[25 H, 25 B] 23 2.
The plea that although the respondent might have been in possession at the relevant time, but since he lost it thereafter, he lost his right under Section 9 cannot be allowed to be raised in this Court since this has not been pleaded in or considered in any of the courts below.
[26 A B]
|
Appeal No.3985 of 1988.
From the Judgment and Order dated 31.12.1987 of the Andhra Pradesh Administrative Tribunal, Hyderabad in R.P.No. 967 of 1987.
WITH S.L.P. (C) No. 9290 of 1988 with S.L.P (C) No. 2150/87 CMP No. 25521/88 and C.A.1342/86 K.Madhava Reddy, C. Sitaramiah, P.P.Rao, G. Prabhakar, K.R. 31 Nagaraja, P.K. Rao, Ms. C.K. Sucharita, B. Kanta Rao, K. Ram Kumar, B. Krishna Prasad and T.V.S.N. chari (N.P.) for the appearing parties.
The Judgment of the Court was delivered by K. JAYACHANDRA REDDY, J.
The questions that arise for consideration in all these connected cases are confined only to some of the posts of civil services of Andhra Pradesh in view of certain special provisions applicable to these services.
Article 371D of the Constitution of India is peculiar to the State of Andhra Pradesh due to historical background.
It was enacted by the Constitution (Thirty Second) Amendment Act which applied only to the State of Andhra Pradesh, with a view to give effect to certain safe guards in the matter of employment opportunities for resi dents of Telangana region.
This Article empowers President to provide by order for equitable opportunities and facili ties for the people belonging to different parts of the State of Andhra Pradesh in the matter of public employment and in the matter of education.
This Article also provides for constitution of an Administrative Tribunal to receive representations for the redressal of the grievances and for passing necessary orders.
Accordingly the President of India made Andhra Pradesh Public Employment (Organisation of Local Cadres and Regulation of Direct Recruitment) Order, 1975 ( 'Presidential Order ' for short) by virtue of which the State of Andhra Pradesh has been divided into six zones and local cadres of posts in respect of the local areas were created.
In respect of Andhra Pradesh Panchayati Raj Engi neering Service the two such zonal posts are junior Engineer and Assistant Engineer.
The main question that arises for consideration in these cases is whether the promotion from Junior Engineer to Assistant Engineer should be on the basis of Statewide list or the zonal list.
Some of the promotions made were questioned by the affected persons before the Administrative Tribunal which disposed them of indicating that such promotions should be made on the basis of the Statewide list.
The State of Andhra Pradesh has questioned the same in C.A.No. 1342/86, C.A.No. 3985/88 and S.L.P. (Civil) No. 9290/88 mainly on the ground that promotions should be confined to only within local cadres and zonal posts.
S.L.P. (Civil) No. 2150/87 is filed by two such Engineers whose representation was disposed of by the Tribu nal directing the Government to redetermine their positions in the Seniority list instead of giving a definite declara tion as prayed for by them.
Shri K.Madhava Reddy, learned counsel appearing for the State of Andhra Pradesh, submitted that both the posts of Junior Engineer and Assistant Engineer are zonal posts under the Presidential Order and the zonal seniority list has to be followed in the matter of promotions from 32 Junior Engineer to Assistant Engineer and not the Statewide seniority list of Junior Engineers.
He also submitted that all promotions made so far pursuant to certain orders should be treated as provisional and that the State Government should be permitted to review these promotions on the basis of the zonal seniority list and that all further promotions shall be made on the basis of the zonal seniority list.
According to the learned counsel, for the purpose of promo tion to the higher post of Executive Engineer which is not a zonal post, a Statewide seniority list of Assistant Engi neers of all zones should be prepared on the basis of which promotion to the post of Executive Engineer will be made.
Shri Sitaramiah, learned counsel appearing for respondents, submitted that Article 371D(2) refers only to direct re cruitment and the Presidential Order made under the said Article cannot make a departure and cannot be made applica ble for promotions also.
On the other hand, it is the State wide list that should be the basis for promotions.
In sup port of his submissions he invited our attention to the provisions of Article 371D and the Presidential Order and emphasised the word 'employment ' as occurring in the Article should be confined only to direct recruitment.
Shri P.P. Rao, learned counsel appearing for other set of respondents in the appeals filed by the State of Andhra Pradesh, submit ted that even if either of the lists is to form the basis for promotions his clients are not affected and their promo tions are being unnecessarily delayed.
Some of the Engineers of the Andhra Pradesh Panchayati Raj Engineering Service got themselves impleaded in the appeal filed by the State of Andhra Pradesh and Shri B. Kanta Rao appearing on their behalf supported the stand taken by the Government of Andhra Pradesh.
To appreciate these rival contentions it becomes neces sary to refer to some of the relevant provisions of Article 371D as well as the Presidential Order and some of the notifications made thereunder and the relevant provisions of the A.P. Panchayati Raj Engineering Service Rules.
On Novem ber 1, 1956 as a result of reorganisation of the States the erstwhile State of Hyderabad was trifurcated and Telangana region became a part of the newly formed State of Andhra Pradesh.
Certain safeguards were envisaged for the Telangana area in the matter of development and also in the matter of employment opportunities and education facilities for the residents of that area.
In the year 1957 the Public Employ ment (Requirement as to Residence) Act was enacted inter alia to provide for employment opportunities for residents of Telangana area.
Some of the relevant provisions were held to be unconstitutional by the Supreme Court due to a variety of causes.
The working of the safeguards gave rise to dis satisfaction sometimes in the Telangana area and sometimes in the other areas of the State and even led to violent agitations.
A consensus was arrived 33 among several leaders of Andhra Pradesh to make a concerted effort to analyse the factors which have been giving rise to the dissatisfaction and they suggested certain measures known as "Six Point Formula" and the same has been endorsed by the State Government.
A bill was brought forward to provide for necessary constitutional authority for giving effect to this formula and the same became the Constitution (Thirty Second) amendment Act under which Article 371D was introduced.
The relevant provisions of this Article for our purpose are as under: "371 D. Special provisions with respect to the State of Andhra Pradesh (1) The President may by order made with respect to the State of Andhra Pradesh provide, having regard to the requirements of the State as a whole, 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 and different provisions may be made for various parts of the State.
(2) An order made under clause (1) may, in particular: (a) require the State Government to organise any class or classes of posts in a civil service of, or any class or classes of civil posts under, the State into different local cadres for different parts of the State and allot in accordance with such principles and procedure as may be specified in the order the persons holding such posts to the local cadres so organised; (b) specify any part or parts of the State which shall be regarded as the local area (i) for direct recruitment to posts in any local cadre (whether organised in pursuance of an order under this article or constituted otherwise) under the State Government; (ii) for direct recruitment to posts in any cadre under any local authority within the State; and (iii) for the purpose of admission to any University within the State or to any other educational institution which is subject to the control of the State Government; XX XX XX (10) The provisions of this article and of any order made by the President thereunder shall have effect notwithstanding anything in any other provision of this Constitution or in any other law for the time being in force.
" 34 It may be noted that clause (3) provides for constitu tion of an Administrative Tribunal.
Now we may note some of the relevant provision in the Presidential Order.
In para 2 definitions of the various expression used in the Order are given.
They read thus: "Para 2.
Interpretations: (1) In this Order, unless the co text otherwise requires: (a) xx xx xx (b) 'direct recruitment ' includes recruitment made on a temporary basis but does not include recruitment made in pursuance of any scheme approved by the State Government providing for the regularisation of the services of persons holding posts on a temporary basis before the commencement this order; (c) 'local area ' in relation to any local cadre, means the local area specified in paragraph 6 for direct recruitment to posts such local cadre, and includes, in respect of posts belonging the category of Civil Assist ant Surgeons, the local area specified in sub paragraph (5) of paragraph 8 of this Order; (d) 'local authority ' does not include any local authority which is not subject to the control of the State Government; (e) 'local cadre ' means any local cadre of post under the State Government organised in pursuance of paragraph 3, or constituted otherwise for any part of the State; (f) 'local candidate ' in relation to any local area, means a candidate who qualifies under paragraph 7 as a local candidate relation to such local area; (g) xx xx xx (h) 'Schedule ' means a Schedule appended to this Order; (i) xx xx xx (j) 'specified gazetted category ' means any gazetted category specified in the Third Schedule and includes any other gazetted category notifies as such by the Central Government; (k) xx xx xx (l) xx xx xx 35 (m) 'Zone ' means a zone specified in the Second Schedule comprising the territories mentioned therein.
xx xx xx Para 3.
Organisations of Local Cadres: (1) The State Government shall, within a period of eighteen months from the commencement of this order, organise classes of posts in the civil services of, and classes of civil posts under the state into different local cadres for different parts of the State to the extent, and in the manner, hereinafter provided.
(G.O. Ms. No. 794, G.A.(A) dated 12.11.1976) "Provided that, notwithstanding the expira tions of the said period, the president may by order, require the State Government, whenever he considers it expedient so to do, to orga nise any classes of posts in the civil serv ices of, and classes of civil posts, under the State into different local cadres for differ ent parts of the State." (Proviso is added as per G.O. Ms. No. 34, G.A.D. (SPFA), dated 24th January, 1981).
(2) The posts belonging to the category of Junior Assistant, and to each of the other categories equivalent to, or lower than that of a Junior Assistant in each department in each district shall be organised into a sepa rate cadre.
Explanation: For the purposes of this sub paragraph, subparagraph (1) of paragraph 6, and sub paragraph (1) of paragraph 8, a cate gory shall be deemed to be equivalent to or lower than that of a Junior Assistant if the minimum of the scale of pay, of a post belong ing to a category or where the post carries a fixed pay, such fixed pay equal to or lower than the minimum of the scale of pay of a Junior Assistant.
(3) The posts belonging to each non gazetted category, other than those referred to in sub paragraph (2), in each department in each zone shall be organised into a separate cadre.
(4) The posts belonging to each specified gazetted category in each department in each zone shall be organised into a separate cadre.
(5) Notwithstanding anything contained in sub paragraphs (3) and (4), the State Govern ment may, where it considers it expedient to do so and with the approval of the Central Government, organise the posts belonging to any of the categories 36 referred to therein, in any department, or any establishment thereof, in two or more continu ous zones into a single cadre.
xx xx xx Para 4.
Allotment of persons: (1) Persons holding posts required to be organised into local cadres shall be allotted to such cadres by the State Government or any officer or authority authorised by it in this behalf in accordance with the principles and procedure hereinafter specified.
(2) In allotting persons to local cadres due regards shall be had to all or any of the following, namely: (a) the administrative needs of the posts in the local cadres; (b) the need for the composition of balanced local cadres with reference to age and senior ity, groups; (c) the length of service of the persons concerned in the part of the State for which the local cadre is organised; (d) knowledge of the persons concerned of the languages spoken and the law in force in the part of the State lot which the local cadre is organised; (e) preference of the persons concerned for allotment to any local cadre, where feasible.
xx xx xx Para 5.
Local cadres and transfer of persons: (1) Each part of the State for which a local cadre has been organised in respect of any category of posts, shall be a separate unit for purposes of recruitment, appointment, discharge, seniority, promotion and transfer, and such other matters, as may be specified by the State Government, in respect of that category of posts.
xx xx xx Para 13.
Certain appointments and promotions to be provisional: Any certain appointments and promotions made after the commencement of this order or any order made in pursuance of the proviso to paragraph 3, as the case may be, and before any local cadre has been orga nised under the provisions of this Order made in pursuance of the Proviso to 37 paragraph 3, to any post which is required to be included in such cadre shall be provisional and shall, within a period of twelve months after such organisation, be reviewed and readjusted in accordance with the provisions of this order.
Explanation: For the purposes of this para graph, any local cadre shall be deemed to be organised, with the allotment of persons to it under paragraph 4.
(Substituted as per G.O. Ms. No. 234, GAD (SPF A) Dept., dated 24th Jan., 1981).
xx xx xx THE SECOND SCHEDULE (See paragraphs 2 (1) (m) and 8 (4) Zones Zone I Shrikakulam and Visakhapatnam districts.
Zone II East Godavari, West Godavari and Krishna districts.
Zone III Gunrur, Prakasam and Nellore districts.
Zone VI Chittoor, Cuddapah, Anantapur and Kurnool districts.
Zone V Adilabad, Karimnagar, Warangal and Khammam districts.
Zone VI Hyderabad, Nizamabad, Mahabubnagar, Medak and Nalgonda districts.
THE THIRD SCHEDULE [See paragraphs 2(1) (j) and (4) Specified Gazetted Categories Sr.
No. Category Name of the Department (1) (2) (3) xx xx xx 30.
Assistant Engineers Panchyati Raj Enginee ring Department 30 A. Junior Engineers do xx xx xx 40.
Junior Engineers Public Works Department (Irrigation) 41.
Assistant Engineers Public Works Department (Irrigation) 42.
Junior Engineers Public Works Department (R&B) 43.
Assistant Engineers do " (emphasis supplied ) 38 It is clear from these provisos that the primary purpose of Article 371D was to promote speedy development of the backward areas of the State of Andhra Pradesh with a view to secure balance in the development of the State as a whole and to provide equitable opportunities to different areas of the State in the matter of education, employment and career prospects in public service.
Accordingly the Presidential Order was made.
From the above extracted provisions of the Order it can be seen that State of Andhra Pradesh was divided into six zones and the 4th zone, with which we are concerned, com prises of Chittoor, Cuddapah, Anantpur and Kurnool Dis tricts.
As noted above Schedule III enumerates various specified gazetted categories and Junior Engineers and Assistant Engineers in the Panchayati Raj Engineering De partment as well as in the Public Works Department (Irriga tion) and (Roads and Buildings) are among those various categories mentioned therein.
Paragraph 3 provided for organisation of local cadres in respect of classes of posts in the civil services in the State of Andhra Pradesh.
Under para 3(4) the posts belonging to each specified category in each department in each zone shall be organised into a separate cadre.
Para 4 provides for the allotment of persons holding posts into such local cadres to be organised.
Para 5 which is important, lays down that each part of the State for which a local cadre has been organised in respect of any category of posts, shall be a separate unit for purposes of not only recruitment etc.
but also in respect of promotion.
Para 13 lays down that in certain appointments or promotions after the commencement of the Presidential Order or any order made in pursuance of the proviso to paragraph 3 and before any local cadre has been organised, shall be provi sional and shall within a period of twelve months after such organisation of local cadre, be reviewed and readjusted in accordance with the provisions of the Presidential Order.
A.P. Panchayati Raj Engineering Service Rules were framed in the year 1963.
These Rules provide for the ap pointments of different categories of engineers.
After the Presidential Order was issued a new Rule 2 A was introduced on 26.11.79 to bring the State Rules in conformity with the provisions of the Presidential Order.
Rule 2 A reads thus: "Rule 2 A Unit of Appointment: For purposes of recruitment,appointment, discharge for want of vacancy, re appointment, seniori ty, transfer, promotion and appointment as full member in respect of category 4, Deputy Executive Engineers, each 39 zone comprising the districts specified against each shall be a separate unit: xx xx xx Zone IV: Chittoor, Cuddapah, Anantpur and Kurnool districts.
xx xx xx Provided that the post of Deputy Executive Engineers in the office of the Chief Engineer (Panchayati Raj) shall be filled on a tenure basis by drafting persons equitably from different units and the period of tenure shall not ordinarily exceed three years; Provided further that the posts of Deputy Executive Engineers in the Rigs Divisions notified as Special Officers under the Andhra Pradesh Public Employment (Organisations of Local Cadres and Regulation of Direct Recruit ment) Order, 1975 shall be filled by drafting persons from the units over which the respec tive Rigs Division is having jurisdiction.
(G.O. Ms. No. 1024 PR, dated 26.11.1979).
" Regarding the scope of this rule it is the submission of the learned counsel for the State of Andhra Pradesh that a combined reading of Rule 2 A read with para 13 of the Presi dential Order would show that the said Rule has retrospec tive effect, therefore the Government is at liberty to revise the promotions made otherwise then on the basis of the zonal seniority list.
But Shri Sitaramiah, learned counsel, submitted that the said Rule cannot be given retro spective effect and the same applies to vacancies arising thereafter and therefore the promotions already made should not be disturbed.
It is an admitted fact that there was a Statewide list of Junior Engineers before 28.10.75 namely before the Presi dential Order was made.
Questioning some of the promotions made by the Government, representation petitions were filed before the A.P. Administrative Tribunal.
In such matters the Tribunal observed that as a precautionary measure the jun iors to the petitioners therein in the Statewide list cannot be promoted before the petitioners ' cases are considered for the appointment to the post of Executive Engineer which is a higher post.
In all the orders passed by the Tribunal there is an indication that the Statewide list should be the basis for promotion.
Though they appear to be in the nature of interim 40 directions but the ratio relied upon is that the promotion should be on the basis of the Statewide list.
Therefore the question that has been canvassed by the State Government in all these matters is that the observation and the directions given by the Administrative Tribunal are opposed to the very object underlying the Presidential Order and is contrary to various provisions therein.
At this juncture it is essential to note the principle and object underlying the zonal system as provided for in the Presidential Order.
We have already noted that the object underlying Article 371D is to promote speedy develop ment of the backward areas and to provide equal opportuni ties to different areas of the State in the matter of em ployment etc.
This Article is a special provision which makes departure from the general scheme of the Constitution.
In High Court of Andhra Pradesh and Ors.
vs V.V.S. Krishnamurthy and Ors., after referring to the Statement of Objects and ' Reasons of the Constitution (Thirty Second) Amendment Act, it was observed as under: "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 Pradesh so as to secure the balanced development of the State as a whole".
and (ii) to provide "equitable opportunities" to dif ferent areas of the State in the matter of education, employment and career prospects in public service.
(1) 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 educa tion.
" Clause (2) of the Article is complemen tary 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 conditions subject to which, preference or reservations 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 resi dence for a specified period in the local area, can be made a condition for recruitment to any such local cadre.
Thus, Clause (4) also, directly is designed to achieve the primary object of the legislation.
" 41 The Presidential Order was made keeping in view this Object and suitable provisions are inserted.
With a view to achieve this Object and in conformity with the provisions of the Order, the State is divided into six zones and certain specified gazetted services are included in the local cadres.
The A.P. Panchayati Raj Engineering Services is one such and two categories of posts namely Junior Engineers and Assistant Engineers are such zonal posts.
It may be men tioned here that the validity of the Presidential Order is not being questioned.
Therefore we have to proceed on the basis that all the provisions of the Presidential Order are valid.
The further and rather the main submission of the re spondents is that the Presidential Order only lays down the criteria for claiming eligibility as a local candidate on the basis of the period of residence or of stay in that local area and reservations are meant to be made to the local cadre only in respect of direct recruitment to the said posts mentioned therein and therefore the power con ferred under the Article should be confined only to direct recruitment.
In this context the learned counsel also relied very much on the expressions used in Article 371D (1) and (2).
The learned counsel also submitted that initially the Junior Engineers are selected by the Public Service Commis sion and are given a ranking and they are allotted to the local cadre and to that extent that may become a zonal post.
But when it is a question of promotion to the higher post of Assistant Engineer though shown as a zonal post by virtue of being included in the local cadre, it should be only on the basis of the seniority in the Statewide list originally prepared by the public Service Commission.
The learned counsel very much relied on the expression 'in the matter of public employment ' and the other expressions used in Article 371D (1) and (2).
First we shall consider the submission that the purport of Article 371D and the Presidential Order in respect of direct recruitment does not apply to promotion.
The expres sion 'in the matter of public employment ' in clause (1), in our view, is of wider import.
The public employment can be by way of direct recruitment or by promotion.
In The General Manager; Southern Railway vs Rangachari, ; this Court considered the scope of Articles 16 (1), (2) and (4) and it was observed that Articles 16 (1) and (2) of the Constitution are intended to give effect to Articles 14 and 15(1) of the Constitution and they arc supplemented to each other.
Regarding the meaning of the word "employment" it is noted that: "Article 16 (1) should, therefore, be con strued in a broad and general, and not pedan tic and technical way, so construed, "matters relating to employment" cannot mean merely matters prior to the act of appointment nor can 'appointment ' to any 42 office mean merely the initial appointment but must include all matters relating to employ ment, whether prior or subsequent to the employment, that are either incidental to such employment or form part of its terms and conditions and also include promotion a selec tion post. "Although Article 16(4) which in substance is an exception to articles 16 (1) and 16(2) and should, therefore, be strictly construed, the court cannot in construing it overlook the extreme solicitude shown by the Constitution for the advancement of socially and education ally backward classes of citizens.
" It is thus concluded that Article 16(4) authorises the State to provide for reservation of appointments as well as selection posts.
At this juncture it may be noted that Article 371D (10) declares that any order made by the Presi dent shall have effect notwithstanding anything in any other provision of the Constitution or in any other law for the time being in force.
Therefore notwithstanding anything contained in the A.P. Panchayati Raj Engineering Service Rules, the promotions have to be based on zonal list other wise the very object sought to be achieved as per Article 371D and the Presidential Order would be defeated.
Shri Sitaramiah, however, laid considerable stress on Article 371D (2) which empowers the President to make an order "in particular" to specify any part or parts of the State which shall be regarded as the local area for direct recruitment in any local cadre.
It is submitted that if clauses (1) and (2) of Article 371D are read together the Presidential Order can make provision only in respect of appointments by way of direct recruitment and cannot be applied for promotion also.
But as laid down in Rangachari 's case the word "employment" should be interpreted in a broad and general manner.
The ratio therein should be applied in interpreting the words "in the matter of public employment" occurring in Article 371D also.
Consequently it must be held that Article 371D and the Presidential Order apply both for direct recruitment and for promotion in respect of categories specified in the Third Schedule.
Article 371D (2) does not make any departure from this principle.
The words "in particular" therein only lay emphasis on the aspect of creating local cadres for different parts of the State for the purpose of direct recruitment and treat such parts as local areas.
This does not in any manner restrict the scope of Article 371D wherein it is clearly declared that in the matter of public employ ment, the President is empowered to make an order in the manner stated therein and the public employment cannot but be interpreted to include promotion also.
It therefore emerges that Article 371D is in general terms and applies to the public employment as a whole and Article 371D(2) in particular applies to direct recruitment.
It is only comple mentary to clause (1) and particularises 43 the matters which an order made under clause (1) provides for.
Any other interpretation would defeat the object under lying these two provisions.
The other submission of Shri Sitaramiah, as already noted, is that even assuming that Rule 2 (a) which came into existence in 1979 is valid and applies to promotion also then it can have only prospective effect and all the promo tions prior to this Rule should be only on the basis of the Statewide list.
In considering this argument we have to bear in mind para 13 of the Presidential Order which specifically lays down that certain appointments and promotions after the commencement of the Order should be treated as provisional and the same should be reviewed an readjusted in accordance with the Presidential Order for the purpos of preparing the local cadres and allotting to the zones.
The learned coun sel, however, relied on two judgments of this Court in Y. V. Rangiah and Others etc.
vs J. Sreenivasa Rao and Others etc., , and N.T. Devin Katti and Others vs Karnataka Public Service Commission and Others, ; , in support of his submission that the said Rule cannot be given retrospective effect and that the promotions should be made only in accordance with the unamended A.P. Pan chayati Raj Engineering Service Rules, 1963.
But having regard to the historical background and the object underly ing Article 371D and the Presidential Order and in particu lar para 13 of the Order the promotions, if any, made, should be treated only as provisional.
If Rule 2(a) is viewed from this angle particularly in the light of paras 5 and 13 of the Presidential Order it becomes clear that the said Rule has to be given retrospective effect so that the promotions to the junior posts can be brought in conformity with Article 371D and the Presidential Order.
Accordingly any promotions made should be treated only as provisional and they should be reviewed and readjusted.
This leads us to the question whether the promotions from the post of Junior Engineer to Assistant Engineer should be based on zonal seniority list or on the Statewide seniority list.
Rule 2(a) makes it abundantly clear that for the purpose of recruitment, appointment, promotion, transfer etc.
each zone shall be a separate unit.
Para 5 of the Presidential Order is also to the same effect.
When once each zone is treated as a separate unit for the purpose of promotion also in respect of zonal posts then by virtue of Article 371D and the Presidential Order, as observed above, the promotion from the post of Junior Engineer to the post ' of Assistant Engineer which are both zonal posts, should be on the basis of the zonal seniority list inasmuch as the post of Junior Engineer and the next promotion post namely" Assistant Engineer are included in the local cadre and the zonal list as we find in the Third Schedule.
With regards the higher posts which are not included in the local cadre and which are Statewide posts, it 44 becomes obvious that the Statewide seniority list of the Assistant Engineers of all zones should be prepared and that should be the basis of promotion to the post of Executive Engineer which is not a zonal post.
Therefore it emerges that the directions given by the Tribunal to ensure that no Junior Engineer is promoted earlier than their seniors in the Statewide seniority list to the post of Executive Engi neer, should be quashed.
Shri Sitaramiah, however, pointed out certain anamolies if such a principle is to be followed.
According to the learned counsel, if the promotions are to be made only on the basis of the zonal list than there is every possibility of some of the seniors in the Statewide list not getting promotions and the same would result in some of the juniors becoming seniors which would ultimately affect the promo tional avenues for the Statewide higher post like Executive Engineer.
But it must be noted that Article 371D is of exceptional nature and the object is to provide equal oppor tunities in the backward areas in respect of the specified posts mentioned in the Third Schedule which are included in the local cadre which thus became zonal posts.
As mentioned in para 5 of the Presidential Order and Rule 2 (a) of the Engineering Service Rules such zones should be treated as separate units for the purpose of promotions also.
Therefore there is valid nexus to the object that is sought to be achieved and even if there is some anamoly it cannot on that basis be said that such promotions for zonal posts on the basis of the zonal seniority list amounts to discrimination.
In S.Prakasha Rao and another vs Commissioner of Commercial Taxes and Others, , a Bench of three Judges of this Court affirmed the view taken by the Administrative Tribunal, Andhra Pradesh that the zonal seniority list prepared pursuant to the initial organisation and creation of local cadres is to be maintained and such zonal seniority list is the criteria for promotion.
In the result we hold that all promotions of Junior Engineers (redesignated as Assistant Executive Engineers) to the next higher post of Assistant Engineers (re designated as Deputy Executive Engineers) have to be made on the basis of the zonal seniority lists as indicated above and not on the basis of the Statewide seniority list of Junior Engi neers.
The promotions made after the Presidential Order dated 18.11.75 should be treated as provisional and the Government is permitted to review these promotions on the basis of zonal seniority lists and re adjust the same.
All the future promotions from the post of Junior Engineer to the post of Assistant Engineer should necessarily be made on the basis of the zonal seniority lists.
For the purpose of promotion to the post of Executive Engineer, which is not a zonal post, a Statewide seniority list of the Assistant Engineers of all zones should be prepared and such Statewide seniority 45 list should form the basis of promotion to the post of Executive Engineer.
The State Government is accordingly directed to prepare such lists i.e. zonal seniority lists of various zones for the purpose of promotions from Junior Engineers to Assistant Engineers within the zones and also Statewide seniority list of the Assistant Engineers of all zones for the purpose of promotion to the post of Executive Engineer.
Such of the Directions given by the Tribunal in the matters before us which are contrary to or different from the above conclusions, remain quashed.
The inter se seniority and the consequent promotions of respondent Nos. 1 to 5 in Civil Appeal No. 3935/88 as well as the petitioners in Special Leave Petition (Civil) No. 2150/87 shall be determined subject to the above directions.
All these mat ters are disposed of accordingly with the above directions.
In the circumstances of the cases, there will be no order as to costs.
G.N. Appeals disposed of.
| Article 371D of the Constitution of India, which is peculiar to the State of Andhra Pradesh only, empowers the President to provide by order for equitable opportunities and facilities for the people belonging to different parts of the State in the matters of public employment and educa tion.
As provided therein the President of India made the Andhra Pradesh Public Employment (Organisation of Local Cadres and Regulation of Direct Recruitment) Orders, 1975, by virtue of which the State was divided into six zones, and local cadres of posts in respect of the local areas were created.
In respect of Andhra Pradesh Panchayati Raj Engi neering Service the two such zonal posts were Junior Engi neer and Assistant Engineer.
Before the Administrative Tribunal, some promotions made from Junior Engineer to Assistant Engineer were questioned, and the Tribunal held that promotions should be made on the basis of the Statewide list and directed the State Government to redetermine the position of the petitioners before it, in the seniority list.
Aggrieved by the Tribunal 's order, the State Government and the affected officials have approached this Court by way of the present appeals and special leave petitions.
On behalf of the State Government, it was contended that both the posts of Junior Engineer and Assistant Engineer were zonal posts under the Presidential Order and the zonal seniority list had to be followed in the 28 matter of promotions from Junior Engineer to Assistant Engineer and not the Statewide seniority list of Junior Engineers.
On behalf of the Respondents it was contended that Article 371D (2) of the Constitution refers only to direct recruitment and the Presidential Order made under the said Article cannot make a departure and cannot be made applica ble for promotions also.
It was further contended that it is the Statewide list that should be the basis for promotion.
Disposing of these matters, this Court, HELD: 1.
Notwithstanding anything contained in the A.P. Panchayati Raj Engineering Service Rules, 1963 the promo tions have to be based on zonal list; otherwise the very object sought to be achieved as per Article 371D of the Constitution of India and the Presidential Order issued thereunder would be defeated.
The word 'employment ' should be interpreted in a broad and general manner.
The expression 'in the matter of public employment ' in clause (1) of Arti cle 371D is of wider import.
The public employment can be by way of direct recruitment or by promotion.
The Presidential Order would apply both for direct recruitment and for promo tion in respect of categories specified in the Third Sched ule.
Article 371D (2) does not make any departure from this principle.
The words 'in particular, therein only lay empha sis on the aspect of creating local cadres for different parts of the State for the purpose/of direct recruitment and treat such parts as local areas.
This does not in any manner restrict the scope of Article 371D wherein it is clearly declared that in the matter of public employment, the Presi dent is empowered to make an order in the manner stated therein and the public employment cannot but be interpreted to include promotion also.
It, therefore, emerges that Article 371D is in general terms and applies to the public employment as whole and Article 371D(2) in particular ap plies to direct recruitment.
It is only complementary to clause (1) and particularises the matters which an order made under clause (1) provides for.
Any other interpretation would defeat the object underlying these two provisions.
[42 D H, 43 A] The General Manager, Southern Railway vs Rangachari, ; , relied on.
Article 371D is of exceptional nature and the objective is to provide equal opportunities in the backward areas in respect of the specified posts mentioned in the Third Schedule which are included in the local cadres which thus became zonal posts.
As mentioned in para 5 of the 29 Presidential Order and Rule 2 A of the A.P. Panchayati Raj Engineering Service Rules, such zones should be treated as separate units for the purpose of promotions also.
There fore, there is valid nexus to the object that is sought to be achieved and even if there is some anamoly it cannot on that basis be said that such promotions for zonal posts on the basis of the zonal seniority list amounts to discrimina tion.
[44 D E] 2.2.
Rule 2 A makes it abundantly clear that for the purpose of recruitment, appointment, promotion, transfer etc.
each zone shall be a separate unit.
Para 5 of the Presidential Order is also to the same effect.
When once each zone is treated as separate unit for the purpose of promotion also in respect of zonal posts then by virtue of Article 371D and the Presidential Order, the promotion from the post of junior Engineer to the post of Assistant Engi neer which are both zonal posts, should be on the basis of the zonal seniority list inasmuch as the post of Junior Engineer and the next promotion post namely Assistant/Engi neer are included in the local cadres and the zonal list in the Third Schedule.
With regard to the higher post which included in the local cadre and which are Statewide posts, it becomes obvious that the Statewide seniority list of the Assistant Engineer of all zones should be prepared and that should be the basis of promotion to the post of Executive Engineer which is not a zonal post.
Therefore, the direc tions given by the Tribunal to ensure that no Junior Engi neer is promoted earlier than their seniors in the Statewide seniority list to the post of Executive Engineer, should be quashed.
[43 F H, 44 A B] section Prakasha Rao and Anr.
vs Commissioner of Commercial Taxes and Ors., , relied on.
High Court of Andhra Pradesh and Ors.
vs V.V.S. Krishna murthy and Ors., , referred to.
All promotions of Junior Engineers (redesignated as Assistant Executive Engineers) to the next higher post of Assistant Engineers (redesignated as Deputy Executive Engi neers) have to be made on the basis of the zonal seniority list and not on the basis of the Statewide seniority list of Junior Engineers.
Having regard to the historical background and the object underlying Article 371D and the Presidential Order and in particular para 13 of the Presidential Order, the promotions, if any made should be 30 treated only as provisional.
If Rule 2 A is viewed from this angle particularly in the light of paras 5 and 13 of the Presidential Order it becomes clear that the said Rule has to be given retrospective effect so that the promotions to the junior posts can be brought in conformity with Articles 371D and the Presidential Order.
The promotions made after the Presidential Order dated 18.11.1975 should be treated as provisional and the Government is permitted to review these promotions on the basis of zonal seniority lists and re adjust the same all the future promotions.
from the post of Junior Engineer to the post of Assistant Engineer should necessarily be made on the basis of the zonal seniority lists.
For the purpose of promotion to the post of Executive Engineer, which is not a zonal post, a Statewide seniority list of the Assistant Engineers of all zones should be prepared and such statewide seniority list should form the basis of promotion to the post of Executive Engineer.
The State Government is accordingly directed to prepare such lists i.e. zonal seniority lists of various zones for the purpose of promotions from Junior Engineers to Assistant Engineers within the zones and also the statewide seniority list of the Assistant Engineers of all zones for the purpose of promotions to the post of Executive Engineer.
Such of the directions given by the Tribunal in the matters, which are contrary to and different from the conclusions now reached, shall remain quashed.
[44 D E; 44 D H; 45 A B] 3.3.
The inter se seniority and the consequent promo tions of Respondent Nos.
1 to 5 in Civil Appeal No. 3935/88 as well as the petitioners in Special Leave Petition (Civil) No. 2150/87 shall be determined subject to the directions, now given.
[45 B C] Y. N. Rangiah and Ors.
J. Sreenivasa Rao and Ors.
, [1983]3 SCC 284; N.T. Devin Katti and Ors.
vs Karnata ka Public Sen,ice Commission and Ors., ; , referred to.
|
ivil Appeal Nos.3033 34 of 1989.
From the Judgment and Order dated 28.2.1989 of the Punjab Haryana High Court in C.W.P. No. 7209 of 1987 (in L.P.A. No. 748/87) and C.W.P. No. 7607 of 1987.
WITH Special Leave Petition (C) Nos.
4483 4485 of 1989.
D.V. Sehgal, R.D.Upadhyaya, Ashok Sharma, Nabhyawala, D.S. Tewatia and Ms. Madhu for the Appellants.
Ms. B. Rana and N.S. Das Behl (for the State) for the re spondents.
The Judgment of the Court was delivered by K RAMASWAMY, J.
Leave granted in Special leave Petitions and heard alongwith the appeals.
Common questions of facts and law arise in the appeals and hence are disposed of by a common judgment.
It is not necessary to restate the facts, preceding the decision of the High Court of Punjab & Haryana in Gurjit Singh & Ors.
vs State of Punjab & Ors.
(WP No. 2374 of 1985).
Suffice to state that the High Court in the said judgment, while allow ing the ad hoc appointments made by the Government of Punjab to the posts of Patwaris under the Punjab Revenue Patwari Class II1 Service Rules, 1963, for short 'the Rules ' to continue for six months, directed the State Government to make regular appointments in accordance with the rules within the said period from the date of the judgment or else the ad hoc arrangement would lapse.
Pursuant thereto, since the Service Selection 155 Board, Punjab was not constituted, the Government of Punjab by a notification dated August 26, 1986 amended rule 2(a) and empowered the State Govt.
to authorise "other authori ties" to make recruitment to the service.
Accordingly the Govt.
constituted a Committee for each District, by proceed ing dated May 27, 1986 to make selection.
For the District Committee of Patiala, the Dy.
Commissioner, Patiala was the Chairman, the District Revenue Officer, Patiala, District Sainik Welfare Officer and District 'Social Welfare Officer (Scheduled Caste) were nominated as members of the Commit tee.
to the pending names of the candidates before the S.S. Board were sent to the Committee for selection.
The Dis trict Collector invited applications ' from special catego ries, namely, children effected by the riots at Delhi, terrorists effected families in Punjab, etc.
and issued call letters to 1210 candidates for interview.
By the date of the interview Shri Piara Singh, the District Revenue Officer was transferred and his successor had participated in the selec tion.
Out of 821 candidates appearing for interview, 189 candidates were selected; the list was prepared in their order of merit; and the Distt.
Collector appointed 146 candidates and sent them for Patwari training and on their completion of it in a period of one year, they were appoint ed as Patwaris on probation.
The selections were challenged by unsuccessful candidates in several writ petitions and by judgment dated February 28, 1989, the High Court dismissed the L.P. Appeal and the Writ Petitions.
On leave under Article 136, the appeals arise from that batch.
The first contention of the appellants that the Commit tee was not properly constituted and, therefore, the selec tion of the candidates are invalid has no force.
Under rule 4(1) of the rules, as per amended rule 2(a) the authority authorised by the Govt. is entitled to make recruitment to the service of Patwaris.
The Committee constituted consists of Dy.
Commissioner as Chairman, the District Revenue Offi cer, Patiala, District Sainik Welfare Officer and District Social Welfare Officer (S.C.) as members.
Undoubtedly, at the time when the Committee was constituted, Piara Singh was the District Revenue Officer.
On his transfer, his successor had participated in the selection.
We have seen the notifi cation.
The Distt.
Revenue Officer, Patiala was nominated in official capacity.
Therefore, the member having been nomi nated by virtue of his office, the incumbent in office was, therefore, entitled to participate in the selection of the candidates.
It is true that the representation of the sched uled castes need be by an officer belonging to Scheduled Caste.
The District Social Welfare Officer (Scheduled Caste) as required should be an officer belonging to the members of the scheduled caste.
It is not uncommon that the Social Welfare Officer may be an officer other than one from the scheduled castes.
But here in this case it is not the contention that the 156 District Social Welfare Officer was not a scheduled caste officer representing the scheduled castes.
Therefore, we find that the committee constituted was properly composed of the representatives enumerated therein.
The composition of the committee and the selection of the candidates, there fore, are legal and valid.
It is next contended that the District Collector was not competent to invite applications afresh and selection of the candidates from out of those applicants is illegal.
It is true that he is bound by the instructions issued by the Government in Annexure 'D ' wherein it was stated that since the number of applicants are quite large in number, it would not be necessary to solicit candidate afresh from Employment Exchange or through public advertisement.
But in paragraph 4 therein it was stated that priority categories listed in the proceeding dated April 24, 1986 will have to be given prece dence over candidates from all other sources other than the regularisation of the existing ad hoc Patwaris.
It had given room to the District Collector to invite applications from those categories.
Though it was a mistaken compliance on wrong impression, the selection of the candidates, so apply ing does not become illegal.
It was next contended that.
instead of calling the applications by publication in the newspapers, only notice was put on the Notice Board of the Collector 's office and some candidates submitted their applications in pursuance thereof and that is not a proper notification.
Though we find that the procedure adopted by the Collector, in inviting applications is not ommendable, but the grievance would be voiced only by the persons who did not have the opportunity to make applications within the prescribed period.
But no such grievance could be raised by persons like the appellants.
Under those circumstances, the procedure adopted, though irregular, does not vitiate the selection of candidates, ultimately made by the Committee.
It is next sought to raise a contention that none of the candidates from the priority categories were selected and this was used only as a lever to invite applications from the candidates other than those, some of which were ulti mately selected and it is irregular.
We find no substance in it.
That apart it is a factual position to be investigated and that no such plea was raised nor argued in the High Court.
Therefore, we cannot permit the appellants to raise this contention for the first time in this Court.
It is next contended that there was no proper opportuni ty given to the appellants in the interview.
Only 15 hours were spent to interview 821 candidates and the selection, therefore, is a farce.
This contention also was not raised before the High Court, but raised in these appeals for the first time.
In the counter filed in this court, it was refuted.
It was stated that they had spent 35 hours in total at the rate of 7 hours per day.
That 157 means they spent 5 days in selecting the candidates.
The selection is for the Patwaris in the Class III service.
The ratio in Ashok Yadav vs State of Haryana, [1985] Suppl.
1 SCR 657 has no application to the facts in this case.
There in the selection was to the Class I service of the State service and sufficient time was required to interview each candidate.
In this case, on calculation, we found that on an average three minutes were spent for each candidate for selection.
Rule 7 of the rules provides the qualifications, namely, pass in the Matriculation or Higher Secondary Exami nation; knowledge in Hindi and Punjabi upto the Middle Standard and good knowledge of rural economy and culture.
The educational qualifications are apparent from record and need no interview in this regard.
It could be seen that candidates normally hailing from rural backgrounds had presumptively good knowledge of rural economy and culture.
Therefore, there is no need for special emphasis to ascer tain their knowledge of the rural economy or culture.
Under those circumstances much time need not be spent on each candidate for selection except asking some questions on general knowledge and aptitude for work as Patwari etc.
It is then contended that the written test, conducted by the previous Service Selection Board, was abandoned and only oral interviews were conducted.
The selection, therefore, is illegal.
Normally it may be desirable to conduct written test and in particular hand writing that which is vital for a Patwari whose primary duty is to record clearly entries in revenue records followed by oral interview.
The rules do not mandate to have both.
Options were given either to conduct written test or viva voce or both.
In this case the Commit tee adopted for viva voca as a method to select the candi dates which cannot be said to be illegal.
It is next contended that the appellants have now become over aged and that they are 22 in all.
Therefore, direc tions may be given to the Government to relax their age qualification and given appointments to them.
We find no justification to give such a direction.
Admittedly, the appellants have taken the chance for selection and they were not selected on the basis of comparative merits.
Therefore, merely because appellants are carrying on the litigation, there cannot be any justification to give direction to the Govt.
to consider their cases by relaxing the age qualifica tion for appointment as Patwari.
It is not in dispute that hundreds of candidates who could not be selected would in that event seek similar relief.
Under these circumstances we do not find any cause to add to the selection and appoint ment of the candidates as Patwaris.
The High Court, though for different reasons, has rightly dismissed the writ peti tions.
The appeals are accordingly dismissed, but without costs.
R.P. Appeals dismissed.
| In a writ petition decided by the High Court of Punjab and Haryana, it allowed the ad hoc appointments made by the Government of Punjab to the posts of Patwaris, to continue for six months from the date of the judgment and directed the Government to make regular appointment of Patwaris within that period.
Since the Service Selection Board, Punjab was not constituted at the relevant time, the Govern ment of Punjab by a Notification dated 26.8.86 amended Rule 2(a) of the Punjab Revenue Patwari Class III Services Rules, 1963, and empowered the State Government to authorise "other authorities" to make recruitment to the service.
According ly, the Government constituted a selection committee for each district.
The District Committee of Patiala consisted of the Dy.
Commissioner, Patiala as Chairman, and District Revenue Officer, the District Sainik Welfare Officer and the District Social Welfare Officer (Scheduled Caste) as its Members.
The pending names of the candidates before the Service Selection Board were sent to the Committee for selection.
The District Collector also invited applications from children affected by the riots at Delhi, terrorists affected families in Punjab and the like special categories.
By the date of the interview the District Revenue Officer was transferred and his successor participated in the Selec tion.
The selections were challenged by unsuccessful candi dates in several writ petitions which were dismissed by the High Court.
Aggrieved the petitioners filed appeals before this Court by special leave.
153 It was contended on behalf of the appellants that the selection was bad because: the Committee was not properly constituted; the District Collector was not competent to invite applications afresh; written test was abandoned and only oral interviews were conducted; no proper opportunity was given to appellants in the interview inasmuch as 821 candidates were interviewed in 15 hours.
It was also prayed that since the appellants had meanwhile become overage, the Government should be directed to relax their age and to give appointments to them.
Dismissing the appeals, this Courts, HELD 1.1 On the transfer of the member having been nominated by virtue of his office, the incumbent in office was entitled to participate in the selection of the candi dates.
The committee constituted was properly composed of the representatives enumerated therein, and the selection of the candidates, therefore, was legal and valid.
[pp. 155 F G; 156 A] 1.2 Although the representation of the Scheduled Castes need be by an officer belonging to Scheduled Caste, and the District Social Welfare Officer (Scheduled Caste), as re quired should be an officer belonging to the members of the Scheduled Castes, yet it is not uncommon that the Social Welfare Officer may be an officer other than one from the Scheduled Castes.
[p. 155 G,H] 2.
If applications from candidates are invited and they are called for interview though under a mistaken compliance on wrong impression, the selection of the candidates, so applying, does not become illegal.
[p. 156 D] 3.
Normally it may be desirable to conduct written test and in particular hand writing that which is vital for a Patwari whose primary duty is to record clearly entries in revenue records followed by oral interview.
The rules did not mandate to have both.
Options were given either to conduct written test or viva voce or both and the committee adopted viva voce as a method to select the candidates which could not be said to be illegal.
[p.157 D E] 4.
On an average three minutes were spent for each candidate for selection.
Keeping in view the facts that educational qualifications were apparent from the record, the candidates normally hailing from rural background had presumptively good knowledge of rural economy and 154 culture, under the circumstances, much time need not be spent on each candidate for selection except asking some questions on general knowledge and aptitude for work as Patwari etc.
[p. 157 B D] Ashok Yadav vs State of Haryana, [1985] Suppl.
1 SCR 657, held inapplicable.
The appellants had taken the chance for selection and they were not selected on the basis of comparative merits.
Merely because they were carrying on the litigation, there could not be any justification to give direction to the Government to consider their cases by relaxing the age qualification for appointment as Patwari.
[157 F G]
|
Appeal No.2168 of 1980.
From the Judgment and Order dated 2.8.1979 of the Patna High Court in C.W.J.C. No.1819 of 1979.
R.K. Khanna and R.P. Singh for the Appellant.
L.C. Goyal for the Respondents.
The Judgment of the Court was delivered by K. RAMASWAMY, J.
The appellant, the Ex Treasurer of the Gopalganj Co op.
Development & Cane Marketing Union, Gopal ganj, was said to have defalcated a sum of Rs. 95,790.54 and for recovery thereof, proceedings were initiated under section 48 of the Bihar and Orissa Co operative Societies Act, VI of 1935, for short 'the Act ' with interest accrued thereon of Rs. 25,555 as on December 30, 1976.
The Registrar referred the matter to the Asstt.
Registrar, Gopalganj, who on en quiry and having given the opportunity to the appellant passed an award in Case No. 400 of 1975 on December 30, 1976 for the aforesaid sums.
On appeal, the Deputy Registrar set aside the award on the ground that the appellant was surch arged in Surcharge Case No. 18 of 1976.
On further revision, the first respondent set aside the appellate order and confirmed the award with a further direction to pay interest till date of recovery.
The appellant filed C.W.J.C. No. 1819 of 1979 which was dismissed in limine by the Patna High Court on August 2, 1979.
Thus this appeal by Special Leave.
The learned counsel for the appellant raised two fold contentions.
His first contention is that the Registrar has no revisional jurisdiction under section 56 since the award of the Asstt.
Registrar is by the Registrar under the Act and the Asstt.
Registrar acted as his delegate.
In support thereof he placed strong reliance on Din Dayal Singh vs The Bihar State Cooperative Marketing Union Ltd, It is further contended that surcharge proceedings against the appellant were initiated under section 40 in 147 which the appellant was found payable of partial amount as against which the society filed an appeal before the Govern ment which is pending.
The award amounts to double jeopardy for the same liability.
Therefore, it is illegal.
We find no substance in either contention.
Section 2 (i) of the Act defines 'Registrar ', which means a person appointed to perform the duties of Registrar of Co operative Societies under this Act.
Section 6 in Chapter II provides thus: "6.
The Registrar (1) The State Government may appoint a person to be registrar of Co operative Societies for the State or any portion of it, and may appoint persons to assist such Registrar.
(2) The State Government may, by general or special order published in the Official Ga zette, confer (a) on any person appointed under sub section (1), to assist the Registrar, all or any of the powers of the Registrar under this Act except the powers under Section 26; and (b) on any Co operative Federation or financ ing bank all or any of the powers of the Registrar under Section 20, sub section (3) of Section 28 and Section 33.
(3) Where the State Government is of opinion that the Registrar needs the assistance of Additional Registrar for speedy disposal of business, it may by order published in the Official Gazette, appoint such number of Additional Registrar as it may deem fit.
(4) Notwithstanding anything to the contrary contained in any other provision of the Act, the Registrar may delegate, transfer or assign to the Additional Registrar such of his powers and functions and duties as he may consider necessary including the power under sections 26 and 56 and the Additional Registrar shall, thereupon have powers of Registrar in matters so delegated, transferred or assigned to him.
" From a reading of sub sections (1) to (3) of section 6, it is clear that the State Government may appoint a person to be the Registrar of the Cooperative Societies besides Addition al Registrar and also appoint persons to assist such Regis trar.
Under sub section 2 (a) the persons appointed to 148 assist the Registrar are entitled to exercise all or any of the powers of the Registrar under the Act except under section 26.
Sub section (4) gives power to the Registrar to dele gate, transfer or assign to the Addl.
Registrar all the powers including the power under sections 26 and 56 and thereupon the Addl.
Registrar as a delegate of the Registrar is empow ered to exercise powers so transferred or assigned or dele gated to him.
Section 6 thereby makes a clear distinction between the.
exercise of the powers of the Registrar, by the Addl.
Registrars as a delegate of the Registrar and of the Assn.
Registrars or Dy.
Registrars appointed to assist the Registrar empowered as such in the discharge of their func tions under the Act.
Such assistants are entitled by statu tory operation to exercise the powers under the Act con ferred by the State Govt.
except to the extent expressly excluded by the statute.
Section 48 provides procedure to adjudicate any dispute touching the business of a registered Society other than a dispute regarding disciplinary action taken by the Society or its Managing Committee against a paid servant of the society, arising amongst its members covered by clauses (a) to (e) and (c) covering any officer, agent or servant of the society (past or present).
Such disputes shall be referred to the Registrar.
Under sub section (2) thereof the Regis trar may on receipt of such reference (a) decides the dis pute by himself or (b) transfer for disposal to "any person exercising the powers of the Registrar in this behalf '.
Under sub section (3) the Registrar (Assistant or Deputy) on reference shall dispose of the same in th manner provided and the rules.
A right of appeal under s.48 (6) is provided against the award made under sub section (3).
Sub section (9) provides the subject to the orders of the Registrar on appeal or review a decision given in a dispute transferred or referred under clauses (b) and (c) shall be final.
Sec tion 56 provides power of revision thus: Power of revision by Registrar The Registrar may on application or of his own motion revise any order passed by a person exercising the powers of a Registrar or by a liquidator under section 44" A bare reading of these relevant provisions clearly manifests the legislative intention that the Registrar on reference, himself may decide the dispute or transfer it for disposal to a person exercising powers of the Registrar in this behalf.
If the Registrar himself decides the dispute under section 48(3) the question of either appeal or revision to him does not arise except a review.
This dichotomy is to be maintained when a revisional power is to be exercised by the Registrar.
The power of the revision is conferred expressly only, either on application or suo moto, against any 149 order passed by "a person exercising the powers of the Registrar".
Obviously it refers to the person appointed to assist him under section 6(2)(a) of the Act.
In Chintapalli Agency Taluk Arrack Sales Co op.
Society Ltd. vs Society (Food & Agriculture), Govt.
of Andhra Pradesh, ; a similar question had arisen.
The Dy.
Registrar of Co operative Societies gave notice to the appellant and amended under section 16 (5) of the A.P. Co operative Societies Act, the Bye laws of the Society so as to restrict the area of operation within the specified area.
On a revision filed against the order under section 77, the Registrar gave certain directions which was assailed being without jurisdiction.
When it came before the High Court, the High Court allowed the writ petition.
On appeal this court held that the power of the Registrar is in accordance with the pre eminent position accorded by the Act to the Registrar under whose supervision any other person appointed under s.3 (1) may function and act.
"It is, therefore, not correct that the Registrar could not exercise powers under section 77 in examining the correctness, legality or propriety of the proceedings initiated by the Dy.
Registrar under section 16(5) of the Act".
It was further held that the power under s.16 is that of the Registrar, but the Dy.
Registrar is empowered by the Government to exercise the powers, but under the general superintendence of the Registrar.
Accord ingly it was held that the revision was maintainable.
The same ratio applies to the facts on hand.
The Registrar under section 6 (1) of the Act has his pre eminent supervisory authori ty over the functions and orders of the Registrars appointed under section 6(2) (a) to assist him in the discharge of the duties or functions under the Act except over his delegate under sub section (4) of section 6.
His supervisory or revisional power is to correct all palpable material errors in the orders passed or the action taken by the subordinate offi cers feeding injustice.
The language couched in section 56 advis edly was wide of the mark to reach injustice whenever found in the orders or actions of his subordinate officers.
Merely because the Asstt.
Registrar on reference exercised the power under sub section
(3) of s.48, the Registrar is not denuded of his supervisory or revisional powers under section 56 of the Act.
Therefore, the Addl.
Registrar as delegate of the Registrar is clearly within his power to exercise his revi sional power over the appellate order under section 48 (6) of the Act.
It is accordingly legal and valid.
The ratio in Roop Chand vs State of Punjab, [1963] Suppl.
1 SCR 539 is clearly distinguishable.
Therein the State Govt.
have expressly delegated their power to the Asstt.
Director.
Thereby the Subordinate Officer exercised the powers of the State Govt.
as their delegate.
The Govt.
was thereafter devoid of powers to exercise the revisional powers over the subordinate officers.
This court in Chintapalli Agency 's case (supra) distinguished Roop 150 Chand 's ratio.
Din Dayal Singh 's case (supra) no doubt supports the contention of the appellant.
Relying upon the language in sub section (9) of section 48 "save as expressly provided in this section ", the Division Bench construed that the appellate order of the Deputy Registrar passed under section 48 (6) was otherwise provided and so was not amena ble to revision under section 56.
The learned Judges construed that since the appellate order shall be final.
The effect of language under sub sec.
(9) of section 48 was to exclude the revisional jurisdiction of the Registrar under section 36.
In addition, the Division Bench also construed that the Regis trar himself referred the dispute to the Asstt.
Registrar and any person exercising the power of the Registrar in this behalf is to be in the parameters of his delegate and that, therefore, the Registrar himself cannot revise his own order under section 56.
We find it difficult to approve the ratio of the High Court.
At the cost of repetition we point out that section 6, sub section (1) and sub section 2 (a) make a distinc tion between "the Registrar" and "a person exercising the powers of the Registrar".
Sub section (4) further amplifies the exercise of the power of the Registrar by the Additional Registrar as his delegate.
That apart, it is clear that the Registrar is the final supervisory authority over the subor dinate officers exercising the powers or performing the duties under the Act.
The language in section 56 was couched very widely without being hedged with any limitation like the revisional powers under section 115 C.P.C. or the similar language used in sister Acts in some other States like A.P. The reason appears to be obvious.
The order of the Dy.
Registrar by language of sub section (6) of section 48, undoubt edly shall be final.
We are aware that when the legislature gives "finality" to an order, it is normally not open to revision.
But still in must be construed in the light of the scheme of the Act, its operation and resultant effect.
The language in s.56 is not hedged with any limitation of the finality in sub section (6) of section 48.
Thus we hold that the revisional power under section 56 is independent of the appellate power under section 48(6).
The letter is amenable to revi sion by the Registrar.
The ratio of the Division Bench in Din Dayal 's case (supra) is, therefore, not good law.
The second contention that the award of the Asstt.
Registrar amounts to double jeopardy offending his right under article 20 is misconceived and without substance.
Un doubtedly section 40 gives power to the Registrar to initiate surcharge proceedings, on receipt of audit report under section 33 or an enquiry under section 35 or on inspection under Ss. 34, 36 or 37 or of the winding up proceedings, if it appears to the Registrar that any person who has taken part in the organisation or the management of the society or any past or present officers of the society made any illegal payment under clause (a); or by reason of his culpable negligence or mis 151 conduct causes loss or deficiency to the funds of the socie ty under clause (b); or failed to bring into account any sums which ought to have been brought into the account under clause (d); or misappropriated or fraudulently retained any property of the society or of the financing bank etc.
The proceedings under section ,18 are in the nature of a civil suit, otherwise cognisable by a civil court under section 9 of the C.P.C.
The statute has taken out the jurisdication of the civil court and expressly conferred on the Registrar or a person exercising the powers of the Registrar to decide the dispute touching the business or management of the society between its members, past members etc.
or their office bearers, agent or officers or servants of the society etc.
The proceedings under section 40 are not in substitution of section 48, but are independent of and in addition to the normal civil remedy under section ,18.
The culpable negligence, miscon duct, misappropriation, fraudulent conduct etc.
are relevant facts to be established in the proceedings under section 40.
But that is not so under section 48.
Therefore, mere initiation or an order passed under section 40 does not divest the jurisdiction or power of the Registrar under section 48 when it was referred to for a decision of the dispute.
Exercise of the jurisdiction to pass an award under section ,18(3) or revision under section 56 does not amount to double jeopardy.
We are informed that an appeal before the Government is pending against surcharge order under section 40.
We express no opinion thereon.
We hold that exercise of the power to pass an award under section 48 does not amount to double jeopardy.
The appellate order of the Dy.
Registrar is obviously and palpably illegal and rightly corrected.
The appeal is accordingly dismissed, but since none appeared for the respondents we order no costs.
V.P.R Appeal dismissed.
| The appellant, an Ex Treasurer of a Co operative Society was said to have defalcated a sum of Rs. 95,790.54 and for recovery thereof, proceedings were initiated under section 48 of the Bihar and Orissa Co operative Societies Act, 1935 with interest accrued thereon of Rs. 25,55 as on December 30, 1976.
The Registrar referred the matter to the Asstt.
Regis trar who on enquiry and having given the opportunity to the appellant passed an award, against which appeal was filed.
The Deputy Registrar allowed the appeal on the ground that the appellant was surcharged.
On revision, the first respondent set aside the appel late order and confirmed the award with a further direction to pay interest till date of recovery.
The appellant filed a writ petition which was dismissed in limine by the High Court against which this appeal by special leave.
The appellant contended that the Registrar had no revi sional 144 jurisdiction under Section 56 since the award of the Asstt.
Registrar was by the Registrar under the Act acting as Registrar 's delegate; that surcharge proceedings against the appellant were initiated under Section 40 in which the appellant was found payable of partial amount, as against which, the society filed an appeal before the Government, which was pending and the award amounted to double jeopardy for the same liability and therefore, it was illegal.
Dismissing the appeal, this Court, HELD: 1.
A bare reading of the relevant provisions in Section 48 clearly manifests the legislative intention that the Registrar on reference, himself may decide the dispute or transfer it for disposal to a person exercising powers of the Registrar in this behalf.
If the Registrar himself decides the dispute under Section 48(3) the question of either appeal or revision to him does not arise except a review.
This dichotomy is to be maintained when a revisional power is to be exercised by the Registrar.
The power of revision is conferred expressly only, either on application or suo moto, against any order passed by "a person exercis ing the powers of the Registrar".
Obviously it refers to the person appointed to assist him under section 6(2) (a) of the Act.
[148G H, 149 A] 2.
The Registrar under section 6(1) of the Act has his pre eminent supervisory authority over the function and orders of the Registrars appointed under section 6(2)(a) to assist him in the discharge of the duties or functions under the Act except over his delegate under sub section (4) of section 6.
His supervisory or revisional power is to correct all palpable material errors in the orders passed or the action taken by the subordinate officers feeding injustice.
Merely because the Asstt.
Registrar on reference exercised the powers under sub,section (3) of section 48.
The Registrar is not denuded of his supervisory or revisional powers under section 56 of the Act.
Therefore, the Addl.
Registrar as delegate of the Registrar is clearly within his power to exercise his revisional power over the appellate order under section 48(6) of the Act.
It is accordingly legal and valid.
[149 E G] 3.
The language in section 56 was couched very widely without being hedged with any limitation like the revisional powers under section 115 C.P.C. or the similar language used in sister Acts in some other States.
The reason appears to be obvious.
The order of the Dy.
Registrar by language 145 of sub section (6) ors.
48, undoubtedly shall be final.
When the legislature gives 'finality ' to an order, it is normally not open to revision.
But still it must be construed in the light of the scheme of the Act, its operation and resultant effect.
The language in section 56 is not hedged with any limita tion of the finality in sub section (6) of Section 48.
The revisional power under section 56 is independent of the appellate powers under section 48(6).
The latter is amenable to revision by the Registrar.
[150 D F] 4.
The proceedings under section 40 are not in substitution of section 48, but are independent of and in addition to the normal civil remedy under section 48.
The culpable negligence, misconduct, misappropriation, fraudulent conduct etc.
are relevant facts to be established in the proceedings under section 40.
But that is not so under section 48.
Therefore, mere initiation or an order passed under section 40 does not divest the jurisdiction or power of the Registrar under section 48 when it was referred to for a decision of the dispute.
Exercise of the jurisdiction to pass an award under section 48(3) or revision under section 56 does not amount to double jeopardy.
[151 C D] 5.
Section 2(i) of the Act defines "Registrar", which means a person appointed to perform the duties of Registrar or Co operative Societies under this Act.
The State Govern ment may appoint a person to be the Registrar of the Co operative Societies besides Additional Registrar and also appoint persons to assist such Registrar.
Under sub section 2(a) the persons appointed to assist the Registrar are entitled to exercise all or any of the powers of the Regis trar under the Act except under section 26.
Sub section (4) of Section 6 gives power to the Registrar to delegate, transfer or assign to the Addl.
Registrar all the powers including the powers under section 26 and 56 and thereupon the Addl.
Regis trar as a delegate of the Registrar is empowered to exercise powers so transferred or assigned or delegated to him.
Section 6 thereby makes a clear distinction between the exercise of the powers of the Registrar, by the Addl.
Regis trar as a delegate of the Registrar and of the Asstt.
Registrars or Dy.
Registrars appointed to assist the Regis trar empowered as such in the discharge of their functions under the Act.
Such assistants are entitled by statutory operation to exercise the powers under the Act conferred by the State Govt.
except to the extent expressly excluded by the statute.
[147 B, 148 A B] Din Dayal Singh vs The Bihar State Cooperative Marketing Union Ltd., 146 , over ruled Chintapalli Agency Taluk Arrack Sales Co op.
Society Ltd. vs Secretary (Food & Agricultural), Govt.
of Andhra Pradesh, ; , followed.
Roop Chand vs State of Punjab, [1963] Suppl.
1 SCR 539, distinguished.
|
N: Criminal Appeal Nos.
97, 98, 99 100 & 101 of 1991.
From the Judgment and Order dated 2.12.1989 of the Karnataka High Court in Criminal R. P. No. 458, 459, 460, 461 and 462 of 1989.
A.S. Bobde, Attorney General, Vinod Bobde and section Sukumaran for the Appellant.
G. Ramaswamy, K.N. Nobin Singh and Ms. Lalitha Kaushik for the Respondents.
M.Veerappa for the State of Karnataka.
The Judgment of the Court was delivered by K.N. SAIKIA, J.
Special leaves granted.
399 These five appeals are from as many similar orders of the High Court of Karnataka at Bangalore dismissing the appellant company 's criminal revision petitions impugning the respective orders passed by the Judicial Magistrate First Class, Gokak holding that the appellants ' complaints against the respondents alleging offence under section 630(l)(b) of the Companies Act by not vacating the Company 's quarters as required by it even more than six months after retirement of the respondents, were barred by limitation and the same could not be taken into consideration.
The first respondent in each of these criminal appeals was appointed on 1.8.1942, 11.6.1945, 24.11.1939, 1.5.1939 and 23.1.1937, respectively.
in the service of the appellant company and they retired on 14.3.1984, 1.10.1983, 12.2.1984, 4.10.1983 and 27.1.1981, respectively, from the appellant company 's service, whereafter each of them was required to vacate his company 's quarter.
Each having declined to vacate the company 's quarter even more than six months after retirement, despite legal notice, the appellant company filed a private criminal complaint under section 630(l)(b) of the and s.406 I.P.C. against each of them, before the Judicial Magistrate First Class, Gokak and in each case, after inquiry framed charges for offences under section 406 I.P.C. and section 630(l)(b) of the .
The learned Judicial Magistrate, after prosecution had examined its witnesses, recorded the statements of all the accused under section 313 of the Cr.
P.C. and despite finding that the accused in each case was allotted a quarter by the company for his use and occupation and each had no authority to retain possession of the same after he retired, and that the cause of action in each case arose when the accused failed to deliver possession of the quarter to the company, held that the documents produced by, the company did not disclose anything regarding the retirement of the accused from the service, but at the same time he recorded that during the course of evidence P.W. 1 had deposed that each of the accused retired from service and immediately after the retirement failed to redeliver possession of the company 's quarter which attracted section 630(l)(b) of the and which was punishable only with fine and the complaint, therefore, ought to have been filed within six months from the date of retirement of the accused, and as the complaint was filed only during the year 1985 it was clearly barred by limitation, wherefore, ,the complaint could not be taken into consideration, and consequently, the accused was to be acquitted.
The Company 's revision petition therefrom was dismissed by the High Court holding that the view taken by the trial Magistrate was plausible and reasonable as the complaint was filed in each case 400 beyond six months from the date of the alleged offence and that the question, of limitation was concluded by a decision of the same High Court in W.M.I Cranes Ltd. vs G.G. Advani & Anr., [19841] Kar.
Law Cronicle 462 wherein it was held that the offence under section 30 (1) of the was not a continuing offence and the decisions of this Court in Bhagirath Kanoria and Ors.
vs State of Madhya Pradesh with Bahadur Singh vs Provident Fund Inspector & Ors.
and Raja Bahadur Singh vs Provident Fund Inspector and Ors., AIR 1984 SC 1688 would not be of any assistance to the petitioner.
Mr. A.S. Bobde, the learned counsel appearing for the appellant company, submits that the offence under section 630(1)(b) of the is a continuing offence and the learned courts below erred in holding to the contrary and dismissing the company 's complaints on the ground of limitation.
Mrs. Lalitha Kaushik, the learned counsel for each of the first respondent, submits that when the first respondent upon his retirement failed to vacate and deliver possession of the company 's quarter to the company, the offence must be taken to have been complete, and thereafter right could accrue to the first respondent by adverse possession; and that if this state of affairs continued till completion of the period of limitation the company 's right would be extinguished.
The trial court as well as the High Court, according to counsel, rightly held that the offence was not a continuing one.
The only question to be decided in these appeals, therefore, is whether the offence under section 630(l)(b) of the is a continuing offence for the purpose of limitation.
What then is a continuing offence? According to the Blacks ' Law Dictionary, Fifth Edition (Special Deluxe), 'Continuing means "enduring; not terminated by a single act or fact; subsisting for a definite period or intended to cover or apply to successive similar obligations or occurrences.
" Continuing offence means "type of crime which is committed over a span of time." As to period of statute of limitation in a continuing offence, the last act of the offence controls for commencement of the period. "A continuing offence, such that only the last act thereof within the period of the statute of limitations need be alleged in the indictment or information, is one which may consist of separate acts or a course of conduct but which arises from that singleness of thought, purpose or action which may be deemed a single impulse." So also a 'Continuous Crime ' means "one consisting 401 of a continuous series of acts, which endures after the period of consummation, as, the offence of carrying concealed weapons.
In the case of instantaneous crimes, the statute of limitation begins to run with the consummation, while in the case of continuous crimes it only begins with the cessation of the criminal conduct or act.
" The corresponding concept of continuity of a civil wrong is to be found in the Law of Torts.
Trespass to land in the English Law of Torts (trespass quare clausum fregit) consists in the act of (1) entering upon land in the possession of the plaintiff, or (2) remaining upon such land, or (3) placing or projecting any object upon it in each case without lawful Justification.
Trespass by remaining on land, as we read in Salmond and Heuston on the Law of Torts, 19th Edn., page 50: "Even a person who has lawfully entered on land in the possession of another commits a trespass if he remains there after his right of entry has ceased.
To refuse or omit to leave the plaintiff 's land or vehicle is as much a trespass as to enter originally without right.
Thus any person who is present by the leave and licence of the occupier may, as a general rule, when the licence has been properly terminated, be sued or ejected as a trespasser, if after request and after the lapse of a reasonable time he fails to leave the premises.
" Trespass in Law of Torts may be a continuing one.
The authors write: "That trespass by way of personal entry is a continuing injury, lasting as long as the personal presence of the wrongdoer, and giving rise to actions de die in diem so long as it lasts, is sufficiently obvious.
It is well settled, however, that the same characteristic belongs in law even to those trespasses which consist in placing things upon the plaintiff 's land.
Such a trespass continues until it has been abated by the removal of the thing which is thus trespassing; successive actions will lie from day to day until it is so removed: and in each action damages (unless awarded in lieu of an injunction) are assessed only up to the date of the action.
Whether this doctrine is either logical or convenient may be a question, but it has been repeatedly decided to be the law.
" Again if the entry was lawful but is subsequently abused and continued after the permission is determined the trespass may be ab initio.
In 1610 six carpenters entered the Queen 's Head Inn, Cripplegate, and consumed a quart of wine (7d.) and some bread (1d.), for which they refused to pay.
The question for the court was whether 402 their non payment made the entry tortious, so as to enable them to be sued in trespass quare clausum fregit.
The court held that: "When entry, authority or licence is given to any one by the law, and he doth abuse it, he shall be a trespasser ab initio," but that the defendants were not liable as their non payment did not constitute a trespass.
The rule is that the authority, having been abused by doing a wrongful act under cover of it, is cancelled retrospectively so that the exercise of it becomes actionable as a trespass.
In Halsbury 's Laws of England, 4th Edn.
45 para 1389 it is said: "If a person enters on the land of another under an authority given him by law, and, while there, abuses the authority by an act which amounts to a trespass, he becomes a trespasser ab initio, and may be sued as if his original entry were unlawful.
Instances of any entry under the authority of the law are the entry of a customer into a common inn, of a reversioner to see if waste has been done, or of a commoner to see his cattle.
To make a person a trespasser ab initio there must be a wrongful act committed; a mere nonfeasance is not enough." Against the above background, we may now examine the relevant provision of law, keeping in mind that Some of the Torts have counterparts in Criminal law in India.
Section 441 of the Indian Penal Code defines Criminal trespass as follows: "Whoever enters into or upon property in the possession of another with intent to commit an offence or to intimidate, insult or annoy any person in possession of such property, or having lawfully entered into or upon such property, unlawfully remains there with intent thereby to intimidate, insult or annoy any such person, or with intent to commit an offence, is said to commit 'criminal trespass '.
" House trespass is punishable under section 448 of the Indian Penal Code.
It is significant that when entry into or upon property in possession of another is lawful then unlawfully remaining upon such property 403 with the object Of intimidating,insulting or annoying the person in possession of the property would be criminal trespass.
The offence would be continuing so long as the trespass is not lifted or vacated and intimidation, insult or annoyance of the person legally in possession of the property is not stopped.
The authors of the Code had the following words to say: "We have given the name of trespass to every usurpation,however slight, of dominion over property.
We do not propose to make trespass, as such, an offence, except when it is committed in order to the commission of some offence injurious to some person interested in the property on which the trespass is committed, or for the purpose of causing annoyance to such a person.
Even then we propose to visit it with a light punishment, unless it be attended with aggravating circumstances.
These aggravating circumstances are of two sorts.
Criminal trespass may be aggravated by the way in which it is committed.
It may also be aggravated by the end for which it is committed.
" Section 630 of the reads as under: "Penalty for wrongful withholding of property.
(1) If any officer or employee of a company (a) wrongfully obtains possession of any property of a company or (b) having any such property in his possession, wrongfully withholds it or knowingly applies it to purposes other than those expressed or directed in the articles and authorised by this Act; he shall, on the complaint of the company or any creditor or contributory thereof, be punishable with fine which may extend to one thousand rupees.
(2) The Court trying the offence may also order such officer or employee to deliver up or refund, within a time to be fixed by the Court, any such property wrongfully 404 obtained or wrongfully withheld or knowingly misapplied,or in default, to suffer imprisonment for a term which may extend to two year.
" Thus, both wrongfully obtaining and wrongfully withholding have been made offence punishable under sub sec.
Under sub sec.
(2) knowingly misapplication has also been envisaged.
The offence continues until the officer or employee delivers up or refunds any such property if ordered by the court to do so within a time fixed by the Court, and in default to suffer the prescribed imprisonment.
The idea of a continuing offence is implied in sub section (2).
Section 468 of the Criminal Procedure Code says: "Bar to taking cognizance after lapse of the period of limitation (1) Except as otherwise provided elsewhere in this Code, no Court shall take cognizance of an offence of the category specified in sub section (2), after the expiry of the period of limitation.
(2) The period of limitation shall be (a) six months, if the offence is punishable with fine only; (b) one year, if the offence is punishable with imprisonment for a term not exceeding one year; (c) three years, if the offence is punishable with imprisonment for a term exceeding one year but not exceeding three years.
(3) For the purposes of this section, the period of limitation, in relation to offences which may be tried together, shall be determined with reference to the offence which is punishable with the more severe punishment or, as the case may be, the most severe punishment.
" The parties have not disputed that this case attracted section 468(1) and (2)(a).
Regarding the fact of the first respondent having retired from service though the trial Magistrate observed that the document did not specifically state that the first respondent retired, when after 405 referring to oral evidence the cause of action under section 630(l)(b) was held to have arisen on the first respondent 's failure to vacate and deliver possession of the company 's quarter and that the period of limitation ran therefrom tantamounted to finding that the first respondent did retire.
"Officer" or "employee" in section 630 of the includes both present and past officers and employees.
In Baldev Krishna Sahi vs Shipping Corporation of India Ltd. and Anr., [1987] 4 SCC 361 at paragraph 8 of the report this Court said: "Section 630 of the which makes the wrongful withholding of any property of a company by an officer or employee of the company a penal offence, is typical of the economy of language which is characteristic of the draughtsman of the Act.
The section is in two parts.
Sub section (1) by clauses (a) and (b) creates two distinct and separate offences.
First of these is the one contemplated by clause (a), namely, where an officer or employee of a company wrongfully obtains possession of any property of the company during the course of his employment, to which he is not entitled.
Normally, it is only the present officers and employees who can secure possession of any property of a company.
It is also possible for such an officer or employee after termination of his employment to wrongfully take away possession of any such property.
This is the function of clause (a) and although it primarily refers to the existing officers and employees, it may also take in roast officers and employees.
In contrast, clause (b) contemplates a case where an officer or employee of a company having any property of a company in his possession wrongfully withholds it or knowingly applies it to purposes other than those expressed or directed in the articles and authorised by the Act.
It may well be that an officer or employee may have lawfully obtained possession of any such property during the course of his employment but wrongfully withholds it after the termination of his employment.
That appears to be one of the functions of clause (b).
It would be noticed that clause (b) also makes it an offence if any officer or employee of a company having any property of the company in his possession knowingly applies it to purposes other than those expressed or directed in the articles and authorised by the Act.
That would primarily 406 apply to the present officers and employees and may also include past officers and employees.
There is therefore no warrant to give a restrictive meaning to the term 'officer or employee ' appearing in sub section ( 1) of section 630 of the Act.
It is quite evident that clauses (a) and (b) are separated by the word 'or ' and therefore are clearly disjunctive." This Court also observed at paragraph 7 of the report that the beneficent provision contained in section 630, no doubt penal, has been purposely enacted by the legislature with the object of providing a summary procedure for retrieving the property of the company (a) where an officer or employee of a company wrongfully obtains possession of property of the company, or (b) where having been placed in possession of any such property during the course of his employment, wrongfully withholds possession of it after the termination of his employment.
It is the duty of the court to place a broad and liberal construction on the provision in furtherence of the object and purpose of the legislation which would suppress the mischief and advance the remedy.
"It is the duty of the court to place a broad and liberal construction on the provision in furtherence of the object and purpose of the legislation which would suppress the mischief and advance the remedy.
As was reiterated in Amrit Lal Chum vs Devoprasad Dutta.
Roy and Anr.
, reported in ; that "section 630 of the plainly makes it an offence if an officer or employee of a company who was permitted to use the property of the company during his employment, wrongfully retains or occupies the same after the termination of his employment.
It is the wrongful withholding of such property, meaning the property of the company after the termination of the employment, which is an offence under section 630(1) of the Act.
" What then is the nature of this offence.
The question then is whether it is a continuing offence.
According to Black 's Law Dictionary Revised Fourth Edition, continuing offence means a transaction or a series of acts set on foot by a single impulse, and operated by an unintermittent force, no matter how long a time it may occupy.
In State of Bihar vs Deokaran Nenshi, , the question was whether the failure to furnish returns on the part of the owner of a stone quarry under regulation 3 of the Indian Metalliferrous Mines Regulations, 1926 even after warning from the Chief Inspector was a continuing offences Section 79 of the which provided that no Court shall take cognizance of an offence under the Act unless a complaint was made within six months from the date of the offence 407 and the explanation to the section provided that if the offence in question was a continuing offence, the period of limitation shall be computed wherefore to every part of the time during which the said offence continued Shelat, J. for the court observed: "A continuing offence is one which is susceptible of continuance and is distinguishable from the one which is committed once and for all.
It is one of those offences which arises out of a failure to obey or comply with a rule or its requirement and which involves a penalty, the liability for which continues until the rule or its requirement is obeyed or complied with.
On every occasion that such disobedience or non compliance occurs and recurs, there is the offence committed.
The distinction between the two kinds of offences is between an act or omission which constitutes an offence once and for all and an act or omission which continues and therefore, constitutes a fresh offence every time or occasion on which it continues.
In the case of a continuing offence, there is thus the ingredient of continuance of the offence which is absent in the case of an offence which takes place when an act or omission is committed once and for all." Their Lordships referred to English cases Best vs Butler and Fitz gibbon, ; Verney vs Mark Fletcher and Sons Ltd., [1909] 1 KB 444; Rex vs Yalore, [1908] 2 KB 237 and The London County Council vs Worley, In Best vs Butler and Fitzgibbon (supra) in England, the Trade Union Act, 1871 by section 12 provided that if any officer, member or other person being or representing himself to be a member of a trade union, by false representation or imposition obtained possession of any moneys, books etc.
of such trade union, or, having the same in his possession wilfully withheld or fraudulently misapplied the same, a court of summary jurisdiction would order such person to be imprisoned.
The offence of withholding the money referred to in this section was held to be a continuing offence, presumably because every day that the moneys were wilfully withheld an offence within the meaning of section 12 was committed.
In Verney 's case (supra) Section 10(1) of the Factory and Workshop Act, 1901 inter alia provided that every fly wheel directly connected with steam, water or other mechanical power must be securely fenced.
Its sub section (2) provided that a factory in which there was contravention of the section would be deemed not to be kept in conformity with the Act.
Section 135 provided penalty for an occupier of a factory 408 or workshop if he failed to keep the factory or workshop in conformity with the Act.
Section 146 provided that information for he offence under section 135 shall be laid within three months after the date at which the offence came to the knowledge of the inspector for the district within which the offence was charged to have been committed.
The contention was that in May 1905 and again in March 1908 the fly wheel was kept unfenced to the knowledge of the Inspector and yet the information was not laid until July 22, 1908.
The information, however, stated that the fly wheel was unfenced on July 5, 1908, and that was the offence charged.
It was held that the breach of section 10 was a continuing breach on July 10, 1908, and therefore the information was in time.
The offence under section 135 read with section 10 consisted in failing to keep the factory in conformity with the Act.
Every day that the flywheel remained unfenced, the factory was kept not in conformity with the Act, and therefore, the failure continued to be an offence.
Hence the offence defined in section 10 was a continuing offence.
In London County Council (supra) section 85 of the Metropolis Management Amendment Act, 1852 prohibited the erection of a building on the side of a new street of less than fifty feet in width, which shall exceed in height his distance from the front of the building on the opposite side of the street without the consent of the London County Council and imposed, penalties for offences against the Act and a further penalty for every day during which such offence should continue after notice from the County Council.
The Court construed section 85 to have laid down two offences; (1) building to a prohibited height, and (2) continuing such a structure already built after receiving a notice from the County Council.
The latter offence was a continuing offence applying to any one who was guilty of continuing the building at the prohibited height after notice from the County Council.
State of Bihar vs Deokaran Nenshi, (supra) was explained by this Court in Bhagirath Kanoria & Ors.
vs State of Madhya Pradesh & Ors.
, ; Therein, the Provident Fund Inspector filed complaints against the Directors, the Factory Manager and the respondent company charging them with non payment of employer 's contribution under the Employees ' Provident Fund and Family Pension Fund Act, 19 of 1952, from February 1970 to June 1971.
At the trial the accused contended that since the limitation prescribed by section 468 of the Code of Criminal Procedure, 1973 had expired before the filing of the complaints, the Court had no jurisdiction to take cognizance of the complaints.
The Trial Court having held that the offences of which the accused were charged were continuing offences and, therefore, no question of limitation could arise, and that order having been upheld 409 by the High Court in revision, the Directors in appeal to this Court contended that the offence of non payment of the employer 's contribution could be committed once and for all on the expiry of 15 days after the close of every month and, therefore, prosecution for the offence should have been launched within the period of limitation provided in section 468 of the Code.
Rejecting the contention it was held by this Court that the offence of which the appellants were charged namely, non payment of the employer 's contribution to the Provident Fund before the due date, was a 'continuing offence ' and, therefore, the period of limitation prescribed by section 468 of the Code could not have any application and it would be governed by section 472 of the Code, according to which, a fresh period of limitation began to run at every moment of the time during which the offence continued.
It was accordingly held that each day the accused failed to comply with the obligation to pay their contribution to the fund, they committed fresh offence.
Section 472 of the Code of Criminal Procedure deals with continuing offence and says: "In the case of a continuing offence, a fresh period of limitation shall begin to run at every moment of the time during which the offence continues.
" The concept of continuing offence does not wipe out the original guilt, but it keeps the contravention alive day by day.
It may also be observed that the courts when confronted with provisions which lay down a rule of limitation governing prosecutions, in cases of this nature, should give due weight and consideration to the provisions of section 473 of the Code which is in the nature of an overriding provision and according to which, notwithstanding anything contained in the provisions of Chapter XXXVI of the Code of Criminal Procedure any court may take cognizance of an offence after the expiration of a period of limitation if, inter alia, it is satisfied that it is necessary to do so in the interest of justice.
The expression 'continuing offence ' has not been defined in the Code.
The question whether a particular offence is a 'continuing offence ' or not must, therefore, necessarily depend upon the language of the statute which creates that offence, the nature of the offence and the purpose intended to be achieved by constituting the particular act as an offence.
Applying the law enunciated above to the provisions of Section 630 of the , we are of the view that the offence under 410 this section is not such as can be said to have consummated once for all.
Wrongful withholding, or wrongfully obtaining possession and wrongful application of the company 's property, that is, for purposes other than those expressed or directed in the articles of the company and authorised by the , cannot be said to be terminated by a single act or fact but would subsist for the period until the property in the offender 's possession is delivered up or refunded.
It is an offence committed over a span of time and the last act of the offence will control the commencement of the period of limitation and need be alleged.
The offence consists of a course of conduct arising from a singleness of thought, purpose of refusal to deliver up or refund which may be deemed a single impulse.
Considered from another angle, it consists of a continuous series of acts which endures after the period of consummation on refusal to deliver up or refund the property.
It is not an instantaneous offence and limitation begins with the cessation of the criminal act, i.e. with the delivering up or refund of the property It will be a recurring or continuing offence until the wrongful possession, wrongful withholding or wrongful application is vacated or put an end to.
The offence continues until the property wrongfully obtained or wrongfully withheld or knowingly mis applied is delivered up or refunded to the company.
For failure to do so sub section (2) prescribes the punishment.
This, in our view, is sufficient ground for holding that the offence under section 630 of the is not one time but a continuing offence and the period of limitation must be computed accordingly, and when so done, the instant complaints could not be said to have been barred by limitation.
The submission that when the first respondent upon his retirement failed to vacate and deliver possession of the company 's quarter to the company the offence must be taken to have been complete, has, therefore, to be rejected.
These appeals accordingly succeed.
The impugned orders are set aside and the cases are remanded to the Trial Court for disposal in accordance with law in light of the observations made herein above.
V.P.R. Appeals allowed.
| Appellant Company filed criminal complaints under Section 630(l)(b), Companies Act and Section 406, IPC against its employees (the first respondent of each appeal) as they did not vacate the company quarters after about six months even after retirement.
The Judicial Magistrate, First Class dismissed the complaints as the same were not filed within the period of limitation of six months from the date of retirement of the Respondents employees.
The High Court,holding that the offence under Section 630(1) was not a continuing offence, dismissed the Company 's revision petitions.
In the appeal to this Court on the question, whether the offence under Section 630(l)(b) of the Companies Act is a continuing offence for the purpose of limitation, allowing the Appeals of the Appellant Company, this Court, HELD: 1.
The beneficent provision contained in section 630, no doubt penal, has been purposely enacted by the legislature with the object of providing a summary procedure for retrieving the property of the company: (a) where an officer or employee of a company wrongfully obtains 397 possession of property of the company, or (b) where having been placed in possession of any such property during the course of his employment, wrongfully withholds possession of it after the termination of his employment.
It is the duty of the court to place a broad and liberal construction on the provision in furtherence of the object and purpose of the legislation which would suppress the mischief and advance the remedy.
[406B E] 2."Officer" or "employee" in s.630 of the Companies Act includes both present and past officers and employees.[405B C] 3.
The concept of continuing offence does not wipe out the original guilt, but it keeps the contravention alive day by day.
The courts when confronted with provisions which lay down a rule of limitation governing prosecutions should give due weight and consideration to the provisions of s.473 of the Code which is in the nature of an overriding provision and according to which, notwithstanding anything contained in the provisions of Chapter XXXVI of the Code of Criminal Procedure any court may take cognizance of an offence after the expiration of a period of limitation, if, inter alia, it is satisfied that it is necessary to do so in the interest of justice.
[409D G] 4.
The expression `continuing offence ' has not been defined in the Code.
The question whether a particular offence is a 'continuing offence ' or not must,therefore,necessarily depend upon the language of the statute which creates that offence, the nature of the offence and the purpose intended to be achieved by constituting the particular act as an offence.
[409F H] 5.The offence under section 630 is not such as can be said to have consummated once for all.
Wrongful withholding, or wrongfully obtaining possession and wrongful application of the company 's property, that is, for purposes other than those expressed or directed in the articles of the company and authorised by the Companies Act, can not be said to be terminated by a single act or fact but would subsist for the Period until the property in the offender 's possession is delivered up or refunded.
It is an offence committed over a span of time and the last act of the offence will control the commencement of the period of limitation and need be alleged.
The offence consists of a course of conduct arising from a singleness of thought, purpose of refusal to deliver up or refund which May be deemed a single impulse.
Considered from another angle, it consists of a continuous series of acts which endures after the period of consummation on refusal to deliver up or refund the property.
It is 398 not an instantaneous offence and limitation begins with the cessation of the criminal act, i.e., with the delivering up or refund of the property.
It will be a recurring or continuing offence until the wrongful possession, wrongful withholding or wrongful application is vacated or put an end to.
The offence continues until the property wrongfully obtained or wrongfully withheld or knowingly misapplied is delivered up or refunded to the company.
For failure to do so sub section (2) prescribes the punishment.
[409H 410E] 6.
The offence under section 630 of the Companies Act is not one time but a continuing offence and the period of limitation must be computed accordingly, and when so done, the complaints could not be said to have been barred by limitation.
[410D F] W.M.I. Cranes Ltd. vs G.G. Advani & Anr., [1984] 1 Kar.
Law Cronicle 462 overruled; Bhagirath Kanoria and Ors.
vs State of Madhya Pradesh with Bahadur Singh vs Provident Fund Inspector and Ors., A.I.R. 1984 S.C. 1688 referred; Baldev Krishna Sahi vs Shipping Corporation of India Ltd. and Anr., [1987] 4 S.C.C. 361; Amrit Lal Chum vs Devoprasad Dutta Roy and Anr.
; , ; State of Bihar vs Deokaran Nenshi, [19731 1 S.C.R. 1004; Bhagirath Kanoria & Ors.
vs State of Madhya Pradesh & Ors.
, ; followed.
Black 's Law Dictionary, Eighth Edition, (Special Deluxe); Salmond and Heuston on the Law of Torts, 19th Edn.
Page 50; Halsbury 's Laws of England.
4th Edn.
Vol 45, Para 1389 referred to.
|
Appeal No.1290 of 1979.
From the Judgment and Order dated 16.8.1977 of the Punjab and Haryana High Court in Regular Second Appeal No. 1001 of 1966.
Dhruv Mehta and S.K. Mehta (NP) for the Appellants.
J.D. Jain for the Respondent.
The following Order of the Court was delivered: This is an appeal by special leave by the plaintiff Wakf Board.
Its suit for declaration of the right to the passage and possession thereof having been dismissed by the Trial Court, a title appeal was filed before the District Judge of Karnal.
By an exemption notification on the plaint in a suit of this type filed by the Wakf Board, court fee of Rs. 15 is payable.
On its memorandum of appeal, the plain tiff had paid the same amount of court fee also.
Objection was raised to sufficiency of court fee and respondents asked for dismissal of the memorandum of appeal as it had not been sufficiently stamped.
As a fact, while court fee of Rs. 638 was payable, court fee of Rs. 15 had been paid.
This matter was preliminarily considered by the appellate court and by the order dated 5.5.1966 the Additional District Judge sustained the objection and directed the memorandum of appeal to be dismissed.
The High Court did not interfere when plaintiff took the matter before it.
Ultimately special leave had been granted by this court and at the time of grant of leave, the following order was made: "As the petitioner is willing to pay deficit court fee on the memo of appeal before the District Judge without prejudice, we direct the issue of show cause notice to the other side? It is unfortunate that even when that order was made on 27.11.1978 this matter is coming for final disposal almost 13 years thereafter.
The plea raised by the appellant before the learned Additional District Judge that the appeal was a continuation of the suit and the same 181 Court fee as was payable on the plaint was appropriate in appeal had been rightly negatived.
At the trial stage, there was an exemption and since it was specifically confined to the trial stage there was no ground to claim the benefit at the appellate stage also.
But when the learned Additional District Judge came to hold that the memorandum of appeal had not been sufficiently stamped, instead of outright dismissing the memorandum of appeal, an opportunity should have been given and the appellant should have been called upon to make good the deficiency.
Under the provisions of Order VII of the Code of Civil Procedure which applies to suits, when the plaint does not bear appropriate court fee this is the requirement of the law.
Section 107 (2) of the Code of Civil Procedure provides: "(2) Subject as aforesaid, the Appellate Court shall have the same powers and shall perform as nearly as may be the same duties as are conferred and imposed by this Code on Courts of original jurisdiction in respect of suits instituted therein.
" Section 149 of the Code of Civil Procedure provides: "Where the whole or any part of any fee pre scribed for any document by the law for the time being in force relating to court fees has not been paid, the court may, in its discre tion, at any stage, allow the person, by whom such fee is payable, to pay the whole or part, as the case may be; of such court fee; and upon such payment the document, in respect of which such fee is payable shall have the same force and effect as if such fee had been paid in the first instance.
" Reading these two provisions together and keeping fair ness of procedure in view, we are inclined to agree with the counsel for the appellant that when the lower Appellate Court came to hold that the memorandum of appeal had not been sufficiently stamped, an opportunity should have been given by the Court to the appellant to make good the balance courtfee within a time to be indicated and if there was failure to comply with the direction of the Court the memo randum of appeal could have been dismissed.
This opportunity having not been given, we are of the view that the dismissal of the appeal was not appropriate.
Counsel for the appellant has undertaken to pay the deficit court fee as was payable on the memorandum of appeal when the appeal was filed within four weeks hence.
In case the amount of court fee is so paid, the 182 rifle appeal shah be revived to be dealt with in accordance with law.
If there be failure to do so, the order of dis missal shah stand sustained.
We are inclined to agree with counsel for the respond ents that this is a case of negligence on the part of the appellants and, therefore, the respondents who have been dragged in these proceedings for about 10 years should be compensated.
We direct that the restoration of the appeal in the appellate court on payment of appropriate court fee shall be subject to the further condition of payment by way of costs of Rs. 1,000.
The appeal is disposed of accordingly.
V.P.R. Appeal allowed.
| The plaintiff Wakf Board 's suit for declaration of the right to the passage and possession thereof having been dismissed by the Trial Court, a title appeal was filed before the District Judge.
A Court fee of Rs. 15 was paid on the plaint by the Wakf Board by an exemption notification.
On its memorandum of appeal, the plaintiff had paid the same amount of court fee.
Respondents asked for dismissal of the memorandum of appeal as it had not been sufficiently stamped.
The Additional District Judge dismissed the memorandum of appeal.
The High Court did not interfere, when plaintiff took the matter before it.
Hence this appeal by special leave by the plaintiff contending that the learned Additional District Judge in stead of dismissing the memorandum of appeal, an opportunity should have been given and the appellant should have been called upon to make good the deficiency.
Allowing the appeal, this Court, HELD: 1.
When the lower Appellate Court came to hold that the memorandum of appeal had not been sufficiently stamped, an opportunity should have been given by the Court to the appellant to make good the balance court fee within a time to be indicated and if there was failure to comply with the direction of the Court, the memorandum of appeal could 180 have been dismissed.
This opportunity having not been given, the dismissal of the appeal was not appropriate.
[181F G] 2.
This is a case of negligence on the part of the appellants and,therefore, the respondents who have been dragged in these proceedings for about 10 years should be compensated, by way of costs of Rs. 1,000.
[182 B]
|
Appeal No.903 of 1978.
From the Judgment and Order dated 5/6 12 1977 of the Bombay High Court in Special Civil Application No.1937 of 1971.
V.C. Mahajan, B.K. Prasad, Smt.
Sangeeta Aggarwal and C.V. Subba Rao (NP) for the Appellant.
K.R. Chowdhary for the Respondent.
The following Order of the Court was delivered This appeal by special leave is directed against the judgment and order of the Bombay High Court passed in Spe cial Civil Application No. 1937 of 1971 decided on December 5, 1977.
The Union of India, the appellant herein, approached the High Court under Article 226 of the Constitution challenging notices of demand issued by the Municipal Council, Purna, respondent No. 1 herein, claiming tax to the tune of Rs. 28,400/ by way of "Service charges" due for the period 1954 to 1.960.
The claim of the Union of India primarily was based under Article 285 of the Constitution read with Sec tion 135 of the Indian Railways Act, 1890.
The High Court interplaying the two provisions negatived the claim of the appellant by holding as follows: "In terms of Article 285(2) these properties will continue to be liable to such taxes 'until Parliament by law otherwise provides.
Mr. Govilkar has not drawn our attention to any specific law made by the Parliament pro viding otherwise.
He, however, relied on section 135 of the Indian Railways Act, but, as indicated earlier, provisions of section 135 cannot have any overriding ' effect against the continuance of such laws when authorised by Article 285 (2) of the Constitution.
It is not possible for us to hold that Railways Act is an Act made by the Parliament as contem plated under sub Article (2) of Article 285 of the Constitution" The High Court further observed that: "As Section 135 of the Railways Act is now substituted by the corresponding provi sions of the above enactment, it is unneces sary to consider the contention of Mr. Govil kar as to effect of the absence of any Notifi cation.
We have already indicated how section 135 or the corresponding section of the new enactment can have no overriding effect as against the saving of laws contemplated under Article 285 (2) of the Constitution.
" 185 The view expressed by the High Court is obviously erro neous.
Section 135 of the Indian Railways Act, 1890 gets saved under Article 285(1) of the Constitution itself.
The said Article provides that property of the Union shall, save in so far as Parliament may by law otherwise provide, be exempt from all taxes imposed by the State or by any author ity within a State.
Section 135 of the Railways Act provides as under: "Taxation of railways by local authorities: Notwithstanding anything to the contrary in any enactment, or in any agreement or award based on any enactment, the following rules shall regulate the levy of taxes in respect of railways from railways administrations in aid of the funds of local authorities, namely:. (1) A railway administration shall not be liable to pay any tax in aid of the funds of any local authority unless the (Central Gov ernment) has, by notification in the official gazette, declared the railway administration to be liable to pay the tax.
(2) While a notification of the (Central Government), under clause (1) of this Section is in force, the railway administration shall be liable to pay to the local authority either the tax mentioned in the notification or in lieu thereof such sum, if any as an officer appointed in this behalf by the (Central Government ) may having regard to all the circumstances of the case, from time to time determine to be fair and reasonable.
(3) The (Central Government ) may at any time revoke or vary a notification under clause (1) of this Section: (4) Nothing in this Section is to be construed as debarring any railway administration from entering into contract with any local authori ty for the supply of water or light or for the scavenging of railway premises or for any other service which the local authority may be rendering or be prepared to render within any part of the local area under its control.
(5) 'Local Authority ' in this section means a local authority as defined in the General Clauses Act, 1887 and includes any authority legally entitled to or entrusted with the control or management of any fund for the maintenance of watchmen or for conservancy of a river".
186 The aforesaid provision, existing as it is, in terms permits taxation of Railways by the local authority in the manner given therein; the Central Government being the controlling and the regulating authority permitting liabili ty at a given point of time, its extent and manner.
The Indian Railways Act being a central enactment has no role to play in sub Article (2) of Article 285, for that is a sphere in which the State legislation operates.
The reasoning of the High Court to oust the applicability of Section 135 of the Indian Railways Act on the test of sub Article (2) of Article 285 was totally misplaced, as also in not venturing to create room for it in sub Article (1) of Article 285.
The interplay of the constitutional and legal provisions being well cut and well defined requires no marked elaboration to stress the point.
Accordingly, we allow this appeal, set aside the judgment and order of the High Court and issue the writ direction asked for in favour of the Union of India restraining the respondent council from raising demands on the railway in regard to service charges.
We make it clear that the rights of the local authority as flowing under Section 135 of the Indian Railways Act, 1890 stand preserved in the event of the Central Government moving into the matter, if not already moved.
In the circumstances of the case, however, there will be no order as to costs.
V.P.R Appeal allowed.
| The Union of India, the appellant, approached the High Court under Article 226 of the Constitution, challenging notices of demand issued by the Municipal Council, respond ent No.1, claiming tax to the tune of Rs. 28,400 by way of 'Service charges ' due for the period 1954 to 1960, under Article 285 of the Constitution read with Section 135 of the Indian Railways Act, 1890.
The High Court dismissed the writ petition negativing the claim, against which, this appeal by special leave was filed.
Allowing the appeal, this Court, HELD 1.
Section 135 of the Indian Railways Act, 1890 gets saved under Article 285(1) of the Constitution itself.
The said Article provides that property of the Union shall, save in so far as Parliament may by law otherwise provide, be exempt from all taxes imposed by the State or by any authority within a State.
[185 A B] 2.
Section 1315 of the Railways Act permits taxation of Railways by the local authority in the manner given therein; the Central Government being the controlling and the regu lating authority permitting liability at a given point of time, its extent and manner.
The Indian Railways Act being a central enactment has no role to play in sub Article (2) of Article 285, for that is a sphere in which the State legis lation operates.
[186 A B] 3.
The reasoning of the High Court to oust the applica bility of Section 135 of the Indian Railways Act on the test of sub Article (2) of Article 285 was totally misplaced, as also in not venturing to create room for it in sub Article (1) of Article 285.
The interplay of the constitutional 184 and legal provisions being well cut and well defined re quired no marked elaboration to stress the point.
[186 B C]
|
vil Appeals Nos.
1221 & 1222 of 1977.
From the Judgment dated 20.1.1976 of the Andhra Pradesh High Court in Appeal Nos. 758 and 632 of 1975.
Mrs. Shyamala Pappu and Ms. Indira Sawhney for the Appel lants.
T.V.S.N. Chari for the Respondent.
The Judgment of the Court was delivered by FATHIMA BEEVI, J.
The appellants arc aggrieved that the High Court by the common judgment dated 20.1.1976 in two cases had substantially reduced on erroneous grounds the enhanced compensation allowed by the Subordinate Judge on reference under Section 18 of the Land Acquisition Act (for short the Act).
Civil Appeal No. 1222 of 1977 relates to acquisition of Ac.
8.33 cents of land in Survey No. 2/1 of Dondaparthi village in pursuance to Notification under Section 4(1) of the Act published on 7.7.1966 for construction of quarters for the staff of Porl Trust.
Civil Appeal No. 1221 of 1977 relates to acquisition of Ac.1.68 cents of land in Survey No. 2/2A of the same village in pursuance to the Notification published on 1.8.1968 for the purpose of formation of the national highway diversion road.
The appellants claimed land value at the rate of Rs. 10 per sq. yard since the Land Acquisition Officer awarded only 0.88 paise per sq. yard.
The learned Subordinate Judge determined the market value of the land at the rate of Rs. 11 per sq yard accepting as basis the value of land under the transactions evidenced by Exhibits A 1 to A 4, but granted the compensa 175 tion at the rate of Rs. 10 per sq. yard as the claimants themselves had claimed compensation at the rate of Rs. 10 per sq. yard.
The State preferred appeal against the said judgment of the 'Subordinate Judge to the High Court of Andhra Pradesh.
The High Court accepted Exhibits A I to A 4 as reflecting the value of land in the neighbourhood.
It however following the decision of this Court in Tribeni Devi vs Collector, Ranchi, ; , that a deduction of 1/3 of the value is to be made when large extent of land is acquired under housing scheme, determined the market value of the appellants land at the rate of Rs. 6.50 paise per sq. yard and accordingly reduced the total compensation allowed by the Subordinate Judge.
The learned counsel for the appellants contended before us that the High Court had erroneously applied the principle laid down in Tribeni Devi 's case (supra) without properly appreciating the nature of the land in question and the purpose for which it had been acquired.
It was submitted that the land in question was fully developed and eminently suitable for being used as house sites and, therefore, there was no justification for making any deduction.
It is also pointed out that even in respect of the land acquired for the purpose of formation of the road, the High Court wrongly proceeded on the basis that expenses have to be incurred for development and thus in awarding the compensa tion, the High Court wrongly applied principles of deduction of 1/3 of the value.
The learned counsel has taken us through the relevant evidence and maintained that the learned Subordinate Judge had reduced the land value to Rs. 10 per sq. yard though the market value was higher at Rs. 11 per sq. yard only because the appellants had themselves limited the claim to Rs. 10 per sq. yard The learned counsel for the respondent maintained that the appellants ' land forms part of large tract acquired for the purpose of construction of houses, that the sale deed Exhibits A 1 to A 4 relate to small plots which are fully developed and when the transaction is compared, it is neces sary to take into account the development that is required to be made for bringing the acquired land suitable for the purpose of construction and that the High Court was right in making the deduction of 1/3 of the value in the facts and circumstances of the case.
In awarding compensation in acquisition proceedings, the Court has necessarily to determine the market value of the land as on the date of the relevant Notification.
It is useful to consider the value paid for similar land at the material time under genuine transactions.
The market value envisages the price which a willing purchaser may pay under bona fide trans 176 fer to a willing seller.
The land value can differ depending upon the extent and nature of the land sold.
A fully de veloped small plot in an important locality may fetch a higher value than a larger area in an undeveloped condition and situated in a remote locality.
By comparing the price shown in the transactions all variables have to be taken into consideration.
The transaction in regard to smaller property cannot, therefore, be taken as a real basis for fixing the compensation for larger tracts of property.
In fixing the market value of a large property on the basis of a sale transaction for smaller property, generally a deduc tion is given taking into consideration the expenses re quired for development of the larger tract to make smaller plots within that area in order to compare with the small plots dealt with under the sale transaction.
This principle has been stated by this Court in Tribeni Devi 's case (supra).
In Kaushalya Devi vs Land Acquisition Officer, ; , this Court observed at pages 912 913 as under: "When large tracts are acquired, the transac tion in respect of small properties do not offer a proper guideline . . . .
In certain other cases this Court indicated that for determining the market value of a large property on the basis of a sale transaction for smaller property a deduction should be given.
" We shall also refer to the observations of this Court in Administrator General of West Bengal vs Collector, Varanasi, ; "The principle that evidence of market value of sales of small, developed plots is not a safe guide in valuing large extents of land has to be understood in its proper perspec tive.
The principle requires that prices fetched for small developed plots cannot directly be adopted in valuing large extents.
However, if it is shown that the large extent to be valued does admit of and is ripe for use for building purposes; that building lots that could be laid out on the land would be good selling propositions and that valuation on the basis of the method of a hypothetical lay out could with justification be adopted, then in valuing such small, laid out sites the valua tion indicated by sale of comparable small sites in the area at or about the time of the notification would be relevant.
In such a case, necessary deductions for the extent of land required for the formation of roads and other civic amenities; expenses of development of the sites by laying out roads, drains sewers, water and electricity lines, and the interest on the outlays for the period of deferment of the realisation of the price; the profits on the venture etc. are to be made.
" 177 This Court has in a recent decision in Special Tahsil dar Land Acquisition, Vishakapatnam vs Smt.
A. Mangala Gowri, 1991(2) Scale 301, following Tribeni Devi 's case pointed out as under: "It is to be noted that in building Regula tions setting apart the lands for development of roads, drainage and other amenities like electricity etc.
are condition precedent to approve lay out for building colonies.
There fore, based upon the .situation of the land and the need for development the deduction shall be made.
Where acquired land is in the midst of already developed land with amenities of roads, drainage, electricity etc.
then deduction of 1/3 would not be justified.
In the rural areas housing schemes relating to weaker sections deduction of 1/4 may be justi fied.
" The principle of deduction in the land value covered by the comparable sale is thus adopted in order to arrive at the market value of the acquired land.
In applying the principle it is necessary to consider all relevant facts.
It is not the extent of the area covered under the acquisition, the only relevant factor.
Even in the vast area there may be land which is fully developed having all amenities and situated in an advantageous position.
lf smaller area within the large tract is already developed and suitable for build ing purposes and have in its vicinity roads, drainage, electricity, communications etc.
then the principle of deduction simply for the reason that it is part of the large tract acquired, may not be justified.
The national highway runs very near to the proposed Port trust colony.
The lands acquired already for the South Eastern Railway Staff Quarters lie to the southern side of the land under acquisition.
The town planning trust road runs on the northern side of the land under acquisition.
The colony is in the fast developing part of the municipal town.
The plot of Ac. 1.68 cents in Survey No. 2/2A acquired for the formation of the diversion road is adjacent to built in area.
The land involved in these cases is of even level and fit for construction without the necessity for levelling or reclamation.
The High Court has itself conclud ed on the evidence that the lands covered by the acquisition are located by the side of the National Highway and the southern railway staff quarters with the town planning trust road on the north.
The neighbouring areas are already de veloped ones and houses have been constructed, and the land has potential value for being used as building sites.
Having found that the land is to be valued only as building sites and stated the advantageous position in which the land in question lies though forming part of the larger area, the High Court should not have applied the principles of deduc tion.
It is not in every case that such deduction is to be allowed.
Where the acquired land is in the 178 midst of already developed land with amenities of roads, electricity etc.
, the deduction in the value of the compara ble land is not warranted.
The proposition that large area of land cannot possibly fetch a price at the same rate at which small plots are sold is not absolute proposition and in given circumstances it would be permissible to take into account the price fetched by the small plots of land.
If the larger tract of land because of advantageous position is capable of being used for the purpose for which the smaller plots are used and is also situated in a developed area with little or no require ment of further development, the principle of deduction of the value for purpose of comparison is not warranted.
With regard to the nature of the plots involved in these two cases, it has been satisfactorily shown on the evidence on record that the land has facilities of road and other ameni ties and is adjacent to a developed colony and in such circumstances it is possible to utilise the entire area in question as house sites.
In respect of the land acquired for the road, the same advantages are available and it did not require any further development.
We are, therefore, of the view that the High Court has erred in applying the principle of deduction; and reducing the fair market value of land from Rs. 10 per sq. yard to Rs. 6.50 paise per sq. yard.
In our opinion, no such deduction is justified in the facts and circumstances of these cases.
The appellants, therefore, succeed.
In the result, the appeals are allowed and the respond ent is directed to pay the compensation as determined by the learned Subordinate Judge with interest and solatium in accordance with law.
In the circumstances of the case, we make no order as to costs.
G.N. Appeals allowed.
| The appellants ' lands were acquired under the Land Acquisition Act.
The appellants claimed land value at the rate of Rs. 10 per sq. yard, but the Land Acquisition Offi cer awarded compensation at the rate of Rs.0.88 per sq. yard.
On a reference the Sub Judge determined the market value at Rs. 11 per sq. yard on the basis of certain com parable transactions, but granted the compensation at the rate of Rs. I0 as the appellants themselves had claimed only at that rate.
On an appeal preferred by the Respondent State, the High Court determined the market value of the lands at the rate of Rs. 6.50 per sq. yard and reduced the total compensation, following the decision of this Court in Tribeni Devi vs Collector, Ranchi, AIR 1972 SC 141 that a deduction of 1/3 of the value is to be made when large extent of land is acquired under housing scheme.
Aggrieved by the High Court 's decision, the appellants preferred the present appeals, contending that the High Court had erroneously applied the principle laid down in Tribeni Devi 's case without properly appreciating the nature of the land in question and the purpose for which it had been acquired.
It was further contended that there was no justification for making any deduction since the land in question was fully developed and eminently suitable for being used as house sites.
Even in respect of the land acquired for the purpose of formation of the road, it was argued, the High Court wrongly proceeded on the basis that expenses have to be incurred for development.
On behalf of the Respondents, it was contended that the appellants ' lands form part of large tract acquired for the purpose of construction of 173 houses, that the other transaction based .on which compensa tion was decided by the Sub Judge, related to small plots of land which were fully developed and while comparing the transactions, it was necessary to take into account the development that is required to be made for bringing the acquired land suitable for the purpose of construction and that 1/3 of the value was rightly deducted.
Allowing the appeals, this Court, HELD 1.
The principle of deduction in the laud value covered by the comparable sale is adopted in order to arrive at the market value of the acquired land.
In applying the principle it is necessary to consider all relevant facts.
It is not the extent of the area covered under the acquisi tion, the only relevant factor.
Even in the vast area there may be land which is fully developed having all amenities and situated in an advantageous position.
If smaller area within the large tract is already developed and suitable for building purposes and have in its vicinity roads, drainage, electricity, communications etc.
then the principle of deduction simply for the reason that it is part of the large tract acquired, may not be justified.
[177 D].
Tribeni Devi vs Collector, Ranchi, ; , distinguished.
Kaushalya Devi vs Land Acquisition Officer, ; ; Administrator General of West Bengal vs Collector, Varanasi, ; ; Special Tahsildar, Land Acquisi tion, Vishakapatnam vs Smt, A. Mangala Gown, ; , relied on.
2 In the instant case, the lands involved are of even level and fit for construction without the necessity for levelling or reclamation.
Having found that the land is to be valued only as building sites and stated the advantageous position in which the land in question lies though forming part of the larger area, the High Court should not have applied the principles of deduction.
[177 F H] 3.
The proposition that large area of land cannot possibly fetch a price at the same rate at which small plots are sold is not absolute proposition and in given circum stances it would be permissible to take into account the price fetched by the small plots of land.
If the larger tract of land because of advantageous position is capable of being used for the purpose for which the smaller plots are used and is also situated in a 174 developed area with little or no requirement of further development, the principle of deduction of the value for purpose of comparison is not warranted.
With regard to the nature of the plots involved in these two cases, it has been satisfactorily shown on the evidence on record that the land has facilities of road and other amenities and is adjacent to a developed colony and in such circumstances it is possi ble to utilise the entire area in question as house sites.
In respect of the land acquired for the road, the same advantages are available and it did not require any further development.
[178 B,C).
|
Appeal No. 3656 of 1991.
From the Judgment and Order dated 5.12.1988 of the Allahabad High Court in Civil Misc.
Writ Petition No. 1695 of 1986.
O.P. Rana and Girish Chandra for the Appellants.
B.D. Agarwal and R .D.
Upadhyay for the Respondents.
121 The Judgment of the Court was delivered by SHARMA, J.
Special leave is granted.
This appeal is directed against the judgment of Allahabad High Court, allowing the writ petition of the respondents Nos. 1 to 5 under Article 226 of the Constitu tion, and directing that they shall not be evicted from the premises in dispute in pursuance of an eviction decree passed by the small causes court, Allahabad.
The main ques tion which arises for decision is whether in the facts and circumstances of the case the High Court was justified in entertaining the writ petition under Article 226 of the Constitution, and proceeding to issue the impugned direc tion.
The appellants are the owners of the premises in question which according to their case was in possession of Dr. K.C. Sinha as tenant.
After his death his son Prabhas Kumar Sinha, respondent No. 7, continued in possession.
The writ petitioners respondents are the sons of the brothers of Dr. K.C. Sinha, and according to their case they being members of the joint Hindu Family along with Dr. K.C. Sinha are tenants in their own right under the appellants.
The case of the appellants is that they were subsequently in ducted in the premises as sub tenants by Prabhas Kumar Sinha and did not have any independent right.
The eviction suit in the small causes court was filed by the appellants against Prabhas Kumar Sinha for his evic tion, without impleading the writ petitioners, and the decree passed therein is under challenge by the judgment debtor Prabhas Kumar Sinha in revision before the High Court.
In this background the respondents No. 1 to 5 ap proached the High Court under Article 226 of the Constitu tion, claiming that they, not being parties in the eviction case, are not bound by the decree.
The appellants in support of their denial of the claim of independent right as tenants of the writ petition ers, pleaded supporting facts and circumstances in detail, inter alia alleging that the writ petitioners have deliber ately concealed the fact they were parties in an immediately preceding case under the provisions of the Rent Act for release of the premises in favour of the landlord appellants and that the release order was ultimately made by the dele gated authority overruling their objection.
The High Court has held that since the claim of the writ petitioners was not examined and decided in the suit and the decree was passed against Prabhas Kumar Sinha only, they cannot be evicted from the premises unless a decree is expressly passed against them.
It has been 122 observed that the appellants must proceed to file a suit against the writ petitioners and obtain a decree against them if they intend to eject them.
It has been contended, and in our view correctly, that if the claim of the writ petitioners of being in pos session of the premises as tenants in their own right is rejected and they are held to have been inducted by Prabhas Kumar Sinha or his father Dr. K.C. Sinha, they are liable to be evicted in execution of the present decree.
It was, therefore, necessary to adjudicate upon the dispute between the parties and record a finding on the character of posses sion of the writ petitioners, before proceeding to consider whether the decree is executable or not against them, and having not done so, the High Court has seriously erred in law in allowing the writ petition by the impugned judgment.
The decision on the disputed issue was dependent on the consideration of the evidence to be led by the parties, and while exercising the writ jurisdiction the High Court was not expected to go into that question.
In the circumstances, the Court ought to have refused to dispose of the writ petition on merits, leaving the writ petitioners to avail of the remedy before the civil court.
The error in the judgment as pointed out earlier was the consequence of the initial mistake in entertaining the petition.
The principle as to when the High Court should exercise its special jurisdiction under Article 226 and when to refuse to do so on the ground of availability of an alternative remedy has been settled by a long line of cases.
The remedy provided under Article 226 is not intended to supersede the modes of obtaining relief before a civil court or to deny defences legitimately open in such actions.
As was observed in State of Andhra Pradesh vs Chitra Venkata Rao ; the jurisdiction to issue a writ of certiorari is supervisory in nature and is not meant for correcting errors like an appellate court.
In Thansingh Nathmal and Ors.
A. Mazid: ; a case dealing with liability to pay sales tax, the appellants without following the statutory remedy under the Sales Tax Act, moved the High Court under Article 226 on the ground that the Act was ultra vires.
The challenge was rejected.
Another contention, namely, that the finding of the Commissioner that the goods were actually within the State at the time of the contract was based on no evidence and was purely specu lative, was also raised.
This ground also failed before the High Court and the writ petition was dismissed.
Approving the decision, this Court observed that if the appellants had persued the statutory remedy under the Act and the question had been referred to the High Court, the Court could have appropriately advised the Commissioner, but not having done so the High Court could not be asked to assume the role of an appellate 123 court over the decision of the Commissioner either on a question of fact or even of law.
Again when a learned Single Judge of the High Court and on appeal a Division Bench proceeded to examine the correctness of an order in relation to grant of a permit to ply a vehicle under the Motor Vehi cles Act, it was observed by this Court in M. Naina Mohammed vs K.A. Natarajan & Ors., [1976] 1 SCR 102, that the power under Article 226 is supervisory in nature and the Judges at both the tiers had unwittingly slipped into the subtle but, fatal, error of exercising a kind of appellate review.
So far the question of executability of a decree is concerned, the Civil Procedure Code contains elaborate and exhaustive provisions for dealing with it in all its aspects.
The numerous rules of order XXI of the Code take care of differ ent situations, providing effective remedies not only to judgment debtors and decree holders but also to claimant objectors as the case may be.
In an exceptional case, where provisions are rendered incapable of giving relief to an aggrieved party in adequate measure and appropriate time, the answer is a regular suit in the civil court.
The remedy under the Civil Procedure Code is of superior judicial quality than what is generally available under other stat utes, and the Judge being entrusted exclusively with admin istration of justice, is expected to do better.
It will be, therefore, difficult to find a case where interference in writ jurisdiction for granting relief to a judgment debtor or a claimant objector can be justified.
The rules 97 to 106 of order XXI envisage questions as in the present appeal to be determined on the basis of evidence to be led by the parties and after the 1976 Amendment, the decision has been made appealable like a decree.
The High Court, in the present case, therefore, ought not to have embarked upon a decision of the writ petition on merits, and should have refused to exercise its special jurisdiction on the ground of alternative remedy before the civil court.
We, accordingly, set aside the impugned judgment and dismiss the writ petition of the respondents without exami nation of the merits of the rival cases of the parties.
The appeal is allowed with costs, assessed at Rs.2,000. """ N.P.V. Appeal allowed.
| The appellants, owners of the premises in question obtained a decree of eviction against the tenant, Respondent No. 7.
While the decree was under challenge before the High Court, Respondent Nos. 1 to 5 approached the High Court under article 226 of the Constitution, claiming that, being members of Joint Hindu Family, alongwith the lather of Respondent No. 7, they were tenants in their own right under the appellants and were not bound by the decree, since they were not parties in the eviction case.
The appellants denied the claim of independent right of the respondent Nos. 1 to 5 and alleged that they had been subsequently inducted in the premises as sub tenants by respondent No. 7.
The High Court held that since the claim of the Respond ent Nos. 1 to 5 was not examined and decided in the suit and the decree was passed against Respondent No. 7 only, they could not be evicted from the premises.
Allowing the appeal preferred by the landlord appel lants, this Court, HELD: 1.1 The remedy provided under article 226 is not intended to supersede the modes of obtaining relief before a civil court or to deny defences legitimately open in such actions.
The jurisdiction to issue a writ of certiorari is supervisory in nature and is not meant for correcting errors like appellate Court.
[122 E F] State of Andhra Pradesh vs Chitra Venkata Rao, ; ; Thansingh Nathmal & Ors.
A. Mazid; , and M. Naina Mohammed vs K.A. Natarajan & Ors., [1976] 1 SCR 102, relied on.
120 1.2 The Civil Procedure Code contains elaborate and exhaustive provisions for dealing with executability of a decree in all its aspects.
The numerous rules of order XXI of Civil Procedure Code take care of different situations, providing effective remedies not only to judgment debtors and decree holders but also to claimant objectors as the case may be.
In an exceptional case, where provisions are rendered incapable of giving relief to an aggrieved party in adequate measure and appropriate time, the answer is a regular suit in the civil court.
The remedy under the Code is of superior judicial quality than what is generally available under other statutes, and the judge, being en trusted exclusively with administration of justice, is expected to do better.
It will be, therefore, difficult to find a case where interference in writ jurisdiction for granting relief to a judgment debtor or a claimant objector can be justified.
Rules 97 to 106 of Order XXI envisage questions to be determined on the basis of evidence to be led by the parties and after the 1976 Amendment, the deci sion has been made appealable like a decree.
[123C E] 1.3 In the instant case, it was necessary to adjudicate upon the dispute between the parties and record a finding on the character of possession of Respondent Nos. 1 to 7 before proceeding to consider whether the decree is executable or not against them and having not done so, the High Court has seriously erred in law in allowing the writ petition filed by them.
The decision on the disputed issue was dependent on the consideration of the evidence to be led by the parties, and while exercising the writ jurisdiction, the High Court was not expected to go into that question and ought not to have embarked upon a decision on merits, and should have refused to exercise the special jurisdiction on the ground of alternative remedy before the civil court.
[122 B D]
|
URISDICTION: Civil Appeal Nos.
5439 52 of 1990 etc.
From the Judgments and Orders dated 20.8.1990/4.10.1990/ 15.10.1990 of the Central Administrative Tribunal, Principal Bench, Delhi in O.A. Nos.
1023, 309, 1705, 1058 & 1054 of 1989 and 1072, 1074, 1162, 1161, 1122, 1064, 536, 1230 of 1990 and M.P. No. 1354 of 1990 in O.A. No. 309 of 1989.
P.P. Rao, A.K. Behere, A.K. Sahu, C.N. Sreekumar, Gopal Subramanium, Madhan Panikhar, Mrs. Vimla Sinha, Gopal ,Singh, Salman Khurshid, Mrs. C.M. Chopra, A.M. Khanwilkar and Mrs. V.D. Khanna for 58 the Appellants.
Kapil Sibal, Additional Solicitor General, Ms. Kamini Jaiswal and C.V.S. Rao for the Respondents.
The Judgment of the Court was delivered by section RATNAVEL PANDIAN, J.
The above batch of Civil Appeals in which common questions of law arise, is preferred by special leave under Article 136 of the Constitution of India against the judgments dated 20.8.1990, 4.10.1990 and 5.10.1990 of the Central Administrative Tribunal, Principal Bench, New Delhi (hereinafter referred to as Tribunal) rendered in various affiliated groups of original applica tions (O.As) upholding the validity of the second proviso to Rule 4 of the Civil Services Examination Rules (hereinafter referred to as 'C.S.E. Rules ') introduced by Notification No. 13016/4/86 AIS(1) dated 13.12.1986 (Published in the Gazette of India Extraordinary, Part 1 Section 1).
Be it noted that similar notification has been/is being issued each year for the general information of the candidates setting down the terms and conditions, eligibility etc.
to sit for the Civil Service Examination of the concerned year.
While a substantial number of O.As filed before the Tribunal at Delhi were pending, a similar number of analo gous O.As filed before the Benches of Administrative Tribu nals at Patna, Allahabad, Chandigarh, Jabalpur, Hyderabad, Jodhpur and Eranakulam were transferred to the Tribunal at Delhi since common questions of law arose for determination in all the O.As.
The Tribunal rendered its main judgment in O.A.No.
206/89 Alok Kumar vs Union of India & Ors.
and 61 other O.As in which the facts appear to be common.
The other judgments were passed on the basis of the conclusions arrived in O.A. No. 206/89 and the connected batch of OAs.
Since the Tribu nal has set out only the facts in the case of Alok Kurnar (O.A. No. 206/89) treating it as a main application and illustrative of the questions raised, we would like to briefly indicate the facts of A1ok kumar 's case so that the impelling circumstances which led to the filing of these appeals and the common questions of law involved may be understood in the proper perspective in the light of the judgment of the Tribunal.
In this context, it may be noted that though no appeal has been filed against the Order in O.A.No.
206/89, we are given to understand that Alok Kumar who agitated his similar claim along with two others who were all allocated to Group 'A ' Services (I.R.P.S.) in O.A.No.
1071/1990 has 59 preferred Civil Appeal No. 5469 of 1990 against the judgment in the said O.A. No. 1072 of 1990.
Shri Alok Kumar filed his application in December 1986 to sit for the preliminary examination in 1987.
The prelimi nary examination was held by the Union Public Service Com mission ( 'UPSC for short ') in June 1987 and the result was declared in July 1987.
The C.S.E. (Main) Examination was held by the UPSC in November 1987.
The interviews took place in ' April 1988 and the final results were declared by the UPSC in June, 1988.
The applicant, Alok Kumar was selected for appointment to Central Service Group 'A ' post.
A commu nication to this effect was sent to him on 30.8.88 in which Alok Kumar 's attention was drawn to Rule 4 of the C.S.E. Rules 1987 pointing out that if he intended to appear in the Civil Services (Main) Examination in 1988 he would not be allowed to join the Probationary Training, along with the candidates of 1987 group but would only be allowed to join the Probationary Training along with the candidates who would be appointed on the basis of the CSE 1988.
The said letter also indicated that in the matter of seniority, he would be placed below all the candidates who would join training without postponement.
Therefore, he was required to furnish the information about his appearing in the CSE (Main) 1988 to the concerned cadre controlling authorities.
He was further informed that only on receipt of the above information, the concerned cadre controlling authority would permit him to abstrain from the Probationary Training.
The Joint Director, Estt.
G (R), Ministry of Railways (Railway Board) informed Alok Kumar about his selection for appoint ment to the Indian Railway Personnel Service and that the training would commence from 6.3.1989 and that he should report for training at the Railway Staff College, Vadodara.
Further he was informed that he once joined the Probationary Training along with 1987 batch, he would not be eligible for consideration of appointment on the basis of subsequent CSE conducted by the UPSC.
The case of Alok Kumar was that he did not intend to appear in the next CSE and he had already appeared for the CSE 1988 even before he received the offer of appointment dated 2.1.1989.
He was then intimated that if he had already joined the Probationary Training along with 1987 batch, he would not be eligible for consideration for appointment on the basis of subsequent CSE conducted by the UPSC.
Besides the main reliefs, Alok Kumar had prayed for an interim order to join and complete the current Probationary Training without being compelled to sign the undertaking sought to be obtained from him subject to final orders in the O.A.
The Division Bench of the Tribunal issued an interim order, as prayed for by Alok Kumar, allowing him to join the requisite training for 60 the service to which he had been allocated and allowed him to appear in the interview as and when he was called by the UPSC on the basis of 1988 Examination.
The respondents filed their reply explaining the circum stances under which the second proviso was introduced to rule 4 of CSE Rules, its scope and ambit and refuted all the intentions raised by Alok Kumar challenging the legality and constitutionality of the impugned proviso.
The Tribunal by its detailed and considered judgment has rendered its conclusions thus: "Having considered the matter in the above bunch of cases, we have come to the following conclusions: 1.
The 2nd proviso to Rule 4 of the Civil Services Examination Rules is valid.
The provisions of Rule 17 of the above Rules are also valid.
The above provisions are not hit by the provisions of articles 14 and 16 of the Constitu tion of India.
The restrictions imposed by the 2nd proviso to Rule 4 of the Civil Services Examination Rules are not bad in law.
(i) The letter issued by the Ministry of Personnel, Public Grievances and Pensions dated 30th August, 1988 and in particular, paragraph 3 thereof and paragraph 4 of the letter dated 2.1.1989, issued by the Cadre Controlling Authority, Ministry of Railways (Railway Board) are held to be bad in law and unenforceable.
Similar letters issued on different dates by other Cadre controlling Authorities are also unenforceable.
(ii) A candidate who has been allocated to the I.P.S. or to a Central Services, Group 'A ' may be allowed to sit at the next Civil Services Examination, provided he is within the permis sible age limit, without having to resign from the service to which he has been allocated, nor would he lose his original seniority in the service to which he is allocated if he is unable to take training with his own Batch.
Those applicants who have been allcoated to the I.P.S. or any Central Services, Group 'A ', can have one more attempt in the subsequent Civil Services Examination, for the Services in 61 dicated in rule 17 of the C.S.E. Rules.
The Cadre Controlling Authorities can grant one opportunity to such candidates.
All those candidates who have been allocat ed to any of the Central Services, Group 'A ', or I.P.S. and who have appeared in Civil Services Main Examination of a subsequent year under the interim orders of the Tribunal for the Civil Services Examinations 1988 or 1989 and have succeeded, are to be given benefit of their success subject to the provisions of Rule 17 of the C.S.E. Rules.
But this examina tion will not be available for any subsequent Civil Services Examination.
In the result, therefore, the Applications succeed only in part viz., quashing of the 3rd paragraph of the letter dated 30.8.1988 and 4th paragraph of the letter dated 2nd January, 1989 and similar paragraphs in the letters issued to the applicants by other cadre controlling authorities.
Further, a direction is given to the respondents that all those candidates who have been allocated to any of the Central Services, Group 'A ' or I.P.S. and who have appeared in Civil Services Main Examination, 1988 or 1989 under the interim orders of the Tribunal and are within the permissible age limit and have succeeded are to be given benefit of their success subject to the provisions of Rule 17 of the C.S.E. Rules.
The O.As are dismissed on all other counts.
" On the basis of the above directions given in paragraphs 5(ii), 6 and 7, we gave some interim directions on 7.12.1990 which are annexed to this judgment as Annexure `A '.
Several learned counsel appeared for the respective parties and advanced their submissions interpreting the rules and cited a plethora of decisions in support of their respective cases.
Whilst Mr. P.P. Rao, senior counsel as sisted by Mr. C.N. Sreekumar and others, Mr. Gopal Subrama niam, Mrs. C.M. Chopra, Mr. Gopal Singh and Mr. A.M. Khan wilkar appeared for the appellants in the various batches of cases, the learned Additional Solicitor General, Mr. Kapil Sibal assisted by Ms Kamini Jaiswal and Mr. CVS Rao appeared on behalf of the respondents/Union of India & Others.
The common substantial questions of law, propounded and posed for consideration in all the above appeals are: (1) Whether the second proviso to Rule 4 of the CSE Rules 1986 is invalid for the reason that it puts an embargo restricting the candi dates who are seeking to improve their posi tion vis a 62 vis their career in Government service? (2) Whether the second proviso under chal lenge travels beyond the intent of the main rule namely, Rule 4 of the CSE Rules? (3) Whether the proviso to Rule 17 of the CSE Rules is invalid on the ground that it places restriction on candidates who are seeking to improve their position vis a vis their career? (4) Whether the said second proviso to Rule 4 of CSE Rules is ultra vires to clause (iii a) of Regulation 4 of the Indian Administrative Service (Appointment by Competitive Examina tion) Regulations, 1955 (for short 'Regula tions ') inasmuch as the power to notify excep tions does not include the power to make candidates ineligible who are otherwise eligi ble in terms of clauses (i), (ii) and (iii) of Regulation 4? (5) Whether the said proviso which is an administrative instruction introduced by the impugned Notification is arbitrary and irra tional having no nexus with the object of recruitment to the post of Civil Services? (6) Whether the impugned second proviso is illegal since it makes a discrimination be tween the successful candidates of Central Service Group 'A ' and Group 'B ' as no embargo is placed restricting the candidates of Group 'B ' service, as in the case of Group 'A ' service and whether the reasons given by the Government to justify the introduction of the impugned proviso have any rational nexus to the object of the scheme of recruitment to the All India Services or/and whether such reasons are arbitrary, unfair and unjust? (7) Whether the restriction imposed on the number of attempts in pursuance of the im pugned proviso, in the case of Scheduled Castes/Scheduled Tribes candidates who were since then availing any number of attempts subject to the eligibility of age limit is unjustifiable and illegal and amounts to deprivation of the right conferred on them by the Constitution of India? (8) Whether the reasons given by the Govern ment to justify the introduction of the im pugned proviso have any rational 63 nexus to the object of the scheme of recruit ment to the All lndia Services or/and whether such reasons are arbitrary, unfair and unjust? (9) Whether the impugned second proviso is suffering from the vice of hostile discrimina tion and as such violative of Articles 14 and 16 of the Constitution of India.
Recruitment to All India and Central Services Brief Histo ry and Present position: Before entering into an extensive investigation and fullfledged discussion on the questions formulated above, we feel that in order to have a more comprehensive study of the development of the civil service in India a brief history of the past system of recruitment to All India and Central Services based on the then existing mode of selection and the development of the present scheme of examination and method of recruitment till the introduction of the impugned proviso to rule 4 of CSE Rules, is necessary so as to have the background of the entire system and to assimilate the compelling necessity warranting the introduction of the new proviso.
The Indian Civil Service (ICS) Examination was held only in England by the British Civil Service Commission till 1922 and thereafter in India.
Four years later, the newly formed Public Service Commission (India) began to conduct the ICS Examination on behalf of British Civil Service Commission and this position continued until 1937 when the Public Service Commission (India) was replaced by the Federal Public Service Commission under the Government of India Act, 1935.
Thereafter, the Indian Civil Service Examination in India was held by the Federal Public Service Commission independent of the British Civil Service Commission.
After 1943, recruitments to the Indian Civil Service, Indian Police besides the Indian Audit and Accounts Service and allied services were suspended.
In 1947 a combined examina tion was introduced for recruitment to the Indian Adminis trative Service, Indian Police Service and non technical Central Services.
Between the years 1947 50 a combined competitive examination was held once a year for recruitment for IAS, IFS, IPS and non technical Central Services.
After independence, new services known as the Indian Administra tive Services (IAS) and Indian Police Service (IPS) were established as All India Services.
In order to meet the country 's requirement for diplomatic personnel another service known as Indian Foreign Service (IFS) was estab lished.
The Service Commission was redesignated as the Union Public Service Commission in 1950 when the Constitution came into force.
64 While it was so, the U.P.S.C. appointed a Committee in February 1974 under the chairmanship of Dr. D.S. Kothari to make recommendations for further improvement in the system having regard to the needs of various services and accord ingly the said Committee undertook a painstaking research and carried on a comprehensive and analytical study and thorough examination of the various aspects of the problems connected with the reform in the existing examination and selection by going in great depth and detail and submitted its report on March 20, 1976 after taking into consideration of the fact of frequent receipt of complaints from the training centres and the data collected and made its recom mendations in evaluating the scheme of civil services by tracing its birth and breadth of the upper tier of this administrative machinery covering its entire field.
On the recommendations of the Kothari Committee the current scheme of Civil Services Examination was introduced from 1979, as per which the Civil Services Examination conducted by the U.P.S.C. has been and is catering to the All India Services viz. IAS, IFS and IPS; and 16 Central Group 'A ' Services and 8 Group 'B ' Services.
In order to be eligible to compete at the examination, a candidate must satisfy the conditions of eligibility, name ly, nationality, age and requisite qualifications as envis aged under Regulation 4 of the I.A.S. (Appointment by Competitive Examination) Regulation 1955.
In addition to the above qualifications, one more condition of eligibility is added under Regulation 4 (iii a) substituted vide Department of Personnel and A.R. notification No. 11028/1/78 A1S (1) A dated 30.12.1978, according to which unless covered by any of the exceptions that may from time to time be notified by the Central Government in this behalf, every candidate appearing for the examination after 1st January, 1979, who is otherwise eligible shall be permitted three attempts at the examination.
In other words, the number of attempts, a candidate can appear, is also made as one of the conditions of eligibility to sit for the IAS competitive examination.
It may be pointed out in this connection that by a subse quent notification dated 23.11.1981, Regulation 4 (iii a) was further clarified that the appearance of a candidate at the examination will be deemed to be an attempt at the examination irrespective of his disqualification or cancel lation as the case may be of his candidature.
An explanation is added to this, explaining "an attempt at a preliminary examination shall be deemed to be an attempt at the examina tion, within the meaning of this rule".
65 Civil Services Examination Present Scheme From the CSE held in 1979, each eligible candidate is permitted three attempts at the examination.
This restric tion on the number of attempts does not apply to the candi dates belonging to SC/ST and other specified categories as may be notified by the Central Government from time to time under Rule 6(b) of the CSE Rules but subject to the relaxa tion in the upper age limit of those candidates.
The scheme of selection of candidates for the Civil Services consists of three sequential stages, each making a significant and specific contribution to the total process.
They are: (1) Preliminary examination serving as a screening test; (2) The main examination which intended to assess the overall intellectual traits and depth of understanding of candidates; and (3) The interview (viva voce test).
Hermer Finer in his text book under the caption.
The Theory and Practice of Modern Government states: "The problem of selection for character is still the pons asinorum of recruitment to the public services everywhere.
The British Civil Service experiments with the interview.
" The purpose of viva voce test for the ICS Examination in 1935 could be best understood from the following extract of the Civil Service Commission 's pamphlet: "Viva voce the examination will be in mat ters of general interest; it is intended to test the candidate 's alertness, intelligence and intellectual outlook.
The candidate will be accorded an opportunity of furnishing the record of his life and education .
" It is apposite, in this connection, to have reference to an excerpt from the United Nations Handbook on Civil Service Laws and Practice, which reads thus: " . the written papers permit an assess ment of culture and intellectual competence.
This interview permits an assessment of quali ties of character which written papers ignore; it attempts to assess the man himself and not his intellectual abilities.
" 66 This Court in Lila Dhar vs State of Rajasthan and Oth ers, [1981] 4, SCC 159 while expressing its view about the importance and significance of the two tests, namely, the written and interview has observed thus: "The written examination assess the man 's intellect and the interview test the man himself and 'the twain shall meet ' for a proper selection".
AGE LIMIT Coming to the eligibility of age, it was initially fixed at 21 to 26 years and then reduced in 1948 to 21 to 25 years.
In the following year, the age range was further reduced to 21 to 24 years except for the Indian Railway Traffic Service for which it continued to be 21 to 25 years upto 1955.
The lower age limit for IPS was reduced to 20 years in the year 1951 keeping the upper age limit at 24 years.
The upper age limit for the Indian Railway Traffic Service was reduced to 24 in 1955.
The age limits for all other services remained at 21 to 24 years.
Thereafter, though the Public Services (Qualification for Recruitment) Committee appointed by the Government of India in 1955 recommended the reduction of the age range from 21 24 to 21 23 years, the Government did not agree with that recom mendation and kept the prescribed age limit of 20/21 to 24 years unaltered.
The Kothari Committee recommended that a candidate should not be less than 21 years of age and not more than 26 years on the 1st July of the year in which the candidate appears at the examination, with the usual relaxa tion of upper age limit for SC/ST and other categories as may be notified by the Government from time to time.
Howev er, the Committee did not recommend lower age limit of 20 years for the IPS, as was permitted.
The Government while not completely agreeing with Kothari 's Committee recommenda tions in regard to some aspects inclusive of age limit while implementing the recommendations, increased upper age limit to 28 years keeping the lower age limit of 21 years unal tered.
Thus, the age limit of 21 28 years was in operation from 1979 to 1987.
Then the Government re considered this issue and reduced the upper age limit to 26 years.
During the course of the hearing of these appeals, it has been stated at the bar that the Government of India in February/March 1990 amended the CSE Rules and increased the upper age limit from 26 years to 28 and then to 31 years for the CSE to be conducted by the UPSC.
Now by notification No. 13018/10/90 AIS (I) dated 5th January 1991, issued by the Ministry of Personnel, Public Grievances and Pensions (Deptt.
of Personnel and Training) published in the Gazette of India in Part I, Sec.
I the age eligibility for appearing at the examination in 1991 is that the candidate must have attained the age of 21 67 years and must not have attained 28 years on 1st August 1991 i.e. he must have been born not earlier than 2nd August, 1963 and not later than 1st August, 1970 but subject to the relaxation in the upper age limit to SC/ST and other catego ries specified under Rule 6(b) of the CSE Rules.
Number of Permissible Attempts Regarding the number of attempts, a candidate could make, the Public Services (Qualifications for Recruitment) Committee in 1955 recommended that in order to identify the best candidates the number of attempts at the combined examination should be limited to two by reducing the age limit to 21 23 years.
The Government accepted the recommen dation regarding restriction of the number of attempts to two instead of three, but provided that these were to be counted separately for the following categories of services Category I IAS and IFS Category II IPS and Police Service Class II of the Union Territories Category III Central Services Class I and Class II In view of the acceptance of the above recommendations, from 1961 onwards, the IAS etc.
examination became in effect three examinations.
Since the restriction on the number of chances were related not to the examination as a whole, but individual categories, theoretically a candidate could take as many chances as the age limit would permit.
Thereafter in 1972 the age limit was raised to 26 years and the reduction of attempts from three to two was not implemented following the recommendations of the Administrative Reforms Commis sion.
In fact since 1973, candidates were permitted to make three attempts for each of the three categories of services within the permissible age range.
It may be stated in this connection that the Kothari Committee had recommended only two attempts for the Civil Services Examination for not only the general candidates but also candidates belonging to the SC/ST but the Government did not agree with these recommen dations and permitted three attempts to general candidates and did not impose any restriction on the number of attempts on the candidates belonging to SC/ST but of course, subject to their upper age limit.
It will be worthwhile, in this context, to refer to the Report of the Committee to review the Scheme of Civil Services Examination under the 68 chairmanship of Dr. Satish Chandra, appointed by the UPSC on 12.9.1988 to review and evaluate the scheme of selection to the higher civil services introduced from 1979 in pursuance of the recommendations of the Committee on Recruitment Policy and Selection under the Chairmanship of Dr. D.S. Kothari and to make recommendations for further improvement of the system and the relevant excerpt of the report touch ing on this aspect is as follows: "We, therefore, recommend that for the general candidates the permissible number of attempts for the Civil Services Examination should continue to be three.
For the members of the Scheduled Castes and the Scheduled tribes, these should be limited to six.
" We are referring to the report of the committee chaired by Dr. Satish Chandra only for the purpose of showing the views expressed by it regarding the permissible number of attempts for the CSE that a candidate could make though this report was not available at the time of introduction of the impugned proviso.
It may be stated that the Government of India has decided to increase the number of attempts from 3 to 4 for the Civil Services Examination 1990.
Reference may also be made to the notification dated 5th January, 1991 issued by the Department of Personnel and Training by which Rule 4 was amended to the fact that "every candidate appearing at the examination who is otherwise eligible shall be permitted attempts at the examination." Salient Features of the New Scheme: Thus, the entire framework of the Civil services system have under gone a metamorphosis under the Government of India Acts of 1919 and 1935 and thereafter under our present Constitution of India.
Further, pursuant to the recommenda tions made by various Committees as seen earlier there has been radical change in the system of recruitment to the CSE regard to the scheme of examination, mode of selection, the number of attempts and the eligibility of age limit since such a system was introduced It is clear from the discussion that the totality of the above review on the entire system which system is a legacy of and modelled on the Bri one and a comprehensive survey on the different aspects of the recruitment for the higher civil services manifestly show that this system did not appear suddenly like a 'dues ex machina ' created by the legislative test, but 69 evolved in the direction of political objectivity and under went a long process of gradual transformation and the role and functions of this higher civil services in India after the advent of independence irrefragably play an important and crucial role not only in providing an element of common ality in administration in our parliamentary democracy but also in accelerating socio economic development of our country in the context of our constitutional objective of growth with the social justice.
The present time cycle of the CSE is such that it takes almost a year from the date of the preliminary examination to the commencement of the final results in that the prelim inary examination is held in the month of June and the result of the preliminary examination is announced by the UPSC at the end of July.
The Main examination is held in the first week of November, the result of which is usually announced by the third week of March and the interviews begin in the third week of April to the end of May and the results are announced in the month of June.
The merit list of successful candidates is prepared on the basis of their aggregate marks in the Main Examination and interview test and then the successful candidates are selected and allotted to different services based on their ranks and preference.
The top rankers in the merit list join the IAS or IFS and then the IPS.
The candidates who get into the merit list with low position are brought and classified either under Group 'A ' or Group 'B ' as the case may be, but having regard to their ranks in the order of merit and the selection of candidates in Group 'A ' or Group 'B ' is based within the zone of eligibility.
It may be noted that out of total 27 services/posts, as per notification dated 30.12.1989, the first three, namely, IAS, IFS and IPS are All India Services.
Of the rest, from IV to XIX are Central Services Group 'A ' and the remaining XX to XXVII are Group 'B ' services.
For all these services, the recruitment is made by combined competitive CSE.
Since the pleadings in all the appeals are substantially of the same paradigm and the issues of considerable impor tance raised are homogeneous and as the principal arguments were advanced in the same line except with some slight variation with regard to some particular issues relating to certain appeals and also the reply was commonly made, we propose to dispose of all the appeals by this common judg ment.
70 We may now in the above background of the history of the scheme of the Civil Services, proceed to consider the var ious contentions advanced by the respective parties on the validity of the impugned second proviso to Rule 4 of the C.S.E. Rules and for that purpose we, in order to have a proper understanding and appreciation of the scope, object, ambit and intent of the impugned proviso, shall re produce the relevant Rules 4, 8 and 17 and Regulation 4(iii a) of the I.A.S. (Appointment by Competitive Examination) Regula tions, 1955.
CSE RULES Rule 4: "Every candidate appearing at the examination, who is otherwise eligible, shall be permitted three attempts at the examina tion, irrespective of the number of attempts he has already availed of at the IAS etc.
Examination held in previous year.
The re striction shall be effective from the Civil Services Examination held in 1979.
Any at tempts made at the Civil Services (Prelimi nary) Examination held in 1979 and onwards will count as attempts for this purpose: Provided that this restriction on the number of attempts will not apply in the case of Scheduled Castes and Scheduled Tribes candi dates who are otherwise eligible: Provided further that a candidate who on the basis of the results of the previous Civil Services Examination, had been allocated to the I.P.S. or Central Services, Group 'A ' but who expressed his intention to appear in the next Civil Services Main Examination for competing for IAS, IFS, IPS or Central Serv ices, Group 'A ' and who was permitted to abstain from the probationary training in order to so appear, shall be eligible to do so, subject to the provisions of Rule 17.
If the candidate is allocated to a service on the basis of the next Civil Services Main Examina tion he shall join either that Service or the Service to which he was allocated on the basis of the previous Civil Services Examination failing which his allocation to the service based on one or both examination, as the case may be, shall stand cancelled and notwith standing anything contained in Rule 8, a candidate who accepts allocation to a Service and is appointed to a service shall not be eligible to appear again in the Civil Services Examination unless he has first resigned from the Service.
71 NOTE: 1.
An attempt at a preliminary examination shall be deemed to be in attempt of the Exami nation.
If a candidate actually appears in any one paper in the preliminary Examination he shall be deemed to have made an attempt at the examination.
Notwithstanding the disqualification/can cellation of candidature the fact of appear ance of the candidate at the examination will count as an attempt.
Rule 8: A candidate who is appointed to the Indian Administrative Service or the Indian Foreign Service on results of an earlier examination before the commencement of this examination and continues to be a member of that service will not be eligible to compete at this examination.
In case a candidate has been appointed to the IAS/IFS after the Preliminary Examination of this examination but before the Main Examina tion of this examination and he/she shall also not be eligible to appear in the Main Examina tion of this examination notwithstanding that he/she has qualified in the Preliminary Exami nation.
Also provided that if a candidate is appointed to IAS/IFS after the commencement of the Main Examination but before the result thereof and continues to be a member of that service, he/she shall not be considered for appointment to any service/post on the basis of the re sults of this examination.
Rule 17: Due consideration will be given at the time of making appointments on the results of the examination to the preferences ex pressed by a candidate for various services at the time of his application.
The appointment to various services will also be governed by the Rules/Regulations in force as applicable to the respective Services at the time of appointment.
72 Provided that a candidate who has been ap proved for appointment to Indian Police Serv ice/Central Service, Group 'A ' mentioned in Col. 2 below on the results of an earlier examination will be considered only for ap pointment in services mentioned against that service in Col. 3 below on the results of this examination.
Service to which approved Service for which No. for appointment eligible to compete 1 2 3 1.
Indian Police Service.
I.A.S., I.F.S., and Central Services, Group 2.
Central Services, Group 'A ' I.A.S.,I.F.S. and I.P.S. Provided further that a candidate who is appointed to a Central Service, Group 'B ' on the results of an earlier examination will be considered only for appointment to I.A.S., I.F.S., I.P.S. and Central Services, Group 'A '.
IAS (Appointment by Competitive Examination) Regulations, 1955 Regulation 4: Conditions of Eligibility: In order to be eligible to compete at the examination, a candidate must satisfy the following conditions, namely: (i) Nationality. . . . . (ii) Age . . . . . . (iii) Educational Qualifications. . . (iii a) Attempts at the examination Unless covered by any of the exceptions that may from time to time be notified by the Central Gov ernment in this behalf, every candidate ap pearing for the examination after 1st January 1979, who is otherwise eligible, shall be permitted three attempts at the examination;.
73 and the appearance of a candidate at the examination will be deemed to be an attempt at the examination irrespective of his disquali fication or cancellation, as the case may be, of his candidature.
Explanation An attempt at a preliminary examination shall be deemed to be an attempt at the examination, within the meaning of this rule.
questions 1 to 6: At the threshold we will take up the main question about the validity of the second proviso to Rule 4 of the C.S.E. Rules of 1986, which proviso is an additional one to the first proviso to Rule No. 4 and which applies only to the I.P.S and Central Services, Group 'A ' selectees.
This provi so consists of two parts of which the first part enumerates certain conditions on the fulfillment of which alone, an allottee to IPS or Central Services Group 'A ' on the basis of the results of the previous CSE will become eligible to re appear in the next CSE (Main) to improve his prospect with the hope of getting better position next year and joining in one of the more preferred services, namely, IAS, IFS, IPS or Central Services Group 'A ' subject to the condi tions, enumerated in Rule 17 of CSE Rules.
As per the first part of the proviso, the prerequisite conditions which are sine qua non are as follows: A Candidate who on the basis of the results of the previous CSE; i) should have been allocated to the IPS or Central Services Group 'A '; ii) The said candidate should have expressed his intention to appear in the next Civil Service Main Examination for competing for IAS, IFS, IPS or Central Services Group 'A ' subject to the provisions of Rule 17; iii) The said candidate should have been permitted to abstain from the Probationary Training in order to so appear.
The conditions in the second part of the proviso are as follows: 1) If a candidate (who is permitted to appear in the next CSE (Main) on fulfillment of the conditions, enumerated in the first part of this proviso) is allocated to a service on the basis of the next Civil Service (Main) Exami nation, he should either join 74 that service or the service to which he has already been allocated on the basis of the previous CSE; 2) If the candidate fails to join either of the services as mentioned in the first condi tion of this second part then his allocation to the service based on one or both examina tions, as the case may be, shall stand can celled; and 3) Notwithstanding anything contained in Rule 8, a candidate a) who accepts allocation to the service and b) who is appointed to a service shall not be eligible to appear again in CSE unless he has first resigned from the service.
The sum and substance of the above proviso is that a candidate who has already been allocated to the IPS/Central Services Group 'A ' and who in order to improve his efficacy of selection to higher civil service, expresses his inten tion to appear in the next CSE (Main) for competing for IAS, IFS, IPS or Central Services Group 'A ' and who has been permitted to abstain from the Probationary Training in order to do so, will become eligible to appear in the next CSE (Main) but subject to the provisions of Rule 17, and that the said candidate when allocated to a service on the basis of the next Civil Services (Main) Examination can either join that service or the service to which he has already been allocated on the basis of the previous CSE and that if he fails to join either of the services, his allocation based on one or both the examinations, as the case may be, will stand cancelled.
Further, notwithstanding anything contained in Rule 8, a candidate who accepts allocation to a service and is appointed to that service shall not be eligi ble to appear again in the CSE unless he has first resigned from the service.
In other words, a candidate failing within the ambit of this proviso can appear in the CSE for all the permitted attempts subject to his age limit if he intends to appear again in the CSE provided he first resigns from the service which he accepts on allocation and to which he is appointed.
The restriction/embargo contained in Rule 17 is, if a candidate has been approved for appointment to IPS, and expresses his intention to appear in the CSE (Main) for higher civil service, the services for which he is eligible to compete are IAS, IFS and Central Services Group 'A '.
Similarly, a candidate who has been approved for appointment to the Central Services Group 'A ' and expresses his inten tion to appear in the next CSE (Main), the services to which he will be eligible to compete are IAS, IFS and IPS.
The second proviso to Rule 17 provides that a candidate who is appointed to a Central Services Group 'B ' on the results of an earlier examination will be considered for appointment to IAS, IFS, 75 IPS and Central Services Group 'A '.
The impugned second proviso to Rule 4, as we have al ready pointed out, has been introduced by notification No. 13016/4/86 AIS (I) dated 13.12.1986.
The circumstances which necessitated and compelled the introduction of the above second 'proviso to Rule 4 was due to the receipts of various representations and frequent com plaints from the Academies and Training Insti tutes by the Government informing that the candidates who, taking advantage of the oppor tunity of mobility from one service to anoth er, were intending to appear in the next CSE (Main) in the hope of getting a better posi tion and in a more preferred service were neglecting their required training programmes whereunder they had to undergo specialised training and acquire the necessary potential to perform their tasks in the service to which they have been allocated and for which train ing, the Government incurs huge expenditure.
Therefore, the Government in order to overcome the problem of indiscipline amongst the proba tioners undergoing training, requested the kothari committee for making a comprehensive survey on the different aspects of the re cruitment scheme and to submit a report with its recommendations on the recruitment policy and selection methods so that the candidates who are selected and allocated to a service and sent for training may not take enmass leave for preparing and appearing in the next CSE by neglecting and pretermitting their training programmes and thereby creating a vacuum in the service for considerable time.
The said kothari committee, after deeply examining this serious problem, submitted its report, the relevant part of which is as follows: "3.59.
It may further be observed that the existing system which permits that candidates qualifying for and joining the police or the Central Services, may appear the Civil Serv ices Examination to improve their career opportunities, has come in for serious criti cism from the National Academy of Administra tion and the respective employing departments.
They complain that such probationers neglect their training at both the Academy and the Departmental Training Institutions until they exhaust the admissible number of chances.
The present practice obviously is not desirable.
The 76 number of such cases would be very small with the proposed restriction on the total number of attempts permitted to a candidate.
Even so, we think it wrong that the very first thing a young person should do in entering public service is to ignore his obligations to the service concerned, and instead spend his time and energy in preparation for re appearing at the UPSC examination to improve his prospect.
This sets a bad example and should be discour aged.
We recommend that commencing from the 1977 examination candidates once appointed to the All India or Central Services (Class I) should not be permitted to re appear at a subsequent examination without resigning from service.
(On introduction of Phase II of the Civil Services Examination Scheme, candidates joining the Foundation Course will not be permitted to re appear at the Main Examina tion.) ' ' The Thirteenth Report of the Estimates Committee (1985 86) also submitted its report on this aspect of the matter observing: "The committee urge upon the Government to review their decision regarding allowing the probationers to reappear in the Civil Services Examination to improve their prospects.
If it is still considered necessary to allow this, the Committee suggest that it may be limited to only one chance after a person enters a Civil service.
" The Central Government after considering the recommenda tions of the above Committees regarding allowing probation ers allocated to Civil Services to appear in the next CSE (Main), addressed the UPSC to initiate a review of the new system of CSE in pursuance of the recommendations of the Estimates Committee and thereafter, a meeting of all the cadre controlling authorities was convened by the Government and based on the consensus arrived at the meeting, Rules 4 and 17 of the Civil Services Examination Rules were amended by inserting the new provisos.
In this regard, it will be worthwhile to refer to Arti cle 51 A in Part IV A under the caption 'Fundamental Duties ' added by the Constitution (42nd Amendment) Act, 1976 in accordance with the recommendations of the Swaran Singh Committee.
The said Article contains a mandate of the Con stitution that it shall be the duty of every citizen of India to do the various things specified in Clauses (a) to (j) of which clause (j) commands that it is the duty of every citizen of India to strive towards excellence in all spheres of individual and collective activity so that the nation constantly rises to higher levels of endeavour and achievement." 77 In our view, the effort taken by the Government in giving utmost importance to the training programme of the selectees so that this higher civil service being the top most service of the country is not wasted and does not become fruitless during the training period is in consonance with the provisions of Article 51 A (j).
The Constitution of India has laid down some basic principles relating to public services in Part XIV entitled 'Services under the Union and the State ' which has two Chapters, namely chapter I on "Services" covering Articles 308 to 314 of which Article 314 is now repealed by the Twentyeighth Amendment Act, 1972 and Chapter II on "Public Service Commissions" covering Articles 315 to 323.
We feel that it is not necessary to deal with the constitutional provisions relating to the executive power of the Union under Article 53 of the Constitution or the extent of the executive power of the Union under Article 73 of the Consti tution or recruitment and condition of service of persons serving the Union or the State as contemplated under Article 309 of the Constitution of India since it is not the case of the appellants that either the introduction of the proviso is in violation of any of the provisions of the constitution or the proviso suffers for want of jurisdiction or by im proper and irregular exercise of jurisdiction.
However, incidentally Mrs. Chopra urged that the second proviso is bad since the authorities have stepped out of the constitu tional limits in issuing the notification inserting the impugned proviso and that it has not been placed before the Houses of the Parliament.
This argument has to be simply mentioned to be rejected because the proviso has been intro duced by the Central Executive Authority under the powers flowing from Article 73 (1) (a) of the Constitution, accord ing to which the executive power of the Union subject to the provisions of the Constitution shall extend to the matters with respect to which Parliament has power to make laws, but of course subject to the proviso made thereunder and further this submission casually made was neither amplified nor pursued.
Needless to point out that whilst by virtue of clause 1 (a) of Article 73, the Union executive whose power which is co extensive with the legislative power of Parlia ment can make laws on matters enumerated in List I (Union List) and List II (Concurrent List) to the Seventh Schedule of the Constitution, under Article 162 of the Constitution, the executive power of the State executive which is co extensive with that of the State legislature can make laws in respect of matters enumerated in List III (State List) and also in respect of matters enumerated in List II (Con current List), subject to the provisions of the Constitu tion.
In the present case, the central executive authority has not either expressly or impliedly changed the policy of the Government by exercising unreasonable and arbitrary discretion and the present Rule 4 78 with its newly added second proviso does not repeal the essential features of the pre existing Rule 4 but only limits the ambit of the operation of Rule 4 under a given situation.
Hence, there is no substance in contending that the second proviso is bad and that the central executive authority has transgressed the constitutional limits.
However, the validity of second proviso the Rule 4 is challenged on Constitution about is violative of Article 14 ground that which we will deal at the later part of the judgment.
We feel that it would be appropriate, in this context, to recall the observations of this Court in L.I.C. of India vs Escorts Ltd., ; at page 1403 = ; The observation reads thus: "When construing statutes enacted in the national interest, we have necessarily to take the broad factual situations contemplated by the Act and interpret its provisions so as to advance and not to thwart the particular national interest whose advancement is pro posed by the legislation.
" In the above background, we shall now advert to the arguments advanced on behalf of the appellants.
Mr. P.P. Rao, senior counsel appearing for the appel lants forcibly and fervently contended that the second proviso to rule 4 of the impugned notification is ultra vires clause (iii a) of Regulation 4 of the Regulations, 1955 inasmuch as the power to notify exceptions does not include the power to make ineligible the candidates who are "otherwise eligible" in terms of Clauses (i), (ii) and (iii) of Regulation 4.
In other words, all candidates, who satis fy the requirements of nationality, age and educational qualifications prescribed in clauses (i) to (iii) of Regula tion 4, are entitled to the maximum number of attempts prescribed in clause (iii a) which initially was three attempts, since raised to four attempts w.e.f. 1.2.90.
He further submits that the expression 'in this behalf ' appear ing in the said clause (iii a) refers only to the number of attempts of candidates otherwise eligible in terms of clauses (i) to (iii) of Regulation 4 and that the obvious intention in conferring the power on the Central Government to 'notify exceptions 'in his behalf of candidates 'other wise eligible ' was to enable the Government to increase the number of attempts in deserving cases, such as candidates belonging to Scheduled Castes and Scheduled Tribes and other weaker sections including physically handicapped category and that consequently the Central Government has no power to add more conditions of eligibility to those stipulated in Regulation 4 itself.
79 According to him, the second part of the impugned proviso to Rule 4 of CSE Rules which insists that a candidate who was permitted to abstain from probationary training in order to appear at the next Civil Services (Main) Examination and who accepted the allocation to a service subsequently and is appointed to the service "shall not be eligible to appear again in the CSE (Main) unless he first resigns from the Service and in other words it declares a candidate, who is otherwise eligible in terms of Regulation 4 as ineligible unless he first resigns from the service.
This additional condition of eligibility, according to him, is clearly beyond the, scope of the limited power to notify exceptions to the number of attempts prescribed and, therefore ultra vires Regulation 4 (iii a).
Mr. Kapil Sibal, the Learned Additional Solicitor Gener al presented a plausible argument countering the pleadings of Mr. P.P. Rao and drew our attention to Rule 7 of IAS (Recruitment) Rules of 1954 which deals with the recruitment by competitive examination, and sub rule (2) which states that an examination, namely, the competitive examination for recruitment to the service shall be conducted by the Commis sion in accordance with such regulations as the Central Government may from time to time make in consultation with the Commission and State Governments.
According to him, the permissible number of attempts that a candidate can avail is also a condition of eligibility because the object is for a dual purpose, namely, 'to get the best and to retain the best ', and that Regulation 4 (iii a) should be read with Rule 4 of CSE as its part.
He continues to state that under Article 73 of the Constitution, subject to the provisions of the Constitution, the Central Government in exercise of its executive power can regulate the manner in which the right of a candidate in appearing for the competitive examination is to be exercised and, therefore, the restriction imposed in the second proviso to Rule 4 of CSE Rules is in no way ultra vires clause (iii a) of Regulation 4 of Regulations, 1955.
The source of power for the Central Government for making rules and regulations for 'Recruitment and the Condi tions of Services of Persons appointed to All India Serv ices ' in consultations with the Government of States con cerned as well making regulation under or in pursuance of any such right is derived from Section 3 of the All India Services Act, 1951.
The Regulations, 1955 were made by Central Government in pursuance of rule 7 of IAS (Recruitment) Rules of 1954 in consultation with the State Governments and the Union Public Service Commission.
Clause (iii a) of Regulation 4 was substituted vide Department of Personnel A & R Notification No. 11028/1/78/AIS dated 13.12.1978 and the latter part of which by another notification dated 23.11.1988.
We are concerned only 80 with the earlier part of the said clause as per which unless covered by any of the exceptions that may from time to time be notified by the Central Government, in this behalf, every candidate appearing for the examination after 1st January 1979, who is otherwise eligible, shall be permitted three attempts at the examination.
If Rule 4 of CSE Rules is examined in juxtaposition of clause (iii a) of Regulation 4, it is clear that both rule 4 of CSE Rules and Clause (iii a) of the Regulation 4 show that every eligible candidate appearing at the CSE should be permitted three attempts at the examination.
As we have pointed out in the earlier part of this judgment, the attempts are now increased to 4 under Rule 4 of the CSE Rules.
This increase of attempts by the Government is by virtue of its power which flows under Article 73 of the Constitution of India.
The eligibility of a candidate to appear in the CSE with regard to nationality, age and educational qualifications is given under clauses (i) to (iii) of Regulation 4 but the Government by exercise of its executive power has imposed certain restrictions under some specified circumstances.
Even today, in the normal course, every eligible candidate can appear in the examination for all the permissible attempts and the re striction of attempts is not applicable in the case of SC/ST who are otherwise eligible but subject to their upper age limit.
A plain and grammatical reading of clause (iii a) of Regulation shows that if the number of attempts are covered by any of the exception that may from time to time be notified by the Central Government in the behalf, then the notification will become enforceable and only in the ab sence of such notification, every candidate normally can appear for all the permitted attempts at the examination whether three or four.
The impugned second proviso does not restrict or put an embargo on the number of attempts in the normal course.
But the restriction is only when the conditions enumerated in the impugned proviso are satisfied.
In order to appreciate and understand the restriction imposed, in its proper perspective, we shall refer to cer tain decisions of this Court cited by both the parties, firstly with reference to the interpretation of statutes and second with regard to the construction of a proviso in relation to the subject matter covered by the section/rule to which the proviso is appended.
Before we cogitate and analyse this bone of contention in some detail, it will be convenient at this stage to pore over some of the well established rules of construction which would assist us to steer clear of the impasse entertained by the learned counsel, according to whom some complications are created by the impugned notification being ultra vires clause (iii a) of Regulation 4 of Regulations, 1955.
Maxwell on the "Interpretation of Statutes" 10th Edition page 7 states thus: " . . . if the choice is between two interpretations, the nar 81 rower of which would fail to achieve the manifest purpose of the legislation, we should avoid a construction which would reduce the legislation to futility and should rather accept the bolder construction based on the view that Parliament would legislate only for the purpose of bringing about an effective result.
" In "Principles of Statutory Interpretation" by Justice G.P. Singh, 4th Edition (1988) at page 18, it is stated thus: "it is a rule now firmly established that the intention of the legislature must be found by reading the statute as a whole".
It is said in "Craies on Statute Law, 5th Edition" as follows: "Manifest absurdity or futility, palpable injustice, or absurd inconvenience or anomaly to be avoided." In the same text book, 6th Edition at page 89, the following passage is found: "The argument from inconvenience and hardship is a dangerous one and is only admissible in construction where the meaning of the statute is obscure and there are alternative methods of constructions.
" Viscount Simon in King Emperor vs Benoari Lal Sharma, has said thus: "In construing enacted words, the Court is not concerned with the policy involved or with the results, injurious or otherwise, which may follow from giving effect to the language used.
" In Wardurton vs Loveland, [1832] 2 D & CH.
(H.L.)480 at 489, it is observed that: "Where the Language of an Act is Clear and explicit, we must give effect to it whatever may be the consequences for in that case the words of the statute speak the intention of the legislature".
82 See also Suffers vs Briggs, [1982] I A.C.1, 8.
This Court in Commissioner of Income Tax vs
section Teja Singh; , has expressed that a con struction which would defeat the object of legislature must, if that is possible, be avoided.
See also M. Pentiah and others vs Muddala Veeramallappa and Others, ; Desai, J speaking for the bench in Lt. Col. Prithi Pal Singh Bedi etc.
vs Union of India & Ors., at 404 has pointed out as follows: "The dominant purpose in construing a statute is to ascertain the intention of the Parlia ment.
One of the well recognised canons of construction is that the legislature speaks its mind by use of correct expression and unless there is any ambiguity in the language of the provision the Court should adopt liter al construction if it does not lead to an absurdity.
" The Constitution Bench of this court in A.R. Antulay vs
R.S. Nayak; , at 936 has observed thus: "It is a well established canon of construc tion that the Court should read the section as it is and cannot rewrite it to suit its con venience; nor does any canon of construction permit the court to read the section in such manner as to render it to some extent otiose." The Supreme Court in Maharashtra State Board of Second ary and Higher Secondary Education and another vs Paritosh Bhupesh Kurmarsheti etc.
; , ruled that the well established doctrine of interpretation is "That the provisions contained in a statutory enactment or in rules/regulations framed thereunder have to be so construed as to be in harmony with each other and that where under a specific section or rule a particular subject has received special treatment, such special provision will exclude the applicability of any general provision which might otherwise cover the said topic.
" In Philips India Ltd. vs Labour Court, Madras and Ors., , it is observed: "No canon of statutory construction is more firmly established than that the statute must be read as a whole.
This is a general rule of construction applicable to all statutes alike which 83 spoken of as construction ex visceribus actus.
" It has been held by this Court in Balasinor Nagrik Cooperative Bank Ltd. vs Babubhai Shankerlal Pandya and others.
[1987] 1 SCC at 608 as follows: "It is an elementary rule that construction of a section is to be made of all parts together.
It is not permissible to omit any part of it.
For, the principle that the statute must be read as a whole is equally applicable to different parts of the same section".
In Dr. Ajay Pradhan vs State of Madhya Pradesh and Others, ; at 518, the Court has registered its view in the matter of construing a statute thus: "If the precise words used are plain and unambiguous, we are bound to construe them in their ordinary sense and give them full ef fect.
The argument of inconvenience and hard ship is a dangerous one and is only admissible in construction where the meaning of the statute is obscure and there arc alternative methods of construction.
Where the language is explicit its consequences are for Parlia ment, and not for the courts, to consider.
" We think, it is not necessary to proliferate this judg ment by citing all the judgments and extracting the textual passages from the various Text Books on the principles of Interpretation of statutes.
However, it will suffice to say that while interpreting a statute the consideration of inconvenience and hardships should be avoided and that when the language is clear and explicit and the words used are plain and unambiguous, we are bound to construe them in their ordinary sense with reference to other clauses of the Act or Rules as the case may be, so far as possible, to make a consistent enactment of the whole statute or series of statutes/Rules/ Regulations relating to the subject matter.
Added to this, in construing a statute, the Court has to ascertain the intention of the law making authority in the backdrop of the dominant purpose and the underlying intend ment of the said statute and that every statute is to be interpreted without any violence to its language and applied as far as its explicit language admits consistent with the established rule of interpretation.
A proviso to a Section/Rule is expected to except or qualify something in the enacting part and presumed to be necessary.
Coming to the 84 broad general rule of construction of the proviso Maxwell on "The Interpretation of statute" in the 11th edition at page 155 has quoted a passage from Kent 's Commentary 0n American Law, 12th Edn.
Vol. 1, 463n, reading thus: "The true principle undoubtedly is, that the sound interpretation and meaning of the stat ute, on a view of the enacting clause, saving clause and proviso, taken and construed to gether is to prevail.
" Maxwell in his 12th Edition has quoted a passage from Att.
Gen. vs Chelsea Waterworks Co., [1731] Fitzg.
195 which reads that if a proviso cannot reasonably be construed otherwise than as contradicting the main enactment, then the proviso will prevail on the principle that "it speaks that last intention of the makers".
It is pointed out in Piper vs Harvey, [1958] 10.B.439 that if, however, the language of the proviso makes it plain that it was intended to have an operation more extensive than that of the provision which it immediately follows, it must be given such wider effect.
In R. vs Leeds Prison (Governor), Ex p. Stafford it is pointed out thus: "The main part of a section must not be con strued in such a way as to render a proviso to the section redundant.
" A Constitution Bench of this Court in Ram Narain Sons Ltd. and Ors.
vs Asstt.
Commissioner of Sales tax and Ors.
; , has made the following observations: "It is a cardinal rule of interpretation that a proviso to a particular provision of a statute only embraces the field which is covered by the main provision.
It carves out an exception to the main provision to which it has been enacted as proviso and to no other." Another Constitution Bench in Abdul Jabar Butt & Another vs State of Jammu and Kashmir, ; held that it is a fundamental rule of construction that a proviso must be considered with relation to the principal matter to which it stands as a proviso.
See also Commissioner of Income Tax vs
section Teja Singh; , 85 Kapur, J speaking for the bench of this Court in The Commissioner of Income Tax; Mysore, Travancore Cochin and Coorg, Bangalore vs The Indo Mercantile Bank Limited, ; reiterated the view expressed by Bhagwati, J as he then was in Ram Narain Sons Ltd. vs Assistant Com missioner of Sales Tax; ; at 493 and the observations by Lord Macmillan in Madras & Southern Mahratta Railway Co. vs Bezwada Municipality, 1944 L.R.71 I.A. 113, 122 and laid down the sphere of a proviso thus: "The territory of a proviso therefore is to carve out an exception to the main enactment and exclude something which otherwise would have been within the section.
It has to operate in the same field and if the language of the main enactment is clear it cannot be used for the purpose of interpreting the main enactment or to exclude by implication what the enactment clearly says unless the words of the proviso are such that that is its neces sary effect.
(Vide also Corporation of the Ci.tV of Toronto vs Attorney General for Canada, ,37 .
" M/s Mackinnon Mackenzie & Co. Ltd. vs Audrey D 'Cost and Another, [1987] 2 SCC 469 may also be referred to.
When the impugned second proviso to Rule 4 of the CSE Rules is interpreted in its grammatical meaning and cognate expressions and construed harmoniously with the substantive rule in the light of the above decisions of this Court as well as the views expressed by various authors in their Text Books on this subject, it is pellucid that the said proviso only carves out an exception to Rule 4 of the CSE Rules in given circumstances and under specified conditions and, therefore, the second proviso cannot be read in isolation and interpreted literally.
On the other hand the substantive Rule 4 is to be read in conjunction with the two provisos appended thereto so as to have a correct interpretation.
In the proviso, in dispute, there are no positive words or indications which would completely exclude the operation of the substantive rule the spirit of which is reflected in Regulation 4 of the Regulations, 1955.
In fact, Rule 4 as stood till 1986, in its normal course, allowed a candidate to appear for three attempts, since increased to 4 for 1990 and 1991 Examinations.
But the restriction is imposed by the second proviso only under certain circumstances as repeated ly indicated above.
Although the notification of 1986 introducing the impugned proviso, no doubt, has to be strictly construed, the Court cannot overlook the very aim and object of the proviso thereby either defeating its purpose or rendering it redundant or 86 inane or making it otiose.
Judged from any angle, we are not impressed by the contention of Mr. P.P. Rao that there is a violent breach of the provisions of the substantive Rule 4 of CSE Rules and Regulation 4 (iii a) and we are not able to persuade ourselves to hold that the impugned second proviso either subverts or destroys the basic objectives of Rule 4 and that it is ultra vires.
In this connection, it may be noted that the restric tion or embargo, as the one under consideration is not only placed on the candidates who on the basis of the result of the previous CSE had been allocated and appointed to IPS or Central Service Group 'A ' but also on the candidates ap pointed in the higher echelon of Civil Service, which we will presently deal with.
There is a far more restrictive rule in existence, namely Rule 8 of the CSE Rules according to which a candidate who is appointed to the Indian Adminis trative Service (IAS) or the Indian Foreign Service (IFS) on the result of an earlier examination before the commencement of the ensuing examination and continues to be a member of that service will not be eligible to compete at the subse quent examination,.
even if he/she is disillusioned and wants to switch over.
In other words, this rule precludes the candidates who have been appointed to the IAS or IFS, from sitting in the ensuing examination while in service.
Further, this rule states that in case, a candidate has been appointed to the IAS or IFS on the basis of the earlier examination and after the subsequent preliminary examina tion, but before the Main examination, that candidate, if continues to be a member of that service, shall not be eligible to appear in the ensuing main examination notwith standing that the said candidate has qualified himself in the preliminary examination.
Similarly if a candidate is appointed to the IAS or IFS after the commencement of the Main Examination but before the announcement of the result and continues to be a member of that service, the said candidate shall not be considered for appointments to any service/post on the basis of the result of this examination.
The purpose for incorporating this uncompromising and strin gent provision is that the candidates appointed to the IAS and IFS are required to man the key positions both in the Central and State Services wherein the appointees have to combine their intellectual capacity and the requisite traits of personality and also to exhibit higher intellectual proficiency and leadership.
Thus Rule 8 keeps up and main tains the phenomenon of the upper civil service, run under our constitution with all enduring features and facets of the said service on All India basis.
But there is no bar for a candidate who is appointed to the lAS/FS resigning from that service and sitting in the examination for IPS or any Central Service Group 'A '.
Under Rule 4 of CSE Rules not withstanding anything contained in Rule 8, a candidate who accepts allocation to a service and appointed to that 87 service shall not be eligible to appear again in the CSE unless he first resigns from that service.
In other words, a candidate who is allocated and appointed to a service can sit in the ensuing examination provided he first resigns from that service.
This restriction, in our view, is a reasonable one in order to achieve the desired result in the background of the situation and circumstances about which we have elaborately discussed albeit.
In conclusion, we hold that the second proviso to Rule 4 of CSE Rules does not travel beyond the intent of the main rule putting any unjustifiable embargo and that the proviso is not ultra vires Regulation 4 (iii a) of Regulations 1955 on the ground it makes the candidates ineligible who are otherwise eligible in terms of clauses (i) to (iii) of the said Regulation and that the proviso to Rule 17 is not invalid.
An enactment is never to be held invalid unless it be, beyond question, plainly and palpably in excess of legisla tive power or it is ultra vires or inconsistent with the statutory or constitutional provisions or it does not con form to the statutory or constitutional requirements or is made arbitrarily with bad faith of oblique motives or op posed to public policy.
In our considered opinion, the second proviso to Rule 4 of CSE Rules cannot be held to be invalid on any of the grounds mentioned above.
The next question that has arisen for consideration is, how far the principle of reasonable restriction can be applied in the formulation of the rules, keeping the rele vance of the recruitment scheme to the civil service.
Nei ther an omnibus answer or a simplistic solution would carry us far to face the public service reality in the modern state, the governing consideration of which is the context of actual situation, circumstances, resources and the socie tal goals of the particular State/country.
The further argument advanced in Civil Appeal Nos.
5506 5525 of 1990 (as appears from the written submission made by Mr. C.N. Sreekumar) is that on a correct interpreta tion of the impugned second proviso, the last clause of which reads "such candidate who accepts the service shall not be eligible to appear again in the Civil Services Exami nation unless he first resigns from the service" refers to only candidates, who on the basis of the result of the previous CSE had been allocated to the Central Services Group 'A ' but who expressed their intention to appear in the next CSE (Main) for competing for IAS, IFS, IPS or Central Services Group 'A ' and who are permitted to abstain from the probationary training in order to so appear and who joined Group 'A ' service subsequently on allocation either on the basis of the previous examination or the subsequent examina tion.
According to him, in other words, the candidates who did not avail the benefit of abstaining from the probation ary training 88 with the permission of the Government in order to appear at the next Civil Services (Main) Examination do not fail within the scope of the impugned restriction and they cannot be asked to resign as a condition precedent to their appear ing again in the CSE.
This tenuous argument does not appeal to us.
Firstly the expression "such candidate", is not used in the proviso, on the other hand, the words used are "a candidate" (vide publication of Gazette of India dated 13 12 86).
Secondly the last part of the proviso, as it stands, reads "a candidate who accepts allocation to a service and is appointed to a service shall not be eligible to appear again in the Civil Services Examination unless he has first resigned from the service.
" Thirdly a correct and proper reading of the last limb of the proviso clearly demonstrates that the expression "a candidate" refers only to the candidate, mentioned in the earlier part of the proviso.
Lastly, if such an interpretation is to be given on the wrong reading of the proviso, then the whole object of the proviso will be defeated.
Question No. 7 Mrs. C.M. Chopra scathingly attacks the judgment of the Tribunal inter alia contending that the protection guaran teed to the candidates belonging to Scheduled Castes and Scheduled Tribes under the Constitution more particularly under Article 335 of the Constitution of India cannot be taken away by an arbitrary executive action by introducing the second proviso, thereby reducing the number of permissi ble attempts for appearing in the CSE hitherto enjoyed by such candidates; that the right statutorily and constitu tionally vested on the SC/ST candidates, permitting them to make unlimited attempts, of course, subject to the upper age limit cannot be easily whittled down and that the second proviso is an independent proviso, having no relation to the first proviso and apriori it cannot control and prevail upon the first proviso which declares "that this restriction on the number of attempts will not apply in the case of Sched uled Castes and Scheduled Tribes who are otherwise eligible." According to her, the reservation policy guaran teed to the SC/ST candidates cannot be obliterated by an unreasonable and arbitrary executive action.
No doubt, it is true that while the substantive Rule 4 of the CSE Rules permits every candidate to appear for three attempts at the examination which is now increased to four the first proviso to this rule states that this restriction on the number of attempts at the examination is not applica ble in the case of SC/ST candidates who arc otherwise eligi ble.
However, even in the case of SC/ST candidates, there is a specific restriction so far as the upper age limit is concerned as envisaged under Rule 6 (b) of the CSE Rules.
Regulation 7(2) of Regulation, 1955 states that the 89 candidates belonging to any of the Scheduled Castes or the Scheduled Tribes may, to the extent of the number of vacan cies reserved for the Scheduled Castes and Scheduled Tribes cannot be filled on the basis of the standard determined by the Commission under sub regulation (1) be recommended by the Commission by a relaxed standard to make up the defi ciency in the reserved quota, subject to the fitness of these candidates for selection to the Service, irrespective of their ranks in order to merit at the examination.
Sub Regulation (1) of Regulation 7 reads that subject to the provision of Sub Regulation (2) the Commission (U.P.S.C.) shall forward to the Central Government a list arranged in order of merit of the candidates who have qualified by such standard as the Commission may determine.
In the normal course, a candidate belonging to SC/ST category can enjoy all the benefits under the rules and regulations.
But the restriction imposed under the second proviso is only for a specified category of candidates by treating all such candidates at par and without making any exception to the candidates belonging to SC/ST.
The submis sion made by Mrs. Chopra that the second proviso is an independent one does not merit consideration because the second proviso to Rule 4 begins with the words 'provided timber. " which expression would mean that a strict com pliance of the second proviso is an additional requirement to that of the substantive rule 4 and the first proviso.
The expression "provided further" spells out that the first proviso cannot be read in isolation or independent of the second proviso but it must be read in conjunction with the second proviso.
To put in other words, once the candidates belonging to SC or ST get through one common examination and interview test and are allocated and appointed to a service based on their ranks and performance and brought under the one and the same stream of category, then they too have to be treated among all other regularly and lawfully selected candidates and there cannot be any preferential treatment at that stage on the ground that they belong to SC or ST, though they may be entitled for all other statutory benefits such as to the relaxation of age, the reservation etc.
The unrestricted number of attempts, subject to the upper age limit, is available to the SC/ST candidates in the normal course but that is subject to the second proviso because when once they are allocated and appointed along with other candidates to a category/post, they are treated alike.
Ramaswami, J speaking for the Constitution Bench in C.A. Rajendran vs Union of India & Ors., ; at page 733 while interpreting Article 16(4) of the Constitution of India observed thus: 90 "Our conclusion therefore is that article 16(4) does not confer any right on the petitioner and there is no constitutional duty imposed on the Government to make a reservation for Scheduled Castes and Scheduled Tribes, either at the initial stage of recruitment or at the stage of promotion.
In other words, Art.16(4) is an enabling provision and confers a discre tionary power on the state to make a reserva tion of appointments in favour of backward class of citizens which, in its opinion, is not adequately represented in the Services of the State.
We are accordingly of the opinion that the petitioner is unable to make good his submission on this aspect of the case.
" A seven Judges Bench in State of Kerala vs
N.M. Thomas; , before which some important questions arose with regard to the intent of Article 16 of the Constitution, referred to and relied upon the observation in Rajendran 's case holding that reservation is not a constitutional com pulsion, but is a discretionary one.
In that case Krishna lyer, J agreeing with the majority view expressed his opin ion thus: "The State has been obligated to promote the economic interests of harijans and like back ward classes, Articles 46 and 335 being a testament and Articles 14 to 16 being the tool kit, if one may put it that way.
To blink at this panchsheel is to be unjust to the Constitution.
" Further, the learned Judge held: "Indeed, Article 335 is more specific and cannot be brushed aside or truncated in the operational ambit vis a vis Article 16(1) and (2) without hubristic aberration." In Akhil Bharatiya Soshit Karmachari Sangh (Railway) vs Union of India & Others, [1981]1 SCC 246, Krishna lyer, J observed that Article 16(4) is not a jarring note but auxil iary to fair fulfilment of Article 16(1) and further said, "Article 16(4) is not in the nature of an exception to Article 16(1).
It is a facet of Article 16(1) which fosters and furthers the idea of equality of opportunity with spe cial reference to an underprivileged and deprived class of citizens to whom egalite de droit (formal or legal equality) is not egalite de fait (practical or factual equality).
See also M.R. Balaji vs State of Mysore, [1963] Supp. 1 SCR 439, Triloki Nath vs State of J&K, ; and T. Devadasan vs Union of India, ; and Comp troller and Auditor General of India vs 91 K.S. Jagannathan; , at 684 (para 6).
The Constitution, no doubt, has laid a special responsi bility on the Government to protect the claims of SC/ST in the matter of public appointments under various Constitu tional provisions of which we shall presently refer to a few.
Article 16(4), as manifested from the various decisions of this court referred to hereinbefore, is an enabling provision conferring a discretionary power on the State for making any provision or reservation of appointments or posts in favour of any backward class of citizens, which in the opinion of the State, is not adequately represented in the service under the State.
The expression 'backward class ' obviously takes within its fold people belonging to SC and ST (vide Janki Prasad vs State of J&K, ; Clause 4 of Article 16 has to be interpreted in the back ground of Article 335 as ruled by this Court in General Manager vs Rangachari, ; and in Rajendran 's case referred to above.
Article 335 enjoins that the claims of the members of the SC and ST shall be taken into consid eration, consistently with the maintenance of efficiency of administration, in the making of appointments to services or posts in connection with the affairs of the Union or of a State.
Article 320(4) makes it clear that the Public Service Commission is not required to be consulted as respects the manner in which any provision referred to in article 16(4) may be made or as respects the manner in which effect may be given to Article 335.
The query before us is not in respect of the reservation of backward classes or in respect of the claims of SC and ST services/posts, but it is whether the candidates belonging to SC and ST are entitled to any exception from the opera tion of the proviso.
The answer to the above query would be an negative as we have aforesaid.
It may be true, as fervently submitted by Mrs. Chopra there may be some hard cases, but the hard cases cannot be allowed to make bad law.
Therefore, in the case on hand, as long as the second proviso does not suffer from any vice, it has to be construed, uniformly giving effect to all those falling under one category in the absence of any specific provision exempting any particular class or classes of candidates from the operation of the impugned proviso and no one can steal march over others falling under the same category.
Hence, the right of candidates belonging to SC and ST competing further to improve their career opportunities is limited to the extent permissible under the second provi so to Rule 4 read with Rule 17 of the C.S.E. Rules.
For the aforementioned reasons, we find no merits in the submission.
92 of Mrs. Chopra that the second proviso is not applicable to the candidates belonging to SC or ST.
Mr. Gopal Subramanian appearing on behalf of some of the appellants supplemented by the arguments of other counsel, stating that the very structure of the recruitment policy is itself disturbed to the great disadvantage of the candidates who since then have been enjoying the right to appear for 3 attempts as conferred by the substantive Rule 4 and that one of the present restrictions that the candidates should severe from the service, if intends to appear for the third time, after he has been allocated and appointed to a service is unjust, unreasonable and it seriously transgresses on the main provision and virtually interdicts the candidates from availing their statutorily conferred and protected right.
Therefore, such a serverance of status from the service is ex facie wrong, even if one can understand losing of senior ity.
We have already discussed this interpellation in exten so while dealing with similar contentions and our considered view expressed albeit will clearly answer this contention.
Hence, we hold that there is no question of severance of status as we have come to the conclusion that the restric tion imposed by the impugned proviso cannot be said to be unjust, unreasonable or arbitrary or change of any policy and moreover, the spirit of the main rule is not in any way disturbed.
In the result, we conclude that there is neither any tenable reason nor any logic in the above submission.
Question No. 8 Then a mordacious criticism was unleashed by all the learned counsel appearing on behalf of the appellants inter alia contending that the second proviso which is an administrative instruction is highly arbitrary and irration al having no nexus to the object of the scheme of recruit ment to the post of civil services and that there was inade quate attention paid to the nexus between the intent of the proviso and the object to be achieved.
The learned Additional Solicitor General controverted the above argument stating that the working system of the civil service in relation to its logical relationship of recruitment rules on different aspects has been exclusively investigated bearing in mind the process of rapid economic development with a democratic framework of Government on Indian scenario and the present proviso is having a dynamic, reasonable and relative nexus with the object to be achieved in the present system of the civil services within its administrative framework.
No denying the fact that the civil service being the top most service in 93 the country has got to be kept at height, distinct from other services since these top echelons have to govern a wide variety of departments.
Therefore, the persons joining this higher service should have breadth of interest and ability to acquire new knowledge and skill since those joining the service have to be engaged in multiple and multifarious activities as pointed out supra.
In order to achieve this object, the selectees of this higher civil services have to undergo .training in the National Academy/ Training institutes wherein they have to undergo careful programme of specialized training as probationers.
The various schemes of training are based on the conviction that splendid active experience is the real training and the selectees are to be trained in the academies in all kinds of work they have to handle afterwards with a band of senior chosen officers.
Training at the academy comprises a founda tion course followed by another course of practical train ing.
The rationale underlying the course at the training centres is that the officers of civil services must acquire an understanding of the constitutional, social, economic and administrative framework within which they have to function and also must have a complete sense of involvement in the training and thereafter in the service to which/she is appointed.
It is apparent that initial training is in the nature of providing young probationers an opportunity to counter act their weak points and at the same time develop their social abilities and as such the aspect of training is the most important of all.
It was brought to the notice of the Government that the probationers who have been allocated to the IPS and Group 'A ' service were more often than not completely neglecting their training in the academies/Training Institutes and also have gone on enmass leave thereby creating a complete vacuum in the academy and the Training Institutes for the purpose of preparing for the next CSE (Main) in the hope of getting a better position and a more preferred service like IAS, IFS etc.
without having a sense of involvement with the service to which they have been allocated and appointed on the basis of the earlier examination.
It seems that the Government had been facing this disturbed problem of indiscipline and inattentiveness among the probationers undergoing training who were busy themselves with the preparation for the ensu ing CSE.
As a result of this, bent on preparation for the CSE the training imparted was not seriously taken and the concentration of the probationers was only in the prepara tion of the next CSE.
Consequently, the standard of officers turned out of the academy on completion of their training declined very much.
Therefore, in order to overcome this problem it was suggested and considered that the probation ers selected and allocated to a service and sent for train ing should be debarred from appearing in the ensuing CSE so that they can 94 fully devote themselves to the training and take it more seriously.
Resultantly, the matter was considered in consul tation with the Department of Personnel and Training and it was agreed that the relevant rules should be amended so as to prevent the IPS and Group 'A ' probationers from joining training at the academy in case they intend to take another CSE.
These measures are taken for making probationers train ing more effective and meaningful.
Hence for the aforementioned reasons, we hold that there is a dynamic nexus between the impugned second proviso and the object to be achieved.
Question No. 9 We shall now pass on to the real and pivotal point in issue which has been hotly debated and eloquently articulat ed by all the learned counsel contending that the impugned proviso is discriminatory and violative of Articles 14 and 16 of the Constitution resulting in a disastrous effect.
All the learned counsel appearing in all the batches of the appeals amplified the above contention stating thus: In all, there are 46 Group 'A ' Central Services listed in the CCS Rules of which only for 16 Group 'A ' Services, recruitment is made through the Civil Services Examination conducted by UPSC annually and it is only in respect of the candidates already allocated and appointed to the IPS or to one or other of these 16 Group 'A ' services, the impugned proviso imposes an onerous restriction that they should first resign in order to appear at the next Civil Service Examination whereas there is no such restriction so far as candidates recruited through the same open competition to the remaining Group 'B ' services are concerned despite the fact that the level of responsibility is the same and the qualifications prescribed are comparable.
This kind of classification between these two groups has no rational nexus with the object of selection.
The reasons attributed for such a classification on the ground of neglect of train ing, financial loss, unemployment situation, loss to service are all common to all the Central Service Group 'A ' listed in the CCS Rules, and therefore, the impugned second proviso is held to be discriminatory against the candidates appoint ed to the IPS and 16 Group 'A ' services and as such it is violative of Article 14.
The impugned proviso makes a further discrimination vis a vis candidates appointed to Group 'B ' services, in that the said proviso by placing the onerous condition of resignation from service of candidates appointed to the IPS and Group 'A ' service in substance and effect and it 95 precludes them from competing for higher civil service with the candidates appointed to Group 'B ' service and thereby facilitates the selection of candidates with relatively inferior merit to posts of superior Group 'A ' services.
In other words, the impugned proviso excludes the candidates appointed to group 'A ' services from competition on the one hand and on the other facilitates selection from amongst less meritorious candidates appointed to Group 'B ' services to the highest and prestigious All India Services.
This defeats the very object of securing the services of most meritorious candidates to the most important All India Services and it is arbitrary for want of rational nexus between the classification of candidates with the proven superior merit and those of inferior merit and consequently the object of recruiting the most meritorious candidates to the top most All India Services is frustrated.
In addition to the above submission, reliance was placed on the dictum laid down in R.K. Dalmia vs Justice Tendolkar, ; at pages 296 297 holding, "In order to pass the test of permissible classifications two conditions must be fulfilled, namely (i) that the classification must be founded on an intelligible differentia with 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.
" According to Mr. P.P. Rao, the recommendations of the Kothari Committee and the Estimates Committee are not en forceable proprio vigore and the executive authorities who are expected to act justly and reasonably, cannot usurp the functions of the Parliament and arbitrarily put a restric tion through the impugned proviso which restriction is highly tainted with hostility and discrimination subjecting the candidates allocated and appointed to the IPS and Group 'A ' services to a harassing and oppressive treatment.
Mr. Gopal Singh appearing for some of the appellants besides stating that he is adopting the submissions made by other learned counsel cited some decisions in support of his arguments that the discrimination now existing consequent upon the introduction of the second proviso offends Article 14 of the Constitution.
At the risk of repetition, it may be stated that under the present system of civil services, all candidates are selected through one common examination preliminary and main and interview test.
A list of selected candidates in the order of merit is published and thereafter the success ful candidates are allocated to different services namely IAS, IFS, IPS, Group 96 'A ' and Group 'B ' services based on their ranks and prefer ences.
Of the candidates, IAS and IFS are top rankers in the merit list.
In the notification dated 13.12.1986 issued by the Ministry of Personnel, there were only 28 services/posts of which the first three were IAS, IFS and IPS and of the remaining (iv) to (xviii) were Group 'A ' services and (xix) to (xxviii) were Group 'B ' services.
In the list of Group 'A ' services, items (xvii) and (xviii) were Grade II and III respectively.
In notification dated 19.12.1987, there were in total 27 services/posts of which the first three were the same and the services under (iv) to (xix) were Group 'A ' services and (xx) to (xxvii) were Group 'B ' services.
In the nomenclature of Group 'A ' and Group 'B ' services, there was slight variation.
In the subsequent notification issued on 17.12.1988, besides the first three services being the same, the total number of services in group 'A ' was 16 and in Group 'B ' the number of services was reduced to 7.
In 1989, the first three services remaining the same, there were 16 services under items (iv) to (xix) in Group 'A ' services and 8 services/posts in Group 'B ' Services under item (xx) to (xxvii).
In the notification issued on 5th January 1991, the total services were reduced from 27 to 26 and items (i) to (iii) remaining the same, there were 16 Group 'A ' services (iv to xix) and 7 services in Group 'B ' (xx to xxvi).
Thus, it is seen that there was inclusion or exclusion of one service or other besides the change of nomenclature in one or two services in the notifications for the CSE every year.
As envisaged in Rule 17, due consideration is given at the time of making appointments and on the results of the examination to the preferences expressed by a candidate for various services at the time of his application and the said appointments will be governed by the rules/regulations in force as applicable to the respective Services at the time of appointment.
As pointed out in detail in the preceding part of this judgment, under the first proviso to Rule 17, a candidate who has been approved and appointed to IPS or Central Services Group 'A ' will be eligible to compete for appointment in services mentioned against that service in column No. 3 of the table given in the said rule.
As per the second proviso appended to the said rule, a candidate who is appointed to a Central Service Group 'B ' on the results of an earlier examination will be eligible to compete for IAS, IFS, IPS and Central Services Group 'A ' and considered only for those appointments.
The intent of the above proviso proceeds on the footing that all Central Services of Group 'A ' stand on equal footing and likewise all Group 'B ' serv ices also stand on equal footing within their respective group of services/posts and that there is no point in com peting for any one of the services by a candidate within the same Group 'A ' or Group 'B ' services as the 97 case may be when he has already been allocated and appointed to one of those services in either of the groups to which he has been selected on his merit.
It cannot be disputed that the candidates allocated to Group 'A ' services are more meritorious compared to candi dates allocated to Group 'B ' services.
Consequently, those allocated to Group 'B ' services get lower position compared to those allocated to Group 'A ' services.
The pay scales in Group 'B ' services are comparatively less than those meant for IAS, IFS and IFS and Central Services Group 'A '.
There is a clear cut separation on the basis of ranking and merit and, therefore, it cannot be said by any stretch of imagina tion that both Group 'A ' and Group 'B ' services fall under one and the same category but on the other, these services are two distinct and separate categories failing under two different classifications.
The Additional Solicitor General refuting the arguments of Mr. P.P. Rao that there is a discrimination between Group 'A ' and Group 'B ' services, in that whilst an Under Secre tary, selected in Group 'A ' services, is not allowed to sit for examination by availing his third chance, a Section Officer coming under Group 'B ' services is permitted to sit for examination availing his chance without resigning from service, emphatically stated that this argument has no merit since in Group 'A ' services, there is a vertical movement.
The learned ASG further clarified that Group 'A ' and Group 'B ' services are two separate services, having different status, prospects, conditions of services and pay scales and both the services under the two groups are not similarly situated, besides the candidates in Group 'A ' services standing in higher rank and merit.
The Tribunal after deeply considering the similar con tention raised before it has concluded as follows: . .
We do not see any reasonable basis to urge that Group 'A ' and Group 'B ' Services should be treated at par.
Even their pay scales and conditions of service not the same as in the Group 'A ' Services.
It is, there fore, not a question of comparing these two Services and placing them at par.
In our opinion, there is no discrimination.
It will be noticed that the alleged discrimination is not on the basis of religion, race, caste, sex, descent, place of birth, residence or any of them.
The discrimination, if any, has a reasonable nexus with the objective for which it has been made.
The objective is to create five categories of Services consisting of IAS, IFS, IFS, Central Services Group 'A ' and Central Services Group 'B '.
We are fur 98 ther of the opinion that the Government having come across certain difficulties and problems in the matter of probationary training and the filling up of the vacancies in various Serv ices made these rules.
We do not find the argument of discrimination between Group 'A ' and Group 'B ' Services to be valid.
We, there fore, reject these arguments".
One other argument advanced on behalf of the appellants was that 'he candidates who have been allocated in Group 'A ' services and whose raining is postponed at their request have to loose their seniority whereas .he candidates who have been appointed to Group 'B ' services do not suffer such kind of disability and that they can even after their train ing retain their original seniority which they had at the time of initial selection.
This serious setback suffered by a candidate selected in Group 'A ' services, according to the counsel for the appellants, indicates that there is an apparent discrimination between the two sets of candidates.
This contention of the appellants, according to ASG, cannot be countenanced because the services under Group 'A ' and Group 'B ' are different services and, therefore, the condi tions of service of a particular service cannot be compared with other service especially when the services are not at par and more so when the other service, namely, Group 'B ' service is less in rank and merit to that of Group 'A ' Service.
In passing, all the learned counsel in assailing the validity of the impugned second proviso drew our attention to various Service Rules, such as Central Secretariat Serv ice Rules, Indian Revenue Service Rules, 1988, Indian Cus toms and Central Excise Service Group 'A ' Rules, 1987, Department of Revenue (Customs Appraiser) Recruitment Rules, 1988, Indian Railway Personnel Service (Recruitment) Rules, 1975 and Delhi and Andaman and Nicobar Islands Civil Service Rules, 1971 all made under Article 309 of the Constitution of India and attempted to show that various provisions of those rules relating to the recruitment and service condi tions go in support of their submissions that there is a hostile discrimination between the candidates of Group 'A ' services and Group 'B ' services.
In our considered opinion,.
this abortive attempt made by the learned counsel does not loom large and assume any significance in examining the broad aspect of the main issues involved and in testing the constitutionality of the said proviso.
Now, it necessarily follows whether the classification of these two services, one falling under Group 'A ' and another failing under Group 'B ' are based on intelligible differentia.
99 The Constitution Bench of this Court in R.K. Dalmia 's case (supra) after reiterating the legal principle enunciat ed by a Constitution Bench of Seven Judges of this Court in Budhart Choudhry vs State of Bihar, ; , has ruled thus: "It is now well established that while Article 14 forbids class legislation, it does not forbid reasonable classification for the purposes of legislation.
" Having regard to the objective in that case, it has been held: "In determining whether there is any intelli gible differentia on the basis of which the petitioners and their companies have been grouped together it is permissible to look not only at the facts appearing in the notifica tion but also the facts brought to the notice of the Court upon affidavits.
The facts in the present case afford sufficient support to the presumption of constitutionality of the noti fication and the petitions have failed to discharge the onus which was on them to prove that other people or companies similarly situated have been left out and that the petitioners and their companies have been singled out for discriminatory and hostile treatment.
" In Kumari Chitra Ghosh and Another vs Union of India and Others, ; , the facts were thus: The appellants filed a Writ Petition in the High Court challenging the authority of the Central Government to select candidates for certain reserved seats on the ground that they having secured 62.5 per cent marks would have got admission but for the reservation of seats which were filled by nominations by the Central Government.
The High Court dismissed the Writ Petition as well as the Review Petition.
Aggrieved by the judgment of the High Court, the appellants appealed to this Court.
Grover, J speaking for the Constitu tion Bench approved the dictum in R.K. Dalmia 's case (cited above) laying down the fulfilment of the two conditions as the test of permissible classification and held that the classification in that case was based on intelligible dif ferentia, observing thus: "It is the Central Government which bears the financial burden of running the medical col lege.
It is for h to lay down the criteria for eligibility.
From the very nature of things it is not possible to throw the admission open to students from all over the country.
The Gov ernment cannot be denied the right to 100 decide from what sources the admission will be made.
That essentially is a question of policy and depends inter alia on an overall assess ment and survey of the requirements of resi dents of particular territories and other categories of persons for whom it is necessary to provide facilities for medical education.
If the sources are properly classified whether on territorial, geographical or other reasona ble basis it is not for the Courts to inter fere with the manner and method of making the classification.
" In the above case, the Court has distinguished the decision in Rajendran 's case (referred to above).
Y.V. Chandrachud, J as he then was speaking for the Constitution Bench in State of Jammu & Kashmir vs Triloki Nath Khosa & Ors., ; in which it was contend ed on behalf of the State that is always open to the Govern ment to classify its employees so long as the classification is reasonable and has nexus with the object thereto, stated as follows: "Thus, it is no part of the appellants ' burden to justify the classification or to establish its constitutionality.
Formal education may not always produce excellence but a classifi cation founded on variant educational qualifi cations is for purposes of promotion to the post of an Executive Engineer, to say the least, not unjust on the fact of it and the onus therefore cannot shift from where it originally lay. . . . . . .
Classification is primarily for the legisla ture or for the statutory authority charged with the duty of framing the terms and condi tions of service, and if, looked at from the standpoint of the authority making it, the classification is found to rest on a reasona ble basis, it has to be up held. . .
Discrimination is the essence of classifica tion and does violence to the constitutional guarantee of equality only it rests on an unreasonable basis.
Equality is for equals .
That is to say that those who are similarly circumstanced are entitled to an equal treatment. .
Judicial scrutiny can therefore extend only to the considera tion whether the classification rests on a reasonable basis whether it bears nexus with the object in view.
It cannot extend to em 101 barking upon a nice or mathematical evaluation of the basis of classification, for were such an inquiry permissible it would be open to the courts to substitute their own judgment for that of the legislature or the rule making authority on the need to classify or the desirability of achieving a particular object.
" P.N. Bhagwati, J and Krishna lyer, J have concurred with the view expressed by chandrachud, J though they have added some more concurring observations of their own.
It will be apposite to recall an observation of this Court in A.S. Sangwan vs Union of India, [1980] Supp.
SCC 559 at 561 reading as follows: "A policy once formulated is not good for ever; it is perfectly within the competence of the Union of India to change it, rechange it, adjust it and readjust it according to the compulsions of circumstances and the impera tives of national considerations.
We cannot, as Court, give directives as to how the De fence Ministry should function except to State that the obligation not to act arbitrarily and to treat employees equally is binding on the Union of India because if functions under the Constitution and not over it . . .
It is entirely within the reasonable discre tion of the Union of India.
It may stick to the earlier policy or give it up.
But one imperative of the Constitution implicit in Article 14 is that if it does change its policy, it must do so fairly and should not give the impression that it is acting by any ulterior criteria or arbitrarily. ' ' See also Akhil Bharatiya Soshit Karamchari Sangh (Rail wav) 's case (already referred to).
In Deepak Sibal vs Punjab University, ; M.M. Dutt, J speaking for the Court has held thus: "In order to consider the question as to the reasonableness of the classification, it is necessary to take into account the objective for such classification.
If the objective be illogical, unfair and unjust, necessarily the classification will have to be held as unrea sonable.
Surrounding circumstances may be taken into consideration in support of the constitutionality of a law which is otherwise hostile or discriminatory in nature.
But the circumstances must be such as to justify the discriminatory treatment or the classification subserving the object sought to be achieved.
A classification by the identification of a source must 102 not be arbitrary, but should be on a reasona ble basis having a nexus with the object sought to be achieved by the rules for such admission.
A classification need not be made with mathematical precision but, if there be little or no difference between the person or things which have been grouped together and those left out of the group, the classifica tion cannot be said to be a reasonable one . . . . . .
It is true that a classification need not be made with mathematical precision but, if there be little or no difference between the persons or things which have been grouped together and those left out of the group, in that case, the classification can not be said to be a rea sonable one . . . . .
It is submitted that in making the classification the surrounding circumstances may be taken into account . . . . . follows from the observation that surrounding circumstances may be taken into consideration in support of the constitutionality of a law which is otherwise hostile or discriminatory in nature.
But the circumstances must be such as to justify the discriminatory treatment or the classification subserving the object sought to be achieved.
In the instant case, the circumstances which have been relied on by the respondents, namely, the possibility of production by them of bogus certificates and insecurity of their services are not, in our opinion, such circumstances as will justify the exclusion of the employees of private establishments from the evening classes.
" What falls instantly for determination is whether the differentia on which the classification is sought to be made has a rational relation with the object to be achieved.
We have already discussed this question in detail when we have separately examined the question as to whether the second proviso is related to the purposes stated therein.
Whereas Mr. Kapil Sibal has urged that it is always open to the Government to classify its employees as long as the classification is reasonable and has nexus to the object thereto, the rival contention is that there is no nexus between the classification and the object to be achieved thereby, that in fact the classification defeated that object, that if chances of sitting for examination are denied to a few with equals, there is inherent vice attached to such classification and that in such circumstances, the unreasonableness of the classification becomes patent.
It is further urged 103 on behalf of the appellants that this classification foments frustration amongst the selectees of group 'A ' services and produces inefficiency by placing men of lower efficiency in a very advantageous position.
Mr. P.P. Rao would urge that if there is a vertical movement in group 'A ' services as stated by Mr. Kapil Sibal, how can candidates in group 'B ' services be permitted to sit for examination of IAS, IFS and IPS by passing the meritorious candidates under group 'A ' and therefore the classification is per se irrational, unjust and discriminatory and as such ultra vires Article 14.
We shall now bestow out judicious thought over this matter and carefully examine the rival contentions of the rival parties in the light of the guiding principles, lucid ly laid down by this Court in a series of decisions, a few of which we have already referred to hereinbefore.
The selections for IAS.
IFS and IPS group 'A ' services and group 'B ' service are made by a combined competitive examination and viva voce test.
There cannot be any dispute that each service is a distinct and separate cadre, having its sepa rate field of operation, with different status, prospects, pay scales, the nature of duties, the responsibilities to the post and conditions of service etc.
Therefore, once a candidate is selected and appointed to a particular cadre, he cannot be allowed to say that he is at par with the others on the ground that all of them appeared and were selected by a combined competitive examination and viva voce test and that the qualifications prescribed are comparable.
In our considered view, the classification of the present case is not based on artificial inequalities but is hedged within the salient features and truly founded on substantial differences.
Judged from this point of view, it seems to us impossible to accept the submission that the classification rests on an unreal and unreasonable basis and that it is arbitrary or absurd.
In this connection, it may be noted that in fact the civil services in foreign countries too, such as United States of America, Great Britain, France and Canada grew up by degrees from time to time in tune with the concept of new ideas under the pressure of some necessity or influence of particular theories linked with the changing political ideology and social conditions and with a view to trimming the civil service scheme and this process of development is by way of evolution rather than revolution.
We may again hark pack to the case of the appellants and examine whether this classification offends Articles 14 and 16 of the Constitution of India.
Article 14 declares that the State shall not deny to any person 104 equality before the law or the equal protection of the law within the territory of India.
The cherished principle underlying the above Article is that there should be no discrimination between one person and another if as regards the subject matter of the legislation, their position is the same.
Vide Chiranjit Lal vs Union of India, ; or in other words its action must not be arbitrary, but must be based on some valid principle, which in itself must not be irrational or discriminatory (Vide Kasturi vs State of J & K (albeit).
As ruled by this Court in Ameeroonissa vs Mah boob, and Gopi Chand vs Delhi Administration, ; that differential treatment does not per se constitute violation of Article 14 and it denies equal protection only when there is no rational or reasonable basis for the differentiation.
Thus Article 14 condemns discrimination and forbids class legislation but permits classification founded on intelligible differentia having a rational relationship with the object sought to be achieved by the Act/Rule/Regulation in question.
The Government is legitimately empowered to frame rules of classification for securing the requisite standard of efficiency in services and the classification need not scientifically be perfect or logically complete.
As observed by this Court more than once, every classification is likely in some degree 10 produce some inequality.
The provisions of Article 14 of the Constitution have come up for discussion before this Court in a number of cases but we feel that in the present case, it is not neces sary to go in for any lengthy discussion as 10 the origin, meaning and the gradual development of the concept of prin ciples and enlargement of the scope and effect of this Article.
Suffice to mention a few decisions of this court relating to the issue under consideration, namely Chiranjit Lal Chowdhury vs The Union of India; Budhart Choudhry and Others vs The State of Bihar; R.K. Dalmia vs Justice Tendol kar (all cited above); E.P. Royappe vs State of Tamil Nadu, ; ; Maneka Gandhi vs Union of India, [1978] 1 SCC 248; Ramana vs International Airport Authority of India, AIR 1979 SC 1928; Union of India vs Tulsiram Patel, ; ; Swadeshi Cotton Mills vs Union of India, ; ; and Central Inland Water Transport Corpo ration vs Brojo Nath, AIR 1986 SC 1971.
In Devadasan vs Union of India, ; wherein Subba Rao, J as he then was, has dissented from the majority and pointed out that the expression "equality before the law or the equal protection of the laws '* means equality among equals and that Article 14 does not provide for an absolute equality of treatment to all persons in utter disregard in every conceivable circumstance of the differences.
105 In Birendra Kumar Nigam and Others vs Union of India,Writ Petition Nos. 220 222 of 1963 decided on 13.3.1964, three writ petitions were filed under Article 32 of the Constitution raising a common question regarding the constitutional validity of certain rules framed by the Union Ministry of Home Affairs and certain directions issued by it relative to the appearance of Assistants employed in the Central Secretariat Service in the competitive examination held by the Union Public Service Commission for recruitment to certain All India Services.
In each of the above three petitions, grounds of challenge was same viz., that the impugned rules and directions were violative of Articles 14 and 16 (1) of the Constitution.
The facts in relation to the three petitions were slightly different.
Therefore, by way of illustration we will tersely state the facts in Writ Petition No. 220 of 1963.
The petitioner in that case was appointed to the post of an Assistant in the Central Secretariat Service from 1956 and he joined the same on 29.8.56.
But in March of that year, he had already submitted his application to be includ ed as a candidate for competing in the combined examination for the several All India Services IAS, IFS, IPS and the several categories of the All India Central Services, the Examination for which was held in September 1956 but before that date he received an information from the Home Ministry that he could not appear for that examination because he was still on probation.
prior to the date on which he completed his probation and was confirmed as an Assistant, the Minis try of Home Affairs issued the impugned notification on 14.3.1957 pointing out that there was an acute shortage of Grade IV Assistants in the Secretariat Service and that the Assistants would not be permitted to compete at the examina tion to be held in 1957 and that those who were desirous of competing their candidature would be restricted to an ap pointment to Grade III of the Central Secretariat alone.
We are not giving the facts of other two writ petitions since the common question decided was the same.
Rajagopala Ayyangar, J while speaking for the Constitu tion Bench in that case has held: "If, as must must be, it is conceded that the existencies, convenience, or necessity or a particular department might justify the impo sition of a total ban on the employees in that department, from seeking employment in other departments, a partial ban which permits them to seek only certain posts in the 106 same department cannot be characterised as illegal as being discriminatory.
The mere fact therefore that under the rules officers in certain other departments are permitted to compete for a Class I post is no ground by itself for considering such a variation as an unreasonable discrimination, violative of Articles 14 and 16 (1) of the Constitution as not based on a classification having a ration al and reasonable relation to the object to be attained.
Of course, no rule imposes a ' ban on these employees resigning their posts and competing for posts in the open competition along with 'open market 'candidates." As we have repeatedly held that each of the civil services, namely IAS, IFS, IPS, Group 'A ' Services and Group 'B ' Services is a separate and determinate service forming a distinct cadre and that each of the services is founded on intelligible differentia which on rational grounds distinguishes persons grouped together from those left out and that the differences are real and substantial having a rational and reasonable nexus to the objects sought to be achieved and that there is no question of unfairness or arbitrariness in the executive action in adding the second proviso to the substantive rule 4 of CSE Rules.
When the submission of the learned counsel for the appellants is carefully exam ined in the backdrop of the legal principles and the factual position, we are in full agreement with conclusion arrived at by the Tribunal that the impugned second proviso to Rule 4 is not violative of Articles 14 or 16 of the Constitution of India.
In Summation: The impugned second proviso to Rule 4 of the CSE Rules introduced by Notification llll No. 13016/4/86 AIS(1) dated 13.12.1986 is legally and constitutionally valid and sus tainable in law and the said proviso neither travels beyond the intent of the main rule, namely, Rule 4 of the CSE Rules nor it is ultra vires Regulation 4 (iii a) of Regula tions, 1955 that it is neither arbitrary nor unreasonable and that there is a dynamic and rational nexus between the impugned second proviso and the object to be achieved.
There is no discrimination whatsoever involved on account of the introduction of the second proviso in question and the said proviso is not ultra vires Article 14 or Article 16 of the Constitution of India.
Before parting with the judgment, we feel that it has become necessary to give a specif ic direction to the respondents inclusive of the Union Public Service Commission in pursu ance of the earlier directions given in our order dated 7.12.1990 (vide Annexure 'A ') which directions were given in pursuance of various interim orders passed by the Central Administrative Tribunal, Principal Bench, New Delhi and thereafter finally in its final 107 judgments dated 20.8.90, 4.10.90 and 5.10.90.
For ready reference and to have a proper perspective, we would like to proliferate the following passage from our earlier order dated 7.12.1990: "Hence we permit all those candidates failing under Para Nos. 5 (ii), 6 and 7 to sit for the main examination subject to the condition that each candidate satisfies the Secretary, Union Public Service Commission.
that ' he/she falls within these categories and that the concern candidates have passed the preliminary exami nation of 1990 and have also applied for the main examination within the due date.
This permission is only for the ensuing examina tion.
As we are now permitting those who have passed the preliminary examination of 1990 and have applied for the main examination on the basis of the unquestioned and unchallenged directions given under paras 5(ii), 6 and 7 of the judgment of the CAT, Principal Bench, New Delhi, the same benefit is extended to the other appellants also who satisfy those condi tions as mentioned under paras 5(ii), 6 and 7.
" On the strength of the above order, we direct the re spondents inclusive of the Union Public Service Commission that all those candidates who have appeared for the Civil Services (Main) Examination, 1990, pursuant to our permis sion given in the order dated 7.12.90 and who have come out successfully in the said examination and thereby have quali fied themselves for the intervieW, that if those candidates completely and satisfactorily qualify themselves by getting through the written examinations as well as the interview shall be given proper allocation and appointment on the basis of their rank in the merit list, notwithstanding the restriction imposed by the second proviso and our present judgment upholding the validity of the said proviso since the respondents have not questioned and challenged the directions given by CAT, Principal Bench, Delhi in para graphs 5(ii), 6 and 7 of its judgment dated 20.8.1990.
We would like to make it clear that the unchallenged direction given by the CAT in its judgment as well as directions given by us in our order dated 7.12.90 are not controlled by any rider in the sense that the said directions were subject to the result of the cases and hence those directions would be confined only to those candidates who appeared for CSE, 1990 and no further.
The seniority of those successful candidates in CSE, 1990 would depend on the service to which they have qualified.
The seniority of the left out candidates would be maintained in case they have joined the service to which they have been allocated on the result of previous CSE and such candidates will not be subjected to suffer loss of seniority as held by the CAT, Delhi in its judgment.
108 In the result for the reasons aforementioned the judg ments of the Tribunal are confirmed subject to the above directions and all the appeals are dismissed accordingly.
No order as to costs.
ORDER We have heard all the learned counsel appearing in their respective appeals and also the learned Additional Solicitor for respondents for a very considerable length of time.
The main thrust of the argument advanced on behalf of all the appellants is that the second proviso to Rule 4 of the Civil Services Examination Rules (published in the Gazette of India, Extraordinary, Part I Section, dated December 17, 1988) is offending Article 14 of the Constitution of India and is contrary to law.
As the above question requires a careful examination with regard to the individual cases listed for consideration and as we are informed that the Central Services Examination Commences on 17.12.1990, we arc constrained to give the following directions on the basis of the conclusions arrived at by the Central Administrative Tribunal, Principal Bench, New Delhi in its judgment dated 20th August 1990.
The relevant conclusions as they appear from the concluding portion of the judgment of the Tribunal are as follows: 5(ii).
A candidate who has been allocated to the I.P.S. or to a Central Services, Group 'A ' May be allowed to sit at the next Civil Service Examination, provided he is within the permissible age limit, without having to resign from the service to which he has been allocated, nor would he lose his original seniority in the service to which he is allo cated if he is unable to take training with his own Batch.
Those applicants who have been allocated to the I.P.S. or any Central Services, Group 'A ', can have one more attempt in the subse quent Civil Services Examination for the services indicated in Rule 17 of the C.S.E. Rules.
The Cadre Controlling Authorities can grant one opportunity to such candidates.
All these candidates who have been allo cated to any of the Central Services, Group 'A ', or I.P.S. and who have appeared in Civil Services Main Examination of a subsequent year under the interim orders of the Tribunal for the Civil Services Examination in 1988 or 1989 and have succeeded, are to be given benefit of their success subject to the provisions of Rule 17 of the C.S.E. Rules.
But this exemp tion will not be available for any subsequent Civil Services Examination.
109 It is pertinent to note that the respondent has not challenged the above directions given in the concluding part of the judgment.
So far as the conclusions under para Nos. 6 and 7 reproduced above, the learned Additional Solicitor General states that the respondent has no objection to have them sustained.
So far as the directions under para No. 5 (ii) is concerned, the Tribunal has allowed the candidates who have been allocated to the I.P.S or the Central Serv ices, Group 'A ' to sit at the next Civil Service Examination subject to the condition that they must be within the per missible age limit and without having to resign from the service to which they have been allocated nor would they lose their original seniority in the service to which they are allocated if they are unable to take training with their own Batch.
The Tribunal has used their expression "may be allowed to sit at the next Civil Service Examination but it did not restrict it only with regard to the preliminary examination as now contended by the learned Additional Solicitor, according to whom those candidates are not eligi ble to sit for the main examination since the Tribunal has upheld the validity of the second proviso to Rule 4 of the CSE Rules.
In order to properly understand and appreciate the conclusions arrived at by the Tribunal under para 5(ii), we shall reproduce some interim orders made by the Tribunal during the hearing of the O.As.
In M.P. No. 1269/90 in OA No. 1074/90 dated 31.5.1990 which has given rise to SLP (Civil) Nos.
13525 38/90, the C.A.T., New Delhi has passed the following order: "We have heard the learned counsel for the parties and considered the matter.
In our opinion, a direction should be issued to the respondents to permit the applicants to appear in the preliminary C.S.E. 1990 without press ing for their resignations from the service and respondents may also grant them necessary leave etc.
This interim order will be subject to the order in O.A. 206/1989 and connected cases.
" Interim order passed on 4.6.1990 in Regn.
No. 0A/160/90 by CAT, New Delhi which has given rise to Civil Appeal No. 5470/90 reads thus: "The learned counsel for the applicant states that the applicant has applied for the 1990 Civil Services Preliminary Examination well in time and has also received Roll Number from the Union Public Service Commission and that he is not being allowed to appear in the Examination in view of the power conferred by the second proviso to Rule 4 of the Civil Services Examination 1987.
The examination is going to be held on 10.6.1990.
In view of this, we direct that if it is convenient and administratively possible, the respondents shall allow the ap 110 plicant provisionally to appear in the said examination.
Respondents may also consider granting him necessary leave etc.
for the purpose.
Issue dasti.
" In M.P. No. 1251/90 in O.A. No.944/1989 which has given rise to Civil Appeal No. 5471/90, CAT, New Delhi has passed the following order: "We have heard learned counsel for the parties and we think it will be in the interest of justice to allow the prayer for interim order to enable the petitioner to sit in the prelim inary C.S.E. 1990.
Learned counsel for the petitioner states that the petitioner has received the admission card.
He is directed to give the Registration No./Roll No. to the Secretary, UPSC by 4.6.1990.
We direct the respondents to permit the petitioner to appear in the preliminary C.S.E. 1990 without press ing for his resignation from the service and also grant him necessary leave etc.
for ap pearing in the said examination.
This interim order will be subject to the order in OA.
944/1989.
The Misc.
Petition is accordingly disposed of.
Order dasti.
" In OA 913/90 (MP 1133/90) and CA No. 914/90 (MP 1134/90), which have given rise to Civil Appeal Nos.
5506 5525/90 the Tribunal has passed the following order on 17.5.1990: "As regards interim relief, the respondents are directed to permit the appli cants to appear in the Civil Services Examina tion 1990 and to provide necessary facilities like leave etc.
to enable them to appear in the ensuing Civil Services Examination, 1990 subject to the decisions in the Bunch of eases including O.A.No.
206/89 Alok Kurnar& Ors.
vs U.O.I. List the matter on 29.5.1990.
Orders (Dasti)" It seems no clarification has been sought for from the Tribunal by the respondents as to whether the expression "next Civil Service Examination" is confined only to the preliminary or whether it includes the main examination also.
Though some of the interim orders passed by the Tribunal which we have extracted above show that the said interim orders were passed permitting the candidates to sit for the preliminary Central Service Examination of 1990 subject to the decisions of the O.As, in the final judgment, no restriction is shown.
In other words, the conclusion under para 5(ii) is 111 not limited subject to any contingency; but on the other hand, it is absolute.
Therefore, that expression in the absence of any specif ic restriction, has to include both the preliminary as well as the main examinations.
Hence in the absence of any chal lenge to the directions embodied in the impugned judgment, we hold that all those candidates falling under para No. 5(ii) can sit both for the preliminary as well as the main examinations Subject to their eligibility otherwise.
The condition incorporated in the later part of the impugned proviso that they should resign from the service to which they have been allocated would not operate against them for the main examination of 1990 lest that direction would be meaningless.
Hence we permit all those candidates falling under Para Nos.5(ii), 6 and 7 to sit for the main examination subject to the condition that each candidate satisfies the Secretary, Union Public Service Commission that he/she falls within these categories and that the concerned candidates have passed the preliminary examination of 1990 and have also applied for the main examination within the due date.
This permission is only for the ensuing examination.
As we are now permitting those who have passed the preliminary examination of 1990 and have applied for the main examina tion on the basis of the unquestioned and unchallenged directions given under paras 5(ii), 6 and 7 of the judgment of the CAT, Principal Bench, New Delhi, the same benefit is extended to the other appellants also who satisfy those conditions as mentioned under paras 5(ii), 6 and 7.
The Secretary, Union Public Service Commission will make the necessary arrangements enabling the candidates to sit for the main examination of 1990.
We will give the judgment touching on the constitution ality of the second proviso to Rule 4 of CSE Rules later.
We would once again like to state that the above directions are given only on the basis of the unchallenged conclusions arrived at by the Central Administrative Tribunal, Principal Bench, New Delhi.
T.N.A Appeals dismissed.
| Rule 4 of the Civil Services Examination Rules provide that every candidate appearing at the examination, who is otherwise eligible, shall be permitted three attempts at the examination.
(The attempts are now increased to four).
Under Proviso to the said Rule the restriction on the number of attempts is not applicable in the case of Scheduled Castes and Scheduled Tribes candidates who are otherwise eligible.
By a notification dated 13.12.1986 the Central Executive Authority inserted second proviso to Rule 4.
The said second proviso provided that a candidate who on the basis of the results of the previous Civil Services Examination, had been allocated to the I.P.S. or Central Services, Group 'A ' but who expressed his intention to appear in the next Civil Services Main Examination for competing for IAS, IFS, IPS or Central Services, Group 'A ' and who was permitted to abstain from the probationary training in order to so appear shall be eligible to do so, subject to the provisions of Rule 17 and that the said candidate when allocated to a service on the basis of the next Civil Services (Main) Examination can either join that service or the service to which he has already been allocated on the basis of the previous CSE and that if he fails to join either of the services, his alloca tion based on one or both the examinations, as the case may be, will stand cancelled.
Further, notwithstanding anything contained in Rule 8, a candidate who accepts allocation to a service and is appointed to that service shall not be eligi ble to appear again in the CSE unless he has first resigned from the service.
In other words, a candidate failing within the ambit of this proviso can appear in the CSE for all the permitted attempts subject to his age limit if he intends to appear again in the CSE provided he first resigns from the service which he accepts on allocation and to which he is appointed.
Rule 8 of the Civil Services Examination Rules precludes the candidate who have been appointed to the IAS, or IFS from sitting in the ensuing examination while in service.
The said rule provide that a candidate who is appointed to the Indian Administrative Service (IAS) or the Indian For eign Service (IFS) on the basis of result of an earlier examination before the commencement of the ensuing examina tion and 48 continues to be a member of that service will not be eligi ble to compete at the sub sequent examination, even if he is disillusioned and wants to switch over.
Further, this rule states that in case, a candidate has been appointed to the IAS or IFS on the basis of the earlier examination and after the subsequent preliminary examination, but before the main examination, the candidate, if continues to be a member of that service, shall not be eligible to appear in the ensu ing main examination notwithstanding that the said candidate has qualified himself in the preliminary examination.
Simi larly if a candidate is appointed to the IAS or IFS after the commencement of the Main examination but before the announcement of the result and continues to be a member of that service, the said candidate shall not be considered for appointment to any service/post on the basis of the result of this examination.
Rule 17 of the Civil Services Examination Rules provide that if a candidate has been approved for appointment to IPS and expresses his intention to appear in the CSE (Main) for higher civil service, the services for which he is eligible to compete are IAS, IFS and Central Services Group 'A '.
Similarly, a candidate who has been approved for appointment to the Central Services Group 'A ' and expresses his inten tion to appear in the next CSE (Main) the services to which he will be eligible to compete are IAS, IFS and IPS.
The second proviso to Rule 17 provides that a candidate who is appointed to a Central Services Group 'B ' on the result of an earlier examination will be considered for appointment to IAS, IFS, IPS and Central Services Group 'A '.
The eligibility of a candidate to appear in the Civil Services Examination with regard to nationality, age and qualifications is given under Regulation 4 of the IAS (Appointment by Competitive Examination) Regulations, 1955.
Clause (iii a) of the said Regulation provides that unless covered by any of the exceptions that may from time to time be notified by the Central Government in this behalf, every candidate appearing for the examination after 1st January, 1979, who is otherwise eligible, shall be permitted three attempts at the examination, and the appearance of a candi date at the examination will be deemed to be an attempt at the examination irrespective of his disqualification or cancellation as the case may be, of his candidature.
The legality and constitutionality of second proviso to Rule 4 and 49 Rule 17 was challenged before the Central Administrative Tribunal.
The Tribunal held that the second proviso to Rule 4 and Rule 17 were valid and were not hit by Article 14 and 16 of the Constitution.
In appeals to this court, it was contended on behalf of the appellants (1) that second proviso to Rule 4 of the CSE Rules was invalid because: (a) it puts embargo restricting the candidates who are seeking to improve their position vis a vis their career in government service; (b) it travels beyond the intent of main rule viz. Rule 4; (c) it is ultra vires to clause (iii a) of regulation 4 of the I.A.S (Appointment by competitive Examination) Regulation, 1955 in as much as the power to notify exceptions do not include the power to make candidates ineligible who are otherwise eligi ble in terms of clause (i) to (iii) of Regulation 4; (d) it is bad since the authorities have stepped out of the consti tutional limits in issuing the notification inserting the impugned proviso and that it has not been placed before the House of Parliament; (e) it is arbitrary and irrational having no nexus with the object of recruitment to the post of civil services; (f) it is violative of Articles 14 and 16 of the Constitution because it discriminates between group 'A ' and group 'B ' services i.e. it excludes the candidates appointed to group 'A ' services from competition while no such embargo is placed restricting the candidates to Group 'B ' services; (2) that the second proviso is not applicable to the candidates belonging to SC or ST; (3) Proviso to Rule 17 of the Civil Services Examination is invalid since it places restriction on candidates who are seeking to improve their position vis a vis their career.
DismiSsing the appeals, this Court, HELD: 1.
If Rule 4 of Civil Services Examination Rules is examined in juxtaposition of clause (iii a) of Regulation 4, it is clear that both Rule 4 of CSE Rules and Clause (iii a) of the Regulation 4 show that every eligible candi date appearing at the Civil Services Examination should be permitted three attempts at the examination which are now increased to four under Rule 4 of the CSE Rules.
The eligi bility of a candidate to appear in the CSE with regard to nationality, age and educational qualifications is given under clauses (i) to (iii) of Regulation 4 but the Govern ment by exercise of its executive power has imposed certain restrictions under some specified circumstances.
A plain and grammatical reading of clause (iii a) of Regulation 4 shows that if the number of 50 attempts are covered by any of the exceptions that may from time to time be notified by the Central Government in this behalf, then the notification will become enforceable and only in the absence of such notification, every candidate normally can appear for all permitted attempts at the examination whether three or four.
The impugned second proviso does not restrict or put an embargo on the number of attempts in the normal course.
But the restriction is only when the conditions enumerated in the impugned proviso are satisfied.
The restriction imposed by the impugned proviso cannot be said to be unjust, unreasonable or arbitrary or change of any policy.
Moreover, the spirit of the main rule is not in any way disturbed.
[80 B F, 92 D] 1.1 The restriction or embargo, as the one under consid eration is not only placed on the candidates who on the basis of the result of the previous CSE had been allocated and appointed to IPS or Central Services Group 'A ' but also on the candidates appointed in the higher echelon of civil service.
There is a far more restrictive rule in existence, namely Rule 8 of the CSE Rules which precludes the candi dates who have been appointed to the IAS or IFS, from sit ting in the ensuing examination while in service.
Further, this rule states that in case, a candidate has been appoint ed to the IAS or IFS on the basis of the earlier examination and after the subsequent preliminary examination, but before the Main examination, that candidate if continues to be a member of that service, shall not be eligible to appear in the ensuing main examination notwithstanding that the said candidate has qualified himself in the preliminary examina tion.
Similarly if a candidate is appointed to the IAS or IFS after the commencement of the main examination but before the announcement of the result and continues to be a member of that service, the said candidate shall not be considered for appointment to any service/post on the basis of the result of this examination.
But there is no bar for a candidate who is appointed to the IAS/IFS resigning from that service and sitting in the examination for IPS or any Central Service Group 'A '.
[86 B F, 86 G H] Under Rule 4 of CSE Rules notwithstanding anything contained in Rule 8, a candidate who accepts allocation to a service and appointed to that service shall not be eligible to appear again in the CSE unless he first resigns from that service.
In other words, a candidate who is allocated and appointed to a service can sit in the ensuing examination provided he first resigns from that service.
This restric tion, is a reasonable one in order to 51 achieve the desired result.
Thus the second proviso to Rule 4 of the CSE Rules does not travel beyond the intent of the main rule putting any unjustifiable embargo and the proviso is not ultra vires Regulation 4(iii a) of Regulations 1955 on the ground that it makes the candidates ineligible who are otherwise eligible in terms of clauses (i) to (iii) of the said Regulation and the proviso to Rule 17 is not in valid.
[86H, 87 A C] 2.
An enactment is never to be held invalid unless it be, beyond question, plainly and palpably in excess of legislative power or it is ultra vires or inconsistent with the statutory or constitutional provisions or it does not conform to the statutory or constitutional requirements or is made arbitrarily with bad faith or oblique motives or opposed to public policy.
[87 C D] 2.1 While interpreting a statute the consideration of inconvenience and hardships should be avoided and that when the language is clear and explicit and the words used are plain and unambiguous, the court is bound to construe them in their ordinary sense with reference to other clauses to the Act or Rules as the case may be, so far as possible, to make a consistent enactment of the whole statute or series of statutes/Rules/Regulations relating to the subject mat ter.
Added to this, in construing a statute, the court has to ascertain the intention of the law making authority in the backdrop of the dominant purpose and the underlying intendment of the said statute and that every statute is to be interpreted without any violence to its language and applied as far as its explicit language admits consistent with the established rule of interpretation.
[83 F G] Maxwell on the "Interpretation of statutes" 10th Edn.
page 7; Craies on Statute Law, 5th Edn.; 6th Edn., page 89; referred to.
King Emperor vs Benoari Lal Sharma, AIR 1945 PC 48; Wardurton vs Loveland, [1832] 2 D & CH.
(H.L.) 480;Suffers vs Briggs, ,8; Commissioner of Income Tax vs
section Teja Singh; , ; M. Pentiah and Ors.
vs Muddala Veeramallappa and Ors., ; ; It.
Col. Prithi Pal Singh Bedi etc.
vs Union of India & Ors.
, ; A.R. Auntlay vs
R.S. Nayak; , ; Maharashtra State Board of Secondary and Higher Secondary Education and Anr.
vs Paritosh Bhupesh Kurmar sheth etc.
, [1985] I S.C.R. 29; Philips India Ltd. vs Labour Court, Madras and Ors., ; ; Balasinor Nagrik Cooperative Bank Ltd. vs Babubhai Shankerlal Pandya and Ors., ; 52 Dr.
Ajay Pradhan vs State of Madhya Pradesh and Ors.
, ; ; LIC vs Escorts, ; , referred to.
2.2 A Proviso to a Section/Rule is expected to except or qualify something in the enacting part and presumed to be necessary.
When the impugned second proviso to Rule 4 of the CSE Rules is interpreted in its grammatical meaning and cognate expressions and construed harmoniously with the substantive rule, it is pellucid that the said proviso only carves out an exception to Rule 4 of the CSE Rules in given circumstances and under specified conditions and, therefore, the second proviso cannot be read in isolation and inter preted literally.
On the other hand the substantive Rule 4 is be read in conjunction with the two provisos appended thereto so as to have a correct interpretation.
[83H, 85 E F] 2.3 In the Proviso, in dispute, there are no positive words or indications which would completely exclude the operation of the substantive rule the spirit of which is reflected in Regulation 4 of the Regulations, 1955.
The restriction imposed by the second proviso is only under certain circumstances.
Although the notification introducing the impugned proviso, has to be strictly construed, the Court cannot overlook the very aim and object of the proviso thereby either defeating its purpose or rendering it redun dant or inane or making it otiose.
Judged from any angle, it is not possible to hold that there is a violent breach of the provisions of the substantive Rule 4 of CSE Rules and Regulation 4 (iii a) and it cannot.
be held that the im pugned second proviso either subverts or destroys basic objectives of Rule 4 and that it is ultra vires.
[85F H, 86 A B] Maxwell on "The Interpretation of statute", 11th edn.
page 155; Kent 's Commentary on American Law, 12th Edn.
1 463, referred to.
Gen. vs Chelsea Waterworks Co., [1731] Fitzg.
195; Piper vs Harvey,[1958] I Q.B. 439: R. vs Leeds Priso (Gover nor), ; Ram Narain Sons Ltd. and Ors.
vs Assit.
Commissioner of Sales Tax and Ors, ; ; Abdul Jabar Butt & lint.
vs State of Jammu and Kashmir, ; ; Commissioner of Income Tax vs section Teja Singh, ; ; The Commissioner of Income Tax Mysore Travancore Cochin and Coorg., Bangalore vs The Indo Mercantile Bank Ltd., ; ; Madras & Southern Mahratta Railway Co. vs Bezwada Municipality, [1944] L.R. 71 I.A. 113, Corpn.
of the City of Toronto vs Attorney General for Canada, [1946]A.C. 32; Mackinnon Mack enzie & Co. Ltd. vs Audrey D ' Cost and Anr., [1987] 2 SCC 469, referred to.
The argument that the second proviso is bad since the authorities have stepped out of the constitutional limits in issuing the notification inserting the impugned proviso and that it has not been placed before the Houses of the Parlia ment, has to be rejected because the proviso has been intro duced by the Central Executive Authority under the powers flowing from Article 73(1) (a) of the Constitution, accord ing to which the executive power of the Union subject to the provisions of the Constitution shall extend to the matters with respect to which Parliament has power to make laws, but of course subject to the proviso made thereunder.
Needless to point out that whilst by virtue of clause 1 (a) of Arti cle 73, the executive power of the Union which is co exten sive with the legislative power of Parliament can make laws on matters enumerated in List I (Union List) and List II (Concurrent list) to the Seventh Schedule of the Constitu tion, under Article 162 of the Constitution, the executive power of the State Executive which is coextensive with that of the State legislature can make laws in respect of matters enumerated in List III ( State List) and also in respect of matters enumerated in List II (Concurrent List), subject to the provisions of the Constitution.
[77 D G] 3.1 In the instant case, the Central executive authority has not either expressly or impliedly changed the policy of the Government by exercising unreasonable and arbitrary discretion and the present Rule 4 with its newly added second proviso does not repeal the essential features of the pre existing Rule 4 but only limits the ambit of the opera tion of the price 4 under a given situation.
Hence, there is no substance in the contention that the second proviso is bad and that the central executive authority has trans gressed the constitutional limits.
[77 H, 78 A] 4.
Article 14 declares that the State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India.
The cherished principle underlying the above Article is that there should be no discrimination between one person and another if as regards the subject matter of the legislation, their posi tion is the same.
[103 H, 104 A] 4.1 Differential treatment does not per se constitute violation of Article 14 and it denies equal protection only when there is no rational or reasonable basis for the dif ferentiation.
Thus Article 14 condemns discrimination and forbids class legislation but permits classification 54 founded on intelligible differentia having a rational rela tionship with the object sought to be achieved by the Act/Rule/Regulation in question.
The Government is legiti mately empowered to frame rules of classification for secur ing the requisite standard of efficiency in services and the classification need not scientifically be perfect or logi cally complete.
Every classification is likely in some degree to produce some inequality.
[104 B D] R.K. Dalmia vs Justice Tendolkar, ; ; Budhan Choudhry vs State of Bihar, ; ; Kumari Chitra Ghosh and Anr.
vs Union of India and Ors, ; ; State of Jammu & Kashmir vs Triloki Nath Khosa & Ors., ; ; A.S. Sangwan vs Union of India, ; Akhil Bhartiya Soshit Karamchari Sangh (Railway) vs Union of India & Ors., vs ; ; Deepak Sibal vs Punjab University ; ; Chiranjit Lal vs Union of India ; Ameeroo nissa vs Mahboob, ; Gopi Chand vs Delhi Admin istration; , ; E.P. Royappe vs Stale of Tamil Nadu, ; ; Maneka Gandhi vs Union of India [1978] 1 SCC 248; Ramana vs International Airport Authority of India, AIR ; Union of India vs Tulsiram Patel, ; ; Swadeshi Cotton Mills vs Union of India,[1981] 2 SCR 533; Central Inland Water Transport Corporation vs Brojo Nath, ; Devadasan vs Union of India; , ; Birendra Kumar Nigam and 0rs.
vs Union of India, W.P. Nos.
220 222 of 1963 decided on 133.64, referred to 4.2 The selections for IAS, IFS, and IPS Group 'A ' services and group 'B ' service are made by a combined com petitive examination and viva voce test.
There cannot be any dispute that each service is a distinct and separate cadre, having its separate field of operation, with different status, prospects, pay scales, the nature of duties, the responsibilities to he post and conditions of service etc.
Each of the services is founded on intelligible differentia which on rational grounds distinguishes persons grouped together from those left out and that the differences are real and substantial having a rational and reasonable nexus to the objects sought to be achieved.
Therefore, once a candidate is selected and appointed to a particular cadre he cannot be allowed to say that he is at par with the others on the ground that all of them appeared and were selected by a combined competitive examination and viva voce test and that the qualifications prescribed are comparable.
The classification of services is not based on artificial in equalities but is hedged within the salient features 55 and truly founded on substantial differences.
Judged from this point of view, it is not possible to hold that the classification rests on an unreal and unreasonable basis and that it is arbitrary or absurd.
[103C, 106C, 103 D E] 43 It cannot also be disputed that the candidates allocated to Group 'A ' services are more meritorious com pared to candidates allocated to Group 'B ' services.
Conse quently, those allocated to Group ' B ' services get lower position compared to those allocated to Group A ' services.
The pay scales in Group 'B ' services are comparatively less than those meant for IAS, IFS and IPS and Central Services Group 'A '.
There is a clear cut separation on the basis of ranking and merit and, therefore, it cannot be said by any stretch of imagination that both Group 'A ' and Group 'B ' services fail under one and the same category but on the other these services are two distinct and separate catego ries falling under two different classifications.
Therefore, there is no discrimination whatsoever involved on account of the introduction of the second proviso in question and the said proviso is not ultra vires of Article 14 or Article 16 of the Constitution of India.
[97 B C, 106G] 5.
In the normal course, a candidate belonging to SC/ST category can enjoy all the benefits under the rules and regulations.
But the restriction imposed under the second proviso is only for a specified category of candidates by treating all such candidates at par and without making any exception to the candidates belonging to SC/ST.
The submis sion that the second proviso is an independent one does not merit consideration because the second proviso to Rule 4 begins with the words 'provided further . . " which expression would mean that a strict compliance of the second proviso is an additional requirement to that of the substan tive rule 4 and the first proviso.
The expression "provided further" spells out that the first proviso cannot be read in isolation or independent of the second proviso but it must be read in conjunction with the second proviso.
[89 C E] 5.1 Once the candidates belonging to SC or ST get through one common examination and interview test and are allocated and appointed to a service based on their ranks and performance, and brought under the one and the same stream of category, then they too have to be treated among all other regularly and lawfully selected candidates and there 56 cannot be any preferential treatment at that stage on the ground that they belong to SC or ST, though they may be entitled for all other statutory benefits such as to the relaxation of age, the reservation etc.
The unrestricted number of attempts, subject to the upper age limit, is available to the SC/ST candidates in the normal course but that is subject to the second proviso because when once they are allocated and appointed along with other candidates to a category/post, they are treated alike.
Therefore, there is no merit in the submission that the second proviso is not applicable to the candidates belonging to SC or ST.
[89 E G,91H, 92 A] 5.2 There may be some hard cases, but the hard cases cannot be allowed to make bad law.
As long as the second proviso does not suffer from any vice, it has to be con strued, uniformly giving effect to all those falling under one category in the absence of any specific provision ex empting any particular class or classes of candidates from the operation of the impugned proviso and no one can steal march over others failing under the same category.
Hence the right of candidates belonging to SC and ST competing further to improve their career opportunities is limited to the extent permissible under the second proviso 10 Rule 4 read with Rule 17 of the C.S.E. Rules.
[91 F G] C.A. Rajendran vs Union of India & Ors '.
, ; ; State of Kerala vs N.N. Thomas, ; ; Akhil Bharriya Soshit Karamchari Sangh/Railway) vs Union of India [1963] Suppl.
1 SCR 439; Triloki Nath vs State of J&K ; ; T. Devadasan vs Union of India, ; ; Comptroller and Auditor General of India vs K.S. Jaganna than; , ; Janki Prasad vs State of J&K, ; ; General Manager vs Rangachan, AIR [1962] SC.
36, referred to.
There is no denying the fact that the civil service being the top most service in the country has got to be kept at height, distinct from other services since these top echelons have to govern a wide variety of departments.
Therefore, the person joining this higher service should have breadth of interest and ability to acquire new knowl edge and skill since those joining the service have to be engaged in multiple and multifarious activities.
In order to achieve this object, the selectees of this higher civil services have to undergo training in the National Academy/Training institutes wherein they have to undergo careful programme of specialized 57 training as probationers.
The various schemes of training are based on the conviction that splendid active experience is the real training and the selectees are to be trained in the academies in all kinds of work they have to handle afterwards with a band of senior chosen officers.
[92 H, 93 A B] 6.1 The rationale underlying the course at the training centres is that the officers of civil services must acquire an understanding of the constitutional, social, economic and administrative framework within which they have to function and also must have a complete sense of involvement in the training and thereafter in the service to which he is ap pointed.
The initial training is in the nature of providing young probationers an opportunity to counter act their weak points and at the same time develop their social abilities and as such the aspect of training is the most important of all.
[93 C D] Hermer Fines, the Theory and Practice of Modern Govern ment; United Nations Handbook on Civil Service Laws and Practice, referred to.
Lila Dhar vs State of Rajasthan & Ors., [1981] 4 SCC 159, referred to.
6.2 The effort taken by the Government in giving utmost importance to the training programme of the selectees so that this higher civil service being the top most service of the country is not wasted and does not become fruitless during the training period is in consonance with the provi sions of Article 51 A (j) of the Constitution.
[77 A] 63 There is a dynamic and rational nexus between the impugned second proviso and the object to be achieved.
|
vil Appeals Nos.
359394 of 1989.
From the Order dated 26.5.1988 of the Customs Excise and (;old (Control) Appellate Tribunal, New Delhi in 545 546/88 C in Appeal No. E/COD/699/87 C in Appeal No. E/847/84 C with E/1/85 C. WITH Civil Appeals Nos. 642 643/91, 1723 1731/91.
A.K. Ganguli, Ms. Sushma Suri, P. Parmeshwaran and A. Subba Rao for the Appellant.
Rajinder Sachar, Aruneshwar Gupta, Manu Mridul, P.I. Jose and Sanjay Parekh for the Respondents.
The Judgment of the Court was delivered by FATHIMA BEEVI, J.
These appeals by the Revenue under Section 35L of the in volve the interpretation of the Notification No. 179/77 CE dated 18.6.1977.
The Notification read thus: "In exercise of the powers conferred by sub rule (1) of rule 8 of 128 the Central Excise Rules, 1944, the Central Government hereby exempts all goods failing under Item No. 68 of the First Schedule to the (1 of 1944) in or in relation to the manufacture of which no process is ordinarily carried on with the aid of power, from whole of the duty of excise leviable thereon".
Tariff Item 68 during the relevant period read: "All other goods, not elsewhere specified, manufactured in a factory but excluding. " M/s. Rajasthan State Chemical Works, the respondents in Civil Appeals Nos.
3593 94 of 1989, are manufacturers of crude sodium sulphate.
In the process of manufacture of common salt from brine, in the salt pans in which the proc ess of evaporation takes place some quantities of sodium sulphate present in the brine also crystalise and settle at the bottom as crust.
The sodium sulphate is thus obtained as a bye product.
For the purpose of the manufacture, brine is pumped into salt pans using diesel pumps.
The benefit of the aforesaid notification was not given to these respondents as pumping of brine into the pans was carried on with the aid of power.
The claim for exemption though denied by the original authority, was allowed by the Collector of Customs (Appeals) and that order was affirmed by the Tribunal.
M/s. Sunderson (Minerals) Ltd., the respondents in Civil Appeals Nos.
642 643 of 1991 and 1723 1731 of 1991 are manufacturers of lime from coke and lime stone.
The raw materials are lifted to the platform at the head of the kiln by the aid of power.
At the kiln head, the raw materials are mixed manually and fed into the kiln.
Since power is used for lifting the raw materials at the kiln head, these re spondents were denied the benefit of the notification by the Assistant Collector.
The appeal before the Collector of Appeals was dismissed.
The Tribunal, however, accepted the claim of the respondents.
The Revenue being aggrieved has challenged the respec tive orders of the Tribunal in these appeals.
129 In both these set of cases, the view taken by the Tribu nal is that the manufacturing process starts from the stage of feeding raw materials into the salt pan or the kiln as the case may be.
The transportation of the raw materials to the platform at the kiln head and the pumping of brine into the salt pan is a stage prior to the commencement of manu facturing process.
Therefore, the transferring of the raw materials is not a part of the process of manufacture and the use of power for such transfer would not disentitle the respondents from the benefit under the notification.
It has been contended before us on behalf of the appel lant that pumping the brine into the pan o: lifting the raw materials to the kiln head is a process in relation to the manufacture of the final product and since that process with the aid of power is integrally connected with the manufac ture, the exemption would not apply.
On the other hand, it is reiterated for the respondents that if the process car ried on with the aid of power does not bring about any change in the raw material, it cannot be said that any process in or in relation to the manufacture of an article has been carried on with the aid of power and, therefore, mere transfer of raw materials by the use of power cannot be considered as a process of manufacture.
The Central Government has exempted all goods failing under Item No. 68 of the First Schedule to the Act in or in relation to the manufacture of which no process is ordinari ly carried on with the aid of power from the whole of the duty of excise leviable thereon.
The exemption under this notification is available only when the goods are manufac tured without the aid of power at any stage of the process.
Where manufacture involves series of processes and if anyone of such processes is carried on with the aid of power, the case is taken out of the purview of the notification.
We have to consider what activity amounts to process in or in relation to manufacture of goods for the application of the notification.
The word 'manufacture ' has been defined in Section 2(1) of the , thus: "2(1). 'Manufacture ' includes any process (i) incidental or ancillary to the completion of a manufactured product; and (ii) which is specified in relation to any goods in the Section or Chapter notes of the Schedule to the as amounting to manufacture".
130 Clause (f) gives an inclusive definition of the term 'manufacture ', According to the dictionary, the term 'manu facture ' means a process which results in an alteration or change in the goods which are subjected to the process of manufacturing leading to the production of a commercially new article.
In determining what constitutes 'manufacture ' no hard and fast rule can be applied and each case must be decided on its own facts having regard to the context in which the term is used in the provision under consideration.
Manufacture implies a change but every change is not manufacture, yet every change of an article is the result of treatment, labour and manipulation.
Naturally, manufacture is the end result of one or more processes through which the original commodities are 'made to pass.
The nature and extent of processing may vary from one class to another.
There may be several stages of processing, a different kind of processing at each stage.
With each process suffered the original commodity experiences a change.
Whenever a commodi ty undergoes a change as a result of some operation per formed on it or in regard to it, such operation would amount to processing of the commodity.
But it is only when the change or a series of changes take the commodity to the point where commercially it can no longer be regarded as the original commodity but instead is recognised as a new and distinct article that a manufacture can be said to take place.
Manufacture thus involves series of processes.
Process in manufacture or in relation to manufacture implies not only the production but the various stages through which the raw material is subjected to change by different operations.
It is the cumulative effect of the various processes to which the raw material is subjected to, manufactured product emerges.
Therefore, each step towards such production would be a process in relation to the manufacture.
Where any particular process is so integrally connected with the ultimate production of goods that but for that process manufacture of processing of goods would be impossible or commercially inexpedient, that process is one in relation to the manufacture.
The natural meaning of the word 'process ' is a mode of treatment of certain materials in order to produce a good result, a species of activity performed on the subject matter in order to transform or reduce it to a certain stage.
According to Oxford Dictionary one of the meanings of the word 'process ' is "a continuous and regular action or succession of actions taking place or carried on in a defi nite manner and leading to the accomplishment of some re sult.
" The activity contemplated by the definition 131 is perfectly general requiring only the continuous or quick succession.
It is not one of the requisites that the activi ty should involve some operation on some material in order to its conversion to some particular stage.
There is nothing in the natural meaning of the word 'process ' to exclude its application to handling.
There may be a process which con sists only in handling and there may be a process which involves no handling or not merely handling but use or also use.
It may be a process involving the handling of the material and it need not be a process involving the use of material.
The activity may be subordinate but one in rela tion to the further process of manufacture.
In J.K. Cotton Mills vs
S.T. Officer; , , this Court 'in construing the expression 'in the manufacture of goods ' held thus: "But there is no warrant for limiting the meaning of the expression 'in the manufacture of goods ' to the process of production of goods only.
The expression 'in the manufac ture ' takes in within its compass, all proc esses which are directly related to the actual production".
The Court further held thus: "The expression 'in the manufacture of goods ' would normally encompass the entire process carried on by the dealer of converting raw materials into finished goods.
Where any particular process is so integrally connected with the ultimate production of goods that but for that process, manufacture or processing of goods would be commercially inexpedient, goods required in that process would, in our judg ment, fail within the expression 'in the manufacture of goods '.
" In that case, the assessee carrying on the business of manufacturing textile goods claimed that certain goods namely drawing material etc.
were used in the manufacture.
The Court said that if the process of designing is so inte grally connected with the process of manufacturing of cloth, there is no reason to regard the process of designing as not being a part of the process of manufacture.
The process of designing may be distinct from the actual process of turning out finished goods but, there is no warrant for limiting the meaning of the expression 'in the manufacture of goods ' to the process of production of goods only.
The expressions ' 'in the manufacture of goods ' takes within its encompass all processes which are directly related to the actual produc tion.
132 In Union of India vs Delhi Cloth & General Mills, [1963] Supp. 1 S.C.R. 586, this Court held thus: "The definition of 'manufacture ' as in section 2 (13 puts it beyond any possibility of contro versy that if power is used for any of the numerous processes that are required to turn the raw material into a finished article known to the market the clause will be applicable; and an argument that power is not used in the whole process of manufacture using the word in its ordinary sense, will not be available." In that case, it was contended that manufacture is complete as soon as by the application of one or more proc esses the raw material undergoes some change.
In answering the contention, the Court stated thus: "We are unable to agree with the learned Counsel that by inserting this defini tion of the word "manufacture" in section 2 (f) the legislature intended to equate "processing" to "manufacture" and intended to make mere "processing" as distinct from "manufacture" in the same sense of bringing into existence of a new substance known to the market, liable to duty.
The sole purpose of inserting this definition is to make it clear that at certain places in the Act the word 'manufacture ' has been used to mean a process incidental to the manufacture of the article.
Thus in the very item under which the excise duty is claimed in these cases, we find the words: "in or, in relation to the manufacture of which any process is ordinarily carried on with the aid of power".
The definition of 'manufacture ' as in section 2 (f) puts it beyond any possibility of controversy that if power is used for any of the numerous processes that are required to turn the raw material into a finished article known to the market the clause will be ap plicable; and an argument that power is not used in the whole process of manufacture using the word in its ordinary sense, will not be available.
It is only with this limited pur pose that the legislature, in our opinion, inserted this definition of the word 'manufac ture ' in the definition section and not with a view to make the mere '*processing" of goods as liable to excise duty.
" A process is a manufacturing process when it brings out a complete transformation for the whole components so as to produce a commercially different article or a commodity.
But, that process itself may consist of 133 several processes which may or may not bring about any change at every intermediate stage.
But the activities or the operations may be so integrally connected that the final result is the production of a commercially different arti cle.
Therefore, any activity or operation which is the essential requirement and is so related to the further operations for the end result would also be a process in or in relation to manufacture to attract the relevant clause in the exemption notification.
In our view, the word 'process ' in the context in which it appears in the aforesaid notifi cation includes an operation or activity in relation to manufacture.
The transfer of raw material to the reacting vessel is a preliminary operation but it is part of a continuous process but for which the manufacture would be impossible.
The handling of the raw materials for the purpose of such trans fer is then integrally connected with the process of manu facture.
The handling for the purpose of transfer may be manual or mechanical but if power is used for such opera tion, it cannot be denied that an activity has been carried on with the aid of power in the manufacturing process.
The use of diesel pump sets to fill the pans with brine is in activity with the aid of power and that activity is in relation to the manufacture.
It is not correct to say that the process of manufacture starts only when evaporation starts.
The preliminary steps like pumping brine and filling the salt pans form integral part of the manufacturing proc ess even though the change in the raw material commences only when evaporation takes place.
The preliminary activity cannot be disintegrated from the rest of the operations in the whole process of manufacture.
Similarly, when coke and lime are taken to the platform in definite proportions for the purpose of mixing, such operation is a step in the manufacturing process.
It precedes the feeding of the mix ture into the kiln where the burning takes place.
The whole process is an integrated one consisting of the lifting of the raw materials to the platform mixing coke and lime and then feeding into the kiln and burning.
These operations are so interrelated that without anyone of these operations manufacturing process is impossible to be completed.
There fore, if power is used in anyone of these operations or anyone of the operations is carried on with the aid of power, it is a case where in or in relation to the manufac ture the process is carried on with the aid of power.
Learned counsel for the appellant relying on the deci sion of the Gujarat High Court in Nirma Chemical Works & Ors.
vs Union of india & Ors., , submitted that process means an operation which brings about some change in the raw material.
That in the present case, the operation of putting the raw materials, namely, coke ,red lime 134 stone on the kiln head does not bring about any change in the raw material but the raw materials remain in the same shape as they were when they were brought in the truck and were dumped separately on the ground and, therefore, this operation can be termed only 'transportation ' and cannot be called a 'process '.
The Gujarat High Court in Nirma Chemi cal Works (supra) said: "It must be made clear that it is only at the stage of transferring liquid raw materials from the motor tanker to the storage tank that power is used and at no subsequent stage is any power used.
If no change is brought about in the raw material until it reaches the re action ves sel, then no process of manufacture can be said to have taken place until the raw materi als are taken to the re action vessel.
Till then they are all preparations made but the raw materials continue to be the same raw materials.
Until sulphuric acid and alkyd benzene start re acting on each other, no change takes place in the raw materials.
Merely because the goods are stored in one place, may be at an elevated place above the ground, it cannot be said that a process of manufacture which would convert the raw mate rial by different stages into the final product has been undergone.
In view of the decision in Chowgule & Co. 's (supra) as to what is meant by processing, it is clear that unless and until some change takes place in the raw material of the original commodity, no process can be said to have been gone through.
Before any operation can be characterised as a process, the commodity must, as a result of the operation, experience some change.
" Counsel for the respondents submitted that a process in or in relation to the manufacture commences as soon as the change is brought about in the raw material and ends till the manufactured product is marketed.
Until some change physical or chemical is brought about in the raw material, there is no process in or in relation to the manufacture.
Mere collecting, storing or dealing with the raw material are operations and/or activities prior to the beginning of process.
Mere physical alteration of the site or placement of raw materials or stacking, storing the same cannot be said to be a process in relation to manufacture.
In the case of preparation of sodium sulphate, it is said that the process in or in relation to manufacture commences after the brine is placed in the salt pans.
The counsel 135 submits that if every operation and/or activity and/or action is treated as a 'process ' in or in relation to manu facture then power is used in (i) erection of factory where steel, cement, bricks etc.
are used, (ii) day to day trans portation and (iii) use of electricity for lights, fans etc.
These arguments are far fetched.
The activity in relation to which power is used is not to be considered into isolation where the activity is such that it forms an integral part of the whole process.
The Gujarat High Court in interpreting the word 'process ' has assumed that 'process ' is synonymous to 'processing ' and has drawn support from the observations of this Court in Chowgule & Co. Pvt. Ltd. vs Union of India, ; We are afraid, the observations had not been properly understood or applied in drawing inference that process when used in relation to manufacture must be one that produces a change in the commodity.
It has been made clear in Dy.
Commissioner, Sales Tax; Ernakulam vs Pio Food Packers, ; that: "Commonly manufacture is the end result of one or more processes through which the original commodity is made to pass.
The nature and extent of processing may vary from one case to another, and indeed there may be several stages of processing and perhaps a different kind of processing at each stage.
With each process suffered, the original commodity experiences a change.
But it is only when the change, or a series of changes, take the commodity to the point where commercially it can no longer be regarded as the original commodity but instead is recognised as a new and distinct article that manufacture can be said to take place? It has been made clear in Union of India vs Delhi Cloth & Genera, Mills (supra) that the definition of the word 'manufacture ' in Section 2 (f) puts it beyond any possibili ty of controversy that if the power is used for any of the numerous processes that are required to turn the raw materi als into a finished article known to the market, it would be a case where in or in relation to manufacture process has ordinarily been carried on with the aid of power.
It is, therefore, wrong to conclude that every operation in the course of the manufacture should bring about a change and if any operation with the aid of power does not result in a change, it cannot be an integral part of the process in or in relation to manufacture.
In Chowgule & Co. Pvt.
Ltd. case, what this Court said is that: 136 "Wherever a commodity undergoes a change as a result of some operation performed on it or in regard to it, such operation would amount to processing of the commodity.
" What is necessary in order to characterise an operation as "processing" is that the commodity must, as a result of the operation, experience some change.
The question is not whether there is manual application of energy or there is application of mechanical force.
Whatever be the means employed for the purpose of carrying out the operation, it is the effect of the operation on the commodity that is material for the purpose of determining whether the opera tion constitutes "processing".
In drawing the distinction between 'processing ' and 'manufacture ', this Court observed in Delhi Cloth Mills case thus: "To say this is to equate "processing" to "manufacture" and for this we can find no warrant in law.
The word "manufacture" used as a verb is generally understood to mean as "bringing into existence a new substance" and does not mean merely "to produce some change in a substance", however minor in consequence the change may be." Thus "processing" may be an intermediate stage in manu facture and until some change has taken place and the com modity retains a continuing substantial identity through the processing stage, we cannot say that it has been manufac tured.
That does not, however, mean that any operation in :he course of such process is not in relation to the manu facture.
While interpreting the same exemption notification in Standard Fireworks Industries vs Collector, , it was held that manufacture of fireworks requires cutting of steel wires and the treatment of papers red, therefore, it is a process for manufacture of goods in question.
The Notification purports to allow exemption from duty only when in relation to the manufacture of goods no process is ordinarily carried on with the aid of power.
It was observed that cutting of steel wires or the treatment of the papers is a process for the manufacture of goods in question.
We are, therefore, of the view that if any operation in the course of manufacture is so integrally connected with the further operations which result in the emergence of manufactured goods and such operation is carried on with the aid of power, the process in or in relation to the manufac ture must be deemed to be one carried on with the aid of power.
In this 137 view of the matter, we are unable to accept the contention that since the pumping of the brine into the salt pans or the lifting of coke and lime stone with the aid of power does not bring about any change in the raw material, the case is not taken out of the Notification.
The exemption under the Notification is not available in these cases.
Accordingly, we allow these appeals.
In the facts and cir cumstances of the case, we make no order as to costs.
G.N. Appeals allowed.
| By way of notification dated 18.6.1977, the Central Government exempted from duty all goods falling under Tariff item No. 68 of the First Schedule to the in or in relation to manufacture of which no process was ordinarily carried on with the aid of power.
The respondents in the first set of appeals have been manufacturing crude sodium sulphate.
Since the respondents used diesel pumps for pumping brine into salt pans, in the process of manufacture, the benefit of the said notification was denied to them on the ground that the process of manu facture was carried on with the aid of power.
However, on appeal, the Collector of Customs (Appeals) allowed the benefit to the respondents.
Revenue preferred an appeal and the Tribunal affirmed the Collector 's order.
In the other appeals, the Respondents, manufacturer of lime, used to lift the raw materials to the platform at the head of the kiln by the aid of power and the raw materials were mixed manually into the kiln.
The benefit of the said notification was denied to the Respondents by the Assistant Collector.
Even an appeal before the Collector of Appeals failed.
However, on appeal the Tribunal accepted the claim of the Respondents.
In all these matters the Tribunal took the view that the manufacturing process started from the stage of feeding raw materials into the salt pan or the kiln as the case may be and the transferring of the raw materials was a stage prior to the manufacturing process and so the 125 use of power for such transfer would not disentitle the respondents from the benefit under the said notification.
Aggrieved by the orders of the Tribunal, the Revenue has preferred the present appeals.
Before this Court, the Revenue contended that pumping the brine into the pan or lifting the raw materials to the kiln head was a process in relation to the manufacture of the final product and since that process with the aid of power was integrally connected with the manufacture, the exemption would not apply.
The Respondents contended that if the process carried on with the aid of power does not bring about any change in the raw materials, it cannot be said that any process in or in relation to the manufacture of an article has been carried on with the aid of power and, therefore, mere transfer of raw materials by the use of power cannot be considered as a process of manufacture.
Allowing the appeals, this Court, HELD: 1. Process in manufacture or in relation to manufacture implies not only the production but the various stages through which the raw material is subjected to change by different operations.
It is the cumulative effect of the various processes to which the raw materials is subjected to the manufactured product emerges.
Therefore, each step towards such production would be a process in relation to manufacture.
Where any particular process is so integrally connected with the ultimate production of goods that but for that process manufacture of processing of goods would be impossible or commercially inexpedient, that process is one in relation to the manufacture.
[130 E F).
2.1 The natural meaning of the word 'process ' is a mode of treatment of certain materials in order to produce a good result, a species of activity performed on the subject matter in order to transform or reduce it to a certain stage.
There is nothing in the natural meaning of the word 'process ' to exclude its application to handling.
There may be process which consists only in handling and there may be a process which involves no handling or not merely handling but also use.
It may be a process involving the handling of the material and it need not be a process involving the use of material.
The activity may be subordinate but one in relation to the further process of manufacture.
[130G, 131 A B] 126 2.2 A process is a manufacturing process when it brings out a complete transformation for the whole compo nents so as to produce a commercially different article or a commodity.
But, that process itself may consist of several processes which may or may not bring about any change at every intermediate stage.
But the activities or the opera tions may be so integrally connected that the final result is the production of a commercially different article.
Therefore, any activity or operation which is the essential requirement and is so related to the further operations for the end result would also be a process in or in relation to manufacture to attract the relevant clause in the exemption notification.
The word 'process ' in the context in which it appears in the notification includes an operation or activi ty in relation to manufacture.
[132H, 133 A B] J.K. Cotton Mills vs
S.T. Officer; , ; Union of lndia vs Delhi Cloth & General Mills, [1963] Supp. 1 SCR 586, relied on.
3.1 The transfer of raw material to the reacting vessel is a preliminary operation but it is part of a continuous process ,but for which the manufacture would be impossible.
The handling of the raw materials for the purpose of such transfer is then integrally connected with the process of manufacture.
The handling for the purpose of transfer may be manual or mechanical but if power is used for such opera tion, it cannot be denied that an activity has been carried on with the aid of power in the manufacturing process.
The use of diesel pump sets to fill the pans with brine is an activity with the aid of power and that activity is in relation to the manufacture.
It is not correct to say that the process of manufacture starts only when evaporation starts.
The preliminary steps like pumping brine and filling the salt pans form integral part of the manufacturing proc ess even though the change in the raw material commences only when evaporation takes place.
The preliminary activity cannot be disintegrated from the rest of the operations in the whole process of manufacture.
Similarly, when coke and lime are taken to the platform in definite proportions for the purpose of mixing, such operation is a step in the manufacturing process.
It precedes the feeding of the mix ture into the kiln where the burning takes place.
The whole process is an integrated one consisting of the lifting of the raw materials to the platform mixing coke and lime and then feeding into the kiln and burning.
These operations are so interrelated that without anyone of these operations manufacturing process is impossible to be completed.
There fore, if power is used in 127 anyone of these operations or anyone of the operations is carried on with the aid of power, it is a case when in or in relation to the manufacture the process is carried on with the aid of power.
[133 C G] 3.2 'Processing ' may be an intermediate stage in manu facture and until some change has taken place and the com modity retains a continuing substantial identity through the processing stage, one cannot say that it has been manufac tured.
That does not, however, mean that any operation in the course of such process is not in relation to the manu facture.
[136 E] Dy.
Commissioner, Sales Tax; Ernakulam vs Pio Food Packers, ; ; Union of India vs Delhi Cloth & General Mills, [1963] Suppl.
1 SCR 586; Standard Fireworks Industries vs Collector, , relied on.
Nirma Chemical Works & Ors.
vs Union of India & Ors.
, ; Chowgule & Co. Pvt. Ltd. vs Union of India, ; , referred to.
|
Special Leave Petition (Civil) No. 6497 of 1991.
From the Judgment and Order dated 18.4.1990 of the Bombay High Court in W.P. No. 419 of 1990.
section Ganesh, Ravinder Narain, P.K. Ram and Ms. Amrita Mitra for the Petitioner.
K.K Singhvi and A.K Gupta for the Respondent.
The Order of the Court was delivered by: K. JAYACHANDRA REDDY, J. The petitioner Company is engaged in the business of manufacture of aluminium products and its factory is located at Kalwa in Thane District (Maharashtra).
The Company obtains aluminium as raw materi als for consumption from another factory of theirs situated in a different State.
With effect from 1.10.82 the Company at Kalwa was included in the municipal jurisdiction of Thane.
Prior to that date the factory was not within the jurisdiction of Thane Municipality and did not have to pay any octroi on the raw materials brought into its factory at Kalwa.
By a notification dated 23.8.82, the Government of Maharashtra constituted the Municipal Corporation of the City of Thane and Kalwa was brought within the jurisdiction of the Thane Municipal Corporation, the respondent herein and all goods imported into the area of the Thane Municipal Corporation were subjected to octroi at the rates mentioned in Schedule I to the Maharashtra Municipalities (Octroi) Rules, 1968 ( 'Rules ' for short).
Schedule I to the said Rules contains description of various goods and articles which were liable to octroi and minimum and maximum rates are prescribed.
Item No.77 in the said Schedule I to the said Rules covered non ferrous metals, including aluminium and Entry provided for the levy of octroi duty on the alu minium and_other goods mentioned therein at the minimum rate of 0.5% and at the maximum of 4%.
The respondent Corporation was levying octroi duty on the imports of aluminium raw materials made by the 212 petitioner Company into Kalwa at the rate of 1.3% from 1.10.1982 to 14.4.1987.
Then with effect from 15.4.87 the respondent Corporation was levying octroi at the rate of 2%.
On 18.5.87 the Thane Manufacturer 's Association made a representation to the respondent Corporation about the increase in octroi rates pointing out that the increase was having a disastrous effect on their industrial units located within the limits Of the Corporation.
In reply to the said representation, the respondent Corporation addressed a letter dated 20.11.1987 in which it was pointed out and clarified inter alia that goods specified in Entry 77 in Schedule I to the said Rules, when raw material is imported for use in the manufacture of finished goods it would be subject to the levy of octroi not exceeding 1.25% and not less.
On receipt of this letter the petitioner Company made detailed enquiries and was informed that under Rule 4 of the said Rules the goods mentioned in Part IA of that Schedule which were imported by certain industrial undertakings are liable to be subjected to octroi at a lower rate.
The Compa ny also noticed further that Part IA of the Rules provided that the goods specified in Entry 77 when imported by an industrial undertaking for use as a raw material for proc essing within that undertaking and if a declaration in Form 14 is filed, the levy.
octroi in such cases would not exceed 1.25% and would not be less than 0.25%.
The petitioner, however, did not file any such Form 14 duly filled in and according to them they acted under a mistake of law and under the bonafide impression that the octroi levied on and recovered by the Corporation at the rate of 1.3% in respect of the period from 1.10.82 to 14.4.87 and at the rate of 2% from 15.4.87 onwards, represented the correct rate.
The petitioner however having later realised by going through the records and the financial accounts and other documents which are duly audited claimed refund of the excess of octroi duty which has been paid by them.
On 8.3.88 the petitioner Company addressed a letter to the respondent Corporation pointing out that under a mistake of law they paid excess amount and therefore the excess amount so paid should be refunded.
The respondent Corporation in their reply dated 16.5.88 stated that the petitioner company had not complied with the procedure specified in Part IA of the Schedule II to the said Rules for availing such concessional rates therefore the refund cannot be sanctioned.
However, the petitioner Company by their letter dated 19.4.89 claimed a refund of total amount of Rs. 13,54,101.79 p.
The respond ent again rejected the claim reiterating that the procedure specified in Part IA of Schedule II to the Rules was not complied with.
Being aggrieved the Company filed a writ of mandamus seeking ' refund.
A Division Bench of the High Court dismissed the.
same holding that the concessional rate of octroi duty was available only if the declaration in Form 14 was filed with the octroi authorities.
Questioning the said 213 Order, this special Leave Petition has been filed and it is being disposed of at the admission stage itself after no tice.
Most of the facts in this case are not in dispute.
Admittedly the aluminium raw material was imported by the petitioner Company and octroi duty at the normal rate was paid and no declaration in Form 14 was filed.
It is only after the lapse of long time that the petitioner Company has made a claim for refund.
The learned counsel for the peti tioner Company submitted that a procedural failure should not disentitle the petitioner Company provided if otherwise the Company could have legitimately claimed.
The learned counsel appearing for the respondent Municipal Corporation submitted that the concessional rate would be available only if the raw material was utilised by the Company for manufac turing goods within the industrial undertaking.
If a decla ration had been filed in proper Form 14 there could have been a scope for verification and in the absence of such a declaration the question of refunding at this distance of time does not arise.
It is also his further submission that the concession should have been availed at the time when it was available.
Having failed to avail the question of claim ing the same later does not arise and consequently no refund can be claimed.
The amended Rules came into force in 1970.
Rule 4(2) provides for payment octroi at a lower rate by certain industrial undertakings in respect of the goods mentioned in Part IA of Schedule II to the Rules.
Aluminium is at Entry No.77.
Part I A reads thus: "PART I A List of goods on which octroi shah be payable at a lower rate by Certain industrial under takings.
(1) All goods specified in entries 6(c), 35, 40, 64, 65, 71, 77 and 86 in Schedule I, and khobra mentioned in entry 25, raw rubber and latex mentioned in entry 70 in that Schedule, when imported by an industrial undertaking for use as raw material for processing within that undertaking and when declaration in respect thereof is issued by the undertaking in Form 14, shall be subject to octroi by any Council at a rate not exceeding 1.25 per cent and not less than 0.25 per cent.
XX XX XX It can be seen from the above rule that to avail the concession, a declaration in Form 14 has to be made in respect of the raw material 214 imported.
Form 14 is as under: "FORM 14 (Part I A and I1 of Schedule II ) Declaration to be made by an importer import ing dutiable 'goods as raw material for his industrial undertaking I . . . do hereby declare that the goods in respect of which I have separately given a declaration under rule 14 have been imported by me as raw material to be used in the manufacture of . . . in my industrial undertaking, viz. (here give full name and address of the undertaking ) . . . . and I shall not use them for any other purpose for sale or otherwise dispose them of to any other party for any other purpose, except having previously paid the difference between the octroi due on such goods at ordinary rates and the octroi paid on concessional rates under Schedule I1 to the Maharashtra Municipalities (Octroi) Rules, 1968.
Date . . . .
Signature of the Importer" The declaration contemplated in Form 14 is to the effect that the goods imported shall not be used for any other purpose for sale or otherwise etc.
It can thus be seen that an incentive is sought to be given to such entrepreneurs by such concession if the raw material which is imported is also utilised in the industrial undertaking without selling or disposing of otherwise.
That being the object a verifica tion at the relevant time by the octroi authorities becomes very much necessary before a concession can be given.
In the absence of filing such a declaration in the required Form 14, there is no opportunity for the authorities to verify.
Therefore the petitioner Company has definitely failed to fulfil an important obligation under the law though proce dural.
The learned counsel, however, submitted that even now the authorities can verify the necessary records which are audited and submitted to the authorities and find out wheth er the material was used in its own undertaking or not.
We do not think we can accede to this contention.
Having failed to file the necessary declaration he cannot now turn around and ask the authorities to make a verification of some records.
The verification at the time when the raw material was still there is entirely different from a verification at a belated stage after it has ceased to be there.
May be that the raw material was used in the industrial undertaking as claimed by the petitioner Company or it may not be.
In any event the failure to file the necessary declaration has necessarily prevented the 215 authorities to have a proper verification.
Shri Ganesh, learned counsel for the petitioner Company relied on the judgment of this Court in Kirpal Singh Duggal vs Municipal Board Ghaziabad ; in support of his submission that the non fulfilment of procedural re quirement does not bar the claimant from persuing his remedy in a court of law.
That was a case where the appellant entered into a contract and supplied the goods to the Gov ernment.
The Municipal Board collected toll when the trucks were passing through the toll barrier.
The appellant ob tained a certificate that the transported goods were meant for Government work.
The appellant claimed exemption on the basis of the certificate but not within time.
The Court observed thus: "But counsel for the respondent contended that the rules framed by the Government regarding the procedure constituted a condition prece dent to the exercise of the right to claim refund and recourse to the civil court being conditionally strict compliance with the procedure prescribed the civil court was incompetent to decree the suit unless the condition was fulfilled.
We are unable to agree with that contention.
The rules framed by the Government merely set up the procedure to be followed in preferring an application to the Municipality for obtaining refund of the tax paid.
The Municipality is under a statuto ry obligation once the procedure followed is fulfilled, to grant refund of the toll.
The application for refund of the toll must be made within fifteen days from the date of payment of the toll.
It has to be accompanied by the original receipts.
If these procedural requirements are not fulfilled, the Municipality may decline to refund the toll and relegate the claimant to a suit.
It would then be open to the party claiming a refund to seek the assistance of the court, and to prove by evidence which is in law admissible that the goods transported by him fell within the order issued under section 157(3) of the Act.
The rules framed by the Government relating to the procedure to be followed in giving effect to the exemptions on April 15, 1939, do not purport to bar the jurisdiction of the civil court if the procedure is not followed." Relying on these observations, Shri Ganesh, learned counsel for the petitioner Company contended that in the instant case though the procedural requirement is not ful filled by filing a declaration in Form 14, still that is not a bar to invoke the jurisdiction of the civil court or the High 216 Court by way of a writ and seek a refund.
We are unable to agree.
In Duggal 's case, the appellant, as a matter of fact, obtained certificate but failed to make the application for refund within time.
It is in that context this Court ob served that the Municipality was under a statutory obliga tion once the procedure followed is fulfilled and if it is not fulfilled the Municipality may decline.
The granting of a certificate that the appellant used the goods for Govern ment work made all the difference.
But, in the instant case, the non fulfillment of the requirement even though procedur al, has disentitled the petitioner Company because there was no way to verify whether it was entitled for such conces sion.
In HMM Limited and another vs Administrator, Bangalore City Corporation and another, [1989]4 S C C 640 no doubt the view taken in Dugal 's case was confirmed but it does not make any difference so far as the present case is concerned for the reasons stated above.
In that case the question was whether the goods namely Horlicks was consumed within the city or not and there was no dispute as to the quantum which was credited pursuant to the directions of the High Court.
Hence no further verification was necessary.
Therefore these two cases are distinguishable.
However, a concession has to be availed at the time when it was available and in the manner prescribed.
The common dictionary meaning of the word "concession" is the act of yielding or conceding as 10 a demand or argument, something conceded; usually implying a demand.
claim, or request, "a thing yielded", "a grant".
In the Dictionary of English Law by Earl Jowitt, the meaning of "concession" is given as under: "Concession, a grant by a central or local public authority to a private person or pri vate persons for the utilisation or working of lands, an industry, a railway waterworks, etc.
" The expressions "rebate" and "concession" in the commer cial parlance have the same concept.
In Halsbury 's Laws of England, 4th edn.
Para 198 it is observed as under: "Application for rebate.
When a rating author ity receives an application for a rebate it has a duty to determine whether the residen tial occupier is entitled to a rebate and, if so, the amount to which he is entitled; and it must request him in writing to furnish such information and evidence as it may reasonably require as to the persons who reside in the hereditament, his income, and the income of his spouse.
Unless 217 the rating authority is satisfied that the residential occupier has furnished all the information and evidence it requires, it is under no duty to grant a rebate. " (emphasis supplied) In Kedarnath Jute Manufacturing Co. vs Commercial Tax Officer, Calcutta and Ors. ; , the appellant which was a public limited Company, sought exemption under the provisions of the Bengal Finance (Sales Tax) Act, 1941 in respect of certain sales but did not produce before the Officer the declaration forms from the purchaser dealers required to be produced under the proviso to that sub clause granting exemption.
It was contended on behalf of the appel lant that proviso to the sub clause was only directory and the dealer is not precluded where the proviso is not strict ly complied with from producing other relevant evidence to prove that the sales were for the purposes mentioned in the said sub clause.
The contention on behalf of the respondent was that the dealer can claim exemption under the sub clause but he must comply strictly with the conditions under which the exemption can be granted.
Rejecting the appellant 's contention, this Court held thus: "Section 5(2)(a) (ii) of the Act in effect exempts a specified turnover of a dealer from sales tax.
The provision prescribing the exemption shall, therefore, be strictly con strued.
The substantive clause gives the exemption and the proviso qualifies the sub stantive clause.
In effect the proviso says that part of the turnover of the selling dealer covered by the terms of sub clause (ii) will be exempted provided a declaration in the form prescribed is furnished.
To put it in other words, a dealer cannot get the exemption unless he furnishes the declaration in the prescribed form.
" It was further held as under: "There is an understandable reason for the stringency of the provisions.
The object of section 5(2) (a) (ii) of the Act and the rules made thereunder is self evident.
While they are obviously intended to give exemption to a dealer in respect of sales to registered dealers ' of specified classes of goods, it seeks also to prevent fraud and collusion in an attempt to evade tax.
In the nature of things, in view of innumerable transactions that may be entered into between dealers, it will wellnigh be impossible for the taxing authorities to ascertain in each case whether a dealer has sold the specified goods to another for the purposes mentioned in the section.
Therefore, 218 presumably to achieve the twofold object, namely, prevention of fraud and facilitating administrative efficiency, the exemption given is made subject to a condition that the person claiming the exemption shall furnish a decla ration form in the manner prescribed under the section.
The liberal construction suggested will facilitate the commission of fraud and introduce administrative inconveniences, both of which the provisions of the said clause seek to avoid" It can thus be seen that the submission namely that the dealer, even without filing a declaration, can later prove his case by producing other evidence, is also rejected.
This ratio applies on all fours to the case before us.
As already mentioned the concession can be granted only if the raw material is used in the industrial undertaking seeking such concession.
For that a verification was necessary and that is why in the rule itself it is mentioned that a declaration has to be filed in Form 14 facilitating verification.
Fail ure to file the same would automatically disentitle the Company from claiming any such concession.
In any event the petitioner Company cannot claim conces sion at this distance as a matter of right.
In Orissa Cement Ltd. vs State of Orissa & Ors, A I R , it was observed thus: "We are inclined to accept the view urged on behalf of the State that a finding regarding the invalidity of a levy need not automatical ly result in a direction for a refund of all collections thereof made earlier.
The decla ration regarding the invalidity of a provision and the determination of the relief that should be granted in consequence thereof are two different things and, in the latter sphere, the Court has, and must be held to have, a certain amount of discretion.
It is well settled proposition that it is open to the Court to grant, mould or restrict the relief in a manner most appropriate to the situation before it in such a way as to ad vance the interests of justice." In the instant case the octroi duty paid by the peti tioner Company would naturally have been passed on to the consumers.
Therefore there is no justification to claim the same at this distance of time and the court in its discre tion can reject the same.
For the above reasons, this Spe cial Leave Petition is dismissed with costs.
V.P.R. Petition dis missed.
| The petitioner Company was engaged in the business of manufacture of aluminium products and its factory was locat ed at Kalwa in Thane District, obtaining aluminium as raw materials from its another factory, situated In a different State.
With effect from 1.10.82 the Company at Kalwa was included in the municipal Jurisdiction of Thane, and prior to that date, the Company did not have to pay any octroi on the raw materials brought into its factory at Kalwa.
The respondent Corporation was levying octroi duty on the imports of aluminium raw materials made by the petition er Company at the rate of from 1.10.1982 to 14.4.1987 and from 15.4.87 at the rate of 2%.
On 18.5.87 the Thane Manufacturer 's Association made a representation to the respondent Corporation about the increase in octroi rates.
The respondent Corporation in Its letter dated 20.11.1987 pointed out that when raw material specified In Entry 77 in Schedule I to the Maharashtra Municipalities (Octroi) Rules imported for use in the manufacture of fin ished goods, It would be subject to the levy of octroi not exceeding 1.25% and not less.
On receipt of this letter, the petitioner Company made detailed enquiries and was informed that under Rule 4 of the Rules the goods mentioned In Part IA of the Schedule I1, which were imported, were liable to be subjected to octroi at a lower rate.
The Company also noticed further 209 that Part IA of the Rules provided that the goods specified in Entry 77, when imported by an industrial undertaking for use as a raw material for processing within that undertaking and if a declaration in Form 14 was filed, the levy of octroi in such cases would not exceed 12.5% and would not be less than 0.25%.
The petitioner, however, had not filed any Form 14 duly filled in and according to it, it acted under a mistake of law and under the bonafide impression that the octroi levied on and recovered by the Corporation at the rate of 1.3% in respect of the period from 1.10.82 to 14.4.87 and at the rate of 2% from 15.4.87 onwards, represented the correct rate.
On 8.3.1988 the petitioner Company in its letter to the respondent Corporation stated that under a mistake of law it paid excess amount and same should be refunded.
On 16.5.1988, the respondent Corporation replied that as the petitioner Company had not complied with the procedure specified in Part IA of the Schedule 11 to the Rules for availing such concessional rates and therefore the refund could not be sanctioned.
On 19.4.1989 the petitioner Company claimed a refund of total amount of Rs. 13,54,101.79 p.
The respondent rejected the claim, against which the Company filed a writ petition in the High Court, seeking refund.
A Division Bench of the High Court dismissed the writ petition holding that the concessional rate of octroi duty was available only if the declaration in Form 14 was filled with the octroi authorities.
Questioning the High Court 's Order, this Special Leave Petition was filed.
The petitioner Company contended that a procedural failure should not disentitle the petitioner Company, pro vided, if otherwise the Company could have legitimately claimed.
The respondent Corporation submitted that the conces sional rate would be available only if the raw material was utilised by the Company for manufacturing goods within the industrial undertaking; that if a declaration had been filed in proper Form 14 there could have been a 210 scope for verification and in the absence of such a declara tion the question of refunding at this distance of time did not arise; and that the concession should have been availed at the time when it was available, and having failed to avail, the question of claiming the same later did not arise.
Dismissing the petition, this Court, HELD:.
A verification at the relevant time by the octroi authorities becomes very much necessary before a concession can be given.
In the absence of filing such a declaration in the required Form 14, there is no opportunity for the authorities to verify.
Therefore the petitioner Company has definitely failed to fulfil an important obliga tion under the law though procedural.
[214 F] 2.
The verification at the time when the raw material was still there is entirely different from a verification at a belated stage after it has seized to be there.
May be that the raw material was used in the industrial undertaking as claimed by the petitioner Company or it may not be.
In any event the failure to file the necessary declaration has necessarily prevented the authorities to have a proper verification.
[214 H, 215 A] 3.
A concession has to be availed at the time when it was available and in the manner prescribed.
[216 D] 4.
The concession can be granted only if the raw materi al is used in the industrial undertaking seeking such con cession.
For that a verification was necessary and that is why in the rule itself it is mentioned that a declaration has to be filed in Form 14 facilitating verification.
Fail ure to file the same would automatically disentitle the Company from claiming any such concession.
[218 C D] 5.
In the instant case the octroi duty paid by the petitioner Company would naturally have been passed on to the consumers.
Therefore, there is no justification to claim the same at this distance of time and the court in its discretion can reject the same.
[218 G] kirpal Singh Duggal vs Municipal Board Ghaziabad, [ ; ; HMM Limited and another vs Administrator, Bangalore City Corporation and another, [1989]4 SCC 640, distinguished.
Kedarnath Jute Manufacturing Co. vs Commercial Tax Officer, Calcutta 211 and Ors.; , , followed.
Orissa Cement Ltd. vs State of Orissa & Ors., AIR 1991 SC 1676, referred to.
Dictionary of English Law by Earl Jowitt; Halsbury 's Laws of England, 4th Edn.
Para 198, referred to.
|
Criminal Appeal No. 214 of 1979.
From the Judgment and Order dated 22.11.1978 of the Punjab and Haryana High Court in Criminal Appeal No. 701 of 1975.
A.N. Mulla, O.P. Sharma and R.C. Gubrele for the Appellants.
Ms. Amita Gupta and R.S. Suri for the Respondents.
The Judgment of the Court was delivered by FATHIMA BEEVI, J.
Balbir Singh and Inderjit Singh, the appellants, are brothers.
Onkar Singh, brother of Brijinder Singh, the father of the appellants, died of multiple in juries on 8.7.1974.
The appellants along with Mehar Singh, were tried on the charge of murder under Section 302, I.P.C. read with Section 34, I.P.C. The Sessions Judge acquitted the accused of the charge.
The High Court, in appeal pre ferred by the State, convicted these appellants and sen tenced them to undergo imprisonment for life under Section 302, I.P.C. The appeal being one under Section 2 of the , the appellants ' learned counsel persuaded us to go through the entire evidence maintaining that the High Court has erred in interfering with the order of acquittal.
Ac cording to the learned counsel, the view taken by the trial court is reasonable and there was no justification for upsetting the judgment even if a different view could have been taken by the appellate court on reappraisal of the evidence.
It was contended that the High Court has not effectively dislodged the various reasons given by the trial Court for discarding the evidence and that the conclusion drawn by the High Court on the evidence on record is clearly wrong.
In order to appreciate these arguments, it is necessary to set out briefly the facts of the case and summarize the relevant evidence.
The deceased, Onkar Singh, at the time of his death was employed in government service and was resid ing in Chandigarh.
His brother, Darbara Singh, and his son Iswardial Singh, as well as these appellants were residing in the village.
Onkar Singh came to the village on 6th July, 1974.
On 8th July, 242 1974, at about 10.30 A.M., Darbara Singh, along with his wife, Surjit Kant, and son Ishwardial Singh had gone to the mango grove across the choe to collect mangoes for being given to Onkar Singh.
While they were returning home along the pathway, Onkar Singh was seen coming in the opposite direction.
These two appellants along with their companion emerged on the scene and attacked Onkar Singh Balbir Singh had a datar and Inderjit Singh had a sua and Mehar Singh had a lathi.
After inflicting injuries with the weapons the appellants escaped.
The deceased, Onkar Singh, was removed to the house of Darbara Singh for being rushed to the hospi tal but within a short time, he breathed his last.
The first information was lodged at the police station around 7.00 P.M., and the crime was registered and investi gated and finally chargesheeted.
The post mortem examination on the dead body revealed that Onkar Singh had sustained besides lacerated injuries three stab wounds and that he died on account of the shock and hemorrhage as a result of the injuries.
The motive alleged was that there had been some grouse on account of the transfer of agricultural land that belonged to the family, among the children of the three brothers.
The land stood in the name of the deceased 's son under cultivation of Darbara Singh at the material time.
The land was originally gifted to the appellants in 1964 but was reconveyed to the deceased.
The learned Sessions Judge found that the motive had been proved.
The two eye witnesses to the occurrence were Darbara Singh and his son Ishwardial Singh.
They narrated the incident.
Their evidence was discarded by the trial court for the reasons that there was a thick growth of reeds on either side of the pathway which was running zigzag and it was not, therefore, possible for the witnesses even if they were present in the vicinity to observe the assault and identify the assailants.
Another reason was that the medical evidence was in distinct conflict with the oral testimony and the nature of injuries were such that the same could not be attributed to the use of the weapons mentioned by the witnesses.
Yet another reason was that there had been no trace of blood either on the pathway or on the clothes worn by the deceased.
The time of death of the deceased as dis closed by the medical evidence did not agree with the ver sion of the witnesses.
There had been inordinate delay in lodging the F.I.R.
The first information report did not inspire confidence.
The witnesses had no consistent case regarding the role played by Mehar Singh and the evidence was interested and unconvincing.
The learned Judge, there fore, rejected the 243 same and recorded the order of acquittal.
The High Court had cautioned itself on the limited scope of interference while analysing and appreciating the evi dence and arriving at its own conclusion.
The High Court has given very cogent reasons to establish that the whole ap proach by the trial court was wrong and reasons for reject ing the evidence did not stand scrutiny.
Having heard the counsel on both sides, we agree with the High Court that the prosecution evidence in the case is wholly reliable and it leads to irresistible conclusion that these appellants had intentionally caused the death of Onkar Singh.
The occurrence took place in broad day light at a place close to the residence of the witnesses.
The appel lants are the near relations of the deceased and the wit nesses and it has happened in the background of the family rued.
The first information has been recorded within a few hours which in the circumstances of the case cannot be considered as unreasonably delayed.
The version given in the F.I.R, is substantially the same as the one spoken to by the witnesses before the court.
There had not been any accept able suggestion why Darbara Singh should foist a case against the appellants.
It is most unlikely that these witnesses would allow the real culprits to escape and their near relations to be implicated on the happening of such a tragedy in the family.
Both the father and the son have given consistent account of the role played by each of the appellants.
There would not have been any difficulty for the witnesses to identify the appellants from a distance and across the reeds even if they could get only a glimpse of them in the course of their action.
The evidence is also clear that there had not been thick growth of reeds to cause complete obliteration of the scene.
It could not, therefore, be assumed that the place of occurrence was out of bounds and that the witnesses have weaved a story of their own.
As rightly pointed out by the High Court, the medical evidence is not inconsistent.
The witnesses are clear that the appel lants used the datar on the wrong side and that accounts for the lacerated injuries.
Incised wounds may be produced by using the sua on that part of the body.
We do not find any material to infer that the death could not have happened at the time spoken to by the witnesses.
Since there had been internal hemorrhage and the injured person was immediately lifted from the place of occurrence the absence of blood at the scene is not strange.
The fact that the acquittal of Mehar Singh had not been interfered with by the High Court cannot advance the case of the appellants.
The High Court 244 has given him the benefit of doubt on the materials that emerged in the evidence.
That is no reason to discard the evidence of the witnesses so far as these appellants are concerned when such evidence does not suffer from any seri ous infirmity.
We find that the High Court had given weighty reasons in accepting the evidence and finding that the view taken by the trial court was clearly wrong.
We reject the contentions of the appellants.
There is no reason to interfere with the judgment of the High Court.
The appeal is accordingly V.P.R. Appeal dis missed.
| The appellants along with another were tried of the charge of murder under Section 302, I.P.C., read with Sec tion 34, I.P.C. The prosecution case was that the appellants as well as the deceased 's brother and his son were residing in a vil lage.
The deceased came to the village on 6.7.1974.
On 8.7.1974 at about 10.30 a.m., the deceased 's brother along with his wife and his son had gone to the mango grove across the choe to collect mangoes to give to the deceased.
While they were returning home along the pathway, the deceased was seen coming in the opposite direction.
The two appellants along with another accused, emerged on the scene and at tacked the deceased.
Appellant No.1 had a datar and Appel lant No. 2 had a sua and their companion had a lathi.
After inflicting injuries with the weapons the appellants escaped.
The deceased was removed to the house of one Darbara Singh for being rushed to the hospital, but within a short time, he breathed his last.
The first information was lodged at the police station, around 7.00 P.M., and the crime was registered and investi gated and finally chargesheeted.
The post mortem examination of the dead body revealed that the deceased had sustained lacerated injuries and three stab wounds and that he died on account of the shock and hemorrhage as a result of the injuries.
The motive alleged was that there had been some grouse on account of the transfer of agricultural land that be longed to the family, among the 240 children of the three brothers.
The Sessions Judge acquitted the accused of the charge.
The High Court, in appeal preferred by the State convicted the appellants and sentenced them to undergo imprisonment for life, against which, this appeal under Section 2 of the Supreme Court (Enlargement of Criminal Appellate Jurisdic tion) Act, 1970 was filed.
The appellants contended that the view taken by the trial court was reasonable and there was no justification for upsetting the judgment even if a different view could have been taken by the appellate court on reappraisal of the evidence; that the High Court did not dislodge the various reasons given by the trial court for discarding the evidence and that the conclusion drawn by the High Court on the evidence on record was wrong.
Dismissing the appeal, this Court, HELD: 1.
The prosecution evidence in the case is wholly reliable and it leads to irresistible conclusion that the appellants had intentionally caused the death of the de ceased.
The occurrence took place in broad day light at a place close to the residence of the witnesses.
The appel lants are the near relations of the deceased and the wit nesses and it has happened in the background of the family rued.
The first information has been recorded within a few hours which in the circumstances of the case cannot be considered as unreasonably delayed.
The version given in the F.I.R. is substantially the same as the one spoken to by the witnesses before the Court.
[243 C D] 2.
The eye witnesses have given consistent account of the role played by each of the appellants.
There would not have been any difficulty for the witnesses to identify the appellants from a distance and across the reeds even if they could get only a glimpse of them in the course of their action, and the medical evidence is not Inconsistent.
[243 E F] 3.
The fact that the acquittal of the companion of the appellants had not been interfered with by the High Court cannot advance the case of the appellants.
The High Court has given him the benefit of doubt on the materials that emerged in the evidence.
That is no reason to discard the evidence of the witnesses so far as the appellants are concerned when such 241 evidence does not suffer from any serious infirmity; [243 H; 244 A]
|
terim Application Nos.1, 2 and 3 of 1989.
IN Civil Appeal Nos. 3187 and 3188 of 1988.
From the Judgment and Order dated 4.4.1988 of the Madhya Pradesh High Court in Civil Revision No. 26 of 1988.
Soli J. Sorabjee, Attorney General, P.P. Rao, Rajinder Sachher, D.K. Kapur, Mrs. Indu Goswamy, Raju Ramachandran, Mukul Mudgal, S.R. Bhat, M.S. Ganesh, V.B. Mishra, A.M. Khanwilkar, Ms. Madhu Khatri, p. Parameswaran, Ms. A. Subha shini and C.S.Vaidyanathan for the appearing parties.
383 The following Order of the Court was delivered: By these applications the Indian Red Cross Society seeks a modification of certain directions issued by this court on 15th February, 1989, in Civil Appeals Nos. 3187 and 3188 of 1988 pursuant to the settlement of the suit instituted by the Union of India against Union Carbide Corporation and the Union Carbide Corporation (India) Limited arising out of the Bhopal Gas leak disaster.
The prayer of the Indian Red Cross Society in these applications arises in the context of the order dated 7th June, 1985, made by John F. Keenan, Presiding Judge of the Southern District Court at New York (U.S.) directing the utilisation of 5 Million dollars for relief to the victims of the gas leak disaster through Indian Red Cross Society.
In the said order Judge Keenan referred to the willingness of the Union Carbide Corporation "to pay 5 million dollars to aid the victims of the gas plant disaster which occurred in December, 1984 in Bhopal, India" and had desired and indicated that in the administration of this fund, which was intended to be at the disposal of the Union of India, should be subject to certain reporting requirements as to the utilisation of the funds.
Union of India did not agree to subject itself to those conditions.
Referring to the alter native arrangements as to the administration of the interim relief necessitated by Union of India 's disinclination to take up relief operation on the terms stipulated by the Court, Judge Keenan observed: Counsel for the Union of India has informed the Court that the Union of India considers these reporting requirements so onerous as to compel the Union of India to decline the five million dollars in interim relief offered.
Accordingly; the Court directs that Liasion Counsel and Messrs Bailey and Chesley of the Executive Committee contact the American Red Cross Society to arrange for discussions with the Indian Red Cross Society, in order to formulate a plan for distribution of the five million dollars to the victims of the gas plant disaster.
The US District Court, therefore, proposed a scheme for the utilisation of the Interim Relief Fund through the agency of the American Red Cross Society.
But what is of particular significance in the present context is as to how this interim relief fund was to be treated and accounted for at the end of the day when the litigation culminated in a final decision.
That the payment was intended to be without prejudice to the contentions of the Union Carbide Corpora tion and that, further, the amount of interim relief would form part of the quantum that may finally be adjudicated was rendered explicit in the last paragraph of the said order dated 7th June, 1985 which stipulated: 384 "Neither the promulgation, implementation nor anything contained herein shall be asserted or used in any manner against the interests of Union Carbide Corporation.
This provision of interim relief by Union Carbide Corporation shall be credited against the payment of any final judgment or settlement of the claims against Union Carbide Corporation arising out of the Bhopal gas leak of December, 1984." After the proceedings in the US District Court terminat ed upon the Union Carbide Corporation 's plea of forum non conveniens being upheld, Union of India instituted suit No. 1113 of 1986 in the District Court at Bhopal.
The claim in the suit came to be settled in this court in the said Civil Appeal Nos. 3187, 3188 of 1988 by the orders dated 14th/15th February, 1989.
In terms of the said settlement the sum of 5 million US dollars was treated as part of the settlement fund.
In the order of this Court dated 15th February, 1989 this sum of 5 million US dollars was specifically referred to in clause (a) of paragraph 2 and paragraph 5.
The relevant portions of the order are excerpted below: "(a) a sum of US 425 million (Four Hundred and Twenty five millions) shall be paid on or before 23rd March, 1989, by Union Carbide Corporation to the Union of India, less US $ 5 million already paid by the Union Carbide Corporation pursuant to the order dated 7th June, 1985 of the Judge Keenan in the court proceedings taken in the United States of America.
The amounts payable to the Union of India under these orders of the Court shall be deposited to the credit of the Registrar of this Court in a bank under directions to be taken from this Court.
This order will be sufficient authority for the Registrar of the Supreme Court to have tile amount transferred to his credit which is lying unutilised with tile Indian Red Cross Society pursuant to the directions from tile International Red Cross Society." [Emphasis supplied] The case of the applicant Indian Red Cross Society is that in the course of the negotiations the American Red Cross had with it in the matter of administration of this relief, the Red Cross Society of India had made it clear to the American Red Cross that it would not undertake the relief administration unless the fund was assigned to it unconditionally.
Red Cross Society of India would say that it was on this specific understanding that it accepted the engagement to administer the funds in India.
385 Accordingly, the Indian Red Cross Society contends that the order dated 5th February, 1989 in so far it treats the unutilised part of the interim relief fund as part of the settlement fund and authorises the Registrar of he Supreme Court to realise it as such is not consistent with the terms under which the relief fund was agreed to be entrusted to and accepted by the Indian Red Cross Society and that, therefore, those directions in the order dated 15th Febru ary, 1989 require to be deleted.
We have heard Dr. Chitaley for the Indian Red Cross Society, Shri F.S. Nariman for the Union Carbide Corporation and the learned Attorney General for the Union of India.
In view of the circumstance that at the time these applications were heard, the validity of the settlement stood assailed in certain proceedings of Review, the Union of India abstained from making any statement as to he merits of the claim of the Indian Red Cross Society.
Union of India sought to steer clear of any possible implication of any appropriation of the settlement fund which might be suscep tible of an inference of rectification it of the settlement.
The Union Carbide Corporation while disputing the claim of the Indian Red Cross Society that the said 5 million US dollars constituted subject matter of a separate and dis tinct fund outside the scope of the litigation culminating in the orders of 14/15th February, 1989, however, stated that it had no objection if the Union of India was agreeable to the Indian Red Cross Society retaining and utilising the money lying with it.
The grantability of the prayer of the Indian Red Cross Society really turns upon whether the interim relief of 5 million US dollars was a distinct award standing inde pendently and outside of the final adjudication.
It is manifestly not so.
Judge Keenan 's order dated 7.6.1985 makes that clear.
It, however, appears true that the Indian Red Cross Society sought to stipulate with its American counter part that the Indian Red Cross Society be free from any contingent obligations stemming from the final result of the litigation one way or the other.
Indeed, at some point of time the American Red Cross, presumably at the instance of the Indian Red Cross Society, desired to have the matter submitted for further consideration of the District Court at New York.
But nothing has been placed before us to indicate that the District Court for the Southern District, New York, ever changed the terms of its order dated 7th June, 1985.
On the contrary, the affidavit dated 20th November, 1989, of Mr. John Macdonald filed on behalf of the Union Carbide Corpora tion indicates that from the very inception this interim 386 relief fund was intended to be in the nature of an "advance payment" or "credit to the defence".
The following observa tions of Judge Keenan on 16th April, 1985 as to the intended nature of the proposed interim relief place the matter beyond doubt.
Judge Keenan observed: "It seems to me that some sort of emergency systematic relief should be supplied to the survivors on a prompt basis.
Any such funding supplied by the defendant would be treated in the nature of an advance payment or credit to the defence.
It would appear that the agreement between the Ameri can Red Cross and the Indian Red Cross Society came to be discussed before the District Court, New York, during hear ing on 20th November, 1985.
The portions of the transcript of what transpired at the hearing furnished in Mr. John Macdonald 's affidavit indicate that, far from approving the purported arrangement inter se between the American Red Cross and the Indian Red Cross Society, they show that the terms of the order dated June 7, 1985, as to the nature and character of the interim relief as an "advance payment" or "credit to the defence" were left undisturbed.
The tran script of the hearing furnished in the affidavit of Mr. John also reaffirms that "if there is any recovery against Union Carbide, it is a set off '.
This is not disputed nor any independent material placed before us to show that the terms as to the nature and character of the interim payment had been altered in terms of the inter se arrangements pleaded by the Indian Red Cross Society.
In the circumstances, the agreement between the American Red Cross and Indian Red Cross Society cannot prevail over the effect of the order dated 7th June, 1985 of Judge Keenan.
This Court 's directions in this behalf in the order dated 15th February, 1989, are not inconsistent there with and do not, therefore, require any modification.
Now that the terms of the settlement have been upheld in the review proceedings the unutilised part of the interim relief of 5 million US dollars will become part of the Bhopal gas relief fund, and shall have to be administered as such.
The Registrar of the Supreme Court shall be entitled to call up the funds with the Indian Red Cross Society which stood unutilised as on 15th February, 1989.
The present applications of the Indian Red Cross Society are, accordingly, dismissed.
G.N. Applications dismissed.
| In the suit filed by the Union of India against Union Carbide Corporation (UCC) filed before the Southern District Court at New York, the presiding Judge directed the utilisa tion of 5 Million Dollars deposited by UCC towards Interim Relief Fund, for affording relief to the victims of the Bhopal Gas leak disaster through the Indian Red Cross Socie ty.
The said payment was intended to be without prejudice to the contentions of UCC.
Also it was to be credited against the payment of any final judgment or settlement of the claims against UCC arising out of the Bhopal Gas leak disas ter.
The Indian Red Cross Society sought to stipulate with the American Red Cross that the Indian Red Cross Society should be free from any contingent obligations stemming from the final result of the litigation one way or the other.
However, the terms of the order were not changed.
After the proceedings in the U.S. District Court termi nated upon UCC 's plea of forum non conveniens being upheld, Union of India instituted a suit In the District Court at Bhopal.
The claim in the suit came to be settled In this Court by its orders dated 14/15th February, 1989.
In terms of the settlement order, the said sum of 5 Million US Dol lars was treated as part of the settlement Fund and a direc tion was given to the Registrar to have the amount trans ferred to his credit which was lying unutilised with the Indian Red Cross Society.
The Indian Red Cross Society has filed the present applications.
It contended that the order dated 15th Febru ary, 1989 in so far as it treated the unutilised part of the interim relief fund and authorising the Registrar to realise it as such, was not consistent with the terms under which the relief fund was agreed to be entrusted to and accepted by it and 382 so the directions given in regard to the said relief fund required to be deleted.
On the question whether the interim relief of 5 Million U.S. Dollars was a distant award standing independently and outside the final adjudication, dismissing the applications, this Court, HELD: 1.
The agreement between the American Red Cross and the Indian Red Cross Society came to be discussed before the District Court, New York, during the bearing on 20th November 1985.
The portions of the transcript of what tran spired at the hearing indicate that far from approving the purported arrangement inter se between the American Red Cross and the Indian Red Cross Society, they show that the terms of the order dated June 7, 1985, as to the nature and character of the interim relief as an "advance payment" or "credit to the defence" were left undisturbed.
The tran script of the hearing also reaffirms that "if there is any recovery against Union Carbide, it is a set off '.
Also there is nothing on record to show that the terms as to the nature and character of the interim payment had been altered in terms of the inter se arrangements pleaded by the Indian Red Cross Society.
In the circumstances, the agreement between the American Red Cross and the Indian Red Cross Society cannot prevail over the effect of the order dated 7th June, 1985 of Judge Keenan.
This Court 's directions in this behalf in the order dated 15th February, 1989, are not inconsistent therewith and do not, therefore, require any modification.
[386 B F] 2.
Now that the terms of the settlement have been upheld in the review proceedings the unutilised part of the interim relief of 5 Million U.S. Dollars will become part of the Bhopal gas relief fund and shall have to be administered as such.
The Registrar of the Supreme Court shall be entitled to call up the funds with the Indian Red Cross Society which stood unutilised as on 15th February, 1989.
[386 F G]
|
Appeal No. 1354 of 977.
From the Judgment and Order dated 4.5.1977 of the Guja rat High Court in Letters Patent Appeal No. 114 of 1977.
P.H. Parekh and Ms. Shalini Soni for the Appellants.
230 T.U. Mehta, H.S. Parihar, Kuldeep section Parihar, Mrs. Manik Karanawala (N.P.), Mrs. Nandini Gore and Anip Sachthey (N.P.) for the Respondents.
The Judgment of the Court was delivered by K. RAMASWAMY, J.
This appeal by special leave is against the judgment of the Division Bench in L.P.A. No. 114 of 1977 dated May 4, 1977 of the Gujarat High Court.
The one ques tion for decision in this appeal is whether the compliance of sub rules (3) and (4) of Rule 22 of Bombay Town Planning Rules 1955 for short 'the Rules ' is mandatory and whether the violation thereof invalidates the final town planning scheme.
In a suit laid by the appellants, the trial court found as a fact that the appellant, a partnership firm, was continuing in possession of the old premises bearing M.C. 2 No. 352/3 (S) No. 163 A 2 from the year 1940 as a directte nant of Ahmedabad Panjara Pole, Barartha, a registered trust, the owner of the plot of land of survey No. 163 situated in Ward No. 'C ' in front of town hall in Sher Kota outside Saraspur gate in the city of Ahmedabad.
The original plot consists of an area about 5 hundred to 6 hundred square yards in extent wherein ' certain structures were laid and leased out to the tenants or sub tenants for business pur poses.
The Town Planning Scheme was formulated by the munic ipal corporation exercise of its power under the Bombay Town Planning Act 1955 (Act 27 of 1956) for short 'the Act ' and reconstituted the final plot Nos. 82 and 83 out of the original plot No. 59 of the Town Planning scheme No. 16, Sher Kota Admn.
(Survey No. 163).
The Town Planning Officer did not issue special notice as required under sub rule (3) and opportunity provided for under sub rule (4) of Rule 21.
The appellants along with others filed civil suits challeng ing the action.
The appellants ' suit was decreed declaring that final plot Nos. 82 and 83 upon which the structures were standing with Municipal No. 352/3 and in occupation of the appellants is illegal, invalid and issued a permanent injunction restraining the respondent not to enforce the reconstituted plot Nos. 82 and 83 until due procedure is followed.
The learned Single Judge in First Appeal No. 669/76 allowed the appeal alongwith other bunch of appeals holding that the decision in Dungarlal Harichand vs State of Gujarat & Ors., Bench) ratio applies to the facts in this case and the appellants are not entitled to special notice required under sub rule (3) and opportunity under sub rule (4) of Rule 21.
The failure to comply therewith does not vitiate nor render the draft scheme or the final scheme a nullity.
Accordingly the learned single Judge allowed the appeal, set aside the decree of the trial court and dismissed the suit.
On Letter Patent Appeal, the Division Bench confirmed the same.
Thus this appeal.
231 Shri Mehta, the learned Senior Counsel for the respond ents claimed that special notice required under sub rule (3) and the opportunity under sub rule (4) of Rule 21 were not mandatory.
Hence they were not complied with.
Since sub rule (3) of Rule 21 is only an additional advantage, it is not dispensable.
At any rate it could be waived.
The framing of the town planning scheme and its final approval is for the benefit of the residents of the local authority as an amenity provided therein to the general public i.e. Instruc tion of General Post Office.
The interest of the general public outweighs the individual interest.
Therefore, sub rule (3) of Rule 21 is not mandatory.
A bird 's eye view of the statutory scheme and its effect on the right and interest of the owner or tenant would point poignantly that the contention is devoid of substance.
The Act as modified and adapted by the Gujarat Adaptation of Laws (State Amendments) Order 1963 as amended from time to time was to ensure that the town planning schemes are made in a proper manner and execution thereof is made effective.
The local authority has to prepare a development plan (Master Plan) for the entire area within its jurisdiction.
Section 2(2) defines development plan means a plan for the development and redevelopment or improvement of the entire area within the jurisdiction of a local authority prepared under section 3.
The local authority has been defined under section 2(4) to mean municipal corporation or municipality etc.
Section 2(5) defines owner in an inclusive lay saying that any person for the time being receiving or entitled to receive . . the rent or profits of the property in connection with which it is used.
Section 2(3) defines "plot" to mean "a continuous portion of land held by one ownership".
Section 2(9) defines "reconstituted plot" to mean a plot which is in any way altered by the making of a town planning scheme.
Section 2(10) defines "scheme" to include "a plan relating to a town planning scheme".
Section 3(1) empowers every local authority to prepare and publish in the prescribed manner a development plan and to submit it to the State Govt.
for sanction otherwise Government too is empowered to do so.
Under sub section (1) of section 4 the local authority is authorised to make a declaration of its inten tion to prepare a development plan and to despatch a copy thereof to the State Govt.
for publication in the Official Gazette.
The State Govt.
after inviting suggestions from the public within a period of two months is to publish in the Official Gazette the fact of making such declaration or intention as aforesaid.
Section 7 prescribes the particulars of the Master Plan.
Chapter III prescribes the making and the contents of the town planning scheme.
Section 18 provides that a local authority may make one or 232 more town planning schemes for the area within its jurisdic tion or in part thereof, regard being had 'to the proposal in the final development plan.
Sub section (2) provides that such town planning scheme 'may make provisions" for any of the following matters: (a) 'the laying out" or "relaying out of land", either vacant or "alreadybuilt upon"; (b) . . (omitted being irrelevant); (c) lay out of new streets or roads, constructions diversion, extension, alteration, improvement and stopping up of streets, roads and communications; (d) the construction, "alteration" and "removal of buildings", bridges and other structures; (e) "the allotment" or "reservation" of land for roads, open spaces, gardens, recreation grounds, school, market, green belts and dairies, transport facilities and public purposes of all kinds; (f) drainage inclusive of sewerage, surface or sub soil drainage and sewage disposal; (g) lighting; (h) Water supply; (i) Omitted.
(j) "imposes" sub section (2) 'conditions and restric tions" in regard to the "open space to be maintained about buildings", the percentage of building area for a plot, the number, size, height and character of buildings allowed in specified areas, the purposes to which buildings or speci fied areas may or not be appropriated, "the sub division of plots", the discontinuance of objectionable users of land in any area in reasonable periods, parking space and loading and unloading space for any building or the sizes of projec tions and advertisements signs.
(k) & (1) Omitted.
In Chapter IV under sub sec.
(1) ors.
22, the local authority may by a resolution declares its intention to make a town planning scheme in respect of the whole or any part of the land which is in the course of development 233 or likely to be used for building purposes or already built upon.
Within 21 days from the date of such declaration it shall publish it in the prescribed manner (the details are not relevant here) and shall despatch a copy thereof to the State Govt.
Under sub section (1) of section 23, within 12 months from the date of such declaration or extended period not exceeding six months, the draft scheme for the area in respect of which the declaration has been made by a notifi cation in the official Gazette, shall be approved.
Section 25 envisages specification of the particulars in the draft scheme.
Clause (a) "specifies the area", "ownership" and "tenure of each original plot"; (b) the land allotted or reserved under sub clause (a) of Clause (2) of section 18; (c) "the extent" to which it is "proposed to alter the bound aries of original plots" etc.
Under section 26 "the size and shape of every reconstituted plot" shall be determined, so as to render it suitable for building purposes etc.
with further particulars enumerated in sub sections (2) and (3) thereof.
Section 27 gives an opportunity to any person effected by such scheme to submit objections, if any, within six months from the date of publication of the draft scheme.
The local authority shall consider such objections; it is empowered to modify such scheme as it thinks fit in the light of the objection and then to submit it to the State Govt.
within four months from the date of its publication in the official Gazette as required under section 28(1).
The State Govt.
within six months from the date of the submis sion of the draft scheme by the local authority original or with modification shall sanction such scheme with or without any further modification and publish the same in the offi cial Gazette with such conditions as it may think fit.
Such scheme shall be open to the inspection of the public under section 28(3).
Under section 31(1), within one month from the date of the publication of the draft sanctioned town planning scheme, the State Govt.
shall appoint a Town Planning Offi cer who is to make final scheme while performing the duties imposed on him under section 32 in accordance with the procedure prescribed in section 32 and the Rules.
Under section 32 after notice given in the manner, it defines and demarcates the areas allotted to, or reserved, for a public purposes or purpose of the local authority and the reconstituted plots; indicate the person to be allotted of ownership in reconsti tuted plot in common and the shares of such persons, etc.
He has also to fix the difference between the total of the value of the original plot and the total of the plots in cluded in the final scheme etc.
He has also to calculate or to estimate the compensation payable on each plot used; the contribution to be levied on each plot used, or reserved for a public purpose; of use partly to the owner and partly to the public; to determine the amount of exemption, if any, from payment of the contribution of the lands occupied by religious and charitable purposes.
The contribution of the 234 costs in the final scheme is also enjoined to be calculated and to determine the liabilities etc.
as indicated in Clauses (vi) to (xi).
Clause (xii) provides for the total or partial transfer of any right in any original plot to a reconstituted plot or provide for the extinction of any right in an original plot in accordance with the provisions contained in section 68 and then has to draw plan as provided under clause (xiv) in the final scheme in accordance with the draft scheme.
Under the proviso it is empowered to make variation from the draft scheme the details of which are not necessary but suffice to state that under the proviso no substantial variation shall be made by the Town Planning Officer without the consent of the local authority and without hearing any objections which may be raised by the owner concerned.
Thereafter, the decision of the Town Plan ning Officer subject to an appeal if any, the State Govt.
under section 34, shall make it final and binds the parties.
The final scheme shall be published, after following the procedure in Rule 21(1) to (8), as per sub rule (9).
Section 54 provides that on and after the day on which the final scheme comes into force any person continuing to occupy any land which he is not entitled to occupy under the final scheme shall be ejected summarily as per the prescribed procedure and local authority shall also be entitled to remove, pull down or alter any building or other work in the area included in the scheme under section 55 after giving notice in the prescribed manner and in accordance with the procedure of the scheme.
Section 56 gives power to the State Govt.
to vary scheme on grounds of irregularity or infirmity in making the scheme.
Under section 60 every party to any proceeding before the Town Planning Officer shall be enti tled to appear either in person or by his recognized agent.
Though the challenge in the appeal is confined to a limited point, as will presently appear, we have given the conspectus of the statutory scheme to bring out the fact that the Town Planning Officer before making the final scheme and submitting it to the local authority is required to follow the procedure prescribed by the Act and the Rules.
He is entitled to alter the plots, make reconstitution of plots, determine the persons entitled to reallotment on reconstitution; to reserve the area for public purpose; determine the compensation; liability of the owner to con tribute the amount; to provide amenities etc.
At the rele vant stages, he is required to issue notice to the effected person.
The question is whether the tenant or a sub tenant is a person interested and is entitled to notice.
It is obvious that under section 105 of Transfer of Property Act, a lease creates right or an interest in enjoyment of the demised property and a tenant or a sub tenant is entitled to remain in 235 possession of the demised property until the lease is duly terminated and eviction takes place in accordance with law.
Therefore, a tenant or a subtenant in possession of a tene ment in the Town Planning Scheme is a person interested within the meaning of Rules 21(3) & (4) of the Rules.
But he must be in possession of the property on the crucial date i.e. when the town plan scheme is notified in the official gazette.
Every owner or tenant or a sub tenant, in posses sion on that date alone shall be entitled to a notice and opportunity.
Undoubtedly, the Town Planning Scheme was published on July 1, 1951.
There was inordinate delay in implementation of the scheme for 30 long years.
Though Shri Parekh, learned counsel for the appellants, contended that a better scheme could be formulated for construction of a post office upon the reconstituted plot No. 82 by leaving out the shops in question; we are not inclined to embark upon an enquiry in that regard.
The Act gives power to the local authority to have the matter investigated into and to formulate its town planning scheme; its approval is by the State Govt.; an expert officer, namely, Town Planning Officer, thereafter, is appointed to finalise the scheme with all local assist ance.
He, being an expert on the site, is entitled to look into all relevant aspects and to finalise the scheme for reconstitution of the plot or alteration of the boundaries etc.
Appellants are entitled to notice under sub rule (3) and a reasonable opportunity under sub rule (4) thereof.
Rule 21(1) to (8) lay down the procedure to be followed by the Town Planning Officer and it reads thus: 21.
Procedure to be followed by Town Planning Officer: The Town Planning Officer shall give notice to the date on which he will commence his duties and shall state therein the time, as provided in rule 30, within which the owner of any property or rights which is injuriously af fected by the making of the town planning scheme shall be advertised in one or more newspapers published in the regional language and circulating within the jurisdiction of the local authority and shall be posted in promi nent places at or near the area comprised in the scheme and at the office of the Town Planning Officer.
(2) The Town Planning Officer, shall, after the date fixed in the notice given under sub rule (1), continue to carry on his duties as far as possible on working days and during working hours.
(3) Special notice of at least three clear days shall be served upon the person interest ed in any plot or in any particular comprised in the scheme, before the Town Planning Offi cer, 236 proceeds to deal in detail with the portion of the scheme relating thereto.
Such special notice shall also be posted at the office of the Town planning, Officer.
Such notice shall be given in the cases mentioned in clause (i), (ii) and (iii) of sub section (1) of section 32 and in any other cases where any persons have not been sufficiently informed that any matter affecting them is to be considered.
(4) The Town Planning Officer shall give all persons affected by any particular of the scheme sufficient opportunity of stating their views and shall not give any decision till he has duly considered their representations, if any.
(5) If during the proceedings, it appears to the Town Planning Officer that there are conflicting claims or any difference of opin ion with regard to any part of the scheme, the Town Planning Officer shall record a brief minute in his own hand setting out the points at issue and the necessary particulars, and shall give a decision with the reasons there of.
All such minutes shall be appended to the scheme.
(6) The Town Planning Officer shall record and enter in the scheme every decision given by him under clauses (i), (ii), (iii), (vii), (x) and (xii) of sub section (1) of section 32.
The calculations and estimates required by clauses (iv), (v) , (vi), (vii), (ix), (x) and (xiii) of sub section (1) of section 32 shall be set out and recorded.
(7) The final scheme drawn up by the Town Planning Officer shall include the particulars specified in rule 17.
(8) The component parts of the scheme shall be so ar ranged that they may be readily referred to in connection with the map and plans.
(9) Omitted.
A reading of section 32 read with Rule 21(3) makes it abun dantly clear that the the Town Planning Officer is to give notice of at least 3 days in the prescribed manner to the effected persons to submit objections or views; are to be given adequate opportunity under rule 21(4) to respond and thereafter the Officer is to demarcate the area allotted to or reserved for public purposes or for purpose of the local authority and the reconstituted plots to be allotted to persons in ownership with the shares of such persons in common plot etc.
He is also entitled to alter the bound aries, allocate certain lands for public purposes, reduce the size of the existing plots or re distribute the plots to the owners etc.
in the 237 reconstituted plot.
The second stage is the calculation of the contribution and apportionment thereof among the persons liable to make contribution.
Thus the owner, tenant or a sub tenant, as the case may be, is entitled to a notice and an adequate opportunity to place on record, if he so choses, his objections or views and the same shall be considered and action taken thereafter.
It is settled law that before depriving a person of his property or imposing any further liability, the principles of natural justice require prior notice and reasonable opportunity to him to put forth his claim or objections.
Rule 21(3) speaks of special notice of at least three days duration.
It is in consonance with and in compliance of the principles of natural justice.
The legislature thus made a distinction between the general notice envisaged in sub rule (1) of Rule 21 and special notice under sub rule (3) of Rule 21, which was in addition to the former.
The purposes of clauses (3) and (4) of Rule 21 are obvious and the consequences that would ensue are self evident.
These sub rules subserve the principles of natural justice to avoid arbitrariness offending article 14 and to be just and fair procedures satisfying the mandate of article 21.
Nonobservance otherwise would render the scheme illegal.
No provision of a statute or Rule would be rendered surplusage or otiose.
The construction of the Rules by the Full Bench would, however, result in rendering subrules (3) & (4) surplusage and otiose.
Sub rule (4) postulates that Town Planning Officer shah give to a person effected by the scheme sufficient opportunity to state his views and shall not give any.
decision till he duly considers the represen tation, if any.
The issuance of notice under sub rule (3) and giving of sufficient opportunity under sub rule (4) are self evident to subserve the basic concept of fair and just procedure.
Accordingly we hold that issuance of special notice of at least three clear days duration and giving sufficient opportunity to the person effected to put forth his views of the scheme are mandatory and non compliance thereof vitiates the validity of the final scheme.
The use of 'shall ' in the given circumstances may be construed to be directory but not mandatory as contended by Shri Mehta.
The appearance of 'shall ' is not conclusive, nor per se connotes its mandatory contour.
Its meaning must be ascertained in the light of the legislative intent in its employment, the context in which it was couched, the conse quences it produces the result it effected and above all the purpose it seek to serve, would all be kept in view.
From the fact situation the courts are to cull out the intention whether the construction to be put up would subserve the purpose of the legislative intent or tend to defeat it.
Public interest, is always a paramount consideration.
Since the non compliance with issuance of notice and giving of sufficient opportunity contemplated under sub rules (3) and (4) of Rule 21 injuriously affects the right to 238 property of the owner or interest of the tenant or sub tenant, as the case may be, it shall be construed to be mandatory and not directory.
In this view it is redundant to burden the judgment with all the decisions cited by either counsel.
The principle of.
Waiver connotes issuance of notice and non response thereto.
Everyone has a right to waive an advantage or protection which law seeks to give him/her.
Undoubtedly, if a notice iS issued and no representation was made by either the owner, tenant or a sub tenant, it would amount to waive the opportunity and such person cannot be permitted to turn round, after the scheme reaches finality, to say that there is non compliance of sub rules (3) and (4) of Rule 21.
It would amount to putting premium on dilatory and dishonest conduct.
Accordingly, we are of the considered view that the judgments in Kaushikprasad Chandulal Mahadevia & Anr.
vs The Ahmedabad Municipal Corporation and Ors,, 1970 (11) G.L.R. 993 and Mohanlal Jesinghbhai vs P.J. Patel, Town Development Officer, Ahmedabad Municipal Corporation * Ors., , laid down the law correctly.
The finding of the Full Bench in the first part of its judgment to the effect that non compliance with the requirements of sub rules (3) and (4) of Rule 21 does not vitiate the scheme is not sound in law.
It is seen that the appellant has been in possession as tenant for well over half a century and, therefore, it is injuriously affected by the scheme which has the effect of terminating his possession and this adversely affects its business in the demised premises.
Since it is a running business over the years, the respondent is directed to provide an alternative premises by allotting a suitable shop within the city to the appellant; to put it in possession thereof and until then allow its occupation of demised shop.
In case the appellant does not vacate or creates any ob struction in any form in the matter of possession, it would be open to the respondent to have the appellant ejected summarily.
In this view we decline to interfere with the scheme.
The appeal is accordingly allowed to the above extent and in other respects the decree of the Courts below is upheld.
But in the circumstances parties are directed to bear their own costs.
T.N.A. Appeal allowed.
| The appellant was in possession of a plot as a tenant.
Pursuant to Town Planning Scheme framed by the respondent Corporation under the Bombay Town Planning Act, 1955 the said plot was re constituted i.e. the plot was altered by the making of the Town Planning Scheme.
The respondent was injuriously affected by the said scheme because it has the effect of terminating his possession and adversely affected his business in the demised premises.
However, before fina lising the scheme the Town Planning Officer neither issued special notice to the respondent a required under sub rule (3) nor provided him an opportunity as provide 227 under sub rule (4) of Rule 21 of the Bombay Town Planning Rules, 1955.
The appellants filed a civil suit challenging the action and the Trial Court issued a permanent injunction restraining the respondent Corporation from reconstituting the plot until due procedure was followed.
On appeal by the Corporation a Single Judge of the High Court allowed the appeal and set aside the decree of the Trial Court and dismissed the suit.
The Single Judge fol lowed the decision of the Full Bench in Dungarlal Harichand vs State of Gujarat & Ors.
holding that the appellants were not entitled to special notice under sub rule (3) and opportunity under sub rule (4) and 2that non compliance with the said rule does not vitiate the Planning Scheme.
The decision of the Single Judge was con firmed in Letter Patent appeal by the Division Bench of the High Court.
In tenant 's appeal to this Court it was contended on behalf of the Respondent Corporation that (i) compliance with sub rule 21(3) & (4) was not mandatory; (ii) Since sub rule 21 (3) is only an additional advantage It is dis pensable and could be waived; (iii) the framing of the Town Planning Scheme is for the benefit of the residents of the Local authority as an amenity provided therein to the gener al public i.e. construction of General Post Office, the interest of the general public outweighs the individual interest.
Therefore, sub rule 21(3) is not mandatory; (iv) the use of the word 'shall ' in rule 21(3) may be construed as directory and not as mandatory.
Allowing the appeal, this Court, HELD: 1.
Under Section 105 of Transfer of Property Act, a lease creates right or an interest in enjoyment of the demised property and a tenant or a sub tenant is entitled to remain in possession of the demised property until the lease is duly terminated and eviction takes place in accordance with law.
Therefore, a tenant or a sub tenant in possession of a tenement in the Town Planning Scheme is a person inter ested within the meaning of Rules 21(3) & (4) of the Rules.
But he must be in possession of the property on the crucial date i.e. when the town plan scheme is notified in the official gazette.
Every owner or tenant or a sub tenant, in possession on that date alone shall be entitled to a notice and opportunity.
Accordingly, appellants are entitled to notice under sub rule (3) and a 228 reasonable opportunity under sub rule(4) thereof.[234H;235A B;235 E] 2.
A conspectus of the statutory scheme brings out the fact that the Town Planning Officer before making the final scheme and submitting it to the local authority is required to follow the procedure prescribed by the Act and the Rules.
At the relevant stages, he is required to issue notice to the affected person.
[234 F G] 2.1 A reading of section 32 of the Bombay Town Planning Act, 1955 read with Rule 21(3) makes it abundantly clear that the Town Planning Officer is to give notice of at least 3 days in the prescribed manner to the affected persons to submit objections or views; affected persons are to be given ade quate opportunity under rule 21(4) to respond and thereafter the Officer is to demarcate the area allotted to or reserved for public purposes or for purpose of the local authority and the reconstituted plots to be allotted to persons in ownership with the shares of such persons in common plot etc.
[236 G H] 3.
Rule 21(3) speaks of special notice of at least three days duration.
It is inconsonance with and in compli ance of the principles of natural justice.
The legislature thus made a distinction between the general notice envisaged in sub rule (1) of Rule 21 and special notice under sub rule (3) of Rule 21, which was in addition to the former.
[237 C] 3.1 The purposes of clauses (3) and (4) of Rule 21 are obvious and the consequences that would ensue are self evident.
The issuance of notice under sub rule (3) and giving of sufficient opportunity under sub rule (4) are self evident to subserve the basic concept of fair and just procedure.
These sub rules subserve the principles of natu ral Justice to avoid arbitrariness offending Article 14 and to be Just and fair procedure satisfying the mandate of Article 21.
[237 C,E] 4.
It is settled law that before depriving a person of his property or imposing any further liability, the principle of natural justice require prior notice and reasonable opportunity to him to put forth his claim or objections.
[237 B] 4.1 Since the non compliance with issuance of notice and giving of sufficient opportunity contemplated under sub rules (3) and (4) of Rule 21 229 injuriously affects the right to property of the owner or interest of the tenant or sub tenant, as the case may be, it shall be construed to be mandatory and not directory.
There fore, the issuance of special notice of at least three clear days duration and giving sufficient opportunity to the person affected to put forth his views of the scheme are mandatory and non compliance thereof vitiates the validity of the final scheme.
[237 H; 238 A; 237 E] Kaushikprasad Chandulal Mahadevia & Anr.
vs The Ahmedabad Municipal Corporation and Ors., (1970) 11 G.L.R. 993; Mohanlal Jesinghbhai vs PJ.
PateI, Town Development Officer, Ahmedabad Municipal Corporation & Ors, , approved.
Dungarlal Hanchand vs State of Gujarat & Ors., , disapproved.
The appearance of 'shall ' is not conclusive, nor per se connotes its mandatory contour.
Its meaning must be ascertained in the light of the legislative intent in its employment, the context in which it was couched, the conse quences it produces the result it effected and above all the purpose it seek to serve, would all be kept in view.
From the fact situation the courts are to cull out the intention whether the construction to be put up would subserve the purpose of the legislative intent or tend to defeat it.
Public interest, is always, a paramount consideration.
[237 F G] 6.
The principle of Waiver connotes issuance of notice and non response thereto.
Everyone has a right to waive an advantage or protection which law seeks to give him.
Un doubtedly, if a notice is issued and no representation is made by either the owner, tenant or a sub tenant, it would amount to waive the opportunity and such person cannot be permitted to turn round, after the scheme reaches finality, to say that :here is non compliance of sub rules (3) and (4) of Rule 21.
It would amount to putting premium on dilatory and dishonest conduct.
[238 B C]
|
Appeal No.2929 of 1986.
From the Judgment and Order dated 20.12.1985 of the Delhi High Court in C.W.P. No. 3120 of 1985 .
K.R. Nagaraja, R.S. Hegde and Mrs. Sushila for the Appel lant.
G.Venkatesh Rao and Ms. A. Subhashini for the Respondents.
The Judgment of the Court was delivered by KASLIWAL, J.
This appeal by special leave is directed against the order of the High Court of Delhi dated 20th December, 1985 dismissing in 140 limine the writ petition filed by the appellant against the order of the Lt. Governor, Delhi dated 8th November, 1985.
This Court by order dated 25th August, 1986 granted special leave limited to the following question.
"One of the questions raised by the learned counsel before us is whether the samples taken from 3 out of 80 bags of Khandsari could be treated as representative samples.
He has cited before us a judgment of the High Court where it has been held that they cannot be so treated.
We grant special leave limited to the question stated above.
We find no force in other Submissions.
In order to decide the above question we would mention facts in brief necessary in this regard.
In a raid in the business premises of the appellant on 28th February, 1980, the following bags of Khandsari (sugar) were seized in the presence of Shri Ram Niwas, sole proprie tor of the firm.
Khandsari 53 bags Khandsari (dust) 18 bags Khandsari (sulphur) 9 bags Total 80 bags Two samples each from all the three varieties of Khandsari were taken and three samples of sugar were sent for analysis to the public analyst.
The public analyst reported that the samples of sugar contained Sucrose 93.5%, 94.2% and 97.16% respectively.
The Collector passed an order confis cating the entire goods as the same were kept in contraven tion of the provisions of Delhi Sugar Dealers Licensing Order, 1963 (in short the 'Licensing Order ').
It is not necessary to mention the details of this order of confisca tion because the matter had gone upto the High Court and the case was ultimately remanded by the High Court of Delhi by order dated 27th March, 1984.
The High Court directed the Collector for denovo determination of the proceedings under Section 6A of the , in ac cordance with law.
The Collector (North) after remand gave a fresh show cause notice to the appellant on 21st May, 1984 setting forth the brief sequence of the proceedings and asking him to show cause as to why the entire stock of 80 bags of sugar seized in the case, be not confiscated to the State? The appellant appeared and Fred a written reply to the show cause notice.
The case was then heard at length and the Collector again passed an order confiscating the entire seized stock of 80 quintals of sugar.
An appeal fried against the aforesaid order was dismissed by the Lt. Gover nor, Delhi by order dated 8th November, 1985.
A writ peti tion filed against the order of the Lt. Governor was dis missed in limine by the High Court by order dated 20th December, 1985.
Hence this appeal.
141 Clause 2 (f) (i) of the Licensing Order defines sugar as under.
"Sugar means any form of sugar including Khandsari sugar containing more than 90% of Sucrose." Under the Licensing Order a person was entitled to keep only upto a maximum of 10 quintals of sugar, without a licence.
Admittedly the appellant was not having any li cence.
It was contended on behalf of the appellant that in order to prove that Khandsari was sugar under the Licensing Order, it was necessary to prove that it contained more than 90% of Sucrose.
It was submitted that the prosecution only took two samples each out of the three bags from the entire lot of 80 bags of Khandsari and this could at the most show that only 3 quintals of Khandsari was sugar and the same being less than 10 quintals, there was no violation of the Licensing Order.
It was submitted that it was necessary for the prosecution to prove that the appellant was in posses sion of more than 10 quintals of sugar and this could only be done by taking samples from all the bags of Khandsari if it wanted to show that other bags of Khandsari also con tained more than 90% bags of Sucrose.
It was also submitted that the possibility cannot be excluded that those bags from which samples were not taken, did not contain Sucrose more than 90%.
It was argued that the burden lay on the prosecu tion to prove that more than 10 quintals of sugar was found in the premises and then alone any order of confiscation could have been passed.
In support of the above contention reliance was placed on a judgment of learned Single Judge of Delhi High Court in Suraj Bhan Sharad Kumar vs Delhi Admin istration (Crl.
Revision No. 104 of 1980 decided on 25th September, 1980).
In the facts and circumstances of the present case the contention raised on behalf of the appellant has no force.
The admitted facts of the case are that at the time of seizure of the goods Shri Ram Niwas was present and the samples were taken in his presence.
Two samples each were taken separately from three different varieties of Khandsari at the instance of Shri Ram Niwas himself.
It was proved by the public analyst that all the three samples contained Sucrose more than 90%.
It was nowhere disputed nor suggest ed by Shri Ram Niwas at the time of taking samples or there after that the samples taken would not represent the correct quantity of Sucrose in those bags of Khandsari from which samples were not taken.
Shri Ram Niwas had filed a reply in writing, to show cause notice, but in such reply also no objection was taken as sought to be raised now.
In the facts and circumstances mentioned above if the Collector was satisfied that 80 quintals of sugar were found in the prem ises without licence.
it cannot be said that the order of confiscation passed by 142 the Collector was arbitrary or based on no material.
The decision of the learned Single Judge of Delhi High Court in Suraj Bhan Sharad Kumar vs Delhi Administration (supra) is totally distinguishable as in that case the dealer was having licence and the prosecution failed to prove that he was in possession of more than 1000 quintals of sugar.
In the case in hand before us the facts are entirely different.
As already mentioned above Only two samples each were taken from the three varieties, and all the three samples were found to contain more than 90% Sucrose.
A large quanti ty of 80 quintals of Khandsari was found in the premises, whereas only 10 quintals of sugar was allowed to be kept without licence.
Thus it was quite reasonable for the col lector to hold that there were more than 10 quintals of Khandsari having more than 90% Sucrose and this violated the Licensing Order.
Thus in the facts and circumstances of the present case we are fully satisfied that the Collector had enough materi al for his satisfaction that there was violation of the Licensing Order and there was sufficient justification for him to pass the order of confiscation.
The order of confis cation passed by the Collector is maintained and the appeal is dismissed.
During the course of arguments learned counsel for the appellant submitted that though a criminal prosecution is pending against the appellant Ram Niwas but no effective progress has been made in the case except filing of challan.
It appears to us that the State is not serious in pursuing the criminal proceedings and even otherwise more than 10 years have already elapsed to the alleged commission of the offence.
It would be against the interest of justice to further continue any criminal proceedings in the case.
We, therefore, direct to drop the criminal proceedings launched and pending against the appellant Shri Ram Niwas in the present matter.
T.N.A. Appeal dismissed.
| Under the provisions of Delhi Sugar Dealers Licensing Order 1963, a person was entitled to keep only upto a maxi mum of 10 quintals of sugar without licence and sugar means any form of sugar including Khandsari sugar containing more than 90% of Sucrose.
The appellant 's business premises were raided and 80 bags of sugar viz. 53 bags of Khandsari, 18 bags of Khand sari (dust) and 9 bags of Khandsari (sulphur) were seized in his presence.
Two samples each from all the three varieties of Khandsari were taken and three samples of sugar were sent for analysis to the public analyst, who reported that the samples contained sucrose 93.5%, 942% and 97.16% respective ly.
The Collector passed an order confiscating the entire seized stock of sugar as the same was kept without any licence.
Against the order of the Collector, the appellant filed an appeal before the Lt. Governor, Delhi which was dismissed.
The writ petition filed against the order of Lt. Governor was dismissed in limine by the High Court.
In appeal to this Court, it was contended on behalf of the appellant that (a) only two samples each out of the three bags were taken from the entire lot of Khandsari and this could at the most show that only three quintals of Khandsari was 'sugar ' and the same being less than 10 qtls.
, there was no violation of the Licensing Order: (b) it was necessary for the prosecution to prove that the appellant was in possession of more than 10 quintals of sugar and this could only be done by taking samples from all the bags of Khand sari if it wanted to show that other bags of Khandsari also contained more than 90% of sucrose; (c) the possibility cannot be excluded that those bags from which samples were not taken, did not contain sucrose more than 90%.
Dismissing the appeal, this Court, 139 HELD: A large quantity of 80 quintals of Khandsari was found in the appellant 's premises, whereas only 10 quintals of sugar was allowed to be kept without licence.
At the time of seizure of the goods two samples each were taken sepa rately from three different varieties of Khandsari at the instance of the appellant.
It was proved by the public analyst that all the three samples contained sucrose more than 90%.
it was not disputed by the appellant at the time of taking samples or thereafter that the samples taken would not represent the correct quantity of sucrose in those bags of Khandsari from which samples were not taken.
In his written reply to the show cause notice issued by the Collec tor no such objection was raised by the appellant.
In the circumstances of the ease if the Collector was satisfied that 80 quintals of sugar was found in the appellant 's premises without licence, it cannot be held that the order of confiscation passed by the Collector was arbitrary or based on no material.
It was quite reasonable for the Col lector to hold that there was more than 10 quintals of Khandsari having more than 90% sucrose and this violated the Sugar Licensing Order.
Therefore, there was sufficient justification for him to pass the order of confiscation.
Accordingly, the order of confiscation passed by the Collec tor is maintained.
[142 C, 141 F H, 142A C, D] Suraj Bhan Sharad Kumar vs Delhi Administration Criminal Revision No. 104 of 1980 decided on 25th September, 1980 by Delhi High Court distinguished.
In the instant case more than 10 years have already elapsed to the alleged commission of the offence.
Therefore, it would be against the interests of justice to further continue any criminal proceedings in the case.
Accordingly, it is directed that the criminal proceedings launched and pending against the appellant should be dropped.
[142 E]
|
Appeal No. 3698 of 1991.
From the Judgment and Order dated 1.11.1990 of the Bombay High Court in Chamber Summons No. 838 of 1990 in Execution Application No. 242 of 1989 in Suit No. 309 of 1972.
Arun Jaitley, R.F. Nariman, R. Karanjawala, Mrs. M. Karanjawala, Ms. Nandini Gore and Ms. Aditi Choudhary for the appellant.
191 V.A. Bobde, U.A. Rao and B.R. Agarwala for the respondents.
The Judgment of the Court was delivered by THOMMEN, J.
Leave granted.
The appellant who is the defendant in Suit No. 309 of 1972 challenges the judgment of the Bombay High Court in Chamber Summons No. 838 of 1990 in Execution Application No. 242 of 1989 whereby the High Court held that the decree made against the defendant in terms of a compromise in writing and signed by counsel representing the parties, but not signed by the parties in person, was valid and binding on the parties, and in the absence of any challenge against the order made under Order XXI rule 23, Civil Procedure Code allowing execution of the decree, the defendant was no longer entitled to resist execution by recourse to Chamber Summons.
The High Court found that the decree was valid and in accordance with the provisions of Order XXIII rule 3, as amended by the C.P.C. (Amendment) Act, 1976.
The only question which arises for consideration is as regards the construction of Order XXIII rule 3, C.P.C. We shall read this provision, as amended by the C.P.C. (Amend ment Act, 19%, bracketing the newly added words: 23., R. 3 Compromise of suit where it is proved to the satisfaction of the court that a suit has been ad justed wholly or in part by any lawful agreement or compro mise, (in writing and signed by the parties) or where the defendant satisfied the plaintiff in respect of the whole or any part of the subject matter of the suit, the Court shall order such agreement, compromise or satisfaction to be recorded, and shall pass a decree in accordance therewith [so far as it relates to the parties to the suit, whether or not the subject matter of the agreement, compromise or satisfaction is the same as the subject matter of the suit: [Provided that where it is alleged by one party and denied by the other that an adjustment or satisfaction had been arrived at, the court shall decide the question; but no adjournment shall be granted for the purpose of deciding the question, unless the court, for reasons to be recorded, thinks fit to grant such adjournment.] [Explanation.
An agreement or compromise which is void or voidable under the , shall not be 192 deemed to be lawful within the meaning of this rule.
Mr. Arun Jaitley, appearing for the appellant, says that the High Court was wrong in holding that, notwithstanding the amendment of 1976 inserting the words 'in writing and signed by the parties ', it was still sufficient if the terms of compromise were reduced to writing and signed by counsel representing the parties, and not necessarily by the parties in person.
Any such construction would do violence to the provision as amended in 1976.
He says that the object of the amendment was to provide that no agreement or compromise adjusting wholly or in part a pending suit was valid unless such compromise was evidenced in writing and signed by the parties in person.
The expression 'parties ', he contends, means only parties and none else.
To read 'counsel ' into that expression, as done by the High Court, is to presume that the legislature failed to say what it intended to say and to attempt to supply the omission by correcting the deficiency.
This cannot be done.
The legislature, on the other hand, made its intention explicit by providing that an agreement or compromise would form the basis of a decree only if the consensus was reduced to writing and signed by the parties.
Neither an agent nor a pleader could act as a substitute for a party to sign the agreement or compromise.
A decree based on a compromise not signed by the parties in person is a nullity and is incapable of execution.
Mr. Jaitley submits that if the legislature had intended to authorise counsel independently to sign the memorandum containing the terms of settlement, and allow a decree to be passed in terms thereof, the legislature would have said so by further adding the words 'or their counsel '.
In the absence of any such expression, it cannot be presumed that the legislature intended more than what it said and that 'party ' included counsel.
This argument, Mr. Jaitley says, is fortified by the fact that for the first time the legis lature has allowed a decree to be passed on the basis of compromise relating to matters concerning the parties, but extending beyond the subject matter of the suit.
Such a wide power to compromise was most unlikely to be left in the hands of counsel, and it is, therefore, necessary to read the provision narrowly so as to read it as it now stands by adopting a strictly literal construction.
Mr. V.A. Bobde appearing for the respondents, on the other hand, submits that it was always understood that the expression 'party ' included his pleader in matters relating to appearance in court, and his counsel in the cause, there fore, has express or implied authority, unless specifically withdrawn or limited by the party, to represent him in court and do 193 whatever is necessary in connection with the conduct of his suit including adjustment of the suit by agreement or com promise.
In the absence of any such limitation or restric tion of his authority, counsel appearing for a party is fully competent to put his signature to the terms of any compromise upon which a decree can be passed in proper compliance with the provisions of Order XXIII rule 3 as it now stands.
Any such decree, he says, is perfectly valid.
Mr. Bobde submits that in the absence of express words to the contrary, 'party ', in the context of proceedings in court, must necessarily include his recognised agent or pleader.
This construction is warranted by the provisions of Order III, C.P.C. That this has been the consistent view adopted by courts in the construction of the expression 'party ' in the context of proceedings in court is clear from the decisions of courts, and it is most unlikely that the legislature would have, by the amendment of 1976, limited the scope of 'party ' so as to exclude the traditional role of the recognised agent or counsel.
The legislative drafts men are presumed to know the law of the land as it stood then, and, if they had intended to deviate therefrom, they would have explicitly stated so rather than leave it to future judicial construction.
The Statement of Objects and Reasons for the amendment, he says, does not support the view canvassed by the appellant.
Sub clause (iii) of clause 77 of the Statement of Ob jects and Reasons concerning the C.P.C. (Amendment) Act, 1976 states: is provided that an agreement or compromise under rule 3 should be in writing and signed by the parties.
This is with a view to avoiding the setting up of oral agreements or compromises to delay the progress of the suit. . . . . . . .
In view of the words 'so far as it re lates to the suit ' in rule 3, a question arises whether a decree which refers to the terms of a compromise in respect of matters beyond the scope of the suit is executable or whether the, terms of the decree relating to the matters outside the suit can be enforced only by a separate suit.
The amendment seeks to clarify the position.
" The Statement of Objects and Reasons indicates that the amendment is intended to clarify that a compromise has to be in writing signed by the parties to avoid delay which might arise from the uncertainties of oral agreements.
The amendment has also clarified that the terms of compromise are permitted to include all matters relating to the parties to the 194 suit even if such matters fall outside the subject matter of the suit.
The legislature has thus sought to attain certainty and clari ty and widen the scope of compromise.
The fundamental question is, in the absence of any contrary indication in the Statement of Ob jects and Reasons, can it be stated that the legislature has intended to exclude a pleader or a recognised agent from the expression 'party ' when it has always been understood, as explicitly stated in Order 1II rule 1, that appearance of a party in court may be in person or by his recognised agent or pleader.
In the absence of any provision to the con trary, can it be stated that the legislature, when using the expression 'parties ' in rule 3 of Order XXIII, limited it to parties in person and excluded their duly recognised agents or counsel ? The role of counsel in Court in England is described in Halsbury 's Laws of England, 4th Ed. Vol.3, paras 1181 & 1183, as follows: "1181.
Counsel 's authority.
At the trial of an action, counsel 's authority extends, when it is not expressly limited, to the action and all matters incidental to it and to the con duct of the trial, such as withdrawing the record, challenging a juror, calling or not calling witnesses, cross examining or not cross examining witnesses, consenting to a reference to arbitration, a compromise, or a verdict, undertaking to appear, or, on the hearing of a motion for a new trial, consent ing to a reduction of damages.
The client 's consent is not needed for a matter which is within the ordinary authority of counsel: thus if, in court, in the absence of the client, a compromise or settlement is entered into by counsel whose authority has not been expressly limited, the client is bound.
If an action is settled in court in the presence of the client, his consent will be inferred, and he will not be heard to say that he did not understand what was going on . . " The implied authority of counsel in England is, howev er, confined to matters failing within the subject matter of the suit.
In the absence of express authority, counsel cannot enter into compromise on collateral matters.
"The authority of counsel to compromise is limited to the issues in the action: a compro mise by counsel affecting collateral matters will not bind the client, unless he expressly assents; and it may be that a barrister has no authority to reach a binding settlement or compromise out of court. "(Halsbury ibid) 195 A compromise is, however, not binding and is liable to be set aside in circumstances which would invalidate agree ments between the parties.
"A compromise by counsel will not bind the client, if counsel is not apprised of facts the knowledge of which is essential in refer ence to the question on which he has to exer cise his discretion, for example that the terms accepted had already been rejected by the client.
Where counsel enters into a com promise in intended pursuance of terms agreed upon between the clients, and, owing to a misunderstanding, the compromise fails to carry out the intentions of one side, the compromise does not bind the client, and the court will allow the consent to be withdrawn.
Where, acting upon instructions to compromise, counsel consents under a misunderstanding to certain terms which do not carry into effect the intentions of counsel and the terms are thought by one party to the more extensive than the other party intends them to be, there is no agreement on the subject matter of the compromise, and the court will set it aside.
But a person who has consented to a compromise will not be allowed to withdraw his consent because he subsequently discovers that he has a good ground of defence? (Halsbury, ibid, para 1183).
Counsel 's consent in certain circumstances such as duress or mistake may not bind the client.
"If counsel 's consent is given under duress, the client will not be bound, as when counsel, acting for a client alleged to be of unsound mind but believing him to be of sound mind, consented to certain terms for the withdrawal of Court of Protection proceedings against the client because of his fear of the inconven ience and iII health likely to arise to the client from confinement.
A compromise or order made by consent by counsel for a minor or other person under disability is not binding on the client, unless it is sanctioned by the court as being for the benefit of the client.
The court cannot, however, enforce a compromise on a minor against the opinion of his counsel." (Halsbury, ibid) One of the early English authorities on this point is Pa tience Swinfen 196 vs Lord Chelmsford ; at 922; S.C. 29 L. J. (E.x) 382.
Delivering the judgment of the Court, Pollock, C.B., stated: ".
We are of opinion, that although a coun sel has complete authority over the suit, the mode of conducting it, and all that is inci dent to it such as withdrawing the record, withdrawing a juror, calling no witnesses, or selecting such as,.
in his discretion, he thinks ought to be called, and other matters which properly belong to the suit and the management and conduct of the trial we think he has not, by virtue of his retainer in the suit, any power over matters that are collat eral to it . . ".
In Matthews vs Munster, at 144, Lord Esher M.R. stated: .
The instances that are given shew that one of the things that counsel may do, so long as the request of the client to him to act as advocate is in force, is to assent to a verdict for a partic ular amount and upon certain conditions and terms; and the consent of the advocate to a verdict against his client and the withdrawing of imputations is a matter within the expres sion 'conduct of the cause and all that is incidental to it. ' If the client is in Court and desires that the case should go on and counsel refuses, if after that he does not withdraw his authority to counsel to act for him, and acquaint the other side with this, he must be taken to have agreed to the course proposed.
This case is a still stronger one, for the client was not present, and it is not pretended that he ever withdrew his authority to counsel, but he now comes forward and asks that because he does not like what has been done it should be set aside as between himself and his opponent.
This the Court will not do, and this appeal must be dismissed.
" See also Rondel vs Worsley, [1965] 1 Q. B. 443, 502, Per Lord Denning M.R.
If this is the position of counsel in England, Scotland and Ireland, is his position the same in India in the con duct of cases in Court ? That the answer is affirmative, there is high judicial authority.
In (Babu) Sheonandan Prasad Singh & Ors.
vs Hakim Abdul Fateh Mohammad Reza & .Anr., AIR 1935 PC 119, 121, Lord Atkin, speaking for 197 the Board, states: ".
As was laid down by this Board in 57 IA 133 (AIR 1930 PC 158) counsel in India have the same implied authority to compromise an action as have counsel in the English Courts.
But if such authority is invoked to support an agreement of compromise the circumstances must be carefully examined.
In the first instance the authority is an actual authority implied from the employment as counsel.
It may however be withdrawn or limited by the client: in such a case the actual authority is destroyed or restricted; and the other party if in igno rance of the limitation could only rely upon ostensible authority.
In this particular class of contract however the possibility of suc cessfully alleging ostensible authority has been much restricted by the authorities such as and which make it plain that if in fact counsel has had his authority withdrawn or restricted the Courts will not feel bound to enforce a com promise made by him contrary to the restric tion even though the lack of actual authority is not known to the other party.
" Lord Atkin emphasises the need to rely on express au thority, rather than implied authority, particularly because of easier and quicker communication with the client.
He says: ".
In their Lordships ' experience both in this country and in India it constantly hap pens, indeed it may be said that it more often happens, that counsel do not take upon them selves to compromise a case without receiving express authority from their clients for the particular terms; and that this position in each particular case is mutually known between the parties.
In such cases the parties are relying not on implied but on an express authority given adhoc by the client . . ".
(ibid, page 121) However, collateral matters were understood to be beyond the scope of compromise.
Lord Atkin says: "If the facts are as their Lordships assume, the matter compromised was in their opinion collateral to the suit and not only would it not be binding on the parties, but it would in any case be a matter in respect of which the Court in pursuance of 198 O. 23, R. 3, should not make a decree." (Page 122) Referring to the role of counsel in India and comparing him with his counterpart in Britain, Lord Atkin in Sourendra Nath Mitra & Ors.
vs Tarubala Dasi, AIR 1930 PC 158, says: " . .
Their Lordships regard the power to compromise a suit as inherent in the position of an advocate in India.
The considerations which have led to this implied power being established in the advocates of England, Scotland and Ireland, apply in equal measure to India.
It is a power deemed to exist be cause its existence is necessary to effectuate the relations between advocate and client, to make possible the duties imposed upon the advocate by his acceptance of the cause of his client.
" Counsel 's power to compromise is vital to the defence of his party while engaged on his behalf in the thick of a legal battle in Court.
Lord Atkin observes: "The advocate is to conduct the cause of his client to the utmost of his skill and under standing.
He must in the interests of his client be in the position, hour by hour, almost minute by minute, to advance this argument, to withdraw that; he must make the final decision whether evidence is to be given or not on any question of fact; skill in advocacy is largely the result of discrimina tion.
These powers in themselves almost amount to powers of compromise: one point is given up that another may prevail.
But in addition to these duties, there is from time to time thrown upon the advocate, the responsible task of deciding whether in the course of a case he shall accept an offer made to him, or on his part shall make an offer on his client 's behalf to receive or pay something less than the full claim or the full possible liability.
Often the decision must be made at once . . "(ibid, page 161) Emphasising the apparent authority of counsel, and the raison d 'etre of such authority being the paramount interest of his client, and not an appandage of office, Lord Atkin states: "The apparent authority is derived from the known existence of the implied authority . . 199 First, the implied authority of counsel is not an appandage of office, a dignity added by the Courts to the status of barrister or advocate at law.
It is implied in the inter ests of the client, to give the fullest bene ficial effect to his employment of the advo cate.
Secondly, the implied authority can always be countermanded by the express direc tions of the client.
No advocate has actual authority to settle a case against the ex press instructions of his client.
If he con siders such express instructions, contrary to the interests of his client, his remedy is to return his brief.
Their Lordships are unable to see why the above considerations should not apply to an advocate in India, whose duties to his client in the conduct of a suit in no wise differ from those of advocates in England, Scotland and Ireland . . ".
(Page 161) Counsel 's role in entering into a compromise has been traditionally understood to be confined to matters within the scope of the suit.
However, a compromise decree may incorporate not only matters failing within the subject matter of the suit, but also other matters which are collat eral to it.
The position before the amendment in 1976 was that, in respect of the former, the decree was executable, but in respect of the latter, it was not executable, though admissible as judicial evidence of its contents.
Referring to section 375 of the Code of Civil Procedure (Act XIV of 1882), (similar to Order XXIII rule 3 CPC as it stood prior to the amendment of 1976), Lord Buckmaster, in Hemanta Kumari Debi vs Midnapur Zamindari Co., AIR 1919 PC 79, states: " . .
In the first place, it is plain that the agreement or compromise, in whole and not in part, is to be recorded, and the decree is then to confine its operation to so much of the subject matter of the suit as is dealt with by the agreement . . although the operative part of the decree would be properly confined to the actual subject matter of the then existing litigation the decree taken as a whole would include the agreement.
This in fact is what the decree did in the present case.
It may be that as a decree it was incapable of being executed outside the lands of the suit, but that does not prevent its being received in evidence of its con tents".
(Page 81) In Ram Juwan vs Devendra Nath Gupta, AIR 1960 Madhya Pradesh 200 280, the High Court states: "Where a consent decree contains terms that do not relate to the suit . . such terms cannot be enforced in execution of the decree but they may be enforced as a contract by a separate suit".
(Page 282) See also Vishnu Sitaram Auchat vs Ramachandra Govind Joshi, AIR 1932 Bombay 466 and Jasimuddin Biswas vs Bhuban Jelini, ILR 34 Calcutta 456.
In Ganganand Singh & Ors.
vs Rameshwar Singh Bahadur & Anr., , the High Court points out that a consent decree does not stand on a higher footing than a contract between the parties.
The Court always has the jurisdiction to set aside a consent decree upon any ground which will invalidate an agreement between the parties.
In the absence of any such ground, the consent decree is bind ing on the parties.
Courts in India have consistently recognised the tradi tional role of lawyers and the extent and nature of their implied authority to act on behalf of their clients.
Speak ing for a Full Bench of the Kerala High Court in Chengan Souri Nayakam vs A.N. Menon, AIR 1968 Kerala 213, K.K. Mathew, J. (as he then was) observed: "The construction of a document appointing an agent is different from the construction of a vakalat appointing counsel.
In the case of an agent the document would be construed strictly and the agent would have only such powers as are conferred expressly or by necessary impli cation.
In the case of counsel the rule is otherwise because there we are dealing with a profession where well known rules have crys tallised through usage.
It is on a par with a trade where the usage becomes an additional term of the contract, if not contrary to the general law or excluded by express agreement." (p.215).
About the special position of the advocate, the learned Judge stated: Counsel has a tripartite relationship; one with the pub lic, another with the court, and the third with his client.
That is a unique feature.
Other professions or callings may include one or two of these relationships but no other has the triple duty.
Counsel 's duty to the public is unique in that he has to accept all work from all clients in courts in which he holds himself out 201 as practicing, however, unattractive the case or the client." (p. 216) See also Jiwibai vs Ramkumar Shriniwas Murarka Agarwala, AIR 1947 Nagpur 17; Govindammal vs Marimuthu Maistry & Ors., AIR 1959 Mad. 7 and Laxmidas Ranchhoddas & Ors.
vs Savitabai Hargovindas Shah, AIR 1956 Born.
These principles were affirmed by this Court in Jamila bai Abdul Kadar vs Shankerlal Gulabchand & Ors.
[1975] Supp.
SCR 336.
Referring to a number of decisions on the point, V.R. Krishna Iyer, J. observes: " . .
Those who know how courts and counsel function will need no education on the jurisprudence of lawyer 's position and powers.
Of course, we hasten to enter a caveat.
It is perfectly open to a party, tike any other principal, to mark out in the vakalat or by particular instructions forbidden areas or expressly withhold the right to act in sensi tive matters, the choice being his, as the master.
If the lawyer regards these fetters as inconsistent with his position, he may refuse or return the brief.
But absent speaking instructions to the contrary, the power to act takes in its wings the right and duty to save a client by settling the suit if and only if he does so bona fide in the interests and for the advantage of his client . . "(Page 346) See also Monoharbahal Colliery Calcutta vs K.N. Mishra & Ors., AIR 1975 SC 1632.
After the amendment of 1976, a consent decree, as seen above, is executable in terms thereof even if it comprehends matters falling outside the subject matter of the suit, but concerning the parties.
The argument of the appellant 's counsel is that the legislature has intended that the agreement or compromise should be signed by the parties in person, because the responsibility for compromising the suit, including matters falling outside its subject matter, should be borne by none but the parties themselves.
I1 this contention is valid, the question arises why the legislature has, presumably being well aware of the consistently fol lowed practice of the British and Indian Courts, suddenly interfered with the time honoured role of lawyers in the conduct of cases without specifically so stating, but by implication? Can the legislature be presumed to have funda mentally altered the position of counsel or a recognised agent, as traditionally understood in the system of law and practice followed in India and other 'common law countries ' without expressly and directly so stating? There is, 202 no indication in preparatory work such as the 54th Report of the Law Commission dated 6.2.1973 or in the Statement of Objects and Reasons or in the words employed by the legisla ture that the concept of 'agents and pleaders ' of Order III, C.P.C. was in any manner altered.
There is no warrant for any such presumption.
It is a rule of legal policy that law should be altered deliberately rather than casually.
Legislature does not make radical changes in law by a sidewind, but only by measured and considered provisions '.
(Francis Bennion 's Statutory Interpretation, Butterworth, 1984, para 133).
As stated by Lord Devlin in National Assistance Board vs Wilkinson, "It is a well established principle of con struction that a statute is not to be taken as effecting a fundamental alteration in the general law unless it uses words that point unmistakably to that conclusion." Statutes relating to remedies and procedure must receive a liberal construction 'especially so as to secure a more effective, a speedier, a simpler, and a less expensive administration of law '.
See Crawford 's Statutory Construc tion, para 254.
The object of the amendment was to provide an appropriate remedy to expedite proceedings in Court.
That object must be borne in mind by adopting a purposive con struction of the amended provisions.
The legislative inten tion being the speedy disposal of cases with a view to relieving the litigants and the Courts alike of the burden of mounting arrears, the word 'parties ' must be so construed as to yield a beneficent result, so as to eliminate the mischief the legislature had in mind.
There is no reason to assume that the legislature in tended to curtail the implied authority of counsel, engaged in the thick of proceedings in court, to compromise agree on matters relating to the parties, even if such matters exceed the subject matter of the suit.
The relationship of counsel and his party or the recognised agent and his principal is a matter of contract; and with the freedom of contract gener ally, the legislature does not interfere except when war ranted by public policy, and the legislative intent is expressly made manifest There is no such declaration of policy or indication of intent in the present case.
The legislature has not evinced any intention to change the well recognised and universally acclaimed common law tradition of an ever alert, independent and active.
Bar with freedom to manoeuvre with force and drive for quick action in a battle of wits typical of the adversarial system of oral hearing which is in sharp contrast to the 203 inquisitorial traditions of the 'civil law ' of France and other European and Latin American countries where written submissions have the pride of place and oral arguments are considered relatively insignificant.
(See Rene David, English Law and French Law Tagore Law Lectures, 1980). 'The civil law ' is indeed equally efficacious and even older, but it is the product of a different tradition, culture and language and there is no indication,.
whatever, that Parliament was addressing itself to the task .of assim ilating or incorporating the rules and practices of that system into our own system of judicial administration.
The Indian legal system is the product of history.
It is rooted in our soil; nurtured and nourished by our culture, languages and traditions; fostered and sharpened by our genius and quest for social justice; reinforced by history and heritage: it is not a mere copy of the English common law; though inspired and strengthened, guided and enriched by concepts and precepts of justice, enquiry and good con science which arc indeed the hallmark of the common law.
In the words of M.C. Setalvad: " . . the common law of England with its statutory modifications and the doctrines of the English courts of equity has deeply coloured and influenced the laws and the system of judicial administration of a whole sub continent inhabited by nearly four hundred million people.
The law and jurisprudence of this vast community and its pattern of judi cial administration are in many matters dif ferent from those of England in which they had their roots and from which they were nurtured.
Yet they bear the unmistakable impress of their origin.
The massive structure of Indian law and jurisprudence resembles the height, the symmetry and the grandeur of the common and statute law of England.
In it one sees English law in the distant perspective of a new atmosphere and a strange clime.
" Speaking of the common law in the wider sense, the learned author continues: ".
But the English brought into India not only the mass of legal rules strictly known as the common law but also their traditions, outlook and techniques in estab lishing, maintaining and developing the judi cial system.
When, therefore, I speak of the common law in India I have in view comprehen sively all that is of English origin in our system of law.
In that wide meaning 204 the expression will include not only what in England is known strictly as the common law but also its traditions, some of the princi ples underlying the English statute law, the equitable principles developed in England in order to mitigate the rigours of the common law and even the attitudes and methods pervad ing the British system of the administration of justice." The Common Law in India, 1960 The Hamlyn Lectures, Twelth Series, pp.1 4.
After the attainment of independence and the adoption of the Constitution of India, judicial administration and the constitution of the law courts remained fundamentally un changed, except in matters such as the abolition of appeals to the Privy Council, the constitution of the Supreme Court of India as the apex court, the conferment of writ jurisdic tion on all the High Courts, etc.
The concept, structure and organisation of Courts, the substantive and procedural laws, the adversarial system of trial and other proceedings and the function of judges and lawyers remained basically unaltered and rooted in the common law traditions in contra distinction to those prevailing in the civil law or other systems of law.
In our own system of judicial administration, if strains have developed and cracks have appeared by the stresses and 2pressures of the time; if aberrations have become too obvious to be ignored or too deeprooted to be corrected by an internal mechanism; if the traditional role of the legal profession requires urgent legislative scrutiny with a view to remedying the defects and strengthening and safeguarding the system; it is a matter exclusively for Parliament to consider; but the amendment in question is not addressed to that purpose.
Aberrations there always have been in every system of administration; but whether they are merely peripheral or transient in character mere ripples on a placid pool or symptomatic of deeper malady requiring structural modifica tion by prompt legislative intervention is a matter of grave significance for the jurists, sociologists and political scientists to ponder over.
So long as the system of judicial administration in India continues unaltered, and so long as Parliament has not evinced an intention to change its basic character, there is no reason to assume that Parliament has, though not express ly, but impliedly reduced counsel 's role or capacity to represent his client as effectively as in the past.
On a matter of such vital importance, it is most unlikely that Parliament would have resorted 205 to implied legislative alteration of counsel 's capacity or status or effectiveness.
In this respect, the words of Lord Atkin in Sourendra (supra) comparing the Indian advocate with the advocate in England, Scotland and Ireland, are significant: There are no local conditions which make it less desirable for the client to have the full benefit of an advocate 's experience and judg ment.
One reason, indeed, for refusing to imply such a power would be a lack of confi dence in the integrity or judgment of the Indian advocate.
No such considerations have been or indeed could be advanced, and their Lordships mention them but to dismiss them . . (Page 161) Similar is the view expressed by the Rajasthan High Court in Mohan Bai vs Jai kishan, AIR ; Smt.
Mohan Bai vs Smtjai kishan & Ors., AIR and by the Gujarat High Court in Nadirsha Hirji Baria & Ors.
vs Niranjankumar alias Nireshkumar Dharamchand Shah & Ors.
, A contrary view has been ex pressed by the Andhra Pradesh High Court in Kesarla Raghu ram.
vs Dr. Narsipalle Vasundara, AIR 1983 Andhra Pradesh 32, and it does not commend itself to us.
We may, however, hasten to add that it will be prudent for counsel not to act on implied authority except when warranted by the exigency of circumstances demanding immedi ate adjustment of suit by agreement or compromise and the signature of the party cannot be obtained without undue delay.
In these days of easier and quicker communication, such contingency may seldom arise.
A wise and careful coun sel will no doubt arm himself in advance with the necessary authority expressed in writing to meet all such contingen cies in order that neither his authority nor integrity is ever doubted.
This essential precaution will safeguard the personal reputation of counsel as well as uphold the pres tige and dignity of the legal profession.
Considering the traditionally recognised role of counsel in the common law system, and the evil sought to be remedied by Parliament by the C.P.C. (Amendment) Act, 1976, namely, attainment of certainty and expeditious disposal of cases by reducing the terms of compromise to writing signed by the parties, and allowing the compromise decree to comprehend even matters falling outside the subject matter of the suit, but relating to the parties, the legislature cannot, in the absence of express words to such effect, be presumed to have disallowed the parties to enter into a compromise by counsel in their cause or by their duly authorised agents.
Any 206 such presumption would be inconsistent with the legislative object of attaining quick reduction of arrears in Court by elimination of uncertainties and enlargement of the scope of compromise.
To insist upon the party himself personally signing the agreement or compromise would often cause undue delay, loss and inconvenience, especially in the case of non resident persons.
It has always been universally understood that a party can always act by his duly authorised representative.
If a power of attorney holder can enter into an agreement or compromise on behalf of his principal, so can counsel, possessed of the requisite authorisation by vakalatnama, act on behalf of his client.
Not to recognise such capacity is not only to cause much inconvenience and loss to the parties personally, but also to delay the progress of proceedings in court.
If the legislature had intended to make such a funda mental change, even at the risk of delay, inconvenience and needless expenditure, it would have expressly so stated.
Accordingly, we are of the view that the words 'in writing and signed by the parties ', inserted by the C.P.C. (Amendment) Act, 1976, must necessarily mean, to borrow the language of Order II1 rule 1 C.P.C.: "any appearance application or act in or to any court, required or authorized by law to be made or done by a party in such court, may except where otherwise expressly provided by any law for the time being in force, be made or done by the party in person, or by his recognized agent, or by a pleader, appearing, applying or acting as the case may be, on his behalf: Provided that any such appearance shall, if the court so directs, be made by the party in person".
(emphasis supplied) In the present case, the notice issued under Order XXI rule 22 was personally served on the defendant, but he did not appear or show cause why the decree should not be exe cuted.
The notice was accordingly made absolute by Order dated 23.1.1990 and leave was granted to the plaintiff to execute the decree.
The decree passed by the High Court on 18.6.1984 in terms of the compromise was a valid decree and it constituted res judicata.
As stated by this Court in Shankar Sitaram Sontakke & Anr.
vs Balkrishna Sitaram Son takke & Ors.; , ".
It is well settled that a consent decree is as binding upon the parties thereto as a decree passed by invitum.
The com 207 promise having been found not to be vitiated by fraud, misrepresentation, misunderstanding or mistake, the decree passed thereon has the binding force of 'res judicata '.
" (Page 355) S.R.
Das, C.J., in Sailendra Narayan Bhanja Deo vs The State of Orissa, ; , states: ". a judgment by consent or default is as effective an estoppel between the parties as a judgment whereby the court exercises its mind on a contested case . ".
(Page 351) A judgment by consent is intended to stop litigation between the parties just as much as a judgment resulting from a decision of the court at the end of a long drawn out fight.
A compromise decree creates an estoppel by judgment.
As stated by Spencer Bower & Turner in Res Judicata Second Edition, page 37: "Any judgment or order which in other respects answers to the description of a res judicata is nonetheless so because it was made in pursuance of the consent and agreement of the parties .
Accordingly, judgments, orders, and awards by consent have always been held no less efficacious as estoppels than other judgments, orders or decisions, though doubts have been occasionally expressed whether, strictly, the foundation of the estoppel in such cases is not representation by conduct, rather than res judicata . . . . ".
See also Mohanlal Goenka vs Benoy Kishna Mukherjee & Ors., ; The consent decree made on 18.6.1984 remained unchal lenged.
None questioned it.
The appellant never raised any doubt as to its validity or genuineness.
He had no case that the decree was vitiated by fraud or misrepresentation or his counsel lacked authority to enter into a compromise on his behalf.
Nevertheless, after six years he questioned its validity by means of chamber summons.
This was an unsuccess ful challenge by reason of delay, estoppel or res judicata, and was rightly so held by the High Court.
Accordingly, we see no merit in this appeal.
It is dismissed.
However, in the circumstances of the case, we do not make any order as to costs.
V.P.R. Appeal dismissed.
| Before this Court, the appellant defendant challenged the judgment of the High Court which held that the decree made against the defendant 'in terms of a compromise in writing and signed by the counsel representing the parties was valid and binding on the parties, and that in the ab sence of any challenge against the order made under Order XXI, rule 23, Civil Procedure Code, allowing execution of the decree, the defendant was no longer entitled to resist execution by recourse to Chamber Summons.
The appellant contended that the High Court was wrong in holding that, notwithstanding the amendment of 1976 insert ing the words 'in writing and signed by the parties ', it was still sufficient if the terms of compromise were reduced to writing and signed by counsel representing the parties, and not necessarily by the parties in person, and that a decree based on a compromise not signed by the parties in person was a nullity and was incapable of execution.
The respondents submitted that it was always under stood that the expression 'party ' included his pleader in matters relating to appearance in court, and his counsel in the cause, therefore, had express or implied authority, unless specifically withdrawn or limited by the party, to represent him in court and do whatever was necessary in connection with the conduct of his suit including adjustment of the suit by agreement or compromises.
188 Dismissing the appeal, this Court, HELD:.
Counsel 's role in entering into a compromise has been traditionally understood to be confined to matters within the scope of the suit.
However, a compromise decree may incorporate not only matters failing within the subject matter of the suit, but also other matters which are collat eral to it.
The position before the amendment in 1976 was that, in respect of the former, the decree was executable, but in respect of the latter, it was not executable, though admissible as judicial evidence of its contents.
[199 C D] 2.
After the amendment of 1976, a consent decree, is executable in terms thereof, even if it comprehends matters failing outside the subject matter of the suit, but concern ing the parties.
[201 E] 3.
The object of the amendment of Order XXIII, Rule 3, C.P.C. was to provide an appropriate remedy to expedite proceedings in Court.
That object must be borne in mind by adopting a purposive construction of the amended provisions.
The legislative intention being the speedy disposal of cases with a view to relieving the litigants and the Courts alike of the burden of mounting arrears, the word 'parties ' must be so construed as to yield a beneficent result, so as to eliminate the mischief the legislature had in mind.
[202 D E] 4.
There is no reason to assume that the legislature intended to curtail the implied authority of counsel, en gaged in the thick of proceedings in court, to compromise or agree on matters relating to the parties, even if such matters exceed the subject matter of the suit.
The relation ship of counsel and his party or the recognised agent and his principal is a matter of contract; and with the freedom of contract generally, the legislature does not interfere except when warranted by public policy, and the legislative intent is expressly made manifest There is no such declara tion of policy or indication of intent in the present case.
The legislature has not evinced any intention to change the well recognised and universally acclaimed common law tradi tion of an ever alert, independent and active Bar with freedom to manoeuvre with force and drive for quick action in a battle of wits typical of the adversarial system of oral heating which is in sharp contrast to the inquisitorial traditions of the 'civil law 'of France and other European and Latin American countries where written submissions have the pride of place and oral arguments are 189 considered relatively insignificant.
[202 E H] 5.
Considering the traditionally recognised role of counsel in the common law system, and the evil sought to be remedied by Parliament by the C.P.C. (Amendment) Act, 1976, namely attainment of certainty and expeditious disposal of cases by reducing the terms of compromise to writing signed by the parties, and allowing the compromise decree to com prehend even matters falling outside the subject matter of the suit, but relating to the parties, the legislature cannot, in the absence of express words to such effect, be presumed to have disallowed the parties to enter into a compromise by counsel in their cause or by their duly autho rised agents.
Any such presumption would be inconsistent with the legislative object of attaining quick reduction of arrears in Court by elimination of uncertainties and en largement of the scope of compromise.
[205 F H] 6.
A judgment by consent is intended to stop litigation between the parties just as much as a judgment resulting from a decision of the court at the end of a long drawn out fight.
A compromise decree creates an estoppel by judgment.
[207 B] 7.
In the present case, the notice issued under Order XXI rule 22 was personally served on the defendant, but he did not appear or show cause why the decree should not be executed.
The notice was accordingly made absolute by order dated 23.1.1990 and leave was granted to the plaintiff to execute the decree.
The decree passed by the High Court on 18.6.1984 in terms of the compromise was a valid decree and it constituted res judicata.
[206 F G] 8.
The consent decree made on 18.6.1984 remained unchal lenged.
None questioned it.
The appellant never raised any doubt as to its validity or genuineness.
He had no case that the decree was vitiated by fraud or misrepresentation or his counsel lacked authority to enter into a compromise on his behalf.
Nevertheless, after six years he questioned its validity by means of chamber summons.
This was an unsuc cessful challenge by reason of delay, estoppel or res judi cata.
[207 E F] Halsbury 'section Laws of England, 4th Ed. Vol.3, Paras 1181 & 1183; Francis Bennion 's Statutory Interpretation, Butter worths, 1984, para 133; Crawford 's Statutory., Construction, Para 254; Rene David, English Law and French Law Tagore Law Lectures, 1980; Spencer Bower to Turner in Res 190 Judicata, Second Edition, Page 37; The Common Law in India 1960 The Hamlyn Lectures, Twelfth Series.
pp 1 4, referred to.
Patience Swinfen vs Lord Chelmsford, [1860]5 H & N 890 at 912; S.C.(Ex.) 382; Mathews vs Munster, [1887] 20 Q.B. 141 at 144; Rondel vs Worsley, [1965] 1 Q.B. 443,502; (Babu) Sheonandan Prasad Singh &Ors.
vs Hakim Abdul Fateh Mohammed Reza & Anr., AIR 1935 P.C. 119,121; Sourendera Nath Mitra & Ors.
vs Tarubala Dasi, AIR 1930 P.C. 158; Hemanta Kumari Debi vs Midnapur Zamindari Co., AIR 1919 PC 79; Jamilabai Abdul Kadar vs Shankerlal Gulabchand & Ors., [1975] Supp.
SCR 336; Monoharbahal Colliery, Calcutta vs K.N. Mishra & Ors., AIR 1975 SC 1632; National Assistance Board vs Wilkin son, ; Sailendra Narayan Bhania Deo vs The State of Orissa, ; ; Mohanlal Goenka vs Benoy Kishna Mukherjee & Ors., ; , Shankor Sitaram Sontakke & Anr.
vs Balkrishna Sitaram Sontakke & Ors. ; , referred to.
Ram Juwan vs Devendra Nath Gupta, AIR 1960 M P. 280; Vishnu Sitaram Auchat vs Ramchandra Govind Joshi, AIR 1932 Bombay 466; Jasimuddin Biswas vs Bhuban Jelini, ILR 34 Calcutta 456; Ganganand Singh & Ors.
vs Rameshwar Singh Bahadur & Anr, ; Chengan Soun, Nayakam vs A.N. Menon, AIR 1968 Kerala 213; Jiwibai vs Ramkumar Shrini was Murarka Agarwala, AIR 1947 Nagpur 17; Govindamreal vs Marimuthu Maistry & Ors., AIR 1959 Mad 7; Laxmidas Ranchhod das & Ors.
vs Savitabai Hargovindas Shah, AIR 1956 Bombay 54; Mohan Bat vs Jai Kishan, AIR ; Smt.
Mohan Bat vs Smt.
Jai kishan & Ors., AIR , Nadirsha Hirji Bana & Ors.
v Niranjanlkumar alias Nireshku mar Dharamchand Shah & Ors., , approved.
Kesarla Raghuram vs Dr. Narsipalle Vasundara, A.I.R. 1983 A .P. disapproved.
|
Appeal No. 4075 of 1991.
From the Judgment and Order dated 3.12.1990 of the Calcutta High Court in Second Appeal No. 1063 of 1982.
D.N. Mukherjee, N.R. Choudhary and Ranjan Mukherjee for the Appellant.
Manoj Swarup, Ms. Lalita Kohli, Ms. Sarla Chandra and S.K. Mitra for the Respondent.
The Judgment of the Court was delivered by THOMMEN, J.
Leave granted.
This appeal by the plaintiff in a suit for eviction arises from the judgment of the Calcutta High Court dismiss ing his appeal against the judgment of the 1st appellate court allowing the defendant 's appeal against the decree of the trial court.
The trial court found that the plaintiff was entitled to evict the tenant on the ground of reasonable requirement specified under Section 13(1)(ff) of the West Bengal Premises Tenancy Act, 1956 (the "Act").
Reversing that finding, the 1st appellate court held that the plain tiff was not the owner of the premises and was, therefore, not entitled to seek eviction.
This finding was affirmed by the High Court by the judgment under appeal.
The only question which arises in the present appeal is whether or not the plaintiff is the owner of the suit prem ises for the purpose of instituting a suit for eviction in terms of the Act.
The dispute concerns a flat allotted to the plaintiff by the Kadamtola Housing Co operative Society, Calcutta (the "Society").
This was one of the 16 flats held by the Society under a 99 years lease granted by the Calcut ta Metropolitan Development Authority under a registered document.
The Society in turn allotted these flats to its members, among whom the appellant is one, by a sub lease for a term of 99 years.
The appellant, being an allottee, is thus a sub lessee under the Society with a heritable and transferable title.
The 248 appellant subsequently inducted the respondent into the flat on a rent of Rs. 110 per month.
On 29.10.1976, a notice of termination of the tenancy was issued by the appellant to the respondent calling upon him to vacate the premises not later than December, 1976.
Since the respondent did not vacate the premises, title suit No. 165/77 was instituted by the appellant on the ground of default of payment of rent as specified under Section 13(1)(i) of the Act and also on the ground of reasonable requirement for occupation as provided under Section 13(1)(ff).
The trial court found that the premises were reasonably required by the appellant, and the suit was accordingly decreed on the ground mentioned under Section 13(1)(ff).
It was, however, held that the tenant was not in arrears of rent.
It is important to note that the defendant in his writ ten statement did not question the plaintiff 's title or claim of ownership.
No issue regarding ownership had been framed as it was never questioned by the defendant at any stage of the proceedings in the trial court.
On appeal by the defendant, the 1st appellate court examined the plain tiffs title and held that, since he was only a lessee under a 99 years lease granted by the Society, which itself was a lessee holding a 99 years lease from the Metropolitan Devel opment Authority, he was not an 'owner ' within the meaning of Section 13(1)(ff) of the Act and was, therefore, not entitled to seek eviction under that provision.
Accordingly, the merits of the plaintiffs claim were not examined by the 1st appellate court.
This finding was affirmed by the High Court, and, like the 1st appellate court, it also did not consider the merits of the plaintiffs case for eviction.
Section 13 protects a tenant from eviction except on one or more of the grounds specified thereunder.
That Section, in so far as it is material, reads: "S.(13)(1) Notwithstanding anything to the contrary in any other law, no order or decree for the recovery of possession of any premises shall be made by any Court in favour of the landlord against a tenant except on one or more of the following grounds, namely: (fl ') Subject to the provisions of sub section (3A), where the premises are reasonably re quired by the landlord for his own occupation if he is the owner or for the occupation of any person for whose benefit the premises are held and the landlord or such person is not in possession of any reasonably suitable accommo dation.
249 On the facts of this case, the provision of sub section 3(A) of this Section are not attracted.
Clause (ff) is attracted as a ground for eviction if the landlord is in a position to prove that the premises are required by him for his own occupation, if he is the owner of the premises, or for the occupation of any person for whose benefit the premises are held, and the landlord or such other person, as the case may be, is not in possession of any reasonably suitable accommodation.
The 'landlord ' is defined by Section 2 in wide terms so as to include any person who, for the time being, is enti tled to receive or but for a special contract, would be entitled to receive the rent of any premises, whether or not on his own account: ' This definition shows that even if the rent is received by a person not on his own account but on account of any other person, such as his principal or his ward, he is for the purpose of the Act a landlord.
Any such person is, therefore, entitled to institute a suit for eviction.
But to attract clause (fl '), the requirement of the landlord must be either for his own occupation, if he is the owner, or, for the occupation of any person for whose benefit the premises are held.
This clause is, of course, available only when no reasonably suitable accommodation is available to the person for whose occupation the eviction is sought.
It is submitted on behalf of the respondent that the appellant, although a 'landlord ' within the meaning of Section 2, is not an owner so as to be able to seek eviction on the ground specified under clause (ff) of sub section (1) of Section 13.
The contention is that the appellant is only a lessee, and that too in terms of a sub lease of 99 years granted by a Society which is itself holding a lease for the same period.
Such a lessee is not an owner, for his rights are not absolute.
He cannot claim to be an owner for the purpose of seeking eviction by recourse to the provisions of an Act which is intended to protect the tenant and prevent eviction except on specified grounds.
The expression owner should be so strictly construed as to exclude any person having less than full ownership right.
Ownership denotes the relation between a person and an object forming the subject matter of his ownership.
It consists in a complex of rights, all of which are rights in rem, being good against all the world and not merely against specific persons '.
(Salmond on Jurisprudence, 12th ed., Ch. 8, p. 246 et.
seq.).
There are various rights or incidents of ownership all of which need not necessarily be present in every case.
They may include a right to possess, use and enjoy the thing owned; and a right to consume, destroy or alienate it.
Such a right may be indeterminate in duration and residuary in character.
A person has a right to possess the thing which he owns, even when he is not in possession, but only retains a rever 250 sionary interest, i.e., a right to repossess the thing on the termination of a certain period or on the happening of a certain event.
All that a plaintiff needs to prove is that he has a better title than the defendant.
He has no burden to show that he has the best of all possible titles.
His ownership is good against all the world except the true owner.
The rights of an owner are seldom absolute, and often are in many respects controlled and regulated by statute.
The question, however, is whether he has a superior right or interest vis a vis the person challenging it.
The plaintiff is an allottee in terms of the West Bengal Co operative Societies Act, 1983: (See Sections 87 and 89).
He has a right to possess the premises for a period of 99 years as a heritable and transferable property.
During that period he has a right to let out the premises and enjoy the rental income therefrom, subject to the statutory terms and conditions of allotment.
The certificate of allotment is the conclusive evidence of his title or interest.
It is true that he has to obtain the written consent of the Society before letting out the premises.
But once let out in accord ance with the terms of allotment specified in the statute, he is entitled to enjoy the income from the property.
Al though he is a lessee in relation to the Society, and his rights and interests are subject to the terms and conditions of allotment, he is the owner of the property having a superior right in relation to the defendant.
As far as the defendant is concerned, the plaintiff is his landlord and the owner of the premises for all purposes dealt with under the provisions of the Act.
In view of what we have stated above, the High Court and the 1st appellate court were wrong in setting aside the decree of the trial court solely on the question of the appellant 's title.
The appellant 's title was never an issue at any stage of the trial.
There was no plea to that effect and no issue was, therefore, framed on the question.
This being the position, the appellant 's claim has to be decided on the basis of the pleadings, i.e., on the basis that he is the owner of the premises in question.
Accordingly, we set aside the judgment of the High Court and that of the 1st appellate court and remand this case to the 1st appellate court for fresh disposal of the respond ent tenant 's appeal on the merits.
This appeal is accordingly allowed with costs of the appellant throughout.
N.P.V Appeal allowed.
| The appellant plaintiff rented out to the respondent defendant the suit premises allotted to him, by sub lease, by a Housing Co operative Society, which itself held the flat under a 99 years lease granted by the Metropolitan Development Authority.
Sometime later he issued a notice of termination of the tenancy to the respondent and called upon him to vacate the premises within a stipulated time.
On respondent 's failure to vacate the premises, he/instituted a suit on grounds of default of payment of rent and reasonable requirement for occupation under Sections 13(1) (i) and 13(1)(ff) respectively.
The trial court decreed the suit on the ground of reasonable requirement but held that the respondent tenant was not in arrears of rent.
On appeal by the respondent, the first appellate court did not examine the merits of the appellant 's claim of reasonable requirement, but examined the appellant plain tiff 's title, though the respondent had not questioned the same and held that, since the appellant was only a lessee under a 99 years lease granted by the Society, which itself was a lessee holding a 99 years lease from the Metropolitan Development Authority, he was not an 'owner ' within the meaning of Section 13(I)(II) of the Act and was, therefore, not entitled to seek eviction under that provision.
The High Court also did not examine the appellant 's claim for evic tion and affirmed the first appellate Court 's finding on the question of title.
Hence the appeal by the appellant plain tiff.
On the question: whether the appellant was the owner of the suit premises for the purpose of instituting a suit for eviction in terms of the West Bengal Premises Tenancy Act, 1956.
246 Allowing the appeal, this Court, HELD: 1.1 Ownership denotes the relation between a person and an object forming the subject matter of his ownership.
It consists in a complex of rights, all of which are right 's in rem, being good against all the world and not merely against specific persons.
[249 G] Salmond on Jurisprudence, 12th ed.
Ch. 8, p. 246 et.
referred to.
1.2 There are various rights or incidents of ownership all of which need not necessarily be present in every case.
They may include a right to possess, use and enjoy the thing owned; and a right may be indeterminate in duration and residuary in character.
A person has a right to possess the thing which he owns, even when he is not in possession, but only retains a reversionary interest, i.e., a right to repossess the thing on the termination of a certain period or on the happening of a certain event.
[249 G H; 250 A] 1.3 All that a plaintiff needs to prove is that he has a better title than the defendant.
He has no burden to show that he has the best of all possible titles.
His ownership is good against all the world except the true owner.
The rights of an owner are seldom absolute, and often are in many respects controlled and regulated by statute.
The question, however, is whether he has a superior right or interest vis a vis the person challenging it.
[250 B] 1.4 In the instant case, the appellant plaintiff is an allottee in terms of the West Bengal Co operative Societies Act, 1983.
He has a right to possess the premises for a period of 99 years as a heritable and transferable property.
During that period he has a right to let out the premises and enjoy the rental income therefrom, subject to the statu tory terms and conditions of allotment.
The certificate of allotment is the conclusive evidence of his title or inter est.
No doubt he has to obtain the written consent of the Society before letting out the premises.
But once let out in accordance with the terms of allotment specified in the statute, he is entitled to enjoy the income from the proper ty.
Although he is a lessee in relation to the society, and his rights and interests are subject to the terms and condi tions of allotment, he is the owner of the property having a superior right in relation to the defendant.
As far as the respondent is concerned, the appeliant is his landlord and the owner of the premises for all purposes dealt with under the provisions of the Act.
[250 C E] 1.5 Hence.
the High Court and the first appellate court were wrong in setting aside the decree of the trial court solely on the question of 247 appellant 's title, which was never an issue at any stage of the trial.
There was no plea to that effect and no issue was, therefore, framed on the question.
This being the position, the appellant 's claim has to be decided on the basis of the pleadings, i.e. on the basis that he is the owner of the premises in question.
Accordingly, the Judg ments of the High Court and first appellate court are set aside and the matter remanded to the first appellate court for fresh disposal of respondent tenant 's appeal on merits.
[250 E G]
|
ivil Appeal Nos.
4094 & 4095 of 1991.
418 From the Judgment and Order dated 6.3.1991 of the Rajas than High Court in D.B. Civil Special Appeal (Writ) Nos.
48 & 50 of 1990.
P.P. Rao, M.K. Ramamurthi, S.K. Singh, Sudhanshu Atreya, Sushil Kumar Jain, Ms. Bina Gupta, Manoj Swarup, Miss. Lalita Kohli, R.F. Nariman and Mrs. Binu Tamta for the appearing parties.
The Judgment of the Court was delivered by KASLIWAL, J.
Special Leaves granted.
Briefly stated the facts are that University of Rajas than invited applications for the post of Professor in the department of Botany.
The Selection Committee constituted under Sec.
5 of the Rajasthan University Teachers and Offi cers (Selection for appointment) Act of 1974 (herein after referred to as the 'Act of 1974 ') held interviews on 20th June, 1989 and selected Dr. G.S. Nathawat for the post of Professor in Botany.
The name of Dr. Urea Kant was mentioned in the reserve list by the Selection Committee.
The syndi cate of the University approved the list and appointed Dr. Nathawat on the said post.
Dr. Nathawat retired on 30th September, 1989 and Dr. Urea Kant who was already selected and kept in the reserve list was appointed as Professor in the department of Botany.
Dr. Bhikalal, Dr. Shiv Sharma, Dr. Sudhakar Mishra and Dr. T.N. Bhardwaj who were not selected filed a writ petition in the High Court initially challeng ing the appointment of Dr. Nathawat on the ground that the Selection Committee was not constituted in accordance with law and objection was also raised that once a selected person joins the post, the reserve list exhausted itself.
Dr. Bhikalal and others subsequently impleaded Dr. Uma Kant also as one of the respondents in the writ petition.
The respondents, in their reply to the writ petition, submitted that the selection committee was properly constituted.
The appointment of Dr. Uma Kant was rightly made as the life of the reserve list was initially for six months and subse quently extended to one year by a resolution of the Syndi cate dated 3.12.1983.
Learned Single Judge held that the constitution of the Selection Committee was valid but as regards the appointment of Dr. Urea Kant from the reserve list it was held that once a person selected by the Selec tion Committee had been appointed the reserve list stood exhausted and the person named in the reserve list could not be appointed against a future vacancy.
The appointment of Dr. Urea Kant was held illegal and it was directed that Dr. Uma Kant be removed from the said post of Professor of Botany.
Both Dr. Uma Kant as well as the University of Rajasthan tiled special appeal before/he Division Bench.
The Division Bench of the High Court by a common order dated March 6, 1991 upheld the order of 419 the Learned Single Judge and dismissed the appeals.
The Division Bench after considering Sections 3, 5 and 6 of the Act of 1974 held that the purpose of preparation of the reserve list seems to be that if the person selected at No. 1 does not join then the next man in the reserve list should be appointed.
But if the person selected by the Selection Committee is given appointment and he joins, then, selection made by the Committee is exhausted and the reserve list is of no avail and becomes extinct.
It was also held that once a person selected by the Selection Committee has joined, that post is filled and some vacancy is caused thereafter a fresh and de novo selection committee 'procedure has to be started because that will be a case of future vacancy aris ing after the post had been filled up on the recommendations of the Selection Committee.
Aggrieved against the order of the Division Bench of the High Court, Dr. Uma Kant as well as the University have come in appeal by grant of special leave.
In order to appreciate the controversy we would advert to certain relevant provisions of the Act of 1974.
Relevant provisions of Sections 3, 5 and 6 are as follows: .LM15 Section 3 Restrictions on appointments of teachers and officers: (1) Notwithstanding anything contained in the relevant law, as from the commencement of this Act, no teacher and no officer in any Univer sity in Rajasthan shall be appointed except on the recommendations of the Selection Committee constituted under Sec.
(2) Save as otherwise provided in sub section
(3), every appointment of a teacher or of an offi cer in any University made in contravention of sub section
(1) shall be null and void.
Section 5 Constitution of Selection Committee (1) For every selection of a teacher or of an officer in a University, there shall be con stituted a committee consisting of the follow ing: (i) Vice Chancellor of the University con cerned, who shall be the Chairman of the Committee; (ii) an eminent educationist to be nominated by the Chancellor for a period of one year; 420 (iii) an eminent educationist to be nominated by the State Government for a period of one year; (iv) One member of the Syndicate to be nomi nated by the State Government for a period of one year; and (v) such other persons as members specified in column 2 of the Schedule for the selection of the teachers and officers mentioned in column 1 thereof.
Section 6 Procedure of Selection Committee (1) The quorum required for the meeting of a selection committee constituted under Section 5 shall not be less than five, out of which at least two shall be the experts, if the selec tion to be made is for the post of a lecturer or any other post of a teacher equivalent thereto.
The quorum required for the meeting of a selection committee for the selection of non teaching posts shall be not less than one half of the number of members of the Selection Committee, out of which at least one shall be an expert.
(2) The selection committee shall make its recommendations to the Syndicate, if the Syndicate disapproves the recommendations of the selection committee, the Vice Chancellor of the University concerned shall submit such recommendations alongwith reasons for disap proval given by the syndicate to the Chancel lor for his consideration and the decision of the Chancellor thereon shall be final.
(3) Every selection committee shall be bound by the qualifications laid down in the rele vant law of the University concerned for the post of a teacher, as the case may be, of an officer.
(4) The Selection Committee while making its recommendations to the Syndicate under sub section (2) shall prepare a list of candidates selection by it in order of merit and shall further prepare a reserve list in the same order and to the extent of 50% of the vacan cies in the post of teachers or officers for which the selection committee was constituted under sub section (1) of Section 5 and shall forward the main list and the reserve list alongwith its recommendations to the Syndi cate.
421 Initially the reserve list was to remain valid upto six months from the date of approval of the Syndicate as per the resolution of the Syndicate dated 10th July, 1978 and subse quently the Syndicate by its resolution passed in its spe cial meeting on 3.12.1983 decided that the reserve list recommended by the Selection Committee for selection of employee be treated valid for one year instead of six months.
According to the University this was done in order to curtail the ad hoc appointments and also because the regular selections take a lot of time.
It may also be noted that the Syndicate in its meeting held on 10th July, 1978 had resolved as under: i. Every Selection Committee may draw a Re serve List of suitable candidates upto a number not exceeding 50% of the number of post for which vacancies exist (part vacancy be rounded or to the next whole number) and place them in order of priority.
The Reserve List of drawn be treated valid upto six months the date of approval by the Syndicate of the recommendations of the selec tion committee(s).
On the vacancies caused within the cadre during six months of the approval of the recommendations, the candidates found suitable and placed in the reserve list be appointed in the order of priority given by the Selection Committee.
As already mentioned above the period of ' six months was subsequently extended to one year by resolution dated 3.12.1983.
The University has taken a categorical stand that since 1978 not only in the University of Rajasthan but all other universities in the State of Rajasthan reserve lists are prepared and appointments are being made from the re serve list against future vacancies arising on account of resignation, retirement or promotion.
A long list of ap pointments made from reserve list in various departments of the University of Rajasthan from time to time after joining of the persons from the main list from 1978 to 1990 have been furnished by the appellants before this court by an additional affidavit.
It has also been stated that even out of the petitioners who had filed the writ petition, Dr. T.N. Bhardwaj himself was kept in the reserve list and was there after appointed on the post of reader having fallen .vacant subsequently on account of the promotion of Dr. P. Khanna as Professor.
Section 3 (1) of the Act of 1974 puts a restriction that no teacher in any university in Rajasthan shall be appointed except on the recommenda 422 tions of the Selection Committee constituted under Sec.
5 (1), and, under Sec.
3(2) any appointment made in contraven tion of sub section (1) of sec.
3 shall be null and void.
In the present case Dr. Uma Kant was recommended by the Selection Committee constituted under Section only provides for the constitution of Selection Committee.
The High Court has found that there was no violation of Section 5 in the Constitution of the Selection Committee and the said finding has not been challenged before us on behalf of the respondents.
Section 6 provides for the procedure of Selection Committee and sub section (4) of Section 6 clearly provides that the Selection Committee shall prepare a list of candidates selected by it in order of merit and shall further prepare reserve list in the same order and to the extent of 50% of the vacancies in the post of teachers or officers for which the Selection Committee was constituted.
The Syndicate in its Resolution dated 10th July, 1978 had resolved that the reserve list recommended by the Selection Committee shall be valid upto six months from the date of the approval of the Syndicate which was subsequently extend ed to one year instead of six months in a resolution passed on 3.12.1983.
In our view the High Court was wrong in taking the view that a regular vacancy of Professor having arisen on the retirement of Dr. G.S. Nathawat on 30th September, 1989 again a fresh Selection Committee should have been constituted and no appointment on such post could have been made from the reserve list prepared by the Selection Commit tee on 20th June, 1989.
Section 6(4) clearly provided for the preparation of reserve list to the extent of 50% of the vacancies in the post of teachers or officers for which the Selection Committee was constituted.
It is not in dispute that the main list and the reserve list prepared by the Selection Committee on 20th June, 1989 were approved by the Syndicate.
We agree with the contention of the university that a reserve list is always prepared to meet the contin gency of anticipated or future vacancies caused on account of resignation, retirement, promotion or otherwise.
This is done in view of the fact that it takes a long time in con stituting a fresh Selection Committee which has a cumbersome procedure and in order to avoid ad hoc appointments keeping in view the interest of the student community.
The Selection Committee in the present case was constituted for the selec tion of Professor in Botany and such Selection Committee had approved and recommended the name of the appellant Dr. Urea Kant in the reserve list finding him suitable for appoint ment on the post of Professor in Botany.
The Syndicate which is the highest executive body in the university had also approved the name of Dr. Uma Kant in the reserve list which remained valid upto one year and we cannot accept the con tention raised on behalf of the respondents that the reserve list is exhausted as soon as the person recommended in the main list joined the post.
In the present case Dr. G.S. Nathawat was selected on 423 20th June, 1989 and was going to retire on 30th September, 1989 and in these circumstances it was perfectly valid to select one more person and to keep him in the reserve list for being appointed on the regular vacancy which was shortly anticipated on account of retirement of Dr. Nathawat.
The High Court committed a clear error in restricting the scope of reserve list only against the post for which the selec tion was made and which according to the High Court could only be available to the incumbent in the reserve list if the person recommended in the main list did not join such post.
Such interpretation is not borne out from any of the provisions of Section 3(1), Section 5 or sub section
(4) of Section 6 of the Act of 1974.
The High Court took the view that the expression 'appointment ' in sub sec.
(1) of Sec.
3 shall mean appointed initially.
Then, sub sec.
(1) of Sec.
5 provides that for every selection of a teacher in universi ty, there shall be constituted a Committee consisting of persons mentioned therein.
The High Court held that the words "for every selection" are very pertinent and when read with Sec.
3(1) and 3(2), it only means that whenever there is a regular vacancy for a post, a Selection Committee has to be constituted.
When Dr. G.S. Nathawat retired on 30th September, 1989, a regular vacancy arose and therefore a Selection Committee should have been constituted afresh.
In our view the High Court was wrong in taking the aforesaid view.
5 only provides for the constitution of Selection Committee and the words "for every selection" used in sub sec.
(1) of Sec. 5 only mean that in case of every selection of a teacher or of an officer in university, a Committee would be constituted of the persons mentioned in sub clause (i) to (v) of the said Section.
So far as the present case is concerned, even the High Court has arrived to the conclusion that the Committee constituted for the selection of a professor in Botany was proper and in accord ance with the provisions of Sec. 5 of the Act of 1974.
The appellant, Dr. Uma Kant was found suitable for the post of professor in Botany and his name was recommended in the reserve list by the duly constituted Selection Committee.
6(4) of the Act of 1974 clearly provides that the Selection Committee while making its recommendations to the syndicate under sub sec.
(2) shall prepare a list of candi dates selected by it in order of merit and shall further prepare a reserve list in the same order and to the extent of 50% of the vacancies for the post of teachers or offi cers.
Thus a reading of Sec. 5 with Sec.
6(4) makes it quite clear that the Selection Committee constituted shall recom mend not only the candidates selected by it in order of merit but shall further prepare a reserve list to the extent of 50% of the vacancies and persons kept in the reserve list will be considered as having been selected for the concerned post and shall be entitled for appointment if any 424 vacancy is caused during the validity period of the reserve list.
The suitability of the persons kept in the reserve list is also adjudged by the Selection Committee which is constituted for selection of a teacher in the university.
Thus no fault can be found that the incumbent recommended in the reserve list by the Selection Committee was not selected for the concerned post of teacher.
In our view the very purpose of preparing a reserve list would be defeated if the view taken by the High Court is accepted that once a person selected by the selection committee has joined that post then selection made by the Committee is exhausted and the reserve list is of no avail and becomes extinct.
There was no meaning or purpose of keeping the reserve list alive for a long period of one year, as no person selected for the post can at all be expected not to join for such a long period of one year.
If we examine the matter from another angle, it would be clear that according to the university such a procedure is in vogue in all the universities of Rajasthan that a reserve list is used for the appointment on a vacant post caused during the validity period of the reserve list, and numerous appointments had been made in the last decade from the reserve list.
The university has also submitted that if the view taken by the High Court is held to be correct, it will create chaotic situation in the university as all appoint ments so far made from the reserve list will become assail able.
It is well settled that in matters relating to educa tional institutions, if two interpretations are possible, the courts would ordinarily be reluctant to accept that interpretation which would upset and reverse the long course of action and decision taken by such educational authorities and would accept the interpretation made by such educational authorities.
In the result, we allow these appeals, set aside the impugned Judgment of the High Court and hold the selection and appointment of the appellant, Dr. Urea Kant as valid on the post of Professor in Botany in the University of Rajas than.
T.N.A Appeals allowed.
| Section 3(1) of the Rajasthan University Teachers and Officers (Selection for Appointment) Act, 1974 provides that no teacher in any University in Rajasthan shall be appointed except on the recommendations of the Selection Committee constituted under Section 5, and, under Section 3(2) any appointment made in contravention of Section 3(1) is null and void.
Section 6(4) of the Act provides that the Selec tion Committee, while making its recommendations to the Syndicate, shall prepare a list of candidates selected by it in order of merit and shall further prepare a Reserve List in the same order and to the extent of 50% of the vacancies for the post of teachers or officers.
The University of Rajasthan invited applications for the post of Professor in the Department of Botany.
The Selec tion Committee recommended the name of a candidate in its selection list which was approved by the University Syndi cate and the recommended candidate was appointed as Profes sor.
The appellant 's name was included in the Reserve List which was to remain valid for one year as per the Syndi cate 's 416 resolution.
Subsequent to the retirement of the initially appointed Professor, the appellant, who was on the reserve list, was appointed as Professor.
The non selected candi dates challenged the appointment of initially appointed Professor as well as of the appellant and a Single Judge of the High Court held the Selection Committee 's constitution valid but declared the appellant 's appointment illegal on the ground that once a person selected by the Selection Committee is appointed, the reserve list gets exhausted and the person named in the reserve list cannot be appointed against a future vacancy.
On appeal, the Division Bench of the High Court upheld the order of the Single Judge by holding that once a person selected by the Selection Committee joins the reserve list becomes extinct and if some vacancy is caused thereafter.
a fresh and de nova Selection Committee procedure is to be started.
Against the order of the Division Bench of the High Court, appeals were flied in this Court.
Allowing the appeals and setting aside the order of the High Court, this Court, HELD: 1.
A reserve list is always prepared to meet the contingency of anticipated or future vacancies caused on account of resignation, retirement, promotion or otherwise.
This is done in view of the fact that it takes a long time In constituting a fresh Selection Committee which has a cumbersome procedure and in order to avoid ad hoc appoint ments keeping in view the interest of the student community.
[422 F] 2.
The High Court committed a clear error in restricting the scope of reserve list only against the post for which the selection was made and which according to it could only be available to the incumbent in the reserve list if the person recommended in the main list did not join such post.
Thus it was wrong in taking the view that a regular vacancy of Professor having arisen on the retirement of initially appointed Professor, again a fresh Selection Committee should have been constituted and no appointment on such post could have been made from the reserve list prepared by the Selection Committee.
The interpretation given by the High Court is not borne out from any of the provisions of Section 3(1), Section 5 or sub section (4) of Section 6 of the Rajasthan University Teachers and Officers (Selection for appointment) Act, 1974.
[423 B; 422 C D] 417 3.
Section 5 of the 1974 Act only provides for the constitution of Selection Committee and the words 'for every selection ' used in sub section (1) of Section 5 only mean that in case of every selection of a teacher or of an offi cer in University, a Committee would be constituted of the persons mentioned in sub section (i) of the said Section 5.
[423 E] 3.1 A reading of Section 5 with Section 6(4) makes it quite clear that the Selection Committee constituted shall recommend not only the candidates selected by it in order of merit but shall further prepare a reserve list to the extent of 50% of the vacancies and persons kept in the reserve list will be considered as having been selected for the concerned post and shall be entitled for appointment if any vacancy is caused during the validity period of the reserve list.
The suitability of the persons kept in the reserve list is also adjudged by the Selection Committee which is constituted for selection of a teacher in the University.
Thus no fault can be found that the incumbent recommended in the reserve list by the Selection Committee was not selected for the con cerned post of teacher.
[423 G H, 424 A B] 4.
In the instant case, the initially appointed Profes sor was going to retire after sometime.
Therefore, it was perfectly valid to select one more person and to keep him in the reserve list for being appointed on the regular vacancy which was shortly anticipated on account of retirement of initially appointed Professor.
The Selection Committee approved and recommended the name of the appellant in the reserve list finding him suitable for appointment on the post of Professor.
The Syndicate which is the highest execu tive body in the University had also approved the appel lant 's name in the reserve list.
Therefore, the selection and appointment of the appellant is valid.
[422 H, 423 A, 422 G, 424 F] 5.
It is well settled that in matters relating to educa tional institutions, if two interpretations are possible, the courts would ordinarily be reluctant to accept that interpretation which would upset and reverse the long course of action and decision taken by such educational authorities and would accept the interpretation made by such educational authorities.
[424 E]
|
ivil Appeal Nos. 851 & 4125 of 1991.
From the Judgment and Order dated 15.12.1982 of the Punjab & Haryana High Court in R.S.A. No. 754 of 1974.
U.R. Lalit, M.R. Sharma, A.S. Sohal, G.K. Bansal, Anil Nauriya, K.L. Hathi, Ms. Anjna Sharma, N.A. Siddiqui and Mrs. Hemantika Wahi for the appearing parties.
The Judgment of the Court was delivered by K. JAGANNATHA SHETTY, J.
These are defendants ' appeal and special leave petition arising out of a suit for posses sion brought by Balwant Singh the plaintiff.
In the Spe cial Leave Petition, we condone the delay and grant leave.
The suit was dismissed by the Court of first instance and the dismissal was affirmed by the appellate court but de creed by the High Court in the second appeal.
The issue raised in the appeal is of considerable importance and it relates to the construction of Section 15 of the ( 'the ').
One Smt.
Mahan Kaur, wife of Jaimal Singh inherited from her husband certain agricultural land measuring 110 kanals 12 marlas situate in village Hamhal, Jakhe Pal in Sangrur District.
Some of the lands were under mortgage and are in possession of defendants 2 to 6.
After coming into force of the , Mahan Kaur died intestate.
On being informed that there was no heir entitled to succeed to her property, the Revenue Assistant Collector sanctioned mutation in favour of the State.
Balwant Singh claiming to be a legal heir of Mahan Kaur brought the suit out of which the present appeal arise.
The suit was for possession of the 461 property of the deceased and also for a declaration decree that he was entitled to redeem the mortgaged property from defendants 2 to 6.
The suit was resisted by the State on the ground that the intestate has left behind no heir to succeed and the mutation effected in favour of the State was valid.
Defendants 2 to 6 contended that the right to redeem the mortgage has been extinguished and they have become the owners of the property by being in possession for more than sixty years.
The trial court held that the plaintiff was not entitled to succeed to the property of the deceased since the proper ty was inherited from her husband.
The issue relating to subsistance or otherwise of the mortgage was left open to be decided later as agreed upon by counsel for both the par ties.
The suit was accordingly dismissed by the trial court.
The plaintiffs appeal against the decree was dismissed by the District Judge, Sangrur.
The second appeal preferred by the plaintiff was, however, accepted by the High Court.
The High Court decreed the suit for possession even against de fendants 2 to 6.
That part of the decree has been challenged by defendants 2 to 6 in S.L.P. (Civil) No. 13923 of 1985.
Their grievance is that the High Court ought not to have decreed the suit against them since the plaintiff 's right to redeem the mortgage was not adjudicated by the trial court and by agreement, the question was expressly left open.
The submission of the defendants 2 to 6 appears to be correct and the decree against them made by the High Court is plain ly untenable.
There is indeed no controversy on that aspect of the matter.
L It is not in dispute that Mahan Kaur inherited the suit property from her husband.
She had no issue and she died intestate.
It is also not in dispute that there is no heir from her husband side entitled to succeed to the property.
The plaintiff is grandson of the brother of Mahan Kaur.
According to him he is entitled to get the property of the deceased.
The case of the State is that the plaintiff is not her qualified heir under the and it is a case of failure of heirs resulting in the devolution of the estate on the Government.
The issue raised in the case turns on the rules of succession to a property of a female dying intestate.
The mode of succession has been prescribed under Section 15 of the .
Section 15 has to be read alongwith Section 16.
They in turn have to be read alongwith the provisions of Section 8.
The property devolving upon the State has been provided under Section 29 of the .
Section 15 is important and it may be read in full: 462 "15.
General rules of succession in the case of female Hindus (1) The property of a female Hindu dying intestate shall devolve according to the rules set out in section 16 (a) firstly, upon the sons and daughters (including the children of any pre deceased son or daughter) and the husband; (b) secondly, upon the heirs of the husband; (c) thirdly, upon the mother and father; (d) fourthly, upon the heirs of the father; and (e) lastly upon the heirs of the mother.
(2) Notwithstanding anything contained in sub section (1) (a) any property inherited by a female Hindu from her father or mother shall devolve, in the absence of any son or daughter of the deceased (including the children of any pre deceased son or daughter), not upon the other heirs referred to in subsection (1) in the order specified therein, but upon the heirs of the father; and (b) any property inherited by a female Hindu from her husband or from her father in law shall devolve, in the absence of any son or daughter of the deceased (including the chil dren of any pre deceased son or daughter) not upon the other heirs referred to in sub sec tion (1) in the order specified therein, but upon the heirs of the husband." Sub section (1) of Section 15 groups the heirs of a female intestate into five categories and they are specified under clauses (a) to (e).
As per Sections 16 Rule 1 those in one clause shall be preferred to those in the succeeding clauses and those included in the same clause shall take simultaneously.
Sub section (2) of Section 15 begins with a non obstante clause providing that the order of succession is not that prescribed under sub section (1) of Section 15.
It carves out two exceptions to the general order of succes sion provided under sub section (1).
The first exception relates to the property inherited by a female Hindu from her father or mother.
That property shall devolve, in the ab sence of any son or daughter of the deceased (including the children of the pre deceased son or daughter), not upon the other heirs referred to in sub section (1) in the order specified 463 therein, but upon the heirs of the father.
The second excep tion is in relation to the property inherited by a female Hindu from her husband or from her father in law.
That property shall devolve, in the absence of any son or daugh ter of the deceased (including the children of the pre deceased son or daughter) not upon the other heirs referred to under sub section (1) in the order specified thereunder but upon the heirs of the husband.
The process of identifying the heirs of the intestate under sub section (2) of Section 15 has been explained in Bhajya vs Gopikabai and anr.
; There this Court observed that the rule under which the property of the intestate would devolve is regulated by Rule 3 of Section 16 of the .
Rule 3 of Section 16 provides that "the devolu tion of the property of the intestate on the heirs referred to in clauses (b), (d) and (e) of sub section (1) and in sub section (2) of Section 15 shall be in the same order and according to the same rules as would have applied if the property had been the father 's or the mother 's or the hus band 's as the case may be, and such person had died intes tate in respect thereof immediately after the intestate 's death".
This rule creates a fiction for the purpose of ascertaining the order of devolution.
It has to be assumed that the husband had died intestate immediately after the female intestate 's death.
Bearing in mind this fiction, one has to go to the Schedule under Section 8 of the to find out the heirs of the husband who are entitled to succeed to the property of the intestate.
The High Court has stated that the property inherited by Mahan Kaur from her husband became her absolute property in view of the provisions of Section 14 and the property would devolve upon the heirs specified under Section 15(1).
It has also observed that the plaintiff would be entitled to suc ceed to the estate of Mahan Kaur even under Section 15 (2) being an heir of her father under Entry (d) of sub section (1) of Section 15 of the .
In our opinion, both these reasons are basically faulty and cannot be accepted.
Counsel for the State argued that the property of the intestate has to be dealt with only under sub section (2) of Section 15, and since there is no heir in that category the property shall devolve on the Government under Section 29.
"Section 29 provides as follows: "ESCHEAT 464 "Failure of heirs If an intestate has no heir qualified to succeed to his or her property in accordance with the provisions of this , such property shall devolve on the Government: and the Government shall take the property subject to all the obligations and liabilities to which an heir would have been subject.
" The property is escheated to the Government when an intestate has left no heir qualified to succeed to his or her property.
The property shall devolve on the Government and the Government shall take the property subject to all the obligations and liabilities of the property.
It is only in the event of the deceased leaving behind no heir to succeed, the State steps in take the property.
The State does not take the property as a rival or preferential heir of the deceased but as the Lord paramount of the whole soil of the country.
In Halsburry 's Laws of England, 4th ed.
17 para 1439 it is stated as follows: "To whom land escheated Escheat in the case of death intestate before 1926 was to the mesne lord is he could be found but, as since 1290 sub infeudation has been forbidden, in the great majority of cases there was no record of the mesne tenure, and the escheat was to the Crown as the lord paramount of the whole soil of the country.
" Section 29, in our opinion, shall not operate in favour of the State if there is any other heir of the intestate.
Indeed, Section 29 itself indicates that there must be failure of heirs. 'Failure ' of heirs means the total absence of heirs to the intestate.
It is important to remember that female Hindu being the full owner of the property becomes a fresh stock of descend.
If she leaves behind any heir either under sub section (1) or under sub section (2) of Section 15, her property cannot be escheated.
Sub section (2) of Section 15, in our opinion, was intended only to change the order of succession specified under sub section (1) and not to eliminate the other classes of heirs.
This view finds support from the recommendations of the Joint Committee of two Houses of Parliament which went into the question of the Hindu Succession Bill.
The Hindu Succession Bill 1954 as originally introduced in the Rajya Sabha did not contain any clause corresponding to sub section (2) of Section 15.
It came to be incorporated on the recommendations of the Joint Committee of the two Houses of Parliament.
The reason given by the Joint Committee is found in Clause 17 of the Bill which reads as follows: 465 "While revising the order of succession among the heirs to a Hindu female, the Joint Committee have provided that properties inher ited by her from her father reverts to the family of the father in the absence of issue and similarly property inherited from her husband or father in law reverts to the heirs of the husband in the absence of issue.
In the opinion of the Joint Committee such a provision would prevent properties passing into the hands of persons to whom justice would demand they should not pass.
" The report of the Joint Committee which was accepted by Parliament indicates that sub section (2) of section 15 was intended to revise the order of succession among the heirs to a Hindu female and to prevent the properties from passing into the hands of persons to whom justice would demand that they should not pass.
That means the property should go in the first instance to the heirs of the husband or to the source from where it came.
In support of the contrary submission, attention was drawn to a passage from Hindu Law by S.V. Gupte in which it is stated "that the heirs of the husband will take where the property was inherited from the husband or from the father in law.
The object is to eliminate the father and the moth er, the heirs of the father, and the heirs of the mother altogether from succession where the property inherited was from the husband or the father in law and the deceased has left no son or daughter or any grandchild.
The effect of the clause is not only to eliminate the three classes of the heirs, being those mentioned in clauses (c), (d) and (e) to subsection (1), but to change the order of succession." (1981 Ed.
2 p. 522).
We however, find it difficult to share this view. ' It does not get support from the terms of sub section (2) of Section 15.
Sub section (2)(b) emphasises that the property of the intestate shall not devolve upon the heirs referred to in sub section (1) in the order speci fied thereunder but upon heirs of the husband.
The, object seems to be not to eliminate the other heirs under sub section (1) and not to exclude them from inheritance alto gether.
There is no justice in such a construction of Sec tion 15.
The Parliament could not have intended that result.
In this view of the matter, we dismiss the Civil Appeal No. 851 of 1991 preferred by the State but not for the reasons stated by the High Court.
We allow the appeal aris ing out of SLP (Civil) No. 13923 of 1985 466 and set aside that portion of the decree made by the High Court as against the defendants 2 to 6.
The suit filed by the plaintiff as against defendants 2 to 6 stands dismissed.
The parties may adjudicate elsewhere the subsistence or otherwise of the mortgage in question.
In the circumstances of the case, there will be no order as to costs.
G.N. CA No. 851/91 dismissed and CA No. 4125/91 allowed.
| One Smt. 'M ' inherited from her husband certain agri cultural lands.
Some of the lands were under mortgage and in the possession of defendants 2 to 6.
She died intestate after the came into force.
As there was no heir entitled to succeed to her property, mutation was sanctioned in favour of the State.
The grandson of her brother claiming to be her legal heir filed a suit for possession of the property and for a declaration that he was entitled to redeem the mortgaged property from defend ants 2 to 6. 'The suit was resisted by the First Defendant, viz. the State on the ground that the intestate had left no heir to succeed and the mutation effected in favour of the State was valid.
Defendants 2 to 6 contended that the right to redeem the mortgage had extinguished, and they have become the owners of the property as they were in possession for more than sixty years.
The Trial Court dismissed the suit holding that the plaintiff was not entitled to succeed to the property of the deceased since the property was inherited from her husband.
As regards the mortgage, it was left open to be decided later as agreed to by the parties.
Plaintiff preferred an appeal and the District Judge dismissed the same.
On a second appeal preferred by him, the High Court decreed the 459 suit for possession even against defendants 2 to 6.
The State as well as the defendants 2 to 6 have preferred the present appeals by special leave.
The appellant State contended that the plaintiff Re spondent was not a qualified heir under the and hence it was a case of failure of heirs resulting in the devolution of estate on the Government.
The other appel lants (Defendants 2 to 6) contended that the High Court ought not have decreed the suit against them since the plaintiff Respondent 's right to redeem the mortgage was not adjudged by the trial court and by agreement the question was expressly left open.
Dismissing the appeal preferred by the State and allow ing the appeal of defendants 2 to 6, this Court, HELD: 1.
The property is escheated to the Government when an intestate has left no heir qualified to succeed to his or her property.
The property shall devolve on the Government and the Government shall take the property sub ject to all the obligations and liabilities of the property.
It is only in the event of the deceased leaving behind no heir to succeed, the State steps in to take the property.
The State does not take the property as a rival or preferen tial heir of the deceased but as the Lord paramount of the whole soil of the country.
[464 B,C] 2.
Section 29 of the shall not operate in favour of the State if there is any other heir of the intestate.
Indeed, Section 29 itself indicates that there must be failure of heirs. 'Failure ' of heirs means the total absence of heirs to the intestate.
A female Hindu being the full owner of the property becomes a fresh stock of descend.
If she leaves behind any heir either under sub section (1) or under sub section (2) of Section 15, her property cannot be escheated.
[464 E,F] Halsbury 's Laws of England, 4th Edn.
17 para 1439; referred to.
Sub Section (2) of Section 15, intended only to change the order of succession specified under sub section (1) and not to eliminate the other classes of heirs.
Section 15(2) came to be incorporated on the recommendations of the Joint Committee of the two Houses of Parliament.
The report of the Joint Committee which was accepted by Parliament indicates that this sub section was intended to revise the order of succession among the heirs to a Hindu female and to prevent the properties from passing into the hands to per sons to whom justice would 460 demand that they should not pass.
That means the property should go in the first instance to the heirs of the husband or to the source from where it came.
[464 F, H, 465 C] 3.2.
Sub section (2)(b) of Section 15 emphasises that the property of the intestate shall not devolve upon the heirs referred to in sub section (1) in the order specified thereunder but upon heirs of the husband.
The object is not to eliminate the other heirs under sub sectiOn (1) and not to exclude them from inheritance altogether.
There is no justice in such a construction of Section 15.
The Parliament could not have intended that result.
[465 F G.] Bhajya vs Gopikabai and Anr, ; , referred to.
|
Civil Appeal No. 2891 (NT) of 1977.
Appeal by Certificate from the Judgment and Order dated 15.10.1975 of the Gujarat High Court O.J. Appeal No. 2 of 1975.
B. Datta, P.H. Parekh and J.P. Pathak for the Appellant.
Dushyant Dave, Anip Sachthey and Ashish Verma for the Respondent.
The Judgment of the Court was delivered by PUNCHHI, J.
What is the ambit of the State 's claim to priority in relation to revenues, taxes, cesses and rates, due from a company in liquidation, is the question which stands posed in this appeal by certificate, granted by the High Court of Gujarat, in O.J. Appeal No. 2 of 1975.
The question arises on the frame of section 530(1)(a) of the , as it stood at the relevant time, which is set out below: "In winding up, there shall be paid in priority to all other debts all revenues, taxes, cesses and rates due from the company to the Central or a State Government to a local authority at the relevant date as defined in clause (c) of 530 sub section (8), and having become due and payable within the twelve months next before that date.
And sub section (8)(c) of section 530 says: "The expression 'the relevant date ' means (i) in the case of a company ordered to be wound up compulsorily, the date of appointment (or first appointment) of a provisional liquidator, or if no such appointment was made the date of the winding up order, unless in either case the company had commenced to be wound up voluntarily before that date; and (ii) in any case where sub clause (i) does not apply, the date of the passing of the resolution for the voluntary winding up of the company.
" The appellant company was ordered to be wound up by an order of Court made on June 26, 1967.
The liquidator after obtaining directions of the Court invited the creditors of the company to prove their debts or claims and simultaneously to establish any title they may have to priority under section 530.
Pursuant to this invitation the Sales Tax Officer, Petlad submitted a comprehensive claim in the sum of Rs. 70945.60 as the amount of sales tax plus penalty payable by the company and claimed priority for the whole amount.
The liquidator rejected the claim for priority in its entirety, but admitted claim to the tune of Rs.42143.63 payable as debt paripassu with other unsecured creditors of the company.
The Sales Tax Officer took the matter in appeal before the Company Judge under Rule 164 of the Companies (Court) Rules, 1959 which was heard by D. A. Desai, J. (as he was in the Gujarat High Court).
It was urged on behalf of the Sales Tax Officer that out of the admitted claim in the amount of Rs.42,143.83, the liquidator was in error in not granting priority in payment of debt of Rs.22,280.96 consisting of Rs.11,064.46 being sales tax payable by the company for the period from April 1, 1957 to December 31, 1965, under the Bombay Sales Tax Act and balance of Rs. 11,216.50 being the amount of sales tax payable under the Central Sales Tax Act for the period from July 1, 1957 to December 31, 1965, because the assessment order was made in respect of the aforementioned claim within a period of 12 months next before the relevant date and the notice of demand which made the tax payable was also issued within a period of 12 months next 531 before the relevant date.
It was urged that apart from any other consideration the petitioner is entitled to a priority in payment for the amount of Rs.22,280.96 as the claim was of sales tax which was due on the relevant date and which became due and payable within 12 months next before the relevant date.
It was conceded that balance of the admitted claim in the amount of Rs. 19,862.87 being the amount of sales tax due and payable under the Bombay Sales Tax Act for the period from January 1, 1966 to June 26, 1967, would not be entitled to priority in payment.
It was also conceded that the claim for an amount of Rs. 196.42 had been rightly rejected.
It would appeal that from the claim admitted as payable by the liquidator to the extent of Rs. 42,143.83 priority in payment was claimed for the amount of Rs.22,280.96 on the submission that the claim represented the claim for tax payable to the State Government as it was due on the relevant date and had become due and payable within 12 months next before the relevant date, and therefore, it was entitled to a priority in payment as envisaged by section 530(1)(a) of the .
The learned Judge on interpretation of section 530(1)(a) took the view that the word 'due ' implies or conveys meanings in juxtaposition in which it is used in the two parts of the same clause.
The word 'due ' in the first part of the clause must mean 'outstanding at the relevant date '.
When it occurs in the expression 'having become due ' in the later part of the clause, it means that the event which brought the debt into existence occurred and also it became payable, meaning thereby that its payment could have been enforced against the company within the twelve months before the relevant date, that is, the date of the order of winding up.
Three specific conditions are prescribed in the clause and all the three must co exist and be satisfied in respect of any particular debt for which priority is claimed.
The three conditions are: (i) Debt of the kind mentioned in the clause must be outstanding on the relevant date; (ii) The debt must have become due, in the sense that it must have been incurred at any time within the twelve months next before the relevant date; and (iii) The debt must have payable at any time within the twelve months next before the relevant date.
To conclude, the learned Judge observed that the tax becomes due 532 when taxing event occurrs and not when assessment orders passed and that the claim for priority was rightly negatived by the liquidator because even though amount for which priority was claimed was the amount of tax arrears that became payable at the time of making assessment orders after giving credit for what was paid alongwith return, yet it was due for a period much prior to 12 months next before the relevant date and even if it had become payable on the assessment order being made and demand notice being issued, as both the conditions did not co exist and were not satisfied, claim for priority had been rightly nagatived by the official liquidator requiring no interference in his order.
The appeal on that score was rejected but was allowed to the extent of a small amount of Rs.1225.36 being the amount of penalty under the Bombay Sales Tax Act and the Central Sales Tax Act upto the relevant date and the liquidator was directed to admit the said claim over and above the claim admitted by him.
The judgment of the D.R. Desai, J. is reported as Sales Tax Officer, Petlad vs Rajratha Naranbhai Mills Co. Ltd. & Another, [1974] Vol.
An intra Court Appeal was preferred by the Sales Tax Officer, Petlad in the High Court.
In the meantime in another case of Baroda Board & Paper Mills Ltd., a company in liquidation, the Income Tax Officer filed Company Application No. 2 of 1973 before the Company Judge claiming priority in respect of certain dues.
The Company Judge, B. K. Mehta, J. was engaged to determine the same question.
His attention was invited to the decision of D.A. Desai, J. in the instant case.
D.K. Mehta, J. was unable to agree with the conclusion reached by D.A. Desai, J. and hence the matter was referred to a Division Bench to have the entire question decided along with O.J. Appeal No. 2 of 1975.
The division bench of the High Court differed from the view of D.A. Desai, J. by holding that the only meaning that could be assigned to the word 'due ' occuring in the section is 'it must be presently due ' and the words 'due and payable ' mean the same thing, namely, that it must be presently payable.
On this understanding it was held that all revenues, taxes, cesses and rates due from the company to the Central or State Government or to a local authority must be presently payable, that is, that the liability could be enforced as at the relevant date and, secondly, it must have so become presently payable within twelve months immediately preceding the relevant date.
Further regarding sales tax it was held that it becomes due and payable when the tax has been assessed and a notice of demand for payment of that tax is served 533 upon the assessee or the dealer concerned and it is in this sense that the word has to be interpreted.
Taking that view the appeal of the Sales Tax Officer was allowed inasmuch as the sales tax due under the Bombay Sales Tax Act and the Central Sales Tax Act in respect of which the assessment orders were passed within the period of twelve months immediately preceding June 26, 1967 were held to have priority.
The balance amount as dues was directed to rank as ordinary debts without any priority, since the relevant orders were passed after the date of the winding up order.
The claim of the Sales Tax Officer to the recovery of penalty in liquidation proceedings was negatived because the demand was held to be without application of mind as to whether there was reasonable cause for the official liquidator for not paying the amount.
O. J. Appeal No. 2 of 1975 was allowed to this extent.
The Judgment of the High Court is reported as Baroda Board & Paper Mills Ltd. (in Liquidation) vs Income Tax Officer etc., [1976] Vol.
Clash of interpretation of section 530(1)(a) is the cause in this appeal.
We have gone through both the judgments afore referred to very carefully and minutely and have heard learned counsel on the conflicting decisions.
There are wide ranging discussions in the interpretative process relating to the word 'due ' occuring in the earlier part of the provision and the words 'due and payable ' in the later part, and whether they are different expression meant to convey differently or they mean the same thing.
With due respect to the High Court, we feel that relevant and important considerations and material though available, which could go to interpret the section purposively was over looked, and at this juncture we wish to put it to use.
Section 530 of the is the same as section 230 of the Indian Companies Act, 1913.
The old section 230(1)(a) of the Indian Companies Act, 1913 was analogous to Section 261 of the English Companies Act laying down that there shall be priority on certain debts named therein.
In Airedale Garage Co. In re: Anglo South American Bank vs The Company, [1932] Vol.
in the Court of Appeal, Lord Hanworth, Master of Rolls explained the meaning of the provision at page 574 in the following words: "Now section 264 says that in the winding up of a company 'there shall be paid in priority to all other debts ' certain debts, namely, 'parochail or other local rates . .assessed taxes . property or income tax . .wages or salary of any clerk or servant 'during four months next before the 534 relevant date . not exceeding fifty pounds, 'and others, and it is these debts which are to be marshalled and paid in accordance with the priority given to them by section 264.
With regard to local rates it is provided that priority shall be given to 'All parochial or other local rates due from the company at the relevant date ' The relevant date being the date of the appointment of the receiver, in this case, January 28, 1931 'and having become due and payable within twelve months next before that date '.
Those words are put in to restrict the amount for which priority is given.
It is not priority in respect of all the debts for local rates which maybe outstanding at that time; the priority is in respect only of such rates as became due and payable within twelve months before, in this case, January 28, 1931.
" And further at pages 577 78 as follows: "The rate was made on April 1, 1930; at that time it became due and payable.
The alteration that has been made subsequently in September of the year 1931 is to fit into the section to which I have referred, and by that section it is to be deemed to have had effect as from the commencement of the period in respect of which the rate was made.
In those circumstances it seems quite plain that the sum in contest in the present case must be appropriate to that period and that period alone, and, although ascertained at a later date, it nonetheless belongs to and is founded upon the liability to rates during that period and no other.
I find myself, therefore, unable to give a limited meaning to the words, as Eve, J., has done.
I think the words referred to in section 264 of the Companies Act, 'due and payable ', meant to refer to a liability in respect of which there had to be a solution Solvendum in futuro of that particular debt, and that particular debt is now to be deemed to have accrued within the period of the twelve months next before the relevant date." In A. Pamaiya 's the Companies Act, Eleventh Edition, 1988, it has been noticed at page 1320 that Section 530 of the has been largely recast and amended in the light of the following recommendations (exerpted) of the Company Law Committee in paragraph 218 of their Report: 535 "Section 230 of the Act of 1913 deals with the important subject of preferential payment.
The principle underlying this section is that the debts and liabilities enumerated in it should be treated as preferential debts as compared with ordinary unsecured debts.
The right of secured creditors other than debenture holders secured by a floating charge are not affected in any way.
They remain outside the scope of the winding up proceedings and their security remains unaffected by the provisions of this section.
We have set out in the Annexure to our Report the details of our recommendations, which broadly follow the provisions of the English .
Briefly, the more important of these recommendations are as follows: (i) xxxxx (ii) xxxxx (iii) xxxxx In this connection we should like to refer to a memorandum that we received from the Central Board of Revenue, on the question of a priority to be given to crown demands generally and, in particular, to arrears of income tax, super tax and corporation tax.
It was suggested that there should be no time limit for the preferential payment of these crown debts and that section 230 of the Indian should be amended accordingly.
The practical difficulty of giving effect to the suggestion is that it would place a great majority of the unsecured creditors of the company at the mercy of the income tax authorities, inasmuch as, whatever may be the nature of the security on which they may have lent money to a company at the time of the loan, the unforeseeable demands of the income tax authorities on the company without any time limit would rank over the claims of such creditors.
In these circumstances, it may be extremely difficult for the company to raise capital for its working.
In this connection, we would draw attention to the provisions of clause (a) of sub section (1) of section 319 of the English Companies Act, 1948, under which arrears of land tax, income tax, profits tax, excess profits tax or other assessed taxes rank in priority over other debts of a company only if they have been assessed on the company up to a particular date, namely, 5th 536 April or prior to the appointment of the liquidator or resolution for the winding up of the company and do not exceed in amount the whole of one year 's assessment.
It will be noticed that by comparison the provision of clause (a) of sub section (1) of section 230 of the Indian Companies Act, is much wider and gives much more latitude to the income tax authorities for under these provisions, arrears to taxes would rank in priority if they have become due and payable within twelve months next before the date on which they are payable irrespective of whether such taxes have been assessed on the company or not.
We are aware of the large arrears of income and other taxes which are due by many companies, which are in liqudation, but we would venture to think that the remedy for this unsatisfactory situation is not the conferment of preferential rights without limit to the income tax authorities under section 230 of the Indian Companies Act, but the energetic completion of assessment proceedings and vigorous measures for the collection of the assessed taxes.
" In Pennington 's Company Law, Fourth Edition, Chapter 26 titled 'Rules Common to All Liquidations; occuring under the head "Preferential Claim and Payments" at page 768 it is observed as follows: "The Inland Revenue may select the unpaid corporation or income tax for any one year as its preferential claim, and is not restricted to claiming the tax for the most recent year which ended on or before April 5 immediately preceding the relevant date.
Moreover, when there are two or more kinds of unpaid taxes, the Crown may select different years for different taxes, but since advance corporation tax is paid as an advance instalment of the company 's liability for corporation tax for the accounting period in which the advance corporation tax falls due, it would seem that the Inland Revenue may claim preference for both advance corporation tax and mainstream corporation tax only in respect of the same year.
Both benches of the High Court, with due respect, gave to the provision a very wide and varied interpretation and that too on literality and grammaticals seemingly overlooking the legal philosophy which permeats the provision, the same being that the debts due and 537 payable, so as to claim priority, must be appropriated to the period within 12 months next before the relevant date and their liability for payment must be funded during that period and no other.
To put it in simpler words, the State has a priority over debts, liability and obligation of which was born within the time frame of those twelve months and as such due and becoming due and payable within those twelve months next before the relevant date, ascertainable if necessary later, if not already ascertained.
We are in respectful agreement with the interpretation put by the Court of Appeal to section 264 of the English Companies Act in Airedale Garage 's case (supra), analogous as it is to the provision in hand, warranting the same interpretation; more so when any other interpretation would lead to the results feared by the Company Law Committee extracted above.
In such view of the matter, we need not elaborately comment, discuss or demolish, sentence by sentence, the reasoning given buy the single bench as also the division bench of the High Court towards interpreting the provision.
The words 'having become due and payable within 12 months next before the relevant date ' need be understood to mean putting a restriction or cordoning off the amount for which priority is claimable and not in respect of each and every debt on account of taxes, rates and cesses etc.
which may be outstanding at that time and payable.
And further that such priority is in respect only of debts those of which become due and payable because the liability to those is rooted, founded and belonging to that period of twelve months prior to the relevant date and none other; both the conditions existing.
For the view above taken, we allow the appeal of the Company in liquidation and direct that liquidator to re examine the claim for priority in accordance with the interpretation of the provision put by us, that is to say, he must first ascertain as to whether the liability to sales tax belongs to and is founded within the period of 12 months next before 26 June, 1967, and as such due and payable but preserving, however, the order of the division bench in relation to the view it has taken about penalties.
In the facts and circumstances of the case, we order that there should be no order as to costs.
R.P. Appeal allowed.
| The appellant company was ordered to be wound up by Court 's order dated 26.6.1967.
The liquidator invited creditors to prove their debts or claims and to establish title, if any to determine priority under s.530(1)(a) of the .
The Sales Tax Officer submitted a comprehensive claim of sales tax plus penalty and claimed priority.
The liquidator rejected the claim for priority in its entirety but admitted a part of it payable as debt with other unsecured creditors.
The Revenue appealed to the High Court contending that the liquidator erred in law in not granting priority to the claim to sales tax payable by the company for the period from 1.4.1957 to 31.12.1965 under the Bombay Sales Tax Act, and for period from 1.7.1957 to 31.12.1965 under the Central Sales Tax Act inasmuch as notice of demand was issued and assessment order was made in respect thereof within a period of 12 months before the relevant date.
The Company Judge, interpreting section 530(1)(a) of the Act, held that tax becomes due when taxing event occurs and not when assessment orders passed; that even though the amount for which priority was claimed was the amount of tax arrears that became payable at the time of making assessment orders after giving credit for what was paid alongwith return, yet it was due for a period much prior to 12 months next before the relevant date, and rejected the appeal on that score, but allowed the claim to the extent of a small amount of penalty under the two Sales Tax Acts upto the relevant date.
The Revenue filed an intra court appeal, which along with another referred matter was heard by a Division Bench.
The Division Bench held that sales tax becomes due and payable when the tax has 528 been assessed and notice of demand for its payment is served.
It allowed the claim of priority to the sales tax due under the two Acts, assessment orders in respect of which were passed within the period of 12 months immediately preceding 26.6.1967.
The balance amount was directed to rank as ordinary debts since the relevant orders were passed after the date of winding up order.
The claim of recovery of penalty was negatived, because the demand was held to be without application of mind as to whether there was reasonable cause for the official liquidator for not paying the amount.
Aggrieved, the company filed the present appeal by certificate.
Allowing the appeal, this Court, HELD: 1. Section 530(1)(a) of the provides that State has a priority over debts, liability and obligation of which was born within the time frame of 12 months next before the relevant date and as such due and becoming due and payable within those twelve months, ascertainable, if necessary, later if not already ascertained.
Thus the legal philosophy which permeats the provision is that the debts due and payable, so as to claim priority must be appropriated to the period within 12 months next before the relevant date and their liability for payment must be founded during that period and no other.[536G H, 537 A B] 2.1 The words 'having become due and payable within the twelve months next before the relevant date ' occurring in clause (a) of section 530(1) of the need be understood to mean putting a restriction or cordoning off the amount for which priority is claimable and not in respect of each and every debt on account of taxes, rates and cesses, etc.
which may be outstanding at that time and payable.
And that such priority is in respect only of debts those of which became due and payable because the liability to those is rooted, founded and belonging to that period of twelve months prior to the relevant date and none other; both the conditions existing.
[537C E] Airedale Garage Co. In re:Anglo South American vs The Company, [1832] Vol. , referred to.
2.2 Both Benches of the High Court gave to the provision a very wide and varied interpretation and that too on literality and gramaticals.
The Single Judge was not right in taking the view that the word 'due ' in the first part of clause (a) of s.530(1) of the was to mean 'outstanding and payable at the relevant date ' and in the expression ' having become due ' in the later part of the clause meant that the 529 event which brought the debt into existence occurred and also it became payable so as to be enforced against the company within twelve months before the date of order of winding up.
The Division Bench erred in holding that the only meaning that could be assigned to the word 'due ' occurring in the section was 'it must be presently due ' and the words 'due and payable ' meant that it must be presently payable.
[536G, 531D E & 532F G] Sales Tax Officer, Petlad vs Rajratha Naranbhai Mills Co. Ltd. and Another, [1974] Vol.
and Baroda Board & Paper Mills Ltd. (in liquidation) vs Income Tax Officer etc, [1976] Vol.
46 Company cases 25, overruled.
The liquidator was directed to re examine the claim and to ascertain as to whether the liability to sales tax belonged to and was founded within the period of 12 months next before 26 June, 1967, and as such due and payable, but preserving the order of the Division Bench in relation to its view on penalties.
[537E G]
|
grounds of detention, the manner in which the gold biscuits were concealed was mentioned and that itself suggested that the detenus must have been indulging in smuggling 439 activities.
[p. 443 B C] & ORIGINAL JURISDICTION: Writ Petition (Crl.) Nos. 105 & 106 of 1991.
(Under Article 32 of the Constitution of India.) Harjinder Singh and R.N. Joshi for the Petitioners.
A.K. Ganguli, Ms. Kitty Kumar Manglam, Ms. A. Subhashini and T.T. Kunhikannan for the Respondents.
The Judgment of the Court was delivered by K. JAYACHANDRA REDDY, J.
Common questions arise for consideration in these two writ petitions filed under Arti cle 32 of the Constitution of India seeking writ of habeas corpus for quashing the orders of detention and for immedi ate release of the detenus.
First, we shall deal with Writ Petition (Crl.) No. 105 of 1991.
Writ Petition (Crl.) No. 105 of 1991 The petitioner detenu is a foreign national being a resident of Republic of Maldives.
On 25.10.90 he landed at Trivandrum Airport from Male and was moving towards the exit gate of the Customs Import Baggage Hail.
He was intercepted by the Air Customs Officers and on examination he was found to be carrying 50 gold biscuits of foreign origin which were seized from either side of the handle inside the lock system of he red colour suit case belonging to the petitioner.
His passport and other documents were also seized.
The petition er 's statement was recorded under Section 108 of the wherein he is alleged to have confessed the guilt.
After the arrest he was produced in the Court of Chief Judicial Magistrate, Trivandrum and was remanded to judicial custody for a period of 14 days.
Thereafter he was shifted to the Court of the Additional Chief Judicial Magistrate (Economic Offences), Ernakulam.
While he was in jail he made an application for granting of bail under Section 437 Cr.
P.C. on 29.10.90 but it was rejected on 2.11.90 by the Additional Chief Judicial Magistrate (Economic Offences), Ernakulam.
While the petitioner.
was confined in jail an order of detention was passed under Section 3(1) of the Conservation of Foreign Exchange & Prevention of Smug gling Activities Act, 1974 ( 'COFEPOSA Act ') for short) by the Secretary to the Government, Government of Kerala, Home (SS A) Department on 7.11.90 and the same was served on the petitioner on 8.11.90.
The grounds of 440 detention alongwith the list of documents annexed thereto were served in time.
The petitioner made a representation and it was rejected.
It is submitted that since his bail application has been rejected and since he was in jail and his passport was also seized, there was no compelling necessity for such a deten tion.
It is also contended that no antecedents are there showing his involvement in such incidents and this was the solitary incident, therefore the provisions of the Act are not attracted.
The next main and important submission is that the copies of the bail application filed by him and the order refusing bail, which are relevant documents, were suppressed and not placed before the detaining authority nor they were supplied to the detenu and therefore there is non application of mind and the petitioner also is denied a reasonable opportunity under Article 22(5) of the Constitu tion of India.
We see no force in the first submission namely that there was no compelling necessity for passing the detention Order.
It is true that when the detention order was passed on 7.11.1990 the detenu was in jail and his bail application also was rejected and his passport also was seized.
But the detaining authority has mentioned in the grounds that "I am aware that you are under judicial custody and possibility of your release on bail in the near future cannot be ruled out.
Also nothing prevents you from moving bail application in the jurisdictional court and getting released on bail. ' Therefore it cannot be said that the detaining authority did not apply his mind to this aspect.
It is entirely within his subjective satisfaction whether there are such compelling circumstances or not.
He has noted that though the detenu was in jail there is likelihood of his being released and therefore it is clear that he has applied his mind to this aspect also.
The learned counsel appearing for the petition er relied on a judgment of this Court in Dharmendra Sugan chand Chelawat and Anr.
vs Union of India and Others [ ; wherein it is observed that an order of detention can be validly passed against a person in custody and for that purpose it is necessary that the grounds of detention must show that the detaining authority was aware of the fact that the detenu was already in detention and there were compelling reasons justifying such detention and that there should be cogent material on the basis of which the detain ing authority may be satisfied that there are compelling reasons such as that the.
detenu is likely to be released from custody in the near future and the nature of the an tecedents and activities of the detenu which indicate that he is likely to indulge in such activities if released and therefore it is necessary to detain him in order to prevent him from engaging in such activities.
But we may observe that what 441 would be the compelling reasons in the context would depend on the facts of each case.
In this case the allegation is that 50 gold biscuits of foreign origin were found in either side of the handle inside the lock system of the suitcase.
This itself manifests the expertise of the carrier in smug gling.
The detaining authority was aware that the detenu was in custody but he was satisfied that there is every likeli hood of his being released on bail and he is likely to indulge in such smuggling activities.
It is mentioned in the counter affidavit that the remand period of the detenu was to expire on 10.11.90 and that was also a ground which impelled the detaining authority to think that he was likely to be released on bail.
This was the material before the detaining authority on the basis of which he was satisfied that there were compelling reasons to pass the detention order.
Having carefully considered the submission of the learned counsel we are unable to say that there were no compelling reasons.
Learned counsel also relied on the judgment of this Court in Abdul Razak Abdul Wahab Sheikh vs
S.N. Sinha, Commissioner of Police, Ahmedabad and Another ; That was a case of public order and after referring to some of the earlier decisions including the decision of the Constitution Bench in Rameshwar Shaw vs District Magistrate, Burdwan, ; , this Court considered the contention i.e. since the detenu was in custody at the time of service of the order of detention there was no material to disclose necessitating the detention.
It was held thus: "On a consideration of the aforesaid deci sions the principle that emerges is that there must be awareness in the mind of the detain ing authority that the detenu is in custody at the time of service of the order of detention on him and cogent relevant materials and fresh facts have been disclosed which necessi tate the making of an order of detention.
In this case, the detenu was in jail custody in connection with a criminal case and the order of detention was served on him in jail.
It is also evident that the application for bail filed by the detenu was rejected by the Designated Court on May 13, 1988.
It is also not disputed that no application for bail was made for release of the detenu before the order of detention was served on him on May 23, 1988.
It appears that in the grounds of detention there is a statement that at present you are in jail yet "there are full possibilities that you may be released on bail in this offence also.
" This state ment clearly shows that the detaining authori ty was completely unaware of the fact that no application for bail was made on behalf of the detenu for his release before the Desig nated Court and as such the possibility of his coming out 442 on bail was non existent.
This fact of non awareness of the detaining authority, in our opinion, clearly establishes that the subjec tive satisfaction was not arrived at by the detaining authority on consideration of rele vant materials.
There is also nothing to show from the grounds of detention nor any fresh facts have been disclosed after the detention order dated January 25, 1988 was set aside by the Advisory Board on March 13, 1988, on the basis of which the detaining authority could come to his subjective satisfaction that the detenu, ii released on bail will indulge in acts prejudicial to the maintenance of public order and as such an order of detention is imperative." Having so observed the Division Bench referred to various criminal cases pending against the detenu at the relevant time and noted that some of the cases having noth ing to do with the maintenance of public order and then held that: "These statements do not disclose any activity after March 14, 1988 or any activity of the time when the detenu was a free person.
Con sidering all these facts and circumstances we are constrained to hold that there has been no subjective satisfaction by the detaining authority on a consideration of the relevant materials on the basis of which the impugned order of detention has been clamped on the detenu.
It also appears that the detenu was in detention as well as in jail custody for about three years except released on parole for short periods." The Division Bench finally concluded thus: "It is highlighted in this connection that in the affidavit inreply filed by respondent 1, the detaining authority, he merely denied the specific averments made in para 3(111) that no act prejudicial to the maintenance of law and order on the part of the detenu is alleged to have been committed by the detenu between March 14 to April 13, 1988 etc.
without spe cifically denying those statements.
In this background, a mere bald statement that the detenu who is in jail custody is likely to be released on bail and there are full possibili ties that he may continue the above offensive activities without reference to any particular case or acts does not show on the face of the order of detention that there has been subjec tive satisfaction by the detaining authority in making the order of detention in question." (emphasis supplied) 443 From the above passages it can be seen that this Court categorically held that a person in custody can be detained.
There must be awareness in the mind of the detaining author ity that the detenu is in custody and that there should be cogent and relevant material showing that there is a compel ling necessity to detain him.
Since that was a case of public order, the learned Judges proceeded to consider the nature of the cases that were pending and ultimately on the facts and circumstances of the case held that the absence of a reference to any one of such recent cases would show that the subjective satisfaction has not been arrived at proper ly.
This reasoning cannot be applied to the facts of this case.
In the grounds, the manner in which the gold biscuits were concealed is mentioned and that itself suggests that the detenu must have been indulging in smuggling activities.
So there was relevant material on the basis of which the detaining authority was satisfied that there was compelling necessity to pass the detention order.
The next submission is that there were no antecedents and that this being the solitary incident the detention is unwarranted.
It is again a question of satisfaction of the detaining authority on the basis of the material placed before it.
Even a solitary incident which has been detected may speak volumes about the potentialities of the detenu and merely on the ground that there were no antecedents the detention order cannot be quashed.
The authorities cannot and may not in every case salvage the antecedents but as noted above even a solitary incident may manifest the poten tialities of a detenu in the activities of smuggling.
The next and main submission is that there was suppres sion of vital documents namely bail application and the order refusing bail, which are relevant documents, and had those documents been placed before the detaining authority they might have influenced the mind of the detaining author ity one way or the other.
Alternatively it is also contended that irrespective of the fact whether they were placed before the authority or not the copies thereof ought to have been supplied to the petitioner paripassu the grounds of detention and that failure to supply the same has deprived the petitioner of an opportunity of making an effective representation and therefore the detention as such is ille gal and violative of Article 22(5) of the Constitution of India.
There is no dispute that the detenu moved for bail under Section 437 Cr.
P.C. on 29.10.90 before the Additional Chief Judicial Magistrate (Economic Offences), Ernakulam and by an order dated 2.11.90 the bail application was rejected.
The first grievance of the petitioner is that these two documents were not placed before the detaining authority and they were suppressed,.
In support of this plea reliance is placed on the grounds wherein the 444 detaining authority has stated that he was aware that the petitioner was in judicial custody and possibility of his release on bail in the near future cannot be ruled out.
It is submitted that this statement itself shows that the detaining authority was not aware that a bail application in fact was made and the same has been rejected and the only inference that can be drawn is that these relevant documents were suppressed and not placed before the detaining authori ty.
In the counter affidavit filed by the second respondent, State of Kerala, it is categorically denied that the bail application and the order refusing bail were suppressed from the detaining authority and that at the time of sponsoring the petitioner 's name the copies of the bail application and the order refusing bail were not made available to the Department and therefore they were not placed before the authority.
From these averments, one of the questions that arise for consideration is whether the failure to supply these two documents to the detenu or alternatively whether the failure to place the bail application and the order refusing bail before the detaining authority does in any way affect the detention order.
The learned counsel in this context sought to place reliance on some of the judgments of this Court.
In M. Ahmedkutty vs Union of India and another; , , the contention was that the bail application and the order granting bail which were relied upon by the detaining authority were not supplied to the detenu and therefore the detention was illegal.
A Division Bench of this Court noticed that in the grounds it was clearly men tioned that the detenu was remanded to judicial custody and was subsequently released on bail.
Therefore these documents were in fact placed before the detaining authority and were relied upon by it and therefore the non supply of these relevant documents to the detenu disabled him to make an effective representation.
Therefore there was violation of Article 22(5) of the Constitution.
In arriving at this conclusion, the Division Bench relied on several other decisions and observed that all the documents relied upon by the detaining authority must be pari passu supplied to the detenu.
In the instant case, the facts are different.
In the counter affidavit it is clearly stated that the bail appli cation and the order refusing bail were not there before the sponsoring authority.
Therefore they were not placed before the detaining authority.
The grounds do not disclose that the detaining authority has relied upon any of these two documents.
On the other hand as already noted the detaining authority mentioned in the grounds that it was aware that the detenu was in custody but there is every likelihood of his being released on bail.
This itself shows that these documents were not before the authority.
Therefore it cannot be said that the docu ments referred to and relied upon in the grounds were not supplied to the detenu and the ratio in 445 Ahmedkutty 's case; , on this aspect does not apply to the facts in the instant case.
It is not necessary to refer to in detail various decisions of this Court where in it has been clearly laid down that the documents referred to or relied upon in the grounds of detention only are to be supplied.
This has been settled by a long line of decisions: Ramachandra A. Kamat vs Union of India ; , Frances Coralie Mullin vs
W.C. Khambra, [19801 2 SCC 275, Ichhu Devi Choraria vs Union of India, ; , Pritam Nath Hoon vs Union of India, ; , Tushar Thakker vs Union of India, , Lallubhai Jobibhai Patel v.union of India; , , Kirti Kumar Chatnan Lal Kundalia vs Union of India , and Ana Carolina D 'Souza v Union of India 1198x1 Supp.
SCC 53 (1) At this juncture it is also necessary to note that such of those documents which are not material and to which a casual or passing reference is made in the grounds, need not be supplied.
In Mst.
L.M.S. Ummu Saleema vs Shri B.B. Guja ral and another; , after referring to some of the earlier decisions of this Court, it was held thus: "It is, therefore, clear that every failure to furnish copy of a document to which reference is made in the grounds of detention is not an infringement of Article 22(5), fatal to the order of detention.
It is only failure to furnish copies of such documents as were relied upon by the detaining authority, making it difficult for the detenu to make an effec tive representation, that amounts to a viola tion of the fundamental rights guaranteed by Article 22(5).
In our view it is unnecessary to furnish copies of documents to which casual or passing reference may be made in the course of narration of facts and which are not relied upon by the detaining authority in making the order of detention.
It will therefore be seen that failure to supply each and every document merely referred to and not relied upon will not amount to infringement of the rights guaranteed under Article 22(5) of the Constitution.
We may of course add that whether the document is casually or passingly referred to or whether it has also formed the material for arriving at the subjective satisfaction, depends upon the facts and grounds in each case.
In the instant case we are satisfied that these two documents were not placed before the detaining authority nor they were referred to or relied upon.
The learned counsel, however, proceeded to submit that even assuming that these documents were not relied upon or referred to by the detaining authority yet the failure to place these relevant documents before the 446 detaining authority amounted to suppression and therefore there was non application of mind and that the detention order passed without looking into such relevant material is invalid.
In Ahmedkutty 's case no doubt there is an observa tion having regard to the facts therein that non considera tion of the bail application and the order of releasing would amount to non application of mind and that would affect the detention order.
The Division Bench made these observations while considering the contention that the order granting bail and the bail application, though referred to, were not relied upon.
It is not laid down clearly as a principle that in all cases non consideration of the bail application and the order refusing bail would automatically affect the detention.
The relevant observations in this context made by this Court Ahmedkutty 's case may be noted: "If in the instant case the bail order on condition of the detenu 's reporting to the customs authorities was not considered the detention order itself would have been af fected.
Therefore, it cannot be held that while passing the detention order the bail order was not relied on by the detaining authority.
In section Gurdip Singh vs Union of India, , following Ichhu Devi Choraria vs Union of India, ; and Shalini Soni vs Union of India, ; it was reiterated that if the documents which formed the basis of the order of detention were not served on the detenu along with the grounds of detention, in the eye of law there would be no service of the grounds of detention and that circumstance would vitiate his detention and make it void ab initio." (emphasis supplied).
It is further observed in this case that: "Considering the facts in the instant case, the bail application and the bail order were vital materials for consideration.
If those were not considered the satisfaction of the detaining authority itself would have been impaired, and if those had been considered, they would be documents relied on by the detaining authority though not specifically mentioned in the annexure to the order of detention and those ought to have formed part of the documents supplied to the detenu with the grounds of detention and without them the grounds themselves could not be said to have been complete.
We have, therefore, no alterna tive but to hold that it amounted to denial of the detenu 's right to make an effective repre sentation and that it resulted in violation of Article 22(5)of the Constitution of India 447 rendering the continued detention of the detenu illegal and entitling the detenu to be set at liberty in this case." (emphasis supplied) Placing considerable reliance on this passage, the learned counsel contended inter alia that in the instant case from other point of view namely (i) if the bail application and the order refusing bail were not considered or (ii) if considered the non supply of the copies of the same to the detenu would affect the detention order.
In other words, according to him, non consideration of these two documents by the detaining authority would itself affect the satisfaction of the detaining authority.
If on the other hand they are taken into consideration and relied upon the non supply of the same to the detenu would result in violation of Article 22(5) of the Constitution rendering the detention invalid.
We are unable to agree with ' the learned counsel.
We are satisfied that the above observations made by the Division Bench of this Court do not lay down such legal principle in general and a careful examination of the entire discussion would go to show that these observations were made while rejecting the contention that the bail application and the order granting bail though referred to in the grounds were not relied upon and therefore need not be supplied.
The case is distinguishable for the reason that the Division Bench has particularly taken care to mention that "Considering the facts . the bail application and the bail order were vital materials".
In that view these observations were made.
Further that was a case where the detenu was released on bail and was not in custody.
This was a vital circumstance which the authority had to consider and rely before passing the detention order and therefore they had to be supplied.
Now we shall consider the other submission regarding the non supply of the bail application and the order refusing bail to the detenu and its effect.
According to the learned counsel these two documents formed relevant material and irrespective of the fact whether they were placed before the detaining authority or not they ought to have been supplied to the detenu and failure to do so has caused prejudice in making an effective representation.
We are unable to agree.
In Abdul Sattar Abdul Kadar Shaikh vs Union of India and Others [1990] I SCC 480 it is observed thus: "In fact the bail applications were filed by the detenu himself and he was very much aware of the contents of those bail applications and the orders made thereon.
These documents were not relied upon bv the detaining authority.
When a request is made by the detenu for supply of these bail applications and 448 orders refusing thereon are made, the court inter alia has to look into the question whether the detenu is in any way handicapped in making an effective representation by such refusal.
No authority has been placed before us which goes to the extent of holding that a mere non supply of any document whatever its nature may be, to the detenu per se amounts to the denial of an opportunity under Article 22(5)." (emphasis supplied).
In Syed Farooq Mohammed vs Union of India and Another, JT [1990] 3SC 102 this Court considered precisely the same question and it was observed thus: "The third ground of challenge is that the relevant document i.e. bail application of the petitioner and order made there on which might have been considered by the detaining authori ty were not supplied to the petitioner and as such his right of making effective representa tion guaranteed under Article 22(5) of the Constitution of India has been seriously prejudiced.
This ground is without any sub stance because firstly there is nothing to show from the grounds of detention that the rejection of this bail application by the Sessions Judge, Greater Bombay on January 5, 1990 was considered by the detaining athority before passing the impugned order of detention and as such this being not referred to in the grounds of detention, the documents had not been supplied to the petitioner, and it, therefore, cannot be urged that non supply of this document prejudiced the petitioner in making effective representation against the order of detention.
Article 22(5) of the Constitution, undoubtedly, mandates that all the relevant documents referred to in the grounds of detention and which are considered by the detaining authority in coming to his subjective satisfaction for clamping an order of detention are to be supplied to the detenu.
The said document was not considered by the detaining authority in coming to his subjec tive satisfaction and in making the impugned order of detention.
The nonfurnishing to the detenu of the said document i.e. the bail application and the order passed thereon, does not affect in any manner whatsoever the dete nu 's right to make an effective representation in compliance with the provisions of Article 22(5) of the Constitution of India.
This ground, therefore, is wholly untenable." (emphasis supplied) 449 From the above discussion it emerges that even if the bail application and the order refusing bail are not placed before the detaining authority or even if placed, if the detaining authority does not refer to or rely upon or has failed to take them into consideration, that by itself does not lead to an inference .that there was suppression of relevant material or in the alternative that there was non application of mind or that subjective satisfaction was impaired.
When these documents are neither referred to nor relied upon, there is no need to supply the same to the detenu.
As already noted, in all such cases where the detenu was in custody at the time of passing an order of detention what is strictly required is whether the detaining authority was aware of the fact that the detenu was in custody and if so was there any material to show that there were compelling reasons to order detention inspire of his being in custody.
These aspects assume importance because of the fact that a person who is already in custody is disabled from indulging in any prejudicial activities and as such the detention order may not normally be necessary.
Therefore the law requires that these two tests have to be satisfied, in the case of such detention of a person in custody.
The Constitution Bench in Rameshwar Shaw 's case held thus: ". .
Whether the detention of the said person would be necessary after he is released from jail, and if the authority is bonafide satisfied that such detention is necessary, he can make a valid order of detention a few days before the person is likely to be released.
XXX XXXX XXX Therefore, we are satisfied that the question as to whether an order of detention can be passed against a person who is in detention or in jail, will always have to be determined in the circumstances of each case.
" Following the above principles, another Bench of three Judges of this Court in N. Meera Rani vs Government of Tamil Nadu and Another, ; after reviewing the various other decisions, it was observed that "A review of the above decisions reaffirms the position which was settled by the decision of a Constitution Bench in Rameshwar Shaw 's case and that none of the observations made in any subse quent case can be construed at variance with the principle indicated in Rameshwar Shaw 's case.
" Having so observed the Bench summarised the principle thus: "Subsisting custody of the detenu by itself does not invalidate 450 an order of his preventive detention and the decision must depend on the facts of the particular case; preventive detention being necessary to prevent the detenu from acting in any manner prejudicial to the security of the State or the maintenance of public order etc.
ordinarily it is not needed when the detenu is already in custody;, the detaining authority must show its awareness to the.
fact of sub sisting custody of the detenu and take that factor into account while making the order; but even so, if the detaining authority is reasonably satisfied on cogent material that there is likelihood of his release and in view of his antecedent activities which are proxi mate in point of time he must be detained in order to prevent him from indulging in such prejudicial activities, the detention order can be validly made even in anticipation to operate on his release.
This appears to us, to be the correct legal position." In Chelawat 's case after examining the various decisions of this Court dealing with preventive detention of a person in custody, it is held thus: "The decisions referred to above lead to the conclusion that an order for detention can be validly passed against a person in custody and for that purpose it is necessary that the grounds of detention must show that (i) the detaining authority was aware of the fact that the detenu is already in detention; and (ii) there were compelling reasons justifying such detention despite the fact that the detenu is already in detention.
The expression "compel ling reasons" in the context of making an order for detention of a person already in custody implies that there must be cogent material before the detaining authority on the basis of which it may be satisfied that (a) the detenu is likely to be released from custody in the near future, and (b) taking into account the nature of the antecedent activities of the detenu, it is likely that after his release from custody he would in dulge in prejudicial activities and it is necessary to detain him in order to prevent him from engaging in such activities." In Sanjay Kumar Aggarwal vs Union of India and Others ; after reviewing all the relevant cases including Chelawat 's case, this Court observed as under: "It could thus be seen that no decision of this Court has gone to the extent of holding that no order of detention can validly be passed against a person in custody under any circumstances.
Therefore the facts and circum stances of each case have to be 451 taken into consideration in the context of considering the order of detention passed in the case of a detenu who is already in jail.
We have already, in the instant case, referred to the grounds and the various circumstances noted by the detaining authority and we are satisfied that the detention order cannot be quashed on this ground.
" In a very recent judgment of this Court in Kamarunnissa etc. vs Union of India and Another., all the above mentioned decisions dealing with the detention of a person in custody have been reviewed and it is finally held as under: "From the catena of decisions referred to above it seems dear to us that even in the case of a person in custody a detention order can validly be passed (1) if the authority passing, the order is aware of the fact that he is actually in custody; (2) if he has reason to believe on the basis of reliable material placed before him (a) that there is a real possibility of his being released on bail, and (b) that on being so released he would in all probability indulge in prejudi cial activity and (3) if it is felt essential to detain him to prevent him from so doing.
If the authority passes an order after recording his satisfaction in this behalf, such an order cannot be struck down on the ground that the proper course for the authority was to oppose the bail and if bail is granted notwithstand ing such opposition to question it before a higher Court.
" Having regard to the various above cited decisions on the points often raised we find it appropriate to set down our conclusions as under: (1) A detention order can validly be passed even in the case of a person who is already in custody.
In such a case, it must appear from the grounds that the authority was aware that the detenu was already in custody.
(2) When such awareness is there then it should further appear from the grounds that there was enough material necessitating the detention of the person in custody.
This aspect depends upon various considerations and facts and circumstances of each case.
If there is a possibility of his being released and on being so released he is likely to indulge in prejudicial activity then that would be one such compelling necessity to pass the detention order.
The order cannot be quashed on the ground that the proper course for the authority was to oppose the bail and that if bail is granted 452 notwithstanding such opposition the same can be questioned before a higher Court.
(3) If the detenu has moved for bail then the applica tion and the order thereon refusing bail even if not placed before the detaining authority it does not amount to sup pression of relevant material.
The question of non applica tion of mind and satisfaction being impaired does not arise as long as the detaining authority was aware of the fact that the detenu was in actual custody.
(4) Accordingly the non supply of the copies of bail application or the order refusing bail to the detenu cannot affect the detenu 's right of being afforded a reasonable opportunity guaranteed under Article 22(5) when it is clear that the authority has not relied or referred to the same.
(5) When the detaining authority has merely referred to them in the narration of events and has not relied upon them, failure to supply bail application and order refusing bail will not cause any prejudice to the detenu in making an effective representation.
Only when the detaining authority has not only referred to but also relied upon them in arriv ing at the necessary satisfaction then failure to supply these documents, may, in certain cases depending upon the facts and circumstances amount to violation of Article 22(5) of the Constitution of India.
Whether in a given case the detaining authority has casually or passingly referred to these documents or also relied upon them depends upon the facts and the grounds, which aspect can be examined by the Court.
(6) In a case where detenu is released on bail and is at liberty at the time of passing the order of detention, then the detaining authority has to necessarily rely upon them as that would be a vital ground for ordering detention.
In such a case the bail application and the order granting bail should necessarily be placed before the authority and the copies should also be supplied to the detenu.
Bearing in mind the principles laid down in the above mentioned case, we shall now examine the facts in the case before us.
The detaining authority in Ground Nos. 3 and 4 has stated as under: "3.
You were arrested under Section 104 of the by the Superintendent on 26.10.90.
You were produced before the Chief Judicial Magistrate, Trivandrum on the same day.
The Magistrate remanded you to judicial custody.
453 4.
I am aware that you are under judicial custody and possibility of your release on bail in the near future cannot be ruled out.
Also nothing prevents you from moving bail application in the jurisdictional court and getting release on bail.
" In the counter affidavit, it is stated that the period of remand to the judicial custody was to expire the next day after his detention.
Therefore there was every likelihood of his moving for bail and getting released On bail.
These materials Show that the detaining authority was not only aware that the detenu was in jail but also noted the circum stances on the basis of which he was satisfied that the detenu was likely to come out on bail and continue to in dulge himself in the smuggling activities.
It, therefore, cannot be said that there were no compelling reasons justi fying the detention despite the fact that the detenu is already in custody.
Likewise the failure to supply the bail application and the order refusing bail does not in any manner prejudice the detenu from making a representation particularly when he was fully aware of the contents of application made by himself and also the refusal order.
However, when they are not referred to or relied upon the non supply does not affect the detention.
These are all the submissions made by the learned coun sel for the petitioner and we do not see any merit in any of them.
Accordingly the Writ Petition is dismissed.
Writ Petition (Criminal) No. 106 of 1991 In this Writ Petition also the petitioner is a foreign national, being resident of Republic of Maldives.
On 25.10.90 he landed at Trivandrum Airport from Male.
After customs clearance the petitioner proceeded to Hotel Geeth at Trivandrum and while he was staying there, some officers of Customs came to the room and conducted a search.
Nothing was recovered.
But the officers took the petitioner by force to the Customs Import Baggage Hall and it is alleged that on examination, 30 gold biscuits of foreign origin were seized from either side of the handle inside the lock system of the blue colour suitcase which is alleged to be of petitioner.
The petitioner 's passport and other documents were also seized by the Air Customs Officer, Trivandrum.
The petition er 's statement was recorded ' under Section 108 of the Cus toms Act, 1962 wherein he is alleged to have confessed the guilt.
After the arrest he was produced in the Court of Chief Judicial Magistrate, Trivandrum and was remanded to judicial custody for a period of 14 days.
Thereafter he was shifted to the Court of the Additional Chief Judicial Magis trate (Economic Offences), Ernakulam.
While he was in jail he made an application for grant of bail under Section 473 Cr.
454 P.C. on 29.10.90 but it was rejected on 2.11.90 by the Additional Chief Judicial Magistrate (Economic Offences), Ernakulam.
While the petitioner was in jail, an order of detention was passed under Section 3(1) of the COFEPOSA Act by the Secretary to the Government, Govt.
of Kerala, Home (SSA) Department, on 7.11.90 and the same was served on the petitioner on 8.11.90.
The grounds of detention alongwith the list of documents annexed thereto were served in time.
The petitioner made a representation stating that since his bail application has been rejected and since he was in jail and his passport was also seized, there is no compelling necessity for such a detention.
He also stated that no antecedents are there showing his being involved in such incidents and this was the solitary incident, therefore the provisions of the Act are not attracted.
The same points as in Writ Petition (Criminal) No. 105 of 1991 are raised in this petition also.
We have negatived all the contentions in the above case.
One another submission of the learned counsel for the petitioner is that in the case of this petitioner the deten tion order mentions only smuggling and that when once the detenu is in jail and when his passport is seized, he can no more indulge in smuggling and therefore according to the learned counsel, there is non application of mind.
In this context he relied on the definition of "smuggling".
Section 2(e) of the COFEPOSA Act defines "smuggling* ' thus: "2.
Definitions In this Act, unless the context otherwise requires, xxxx xxxx xxxx xxx (e) "smuggling" has the same meaning as in clause (39) of Section 2 of the , and all its grammatical variations and cognate expressions shall be construed accord ingly.
" Clause (39) of Section 2 of the defines "smuggling" thus: "2. Definitions In this Act, unless the context otherwise requires, (39) "smuggling" in relation to any goods means any act or 455 omission which will render such goods liable to confiscation under section 111 or section 113? Sections 111 and 113 of the provide for confiscation of improperly imported goods and exported goods respectively.
The submission of the learned counsel is that the petitioner being in custody in India can no more indulge in smuggling and therefore the detention on the ground that he is likely to indulge in smuggling is non existent.
We see no force in this submission.
The potentialities of the detenu as gathered from his act of smuggling that form basis for detention.
It is difficult to comprehend precisely the manner in which such a detenu with such potentialities may likely to indulge in the activities of smuggling.
It is for the detaining authority to derive the necessary satisfaction on the basis of the materials placed before him.
In the result this Writ Petition is also dismissed.
RP Petitions dismissed.
| The petitioners foreign nationals found to be carrying gold biscuits of foreign origin were arrested by the Customs authorities.
Their applications for grant of bail under section 437 Cr.
P.C. were rejected.
Thereafter orders of their detention were passed under section 3(1) of the Conserva tion of Foreign Exchange and Prevention of Smuggling Activi ties Act.
The grounds of detention alongwith the lists of documents annexed thereto were served in time.
The petition ers made representations which were rejected.
In the writ petitions under Article 32 of the Constitu tion, the petitioners before this Court contended that there was no compelling necessity for their detention under the as they were in jail and their bail applica tions were rejected and passports seized; that the provi sions of the Act were not attracted, as each of the inci dents in the case of the respective petitioners was solitary and there were no anticidents showing their involvement in the like incidents; that there was non application of mind by the detaining authority as copies of the bail applica tions and the orders refusing bail which were relevant documents were neither placed 436 before the detaining authority nor were supplied to them.
On behalf of one of the petitioners it was also contended that there was no application of mind by the detaining authority inasmuch as the order of detention mentioned only smuggling and once the detenu is in jail, his passport being seized he could no more indulge in smuggling.
Dismissing the writ petitions, this Court, HELD: 1.1 A detention order can validly be passed even in the case of a person who is already in custody.
In such a case, it must appear from the grounds that the authority was aware that the detenu was already in custody.
[451 F] 1.2 When such awareness is there then it should further appear from the grounds that there was enough material necessitating the detention of the person in custody.
This aspect depends upon various considerations and facts and circumstances of each case.
If there is a possibility of his being released and on being so released he is likely to indulge in prejudicial activity then that would be one such compelling necessity to pass the .detention order.
The order cannot be quashed on the ground that the proper course for the authority was to oppose the bail and that if bail is granted notwithstanding such opposition the same can be questioned before a higher Court.
[451G H, 452 A] Dharmendra Suganchand Chelawat & Anr.
vs Union of India vs
S.N. Sinha, Commissioner of Police, Ahmedabad & Anr., ; , referred to.
Rameshwar Shah vs District Magistrate, Burdwan, ; , followed.
N. Meera Rani vs Government of Tamil Nadu &Anr.
, ; ; Sanjay Kumar Aggarwal vs Union of India & Ors., ; and Kamarunnissa etc.
vs Union of India &Anr., , relied on.
2.1 If the detenu has moved for bail then the applica tion and the order thereon refusing bail even if not placed before the detaining authority it does not amount to sup pression of relevant material.
The question of non applica tion of mind and satisfaction being impaired does not arise as long as the detaining authority was aware of the fact that the detenu was in actual custody.
[452 B] 437 2.2 Accordingly the non supply of the copies of bail application or the order refusing bail to the detenu cannot affect the detenu 's right of being afforded a reasonable opportunity guaranteed under Article 22(5) of the Constitu tion, when it is clear that the authority has not relied or referred to the same.
[452 C] 2.3 When the detaining authority has merely referred to them in the narration of events and has not relied upon them, failure to supply bail application and order refusing bail will not cause any prejudice to the detenu in making an effective representation.
Only when the detaining authority has not only referred to but also relied upon them in arriv ing at the necessary satisfaction then failure to supply these documents, may, in certain cases depending upon the facts and circumstances, amount to violation of Article 22(5) of the Constitution of India.
Whether in a given case the detaining authority has casually or passingly referred to these documents or also relied upon them depends upon the facts and the grounds, which aspect can be examined by the Court.
[452 C E] 2.4 In a case where detenu is released on bail and is at liberty at the time of passing the order of detention.
then the detaining authority has to necessarily rely upon them as that would be a vital ground for ordering detention.
In such a case the bail application and the order granting bail should necessarily be placed before the authority and the copies should also be supplied to the detenu.
[452 E F] M. Ahmedkutty vs Union of India & Anr., ; ; Ramachandra A. Kamat vs Union of India. ; ; Frances Coralie Muffin
W.C. Khambra.
; ; Icchu Devi Choraria vs Union of India. ; Pritam Nath Hoon vs Union of India ; ; Lallub hai Jobibhai Patel vs Union of india; , ; Tushar Thakker vs Union of India ; Kirti Kumar Chaman Lal Kundalia vs Union of India ; Ana Carolina D 'Souza vs Union of India [1981] Supp.
SCC 53(10); Mst.
L.M.S. Ummu Saleema vs Shri B.B. Gujaral & Anr.
, ; ; Abdul Sattar Abdul Kadar Shaikh vs Union of India & Ors., and SaVed Farooq Mohammad vs Union of India & Anr., JT , referred to.
It is entirely within the subjective satisfaction of the detaining authority whether or not there were compelling circumstances to detain the person concerned.
[p. 440 E] 438 4.1 In the instant case, in the counter affidavit it was stated that the period of remand to the judicial custody was to expire the next day after the detention.
Therefore, there was every likelihood of the detenu 's moving for bail and getting released on bail.
These materials showed that the detaining authority was not only aware that the detenus were in jail but also noted the circumstances on the basis of which he was satisfied that they were likely to come out on bail 'and continue to indulge in the smuggling activities.
[453 B C] As mentioned in the grounds of detention, there was relevant material on the basis of which the detaining au thority was satisfied that there was compelling necessity to pass the detention orders.
It, therefore, cannot be said that there were no compelling reasons justifying the deten tion despite the fact that detenus were already in custody.
[443 C, 453 C] 4.2 Failure to supply the bail applications and the orders refusing bail did not in any manner prejudice the detenus from making representations particularly when they were fully aware of the contents of the applications made by them and also the refusal orders.
However, when they are not referred to or relied upon, the non supply does not affect the detention.
[453 C D] 5.1 Even a solitary incident may speak volumes about the potentialities of the detenu and merely on the ground that there were no antecedents the detention order cannot be quashed.
The authorities cannot and may not in every case salvage the antecedents but even a solitary incident may manifest the potentialities of a detenu in the activities of smuggling.
[p. 443 D E] 5.2 The potentialities of the detenu as gathered from his act of smuggling form basis for detention.
It is diffi cult to comprehend precisely the manner in which a detenu with certain potentialities may likely to indulge in the activities of smuggling.
It is for the detaining authority to derive the necessary satisfaction on the basis of the materials placed before him.
[p. 455 B C]
|
Criminal Appeal No. 624 of 1979.
From the Judgment and Order dated 27.3.1979 of the Madhya Pradesh High Court in Criminal Appeal No. 498 of 1977.
Frank Anthony, Sushil Kumar Jain, Ms. Pratibha Jain and R.V. Singh for the Appellants.
U.N. Bachhavat, Uma Nath Singh and J.M. Sood for the Respon dent.
The following Order of the Court was delivered: These two appellants, namely, Mathura Prashad and Binda Prashad have preferred this appeal questioning the correct ness and legality of the judgment rendered in Criminal Appeal No. 498/77 by the High Court of Madhya Pradesh at Jabalpur Bench.
These two appellants (A4 and A5 before the Trial Court) along with three others, namely, Gulab Chand and Gulab Singh and Laxman Rao (who were arrayed as accused Nos. 1 to 3) took their trial on the accusation that on the night intervening 5/6.12.75 at about 12.30 a.m. at Sarkanda, Bilaspur within the limits of Bilaspur Police Station, Civil Lines intentionally caused the death of the deceased, Keshav Singh by Gulab Singh stabbing the deceased with a knife and the rest of the people assaulting him and that in the course of the same transaction, they also committed the offence of dacoity.
Under the above accusation, they were tried for offences punishable u/s 302 IPC in the alternative u/s 302 IPC read with 149 IPC and also for offence u/s 396 IPC.
The Trial Court found the third accused, namely, Laxman Rao not guilty of any of the charges and consequently, acquitted him but convicted these two appellants and accused Nos. 1 and 2 who are not before us u/s 302 read with 34 IPC and sentenced each of them to undergo imprisonment for life.
However, the Trial Court acquitted the appellants and the other two accused of the offence u/s 396 IPC.
On being aggrieved by the judgment of the Trial Court, the convicted accused namely, these two appellants, Gulab Chand and Gulab Singh filed 429 an appeal before the High Court which for the reasons men tioned in its judgment, dismissed the appeal confirming the conviction recorded by the Trial Court.
Challenging this judgment, these two appellants filed their SLP No. 1902/79 and the other two convicted accused, namely, Gulab Chand and Gulab Singh (A1 and A2) filed a separate petition in SLP (Crl.) No. 1435/79.
This Court by an order dated 29.10.79 granted leave so far as SLP filed by these two appellants, but dismissed the SLP filed by the first and the second accused namely, Gulab Chand and Gulab Singh.
Hence, the present appeal by these two appellants.
The facts of the case which led to the filing of this appeal are well set out in the judgments of the Trial Court and the High Court and hence we think that it is not neces sary for us to proliferate the same except to refer to certain salient features relevant for the disposal of this appeal.
The deceased Keshav Singh was a petition writer.
He was living in his house at Sarkanda in Bilaspur with his wife Smt.
Phatokan Bai (PW 19) and two daughters, namely, Anjani Bai (PW 1) and Shail Kumari (PW 2) and his son, Ram Kumar (PW 3) who was younger to PW 1 and eider to PW 2.
There were some tenants in different parts of that house.
The accused Gulab Chand occupied a portion of that house as a tenant, but vacated the same about two months before this occurrence due to frequent quarrels between the children and ladies of the families belonging to Gulab Chand and that of the deceased.
It is alleged that the wife of Gulab Chand had complained about some alleged misbehaviour of the deceased with her.
According to the prosecution, when the deceased was sleeping in a room with his wife on the iII fated night, he heard someone knocking at the door.
On this, the deceased switched on the light and opened the door.
This appellant and the other accused entered his room.
Gulab Chand and Gulab Singh whipped up their knives and gave stab wounds; one on the chest, another on the back while bending.
These two appellants slapped and fisted the deceased.
It is fur ther stated that the second appellant herein, namely, Binda Singh caught hold of the deceased and banged him against the wall repeatedly.
PW 19 tried to save her husband but she was pushed aside.
During the course of the occurrence, a gold 'PUTRI ' which PW 19 was wearing, was attempted to be snatched away from her.
PW 1 who was sleeping in a room on the first floor, on hearing the cry, got down and saw these appellants and the other accused leaving her father 's room.
It is alleged that the appellant while running away took with them a box con taining some clothes and other articles belonging to PW 1.
According to the prosecution, the appellants had chained the doors in such a way that the other inmates of the house could not reach the spot.
430 After the appellants had fled away, PW 1 opened the doors.
PW 3 who was sleeping in another room reached the spot.
PW 15 was a tenant in an adjoining room and he on hearing the distress cry of PW 19, wanted to come out of his room but he could not do so as the house was chained from outside.
Therefore, PW 15 shouted for opening the latches of the door.
He came to the spot after the door was opened.
One Ramji Dayal who seemed to have played an important role in the prosecution, also reached the spot but he has not been examined by the prosecution as a witness.
All the witnesses saw bleeding injuries on the body of Keshav Singh (the deceased herein) who was unable to speak.
PW 3, at the instance of his deceased father brought a pen and a piece of paper on which the injured Keshav Singh wrote 'Gulab Chand ' and thereafter became unconscious.
The injured Keshav Singh was then taken to the Government hospital at Bilaspur where he succumbed to his injuries.
The medical officer sent a requisition exhibit P 14 to the police station.
PW 19, by then, lodged the first information report Exh.
P 43 at about 3.00 a.m. on 6.12.75 before PW 21.
PW 21 held inquest and pre pared the inquest report Exh.
During the course of the investigation, he has seized exhibit P.50, the paper on which the deceased had written the name 'Gulab Chand ' on being produced by PW 3.
PW 9, the medical officer who conducted autopsy on the dead body of the deceased, found two stab wounds and one incised wound on the person of the deceased.
PW 8, another medical officer examined accused Gulab Singh and found on his person a small incised wound at the base of the index finger on the palmer aspect.
After completing the investigation, the charge sheet was laid against all the accused persons.
As aforementioned, the trial court convicted the four accused inclusive of these two appellants which conviction was confirmed by the High Court.
Hence, this appeal by these two appellants.
Of the witnesses examined, PWs 1, 2 and 19 speak about the participation of the appellants in the perpetration of this heinous crime.
No doubt both the Courts below have concurrently found that these two appellants and the other two accused 1 and 2 were responsible for causing the death of the deceased and consequently convicted and so, the question would be whether this Court while exercising its jurisdiction under Article 136 of the Constitution of India, will be justified in interfering with the concurrent find ings of fact.
This Court in Balam Ram vs State of U.P. 11975] 3 SCC 219 at 227 held, that the powers of the Supreme Court under Article 1.36 of the Constitution are wide but in criminal appeals, this Court does not interfere with the concurrent findings of fact save in exceptional circumstances.
The 431 scope of interference by this Court under Article 136 of the Constitution of India in a case of concurrent findings of fact arose in Arunachalam vs PSR Sadhanathan, ; wherein this Court has held that "Article 136 of the Constitution of India invests the Supreme Court with a plenitude of plenary appellate power over all Courts and Tribunals in India.
The power is plenary in the sense that there are no words under Article 136 itself qualifying that power.
But, the very nature of the power has led the Court to set limits to itself within which to exercise such power.
It is now the well established practice of this Court to permit the invocation of the power under Article 136 only in very exceptional circumstances, as when a question of law of general public importance arises or a decision shocks the conscience of the Court.
But, within the restrictions im posed by itself, this Court has the undoubted power to interfere even with findings of the fact, making no distinc tion between judgments of acquittal and conviction, if the High Court, in arriving at those findings had acted "per versely or otherwise improperly".
(See State of Madras vs
A. Vaidyanatha Iyer ; and Himachal Pradesh Admin istration vs Om Prakash, We think that it is not necessary to swell this judgment by citing all the decisions relating to this principle of law.
When the facts and circumstances of the case are scruti nised, in our considered opinion, they do compel this Court to interfere on the ground that the findings of the Courts below suffer from the vice of perversity.
I1 is the admitted case that the deceased was a petition writer and so in that capacity he was very well conversant as to how to draft a complaint.
He asked for a pen and paper, and wrote the name, 'Gulab Chand ', evidently thereby saying that Gulab Chand was the assailant.
The deceased had not written any other name except the name of Gulab Chand.
Now the explana tion given by the prosecution is that the deceased became unconscious after writing this one name Gulab Chand, thereby saying had he not become unconscious, probably he would have written the names of other assailants also.
But we have to test this evidence in the background of the evidence given by other witnesses namely PWs '1, 2 and 19.
PW 19 who is none other than the wife of the deceased, was sleeping in the same room in which the deceased was sleeping and, there fore, she must be the proper and natural witness and her evidence has to be given credence.
PW 19 admittedly did not inform either PW 1 or PW 2 the names of the assailants but she gave the names only to PW 3, her son.
It transpires from the evidence of PW 19 that after PW 1 went to fetch the rickshaw, PW 3 asked his father as to who had assailed him 'and that it was only thereafter the injured Keshav Singh wrote the name of Gulab Chand on a piece of paper.
The relevant portion of the evidence of PW 19 reads as follows: 432 Then Ram Kumar asked my husband as to who had assaulted and he asked for a pen and paper.
Ram Kumar brought a paper and pen and my husband could write on it the name of Gulab Chand.
In this connection, evidence of PW 2 may also be re ferred to which is as follows: "Then at this stage, my brother asked him as to who had assaulted him.
My father asked by a sign of hand for a pen and paper, whereupon my brother brought the pen and paper and gave that to my father.
My father wrote on it by his hand; he wrote the name of Gulab Singh and thereafter he became unconscious. ' This dearly indicates that before the deceased wrote the name of Gulab Chand on the paper given by his son, PW 3, no one including PW 19 came forward with the names of the assailants but it is only thereafter, PW 19 gave the names of the assailants.
Here also, the prosecution is not con sistent because PW 2 says that her father also gave the name of all the assailants to Ram Kumar (PW 3).
The relevant part of PW 2 's evidence reads thus: "Then my mother and father both mentioned the names of the assailants.
At that time my brother, Ram Kumar was also there.
After Ramji had enquired, my brother also enquired them.
My father asked for by a sign of hand for pen and a copy.
" The above extracted pieces of evidence of PWs 2 and 19 indicate that PW 3 was not informed of the names of the assailants before his father (the deceased herein) wrote the name of Gulab Chand.
Had PW 3 informed by his mother (PW 19) of the names of the assailants, he might not have asked his father as to who the assailants were.
In other words, till the deceased wrote the name of Gulab Chand on a piece of paper evidently PW 3 did not know as to who assailant or assailants was/were.
It seems that both the Courts below have not approached this significant aspect of this salient feature in the proper perspective.
On the other hand, it has conveniently omitted this significant factor from consideration which gives the death knell to the prosecution case so far as the alleged participation of these two appellants in this brutal crime.
In the inquest report Exh.
P 24, it is stated that all the relatives of the deceased 433 Keshav Singh were examined and the following conclusion was arrived at: ". . the conclusion was reached that the death of deceased Keshav Singh by Gulab Singh, Gulab Chand etc.
was due to knife wounds.
" This 'etc. ' in the present case has no relevance because there is a specific averment that the two assailants namely, Gulab Singh and Gulab Chand stabbed the deceased with knives which case alone fits in with the earlier statements of PWs 2 and 19 as well as the version of the deceased in Exh.
If really the names of these two appellants had been mentioned by the witnesses, those names also would have been specifically mentioned in Exh.
P :24.
At this juncture, the learned senior counsel appearing on behalf of the State referred to a decision of this Court reported in ; Pedda Narayana vs State of Andhra Pradesh wherein this Court has held that the question regarding the details as to how the deceased was assaulted or who assaulted him or under what circumstances, he was assaulted is foreign to the ambit and scope of the proceedings under Section 174.
This decision will not be of any help to the prosecution because only two names are mentioned in the inquest report as as sailants, leaving the names of these two appellants who are now rightly attempting to take advantage of this conspicuous omission in Exh.
P. 24.
Though PW 19 is said to be the author of Exh.
P 43, she before the Trial Court does not claim to be the author of the entire averments.
She states that the police who record ed the report, asked only her name and her husband 's name and nothing further was asked from her and she did state anything more than that.
PW 19 further had deposed that she did not give the names of the accused who assaulted, that she did not know whether her husband was then dead or alive, that at Thana (Police Station) she came to know about the death of her husband, that even then she did not mention the names of the assailants, and that before going to the Thana, she did not give the names of any of the assailants to any person.
It is in evidence that both these appellants were present at the scene of occurrence when the police constable came, but none pointed out to the police that these two appellants also participated in the crime.
Now the explana tion offered by the prosecution is that these two appellants took the constable aside and whispered something and there fore, PW 1 suspecting that the police constable was taking side with the appellants did not come forward with a state ment that these two appellants were also the participants in the crime.
This explanation seems to have been offered only before the Trial Court.
Both the Courts below have conven iently over 434 looked and ignored all the above glaring infirmities appear ing in the case and as such the concurrent findings recorded by both the Courts are not proper but perverse.
After meticulously and scrupulously analysing the evi dence, we are left with an impression that the prosecution has not satisfactorily established the guilt of these two appellants beyond all reasonable doubt.
Hence, we are unable to agree with the findings of the lower Courts that these two appellants also participated in the crime with the other two accused.
In the result, the conviction of these two appellants u/s 302 read with 34 IPC and the sentence of imprisonment for life imposed therefore are set aside and both of them are acquitted.
The appeal is thus allowed.
V.P.R Appeal al lowed.
| According to the prosecution, when the deceased a peti tion writer, was sleeping in a room with his wife (PW.19) on the iII fated night, he heard someone knocking at the door.
The deceased switched on the light and opened the door.
The accused (A.1 and A.2) entered his room.
They whipped up their knives and gave stab wounds; one on the chest, another on the hack while bending.
They also slapped and listed the deceased.
It was further stated that the second appellant (A 5) caught hold of the deceased and banged him against the wall repeatedly.
PW19 tried to save her husband but she was pushed aside.
During the course of the occurrence, a gold 'PUTRI ' which PW 19 was wearing, was attempted to be snatched away from her.
The eldest daughter of the deceased, PW 1, who was sleeping in a room on the first floor, on hearing the cry, got down and saw the appellants and the other accused leav ing her father 's room.
The appellants while running away took with them a box containing some clothes and other articles belonging to PW 1 and chained the doors in such a way that the other inmates of the house could not reach the spot.
The deceased 's son, PW 3, who was sleeping in another room reached the spot.
PW 15, a tenant in an adjoining room on hearing the distress cry of PW 19, wanted to come out of his room but he could not do 426 so as the house was chained from outside.
He came to the spot after the door was opened.
All the witnesses saw bleeding injuries on the body of the deceased who was unable to speak.
PW 3, at the instance of his deceased father brought a pen and a piece of paper on which the injured deceased wrote 'Gulab Chand ' and thereaf ter became unconscious, and he was then taken to the Govern ment hospital where he succumbed to his injuries.
The two appellants (A4 and A5 before the Trial Court) along with three others were tried section 302 IPC or section 302/149 and section 396, for causing the death of the deceased, accused No. 2 stabbing the deceased with a knife and the rest of the accused assaulting him and for committing the offence of dacoity.
The Trial Court found the third accused not guilty of any of the charges and acquitted him but convicted others section 302 read with 34 IPC and sentenced each of them to undergo imprisonment for life, and acquitted them of the offence section 396 IPC.
The High Court confirmed the conviction.
The present two appellants (A4, A5) filed the present appeal against the judgment of the High Court through special leave.
The other two accused (A1 and A2) preferred a separate special leave petition, which was dismissed by this Court.
Allowing the appeal of the two accused (A4, A5), this Court, HELD: 1.
The powers of the Supreme Court under Article 136 of the Constitution are wide but in criminal appeals, this Court does not interfere with the concurrent findings of fact, save in exceptional circumstances.
[430 H] 2.
Within the restrictions imposed by itself, this Court has the undoubted power to interfere even with findings of the fact, making no distinction between judgments of acquit tal and conviction, if the High Court, in arriving at those findings has acted perversely or otherwise improperly.
[431 C] Arunachalam vs PSR Sadhananthan, ; ; State of 427 Madras vs
A. Vaidyanatha Iyer; , ; Himachal Pradesh Administration vs Om Prakash, [1972]1 SCC 249, referred to. 3.01 The deceased was a petition writer and so in that capacity he was very well conversant as to how to draft a complaint.
He asked for a pen and paper, and wrote the name, 'Gulab Chand ', evidently thereby saying that Gulab Chand was the assailant.
The deceased had not written any other name except the name of Gulab Chand.
Now the explanation given by the prosecution is that the deceased became unconscious after writing this one name Gulab Chand, thereby saying had he not become unconscious, probably he would have written the name of other assailants also.
[431 E F] 3.02.
PW 19 the wife of the deceased, was sleeping in the same room in which the deceased was sleeping did not inform either PW 1 or PW 2 the names of the assailants but she gave the names only to PW 3, her son.
It transpires from the evidence of PW 19 that after PW 1 went to fetch the rickshaw, PW 3 asked his father as to who had assailed him and that it was only thereafter the injured deceased wrote the name of Gulab Chand on a piece of paper.
Before the deceased wrote the name of Gulab Chand on a piece of paper given by his son, PW 3, no one including PW 19 came forward with the names of the assailants.
[431 F G] 3.03.
The evidence of PW 2 and 19 indicated that PW 3 was not informed of the names of the assailants before his father (the deceased) wrote the name of Gulab Chand.
Till the deceased wrote the name of Gulab Chand on a piece of paper evidently PW 3 did not know as to who the assailant or assailants was/were.
The Courts below have not approached this signifi cant aspect of this salient feature in the proper perspec tive.
[432 G] 3.05.
In the inquest report there is a specific averment that the two assailants namely, Gulab Singh (A.2) and Gulab Chand (A.1) stabbed the deceased with knives which case alone fits in with the earlier statements of PWs 2 and 19 as well as the version of the deceased in Exh.
P. 50.
If really the names of the two appellants had been mentioned by the witnesses, those names also would have been specifically mentioned in Exh.
P. 24, the inquest report.
[433 B C] 428 3.06.
It is in evidence that both the appellants were present at the scene of occurrence when the police constable came, but none pointed out to the police that these two appellants also participated in the crime.
The prosecution has not satisfactorily established the guilt of the two appellants beyond all reasonable doubt.
|
Appeal No. 1150 of 1978.
From the Judgment and Order dated 22.9.1976 of the Bombay High Court in Special Civil Appln.
No. 1544 of 1971.
B. Datta, J.P. Pathak and P.H.Parekh for the Appellant.
A.M. Khanwilkar for the Respondents.
The Judgment of the Court was delivered by KANIA, J.
The facts found in this appeal show that the appellant, Laxmi Bai, was at the relevant time a member of a joint family with her son, the partition pleaded by the appellant not having been accepted as genuine by the author ities concerned.
She terminated the tenancy of the predeces sor in title of the respondents by a notice dated June 24, 1960.
Under the provisions of Section 32 of the Bombay Tenancy and Agricultural Lands Act, 1948 (hereinafter re ferred to as "the said Act"), April 1, 1957, was declared as the tillers ' day and Section 32 of the said Act provided biter alia that the tenants of the land who fell within any of categories described in sub section (1) of the said section were deemed to have purchased the land held by them as tenants from their landlords, free of all encumbrances subsisting thereon on the said day.
The case of the appel lant is that, in the present case, the tillers ' day was postponed in view of the provisions of clause (a) of sub section (1) of Section 32 F of the said Act, as she was a widow and hence, it must be held that she had terminated the tenancy of tenant, Dayanu, the predecessor in title of the respondents before he became a deemed purchaser of the land.
It is not possible to accept this contention in view of the proviso to sub section (1) of Section 32 F of the said Act which provides, inter alia that the tillers ' day would not get postponed where the widow land owner is a member of a joint family, one of the members whereof was outside the protected categories mentioned under clause (a) of sub section (1) of Section 32 F of the said Act.
In the present case, there is no dispute that the son of the appellant who was joint with her did not fall within any of the categories referred to in clause (a) of sub section (1) of Section 32 F of the said Act.
In these circumstances, Dayanu became the owner of the said land on the tillers ' day as a deemed predecessor and the appellant lost her rights in the said land.
Notice given thereafter is of no avail.
The appeal fails and is dismissed with no order as to costs.
N.P.V Appeal dismissed.
| The appellant, was a member of a joint family with her son.
She terminated the tenancy of the predecessor in title of the respondents, by a notice dated June 24, 1960, giving rise to litigation culminating in the appeal before this Court by the appellant, on the question whether the tenant became deemed purchaser of the land in question, in terms of Section 32 of the Bombay Tenancy and Agricultural Lands Act, 1948, which had declared April 1, 1957 as the tillers ' day and that the tenants of the lands who fell within any of the categories described in sub section (1) were deemed to have purchased the land held by them as tenants from their land lords, free from all encumbrances subsisting thereon on that day.
It was contended that in view of the provisions of clause (a) of subsection (1) of Section 32F of the Act, the tillers ' day was postponed in respect of the land in ques tion as the appellant was a widow, and hence it must be declared that she had terminated the tenancy of the tenant before he became a deemed purchaser of the land.
Dismissing the appeal, this Court, HELD: 1.1.
The proviso to sub section (1) of Section 32F of the Bombay Tenancy and Agricultural Lands Act, 1948, provides inter alia that the tillers ' day would not get postponed where the widow land owner is a member of a joint family, one of the members whereof was outside the protected categories mentioned under clause (a) of sub section (1) of Section 32F of the Act.
[457 F] 1.2 In the instant case, admittedly, the son of the appellant who was joint with her did not fall within any of the categories referred to in clause (a) of sub section (1) of Section 32F of the Act.
Hence the predecessor intitle of the respondents became the owner of the said land on the tillers ' day as a deemed purchaser and the appellant lost her rights in the said 457 land.
Notice given thereafter is of no avail.
[457 G]
|
Appeal No. 5617 of 1990.
From the Judgment and Order dated 9.8.1990 of the Karna taka Administrative Tribunal, Bangalore in Application No. 3155 of 1989.
P.P. Rao, S.R. Bhat, Alok Aggarwal and Ms. Mohini L. Bhat 1or the Appellant.
393 P. Chidambaram, M. Veerappa (N.P.) and K.H Nobin Singh for the Respondents.
The Judgment of the Court was delivered by KULDIP SINGH, J.
Even the General Law later in time, prevails over the earlier Special Law if it clearly and directly supersedes the said Special Law ' is an unexcep tionable proposition of law.
K. Jayachandra Reddy, J. has interpreted Rule 3(2) of General Rules consistently with Rules 1(3)(a), 3(1) and 4(2) of the same Rules.
Giving harmonious construction to various provisions of the General Rules the learned Judge has held that the General Rules do not supersede the Special Rules.
Yogeshwar Dayal, J. on the other hand has focused his attention on the language of Rule 3(2) of the General Rules and has concluded that there is clear indication in the said Rule to supersede the Special Rules.
I have given my thoughtful consideration to the reason ing adopted by the learned Judges in their respective judg ments.
Rule 1(3)(a) of the General Rules, which lays down the extent and applicability of the General Rules, specifi cally provides that the General Rules shall not be applica ble to the State Civil Services for which there are express provisions under any law for the time being in force.
When the General Rules were enforced the Special Rules were already holding the field.
The Special Rules being "law" the application of the General Rules is excluded to the extent the field is occupied by the Special Rules.
I do not agree that the non obstante clause in Rule 3(2) of the General Rules has an overriding effect on Rule, 1(3)(a) of the said Rules.
With utmost respect to the erudite judgment prepared by Yogeshwar Dayal, J. I prefer the reasoning and the conclusions reached by K. Jayachandra Reddy, J. and agree with the judgment proposed by him.
K.JAYACHANDRA REDDY, J.
This appeal is directed against the order of the Administrative Tribunal, Bangalore dismiss ing an application filed by the appellant.
The principal question involved is whether SubRule (2) of Rule 3 of Karna taka Civil Services (General Recruitment) Rules, 1977 ( 'General Rules ' for short) has the overriding effect over the Karnataka General Service (Motor Vehicles Branch) (Recruitment) Rules, 1976 ( 'Special Rules ' for short).
For a better appreciation of the question it becomes necessary to state few facts.
The appellant was appointed initially as Inspector of Motor ' Vehicle and was promoted as Assistant Regional Transport Officer in the 394 year 1976 in which year the Special Rules were framed.
In the year 1981 the appellant was promoted as Regional Trans port Officer.
Some of the General Rules of 1977 were amended in the year 1982 and Sub Rule 2 of Rule 3 was inserted in the said Rules.
In the year 1989 the second respondent was promoted as Deputy Commissioner of Transport on seniority cure merit basis alone as purported to have been provided in new Rule 3(2) of General Rules.
Being aggrieved by the same the appellant filed an Application No. 3155/89 before the Karnataka Administrative Tribunal questioning the promotion of second respondent on the ground that the promotion to the post of Deputy Commissioner of Transport should be by selec tion from the cadre of Regional Transport Officers and not merely on seniority cum merit basis.
His application was dismissed by the Tribunal holding that Rule 3(2) of General Rules which was introduced later overrides the earlier Special Rules.
It is this order which is questioned in this appeal.
Shri P.P. Rao, learned counsel appearing for the appel lant contended that the Special Rules are exclusively meant to govern the recruitment and promotion of officers of various cadres of the Motor Vehicle Department and the General Rules which generally regulate the recruitment of all State Civil Services broadly even though later in point of time cannot abrogate the Special Rules and that they are not meant to do so since the Special Rules also are very much in force inasmuch as they are not superseded.
Shri P. Chidambaram, learned counsel for the State of Karnataka contended that the non obstante clause in Rule 3(2) of the General Rules which was introduced later clearly indicate the intention of he Legislature to supersede the Special Rules and promotions from the cadre of Regional Transport Officer to that of Deputy Commissioner of Transport could only be on the basis of seniority cam merit and not by election.
From the rival contentions it emerges that the real question involved is one of construction of non ob stante clause in Rule 3(2) and its fleet on the Special Rules providing for promotion to the post of Deputy Commis sioner of Transport by selection from the cadre of Regional Transport Officers.
We shall now refer to the relevant Special and General Rules.
The special Rules were framed in exercise of the powers conferred by the proviso to Article 309 of the Con stitution of India in the year 1976.
The special Rules of recruitment for the category of post of Deputy Commissioner of Transport reads thus: 395 Category of Method of Minimum posts recruitment Qualification 1. 2. 3.
Deputy Transport By promotion by Must have put in not Commissioner selection from the less than five years of cadre of Regional service in cadre of Transport Officers Regional Transport Officers.
" It can be seen that this part of Special Rules clearly provides for promotion to the post of Deputy Commissioner of Transport by selection from the cadre of Regional Transport Officers who have put in not less than five years of serv ice.
The General Rules were framed in the year 1977 and Rule 3 reads as under: "Method of recruitment (1) Except as otherwise provided in these rules or any other rules specially made in this behalf, recruitment to any service or post shall be made by direct recruitment which may be either by competitive examination or by selection, or by promotion which may be either by selection or on the basis of seniority cure merit.
The methods of recruitment and qualifications shall be as specified in the rules of recruitment special ly made in that behalf, ' provided that in respect of direct recruitment to any service or post when the method of recruitment is not specified in the rules of recruitment specially made, the method of recruitment be by selection after an interview by the Commission, the Advisory of Selection Committee or the Appointing Authori ty as the case may be.
Provided further that no person shall be eligible for promotion unless he has satisfac torily completed the period of probation or officiation, as the case may be, in the post held by him.
(2) Notwithstanding anything contained in these rules or in the rules of recruitment specially made in respect of any service or (a) the promotion to the post of Head of Department or the 396 post of an Additional Head of Department, if it is in a grade equivalent to that of the Head of Department concerned, shall be by selection; Provided that for the purpose of promotion by selection, the number of persons to be consid ered shall be such number of persons eligible for promotion in the order of seniority, as is equal to five times the number of vacancies to be filled.
(b) the promotion to all other posts shall be on the basis of seniority cam merit." (Emphasis supplied) It may be noted that Sub Rule 3(2) with which we are mainly concerned was inserted in the year 1982.
Shri Chidam baram strongly relying on the non obstante clause in Rule 3(2) with which this Sub Rule begins, contended that this general rule dearly supersedes the special law and there fore, according to him, the Tribunal was right in holding that the promotion to the post of Deputy Commissioner of Transport could be only on the basis of seniority cum merit.
It is true that a simple reading of Rule 3(2) appears to lay down that notwithstanding anything contained in the General Rules or in the Special Rules, the promotion to the post of a Head or Additional Head of a Department only shall be by selection and that the promotion to all other posts shall be on the basis Of seniority cum merit.
This clause (b) of Sub Rule (2) is in general terms and as already noted the General Rules indicate that they regulate general recruit ment to all the Karnataka State Civil Services broadly.
It is not in dispute that just like the Special Rules providing for recruitment of the Transport Department there are such special rules in respect of many other departments also.
It is therefore clear that while General Rules broadly indicate that they regulate general recruitment including promotion to all the State Civil Services but at the same time each Department has its own Special Rules of recruitment and they are co existing.
Such Special Rules of recruitment for the Motor Vehicles Department are not repealed by any provision of the General Rules which are later in point of time.
As a matter of fact Rule 21 which provides for repeal does not in any manner indicate that any of the Special Rules stood repealed.
It is in this background that we have to consider the interpretation of non obstante clause in Rule 3(2) of the General Rules.
At this juncture it is necessary to note that some of the rules of the General Rules also provide for promotion by way of selection and that Special Rules providing for such promotion by selection should be adhered 397 to.
They are Rule 1(3)(a), the first part of Rule 3 and Rule 4 which are existing.
In Sub rule 1(3)(a) of the General Rules, we find the following "1(3)(a) These rules shall apply to recruit ment to all State Services and to all posts in connection with the affairs of the State of Karnataka and to members of all State Civil Services and to the holders of posts whether temporary or permanent except to the extent otherwise expressly provided (i) by or under any law for the time being in force; or XX XX (emphasis supplied) This is the opening rule of the General Rules and it abundantly makes it clear that the rest of the rules are subject to any other rules expressly providing for recruit ment.
Then in clause (1) of Rule (3) of the General Rules we find the words "Except as otherwise provided in these Rules or any other rules specially made in this behalf recruitment to any service or post shall be made by direct recruitment which may be either by competitive examination or by selec tion or by promotion which may be either by selection or on the basis of seniority cum merit.
The methods of recruit ment and qualification shall be as specified in the rule of recruitment specially made in that behalf.
" This part of General Rule 3 provides for recruitment by way of promotion either by selection or on the basis of seniority cum merit as specified in the said Rules of recruitment specially made.
Further the opening words of clause (1) "Except as otherwise provided in these Rules or any other Rules spe cially made" give a clue that the special rules would govern and regulate the method of recruitment including promotion by way of selection.
Further Rule 4 of the General Rules which lays down the procedure of appointment contains Sub Rule 2 which reads as under: "4.
Procedure of appointment subject to the provisions of these rules, appointment to any service or post shall be made xxxx xxxx xxxx (2) in the case of recruitment by promotion (a) if it is to a post to be filled by promo tion by, selection, by selection of a 398 person, on the basis of merit and suitability in all respects to discharges the duties of the post with due regard to seniority from among persons eligible for promotion.
(b) if it is to a post other than that re ferred to in sub clause (a) by selection of a person on the basis of seniority cure merit, that is, seniority subject to fitness of the candidate to discharge the duties of the post, from among persons eligible for promotion." (emphasis supplied) Though Rule 3(2) of the General Rules is inserted later, the above mentioned Rules remain undisturbed and they co exist.
They provide for recruitment and promotion by selection to certain categories of posts and for others on the basis of seniority cure merit.
From a combined reading of these provisions of General Rules it follows that re cruitment to any service by promotion as regulated by Special Rules can be by way of selection.
"Then the question is whether Rule 3(2) of the General Rules which is intro duced in 1982 particularly providing the method of promotion by selection to the post of heads and additional heads of departments has altogether dispensed with the promotion by selection to all other posts and whether, the non obstante clause in this rule, in these circumstances can be inter preted as to have the overriding effect as contended by the learned counsel for the respondents.
The non obstante clause is sometimes appended to a section or a rule in the begin ning with a view to give the enacting part of that section or rule in case of conflict, an overriding effect over the provisions or act mentioned in that clause.
Such a clause is usually used in the provision to indicate that the said provision should prevail despite anything to the contrary in the provision mentioned in such non obstante clause.
But it has to be noted at this stage that we are concerned with the enforceability of special law on the subject inspire of the general law.
In Maxwell on the Interpretation or Signites, Eleventh Edition at page 168, this principle of law is stated as under: "A general later law does not abrogate an earlier special one by mere implication.
Generalia specialibus non derogant, or, in other words," where there are general words in a later Act capable of reasonable and sensible application without extending them to subjects specially dealt with by earlier legislation, you are not to hold that earlier and special legislation indirectly repealed, altered, or derogated from merely by force of such 399 general words, without any indication of a particular intention to do so.
In such cases it is presumed to have only general cases in view, and not particular cases which have been already otherwise provided for by the special Act." In Maharaja Pratap Singh Bahadur vs Thakur Manmohan Dey and ors. ,AIR 1966 S.C. 1931, applying this principle it is held that general law does not abrogate earlier special law by mere implication.
In Eileen Louise Nicoole vs John Winter Nicolle, , Lord Phillimore observed as under: "It is a sound principle of all juris prudence that a prior particular law is not easily to be held to be abrogated by a poste rior law, expressed in general terms and by the apparent generality of its language ap plicable to and covering a number of cases, of which the particular law is but one.
This, as a matter of jurisprudence, as understood in England, has been laid down in a great number of cases, whether the prior law be an express statute, or be the underlying common or customary law of the country.
Where general words in a later Act are capable of reasonable and sensible application without extending them to subjects specially dealt with by earlier legislation, that earlier and special legislation is not to be held indi rectly repealed, altered, or derogated from merely by force of such general words, without any indication of a particular intention to do so.
" In Justiniane Augusto De Piedade Barreto vs Antonio Vicente Da Fortseca and others etc.; , , this Court observed that A law which is essentially general in nature may contain special provisions on certain matters and in respect of these matters it would be classified as a special law.
Therefore unless the special law is abrogated by express repeal or by making provisions which arc wholly inconsistent with it, the special law cannot be held to have been abrogated by mere implication.
I have already noted that even in the General Rules the promotion by selection is provided for and if there are any special rules in that regard they are not abrogated except by an express repeal.
I shall now examine whether the interpretation of non obstante clause in Rule 3(2) of the General Rules as given by the Tribunal is warranted.
The Tribunal has held that the non obstante clause which was 400 introduced in the General Rules clearly indicates the inten tion to supersede the special law.
The Tribunal has also noted even a later general law provision can override earli er special law if it clearly indicates the intention to supersede the special law.
As a proposition of law one cannot dispute this part of the finding but I am not able to agree with the finding of the Tribunal that the non obstante clause in Rule 3(2) clearly abrogates earlier special law.
This very question was considered by Karnataka High Court in Muniswamy vs Superintendent of Police, ILR 1986 Karnataka 344 (Vol. 36).
In that case also the same General Rules and particularly Rule 3(2) inserted later came up for consideration.
The Special Rules were that of Karnataka State Police State Recruitment Rules, 1967.
The Director General of Police issued a circular for the purpose of recruitment of Head Constables on purely seniority cum merit basis.
It was contended that the posts of the Head Consta bles have to be filled up by promotion by selection as provided in the Special Rules and Rule 3(2) of the General Rules cannot have an overriding effect inspire of a non obstante clause.
The Division Bench of the Karnataka High Court held that Sub rule (2) of Rule (3) which is an amend ment to the General Rules cannot be treated as an amendment to the Special Police Rules and that Rule 3(2) cannot be read as amending all other special rules of recruitment of all other department of Government in general.
It also further observed that this amendment to the General Rules must be read as subordinate to the application of Rules declared by Rule 1(3) of the Rules and cannot be read as enlarging the scope.
This judgment rendered by the High Court in the year 1986 has become final.
The fact that the State did not appeal or repeal the Special Rules suitably in spite of the decision clinchingly shows that it accepted this position.
In Aswini Kumar Ghosh and Another vs Arabinda Bose and Another, ; , it was observed as under: "It should first be ascertained what the enacting part of the section provides on a fair construction of the words used according to their natural and ordinary meaning, and the non obstante clause is to be understood as operating to set aside as no longer valid anything contained in relevant existing laws which is inconsistent with the new enactment.
" It was further held that: 401 "Nor can we read the non obstante clause as specifically repealing only the particular provisions which the learned Judges below have been at pains to pick out from the Bar Coun cils Act and the Original Side Rules of the Calcutta, and Bombay High Courts.
If, as we have pointed out, the enacting part of section 2 covers all Advocates of the Supreme Court, the non obstante clause can reasonably be read as overriding "anything contained" in any relevant existing law which is inconsistent with the new enactment, although the draftsman appears to have had primarily in his mind a particular type of law as conflicting with the new Act.
The enacting part of a statute must, where it is clear, be taken to control the non obstante clause where both cannot be read harmoniously; for, even apart from such clause, a later law abrogates earlier laws clearly inconsistent with it.
Posteriors leges priores contrarias abrogant (Broomo 's Legal Maxims, 10th Edn., p.347)." (emphasis supplied) In The Dominion of India (Now the Union of India) and another vs Shribai A. Irani and another; , , it was observed as under: "While recognising the force of this argument it is however necessary to observe that al though ordinarily there should be a close approximation between the non obstante clause and the operative part of the section, the non obstante clause need not necessarily and always be co extensive with the operative part, so as to have the effect of cutting down the clear terms of an enactment.
If the words of the enactment are clear and are capable of only one interpretation on a plain and gram matical construction of the words thereof a non obstante clause cannot cut down the construction and restrict the scope of its operation.
In such cases the non obstante clause has to be read as clarifying the whole position and must be understood to have been incorporated in the enactment by the Legisla ture by way of abundant caution and not by way of limiting the ambit and scope of the opera tive part of the enactment".
(emphasis supplied) In Union of India and Another.
vs G.M. Kokil and 0 hers.
, it was observed as under: "It is well known that a non obstante clause is a legislative device which is usually employed to give overriding effect to certain provisions over some contrary provisions that may be found either in the same enactment or some other enactment, that is to say, to avoid the operation and effect of all contrary provisions.
" In Chandavarkar Sita Ratna Rao vs Ashalata section Guram, [ ; , the scope of non obstante clause is ex plained in the following words: "A clause beginning with the expression "notwithstanding anything contained in this Act or in some particular provision in the Act or in some particular Act or in any law for the time being in force, or in any contract" is more often than not appended to a section in the beginning with a view to give the enacting part of the section in case of con flict an overriding effect over the provision of the Act or the contract mentioned in the non obstante clause.
It is equivalent to saying that in spite of the provision of the Act or any other Act mentioned in the non obstante clause or any contract or document mentioned the enactment following it will have its full operation or that the provisions embraced in the non obstante clause would not be an impediment for an operation of the enactment.
" On a conspectus of the above authorities it emerges that the non obstante clause is appended to a provision with a view to give the enacting part of the provision an overrid ing effect in case of a conflict.
But the non obstante clause need not necessarily and always be co extensive with the operative part so as to have the effect of cutting down the clear terms of an enactment and if the words of the enactment are clear and are capable of a clear interpreta tion on a plain and grammatical construction of the words the non obstante clause cannot cut down the construction and restrict the scope of its operation.
In Such cases the non obstante clause has to be read as clarifying the whole position and must be understood to have been incorporated in the enactment by the Legislature by way of abundant caution and not by way of limiting the ambit and scope of the Spe cial Rules.
Further, the influence of a non obstante clause has to be considered on the basis of the context also in which it is used.
In State of West Bengal vs Union of India, [1964] 1 SCR 371, it is observed as under: "The Court must ascertain the intention of the legislature by 403 directing its attention not merely to the clauses to be construed but to the entire statute; it must compare the clause with the other parts of the law and the setting in which the clause to be interpreted occurs.
" It is also well settled that the Court should examine every word of a statute in its context and to use context in its widest sense.
In Reserve Bank of India etc.
vs Peerless General Finance and Investment Co. Ltd. & Ors. ; , it is observed that "That interpretation is best which makes the textual interpretation match the contextual".
In this case, Chinnapa Reddy, J. noting the importance of the context in which every word is used in the matter of inter pretation of statutes held thus: Interpretation must depend on the text and the context.
They are the bases of interpretation.
One may well say if the text is the texture, context is what gives the colour.
Neither can be ignored.
Both are important.
That interpretation is best which makes the textual interpretation match the contextual.
A statute is best interpreted when we know why it was enacted.
With this knowl edge, the statute must be read, first as a whole and then section by section, clause by clause, phrase by phrase and word by word.
If a statute is looked at, in the context of its enactment, with the glasses of the statute maker, provided by such context, its scheme, the sections, clauses, phrases and words may take colour and appear different than when the statute is looked at without the glasses provided by the context.
With these glasses we must look at the Act as a whole and discover what each section, each clause, each phrase and each word is meant and designed to say as to fit into the scheme of the entire Act.
No part of a statute and no word of a statute can be construed in isolation.
Statutes have to be construed so that every word has a place and everything is in its place".
If we examine the scope of Rule 3(2) particularly along with other General Rules, the context in which Rule 3(2) is made is very clear.
It is not enacted to supersede the Special Rules.
As already noted, there should be a clear inconsistency between the two enactments before giving an overriding effect to the non obstante clause but when the scope of the provisions of an earlier enactment is clear the same cannot be cut down by resort to non obstante clause.
In the instant case we have noticed that even the General Rules of which Rule 404 3(2) forms a part provide for promotion by selection.
As a matter of fact Rules 1(3)(a) and 3(1) and 4 also provide for the enforceability of the Special Rules.
The very Rule 3 of the General Rules which provides for recruitment also pro vides for promotion by selection and further lays down that the methods of recruitment shall be as specified in the Special Rules, if any.
In this background if we examine the General Rules it becomes dear that the object of these Rules only is to provide broadly for recruitment to services of all the departments and they are framed generally to cover situations that are not covered by the Special Rules of any particular department.
In such a situation both the Rules including Rule 1(3)(a), 3(1)and 4 of general rules should be read together.
If so read it becomes plain that there is no inconsistency and that amendment by inserting Rule 3(2) is only an amendment to the General Rules and it cannot be interpreted as to supersede the Special Rules.
The Amendment also must be read as being subject to Rules 1(3)(a), 3(1) and 4(2) of the General Rules themselves.
The amendment cannot be read as abrogating all other Special Rules in respect of all departments.
In a given case where there are no Special Rules then naturally the General Rules would be applicable.
Just because there is a non obstante clause, in Rule 3(2) it cannot be interpreted that the said amendment to the General Rules though later in point of time would abrogate the special rule the scope of which is very clear and which co exists particularly when no patent conflict or inconsistency can be spelt out.
As already noted Rules 1(3)(a), 3(1) and 4 of the General Rules themselves provide for promotion by selection and for enforceability of the Special Rules in that regard.
Therefore there is no patent conflict or inconsistency at all between the General and the Special Rules.
Shri P. Chidambaram, in this context, however, submit ted that the intention of the Legislature is to do away with promotion by selection and instead of amending every special rule, the General Rule in the form of Rule 3(2) is inserted and therefore by virtue of non obstante clause all other special rules governing the recruitment to all departments stand abrogated.
I am unable to agree.
If such was the intention of the amendment then I see no reason as to why even in the General Rules as noted above the promotion by selection is recognised and provided for and these Rules remain unaffected.
This is also clear from the fact that the Government did not even appeal against the High Court deci sion rendered in Muniswamy 's case.
Shri P. Chidambaram, however, further submitted that a plain reading of Rule 3(2) which is later in point of time would clearly indicate that 405 the Special Rule providing for promotion by selection is repealed at least by implication.
There is no doubt that a later statute may repeal an earlier one either expressly or by implication.
In the instant case we have already noted that there is no express repeal of the Special Rule provid ing for promotion by selection.
The Courts have not favoured such repeal by implication.
On the other hand it is indicat ed by the courts that if earlier and later statutes can reasonably be construed in such a way that both can be .
given effect to, the same must be done.
In Re Chance Farewell, J. observed that "If it is possible it is my duty so to read the section . . as not to effect an implied repeal of the earlier Act".
In Kunter vs Phi/lips it is held that: "It is only when the provisions of a later enactment are so inconsistent with or repugnant to the provisions of an earlier one then only the two cannot stand together and the earlier stands abrogated by the later".
In Municipal Council Palai vs T.J. Joseph, ; , this Court has observed that there is a presumption against a repeal by implication; and the reason of this rule is based on the theory that the Legislature while enacting a law has a complete knowledge of the existing laws on the same subject matter and therefore, when it does not provide a repealing provision, it gives out an intention not to repeal the existing legislation.
It is further observed that such a presumption can be rebutted and repeal by necessary implication can be inferred only when the provisions of the later Act are so inconsist ent with or repugnant to the provisions of the earlier Act, that the two cannot stand together.
I am satisfied that there is no patent inconsistency between the General and Special Rules but on the other hand they co exist.
Therefore, there is no scope whatsoever to infer the repeal by implication as contended by the learned counsel Shri.
Chidambaram.
In the result the appeal is allowed and the Government is directed to consider the case of the appellant for promo tion to the post of Deputy Commissioner of Transport on the basis of promotion by selection, as provided in the Special Rules namely Karnataka General Service (Motor Vehicles Branch) (Recruitment) Rules, 1976.
In the circumstances of the case there will be no order as to costs.
YOGESHWAR DAYAL, J.
I have had the pleasure of going through the judgment prepared by my learned brother, Justice K.J. Reddy.
However, with due respect, 1 regret 1 have not been able to persuade myself to 406 agree to either his reasoning or the conclusion.
There is no quarrel that general principle is that special law prevails over general law but the learned Judge has failed to note that even there is an exception to such a general law, namely it is a later general law which prevails over the earlier special law if it clearly indicates the intention to supersede the special law.
This appeal by Special Leave has been filed by Sri R.S. Raghunath against the order of the Karnataka Administrative Tribunal, Bangalore, dated 9th August, 1990.
Before the Tribunal the appellant sought a declaration that the promo tion of Shri I.K. Devaiah, respondent No. 2 herein, was illegal and to direct the respondent No. 1 to consider the case of the appellant for promotion to the cadre of Deputy Transport Commissioner with all consequential benefits.
The Tribunal dismissed the application filed by the appellant.
The Tribunal was called upon to construe Rule 3(2) of the Karnataka Civil Services (General Recruitment) Rules, 1977 as amended in June, 1982 (hereinafter referred to as "the General Rules ')The Tribunal, after considering the general Rules took the view that the non obstante clause in Rule 3(2) of the General Rules which was introduced after framing of the Karnataka General Service (Motor Vehicles Branch) (Recruitment) Rules, 1976 (in short 'the Special Rules ') clearly indicates the intention to supersede the special law.
The Tribunal took the view that the general principle that the special law prevails over the general law has one exception and that is a later general law prevails over earlier special law if it clearly indicates the intention to supersede the special law.
The Tribunal held that a non obstante clause in Rule 3(2) of the General Rules, which was enacted after the Special Rules, clearly indicates the intention to supersede the special law.
The controversy rises in the following circumstances.
The Special Rules came into force on or about 10th December, 1976 on the publication of the same in the Karna taka Gazette (Extraordinary).
It consisted of only two Rules (I) and (II).
The first Rule gave the 'title and commencement ' and the second Rule dealt with the 'method of recruitment and minimum qualifications '.
There was a sched ule attached to Rule 1I.
In the schedule for the post speci fied in column 1 thereof the method of recruitment and minimum qualification were specified in corresponding en tries in columns 2 and 3 thereof.
It dealt with roughly 35 categories of posts.
I may mention that there was only one post, namely the post of Deputy Transport Commissioner for which the method of recruitment was by selection from the cadre of Regional Transport Officers who must have put in not less than five years of service in that cadre.
407 For all the rest of the posts in the schedule there was no provision for recruitment by way of promotion by selection.
For all the posts the method of recruitment was either by promotion or by deputation or by direct recruitment, or both by direct recruitment and promotion or by merely posting a suitable officer or by direct recruitment through employment exchange etc.
The only recruitment to the post of Deputy Transport Commissioner was by method of promotion by selec tion.
At the time when the aforesaid Special Rules were enact ed the Karnataka State Civil Services (General Recruitment ) Rules, 1957 (in short the General Rules of 1957 ) were in operation which were repelled by the General Rules.
So long as the General Rules of 1957 continued the Special Rules continued to govern the method of recruitment of the posts as specified in the schedule attached to the said Special Rules.
The General Rules of 1957, as stated earlier, were repelled by the General Rules which came into force on 25th June, 1977.
Rule 1(3)(a) of the General Rules provided thus: "1.(3) (a) These rules shall apply to re cruitment to all State Services and to all posts in connection with the affairs of the State of Karnataka and to members of all State Civil Services and to the holders of posts whether temporary or permanent except to the extent otherwise expressly provided (i) by or under any law for the time being in force; or (ii) in respect of any member of such service by a contract or agreement subsisting between such member and the State Government".
It is thus clear from the provision of Rule 1(3)(a) that the General Rules were applicable for all purposes to mem bers of all State Civil Services including the Motor Vehi cles Branch except to the extent otherwise expressly provid ed by the Special Rules.
The Special Rules, as mentioned earlier, dealt with the method of recruitment and qualifica tion for the Motor Vehicles Branch and so far as the post of Deputy Transport Commissioner was concerned, the method of recruitment was "promotion by selection".
The Special Rules dealt with nothing else.
It is also clear from Rule 1(3) of the General Rules itself as to what is the scope of its applicability.
It was applicable to all posts except to the extent otherwise expressly provided for by the Special Rules.
Rule 3(1) of the General 408 Rules, before the insertion of sub rule (2), reads as fol lows: "3.
Method of recruitment (1) Except as otherwise provided in these rules or any other rules specially made in this behalf, recruit ment to any service or post shall be made by direct recruitment which may be either by competitive examination or by selection, or by promotion which may be either by selection or on the basis of seniority cum merit.
The methods of recruitment and qualifications shall be as specified in the rules of recruit ment specially made in that behalf: Provided that in respect of direct recruitment to any service or post when the method of recruitment is not specified in the rules of recruitment specially made, the method of recruitment shall be by selection after an interview by the Commission, the Advisory or Selection Committee or the Appointing Authori ty as the case may be.
Provided further that no person shall be eligible for promotion unless he has satisfac torily completed the period of probation or officiation as the case may be, in the post held by him.
" The substantive part of Rule 3(1) described various methods of recruitment but stated that the methods of re cruitment and qualifications shall be as specified in the rules of recruitment specially made in that behalf.
The first proviso described that when in the Special Rules for recruitment no provision is made for direct recruitment, the method of recruitment shall be by selection after an inter view by the Commission, the Advisory or Selection Committee to the Appointing Authority, as the case may be.
The second proviso to Rule 3(1) contemplated that no person shall be eligible for promotion unless he has satisfied three com pleted years of probation or officiation, as the case may be, in the post held by him.
The second proviso is by way of abundant caution in view of the Karnataka Civil Services (Probation) Rules, 1977 (hereinafter referred to as 'the Probation Rules ') because of Probation Rules contemplated that the period of probation shall be as may be provided for in the rules of recruitment specially made for any service or post, which shall not be less than two years '.
The Proba tion Rules also contemplated declaration of satisfactory completion of probation at the end of the prescribed period of probation as extended or reduced by the appointing au thority.
It may be useful to note that Rule 19 of the Gener al Rules also dealt with probation and appointments by promotion.
It is clear from reading of Rules 1, 2 and 409 3, as originally enacted, of the General Rules that so far as the Special Rules expressly provided to any particular branch of the State Service that was to prevail over the General Rules.
Rule 3A, as amended, provided for qualifica tion in respect of ex servicemen, irrespective of the provi sions of the Special Rules.
Rule 4 provided the procedure of appointment.
It also provided that if the appointment is by way of selection, how a selection has to be conducted and if the recruitment is by way of promotion, how it has to be done.
Rule 5 provided for disqualification for appointment.
Rule 6 provided the age limit for appointment.
Rule 8 pro vided for reservation of appointments for scheduled castes, scheduled tribes, backward tribes etc.
Rule 9 contained provision for ex servicemen and physically handicapped notwithstanding anything contained in the Special Rules.
Rule 10 contemplated conditions relating to suitability and certificates of character.
Rule 11 provided for procedure how the applications have to be made by the Government servants for recruitments.
Rule 16 provided for relaxation notwithstanding the provisions contained in the General Rules or the Special Rules.
Rule 16 A provided for appoint ment by transfer.
Rule 17 dealt with appointment by direct recruitment or by promotion in certain cases notwithstanding anything contained in the General or Special Rules.
All these Rules arc applicable to all the posts except to the extent as contemplated by Rule(3) of the General Rules.
This was the position at the time of enactment of General Rules in 1977.
appears that Rule 3 of the General Rules was amended and subrule (2) was added to Rule 3.
Rule 3(2) of the Gener al Rules, so added in June, 1982, reads thus: "3(2).
Notwithstanding anything contained in these rules or in the rules of recruitment specially made in respect of any service or post (a) the promotion to the post of Head of Department of the post of an Additional Head of Department, if it is in a grade equivalent to that of the Head of Department concerned, shall be by selection: Provided that for the purpose of promotion by selection, the number of persons to be consid ered shall be such number of persons eligible for promotion in the order of seniority, as is equal to five times the number of vacancies to be filled.
410 (b) the promotion to all other posts shah be on the basis of seniority cum merit".
We are really concerned with the scope of Rule 3(2) of the General Rules for proper decision of this case.
Both the General Rules and the Special Rules have been framed by the Government of Karnataka in exercise of powers under Article 309 of the Constitution of India.
It is clear from Rule 1(3)(a) of the General Rules that the General Rules apply to recruitment to all State Services and to all posts in connection with the affairs of the State.
A perusal of different rules in the General Rules makes it clear that the general provisions which apply to recruitment to all posts under the Government are specified in those Rules instead of repeating them in each and every Special Rules of recruitment relating to different depart ments.
For example, provisions relating to age limit for recruitment, disqualification for recruitment, joining time etc.
should find place in Special Rules and normally they should be uniform for all categories of posts.
Instead of repeating them in all Special Rules of each department they have been put in one set of rules known as the General Rules.
It would be impossible to limit the application of the General Rules only for recruitment to posts for which no Special Rules have been made.
If that was so, what arc the provisions relating to disqualification, age limit, joining time etc.
for posts for which Special Rules governing of recruitment have been made ? There are no other rules gov erning the subject except the General Rules.
By the wording of Rule 3(2) of the General Rules it is clear that the Government took conscious and deliberate policy decision and gave a mandate to make only posts of Head of Departments, Additional Head of Departments as selection posts and all other posts on promotion will be filled by the criterion of "seniority cum merit '.
To give effect to that policy decision instead of amending every Special Rules of recruitment relating to different State Civil Services, the Government made a provi sion in the General Rules by incorporating a non obstante clause stating that it would apply to all services and posts j notwithstanding the provisions in the General Rules or in the Special Rules of the State.
This aspect is absolutely clear by a mere reading of Rule 3(2) of the General Rules.
In the case of Maharaja Pratap Singh Bahadur vs Man Mohan Dev.
AIR 1966 SC 1931, the Supreme Court approved the following quotation from Maxwell on Interpretation of Stat ute:/ 411 "A general later law does not abrogate an earlier special one by mere implication.
Generalia specialibus non derogant, or, in other words, "where there are general words in a later Act capable of reasonable and sensible application without extending them to subjects specially dealt.
with by earlier legislation, you are not to hold that earlier and special legislation indirectly repealed, altered, or derogated from merely by force of such general words, without any indication of a particular intention to do so.
" In such cases it is presumed to have only general cases in view, and not particular cases which have been already otherwise provided for by the special Act? ' It is stated therein that for the general principle that the special law prevails over general law there is one exception and that is a later general law prevails over earlier special law if it clearly indicates the intention to supersede the special law.
The non obstante clause intro duced by amending Rule 3 of the General Rules by adding Rule 3(2) which was enacted after the Special Rules indicates the clear intention to supersede the Special Law to the extent that for the posts which arc not Head of the Departments or Additional Head of Departments the promotion, if provided for by way of selection, would mean on the basis of seniori ty cum merit and not on the basis of merit only.
As I have noticed earlier if we look at the Special Law it contained various methods of recruitment to about 35 posts mentioned in the Schedule annexed thereto but there is only one post for which the promotion was proposed by selec tion.
Surely it would have been flimsy way of drafting if one particular clause of a particular Special Law was sought to be individually repelled by enacting a repealing clause for that purpose.
To get over that the non obstante clause is introduced later on by the same authority which enacted both the General and Special Laws to give its latest man date.
The latest mandate cannot be ignored.
Rule 1(3) of the General Rules which accepted the ap plicability of Special Rules is itself a part of General Rules and the non obstante clause is not merely to what is mentioned to the contrary in the Special Rules but it is also notwithstanding anything contained in the General Rules itself.
In the present case the respondent No. 2 herein was promoted after the amendment of Rule 3 of the General Rules and there is no dispute about his recruitment by way of promotion on the basis of seniority cummerit and that the earlier Special Rules which contemplated the promotion by selection were not followed in view of the latest intention clearly given 412 by a positive mandate.
The learned counsel for the appellant strongly placed reliance on the decision of the Karnataka High Court in the case of Muniswamy vs Superintendent of Police, dated 18th July, 1986 (Annexure 'F ' pages 66 to 108 of the paper book).
That decision dealt with the General Rules and the Special Rules in relation to Karnataka State Police Service (Re cruitment) Rules,.
We have to construe the meaning of Clause 3(2) for ascertaining the object and purpose which the legislature had in view in enacting the said provision and the context thereof.
It appears to me that the Special Rules for re cruitment to some of the services had been in force provid ing a particular method of either selection or promotion.
It appears that because of the experience the Government had of its working, it was thought proper to change this policy, namely instead of providing selection on the basis of merit to every post, in certain posts, it thought it fit to give due weightage to seniority and merit instead of having the 'best '.
The selection of 'best ' very often has an ele ment of chance which may not be very conducive to proper climate and harmony in service.
It appears that because of that experience the rule making authority thought it fit that the process of promotion by selection should be con fined only to top posts and for rest of the posts the method should be promotion by adopting the principle of seniority cum merit.
I find that there is a clear mandate of latest intention of the rule making authority contained in Rule 3(2) of the General Rules and this must be respected by the Court.
The Courts are not expert body in knowing what is the best method for selection and to assume that the purest method must be found by the Court and implemented even by violation of the Rule, will not be sound rule of construc tion of statute.
I am afraid I have not been able to persuade myself to agree with the reasoning of the learned Division Bench in the aforesaid case of Muniswamy vs Superintendent of Police.
The learned Division Bench had restricted the scope of Rule 3(2) to only such officers whose "service or post is not regulated by any Special Rules.
then and then only the posts of Head of Departments of Government as defined in 1982 Rules had to be filled by promotion by selection and all other posts in such Departments have to be filled by promotion on seniority cure merit basis".
The Division Bench also examined the merits and demerits of various forms of selection at great length and took the view in paragraph 41 of the judgment as under: "We were shocked and surprised when the learned Govern 413 ment Advocate submitted before us that he was supporting the stand urged by Sri Bhat and the circular issued by the Director under instruc tions from Government.
We have no doubt that the Government had not really reflected on the untenable stand it was urging before this Court which, if accepted would have meant death knell to .efficiency in the services of the State.
" I am surprised with this type of approach.
It is not the function of the Court to examine the efficacy of one form of selection or the other.
It is for the recruiting authority, namely the Government to examine it and enforce it in the way it like.
To use such an expression "death knell to efficiency" really gives the mind of the Court that it wants to enforce the particular policy even though the latest mandate is for change of the policy in the name of efficien cy.
This type of reasoning really ignores the specific provision of the non obstante clause applying to even "in the rules of recruitment specially made in respect of any service or post".
In Ajay Kumar Banerjee and others vs Union of India and others, at page 153 Sabyasachi Mukharji, J. (as His Lordship then was) observed thus: "As mentioned herein before if the scheme was held to be valid, then the question what is the general law and what is the special law and which law in case of conflict would pre vail would have arisen and that would have necessitated the application of the principle "Generalia specialibus non derogant".
The general rule to be followed in ease of con flict between the two statutes is that the later abrogates the earlier one.
In other words, a prior special law would yield to a later general law, if either of the two fol lowing conditions is satisfied.
(i) The two are inconsistent with each other.
(ii) There is some express reference in the later to the earlier enactment.
If either of these two conditions is ful filled, the later law, even though general, would prevail".
It is thus clear that both the conditions mentioned by Mukharji, J., 414 speaking for the Bench are fulfilled.
In this case whether the promotion has to be by the method of selection or sim plicitor promotion on the basis of seniority cum merit, is the contest.
The Special Law contemplated promotion by selection whereas the later law contemplates promotion by the method of seniority cum merit.
The two are inconsistent with each other.
This fulfills the first condition.
So far as the second condition is concerned there is an express reference in the later general law "in the earlier enact ment".
But as per the proposition of Mukharji, J., if either of the two conditions are fulfilled the later law, even though general, would prevail.
Surely the provision of recruitment contemplated in the Special Police Rules is inconsistent with the latest general provision applicable to all posts in Karnataka.
In the present case the later gener al law prevails over the earlier special law because the non obstante clause specifically mentions its efficacy inspite of the Special Law.
It was for the legislature to choose the method of indicate its intention.
The Courts should not defeat their intention by overlooking it.
The respondent No. 2 has been selected for promotion by follow ing the General Rules amending the Special Rules and I find it was strictly in accordance with law.
I am, therefore, of the considered view that the appeal deserves to be dismissed with parties to bear their own costs.
G.N. Appeal allowed.
| The appellant was initially appointed as Inspector of Motor Vehicles and was promoted as Assistant Regional Trans port Officer In 1976, when the Karnataka General Service (Motor Vehicles Branch) (Recruitment) Rules, 1976 were in force.
Karnataka Civil Services (General Recruitment) Rules, 1977 came into being thereafter.
The appellant was promoted as Regional Transport Officer in 1981.
The General Rules of 1977 were amended in 1982 and sub rule (2) of Rule 3 was inserted, and as per the new Rule 3(2) the second Respondent was promoted as Deputy Commissioner of Transport on seniority cum merit basis.
The appellant filed an Application before the State Administrative Tribunal questioning the promotion of the second Respondent on the ground that promotion to the post of Deputy Commissioner of Transport should have been made by selection and not on seniority cure merit basis.
He also sought a declaration that the promotion of Respondent No. 2 was illegal and Respondent No.1 be directed to consider the case of the appellant for promotion to the post of Deputy Transport Commissioner with all consequential benefits.
The Tribunal dismissed the application on 388 the ground that Rule 3(2) of the General Rules, which was introduced later, had the effect of overriding the earlier special Rules, and hence the promotion made as per Rule 3(2) of the General Rule was valid.
Aggrieved by the Tribunal 's order, the appellant pre ferred the present appeal, by special leave.
On behalf of the appellant it was contended that the Special Rules were exclusively meant to govern the recruit ment and promotion of officers of various cadres of the Motor Vehicles Department and the General Rules which gener ally regulate the recruitment of all State Civil Services broadly even though later in point of time cannot abrogate the Special Rules and that they were not meant to be so since the Special Rules were not superseded and were very much in force.
The Respondent State contended that the non obstante clause in Rule 3(2) of the General Rules which was intro duced later clearly indicate the intention of the Legisla ture to supersede the Special Rules and promotions from the cadre of Regional Transport Officer to that of Deputy Com missioner of Transport could only be on the basis of senior ity cum merit and not by selection.
Allowing the appeal, this Court, HELD: (By the Court) Sub rule (2) of Rule 3 of Karnataka Civil Services (General Recruitment) Rules, 1977 (General Rules) has the overriding effect over the Karnataka General Service (Motor Vehicles Branch) (Recruitment) Rules, 1976 (Special Rules).
[400 D,E] Per Majority (By Reddy, J. Kuldip Singh, .1.
concurring) 1.
Examining the scope of Rule 3(2) particularly along with other General Rules, the context in which Rule 3(2) is made is very clear.
It is not enacted to supersede the Special Rules.
[403 G] 2.1 The non obstante clause is appended to a provision with a view to give the enacting part of the provision an overriding effect in case of a conflict.
But the non ob stante clause need not necessarily and always be co exten sive with the operative part so as to have the effect of cutting down 389 the clear terms of an enactment and if the words of the enactment are clear and are capable of a clear interpreta tion on a plain and grammatical construction of the words the non obstante clause cannot cut down the construction and restrict the scope of its operation.
In such cases the non obstante clause has to be read as clarifying the whole position and must be understood to have been incorporated in the enactment by the Legislature by way of abundant caution and not by way of limiting the ambit and scope of the Spe cial Rules.
Courts should examine every word of a statute in its context and use it in its widest sense.
[402 E G; 403 B] 2.2 There should be a clear inconsistency between the two enactments before giving an overriding effect to the non obstante clause but when the scope of the provisions of an earlier enactment is clear the same cannot be cut down by resort to non obstante clause.
[403 G H] 23 Even the General Rules of which Rule 3(2) forms a part provide for promotion by selection.
As a matter of fact Rules 1(3)(a), 3(1) and 4 also provide for the enforceabili ty of the Special Rules.
The very Rule 3 of the General Rules which provides for recruitment also provides for promotion by selection and further lays down that the meth ods of recruitment shall be as specified in the Special Rules, if any.
The object of these Rules is to provide broadly for recruitment to services of all the departments and they are framed generally to cover situations that are not covered by the Special Rules of any particular depart ment.
In such a situation both the Rules including Rules 1(3)(a), 3(1) and 4 of General Rules should be read togeth er.
If so read it becomes plain that there is no inconsist ency and that amendment by inserting Rule 3(2) is only an amendment to the General Rules and it cannot be interpreted as to supersede the Special Rules.
The Amendment also must be read as being subject to Rules 1(3)(a), 3(1) and 4(2) of the General Rules themselves.
The amendment cannot be read as abrogating all other Special Rules in respect of all departments.
[403 H; 404 A D] 2.4 Where there are no special rules to naturally the General Rules would be applicable.
Just because there is a non obstante clause in Rule 3(2) it cannot be interpreted that the said ammendment to the General Rules though later in point of time would abrogate the special rule the scope of which is very clear and which co exists particularly when no patent conflict or inconsistency can be spelt out.
[404 D E] 390 Maharaja Pratap Singh Bahadur vs Thakur Manmohan Dey and Ors., AIR 1966 SC 1931; Justiniane Augusto De Piedade Barre to vs Antonic Vicente Da Fonseca and Others etc. ; , relied on.
Muniswamy vs Superintendent of Police, ILR 1986 Karnata ka 344, approved.
Eileen Louise Nicolle vs John Winter Nicolle, (1922) I AC 284; In Re Chance, ; Kunter vs Phillips, , referred to.
There is no doubt that a later statute may repeal an earlier one either expressly or by implication.
In the instant case there is no express repeal of the Special Rule providing for promotion by selection.
There is no patent inconsistency between the General and Special Rules but on the other hand they co exist.
Therefore, there is no scope whatsoever to infer the repeal by implication.
[405 B,F] Aswini Kumar Ghosh and Ant.
vs Arabinda Bose and Ant, ; ; The Dominion of India (Now the Union of India) and Anr.
vs Shrinbai A. Irani and Anr, ; ; Union of India andAnother vs G.M. Kokil and Ors. ; Chandavarkar Site Ratna Rao vs
Ashalata section Guram; , ; State of West Bengal vs Union of India, [1964] 1 SCR 371; Reserve Bank of India etc.
vs Peerless General Finance and Investment Co. Ltd. & Ors, ; ; Municipal Council Palai vs T.J. Joseph, ; , relied on.
Muniswamy vs Superintendent of Police, ILR 1986 Karnata ka 344, approved.
Maxwell on The Interpretation of Statutes, Eleventh Edition page 168, relied on.
The Government is directed to consider the case of the appellant for promotion to the post of Deputy Commis sioner of Transport on the basis of promotion by selection, as provided in the Special Rules namely Karnataka General Service (Motor Vehicles Branch) (Recruitment) Rules, 1976.
[405 F G] Per Yogeshwar Dayal, J. (dissenting): 1.
It is clear from Rule 1 (3)(a) of the General Rules that the General Rules apply to recruitment to all State Services and to all posts in connection with the affairs of the State.
A perusal of different rules in the General Rules makes it clear that the 391 general provisions which apply to recruitment to all posts under the Government are specified in those Rules instead of repeating them in each and every Special Rules of recruit ment relating to different departments.
It would be impossi ble to limit the application of the General Rules only for recruitment to posts for which no Special Rules have been made.
Thus Rule 1(3) of the General Rules which accepted the applicability of Special Rules is itself a part of General Rules and the non obstante clause is not merely to what is mentioned to the contrary in the Special Rules but it is also notwithstanding anything contained in the General Rules itself.
[410 B D; 411 G] 2.
By the wording of rule 3(2) of the General Rules it is clear that the Government took conscious and deliberate policy decision and gave a mandate to make only posts of Head of Departments, Additional Head of Departments as selection posts and all other posts on promotion will be filled by adopting the criterion of "seniority cum merit".
To give effect to that policy decision instead of amending every Special Rules of recruitment relating to different State Civil Services, the Government made a provision in the General Rules by incorporating a non obstante clause stat ing that it would apply to all services and posts not withstanding the provisions in the General Rules or in the Special Rules of the State.
[410 E G] 3.1 The selection of 'best ' very often has an element of chance which may not be very conducive to proper climate and harmony in service.
Probably because of that experience the rule making authority thought it fit that the process of promotion by selection should be confined only to top posts and for rest of the posts the method should be promotion by adopting the principle of seniority cure merit.
There is a clear mandate of latest intention of the rule making author ity contained in Rule 3(2) of the General Rules and this must be respected by the Court.
Court is not expert body in knowing what is the best method for selection and to assume that the purest method must be found by the Court and imple mented even by violation of the Rule, will not be sound rule of construction of statute.
[412 D F] 3.2 It is not the function of the Court to examine the efficacy of one form of selection or the other.
It is for the recruiting authority, namely, the Government to examine it and enforce it in the way it Likes.
[413 C] 392 3.3 In the present case the respondent No. 2 was promoted after the amendment of Rule 3 of the General Rules and there is no dispute about his recruitment by way of promotion on the basis of seniority cum merit and that the earlier Special Rules which contemplated the promotion by selection were not followed in view of the latest intention clearly given by a positive mandate.
[411 G H] 3.4 As laid down by this Court in Ajay Kumar Baner jee 's case a prior special law would yield to a later gener al law if it satisfies either of the two conditions viz., that the two are inconsistent with each other;, that there is some express reference in the later to the earlier enact ment.
In the instant case, the special law contemplated promotion by 'selection ' whereas the later law, viz., Rule 3(2) of the general law contemplated promotion by seniority cum merit.
The two are inconsistent with each other and if fulfills the first condition.
Since the non obstante clause in the later general law specifically men tions its efficacy inspite of the Special Law, the second condition is also fulfilled.
Thus, in this case, the later general law prevails over the earlier Special Law, having fulfilled not one but both the conditions.
[413 F H; 414 A B] 3.5 It was for the legislature to choose the method to indicate its intention.
The Courts should not defeat their intention by over looking it.
Respondent No. 2 has been selected for promotion by following the General Rules amend ing the Special Rules and it was strictly in accordance with law.
[414 C D] Ajay Kumar Banerjee and Ors.
vs Union of India and Ors., , relied on.
Maharaja Pratap Singh Bahadur vs Man Mohan Dev, AIR 1966 SC 1931; Muniswamv vs Superintendent of Police, ILR 1986 Karnataka 344, referred to.
|
vil Appeal Nos. 1227 to 1230 of 1979.
From the Judgment and Order dated 24.11.1978 of the Gujarat High Court in Letters Patent Appeal Nos. 54, 52, 53, 55 of 1973.
B. Datta, J.P. Pathak and P.H. Parekh for the Appellants.
R.N. Sachthey, Bimal Roy Jad and Anip Sachthey for the Respondent.
The Judgment of the Court was delivered by KANIA, J.
These are the appeals by special leave from a common judgment of the Full Bench of the Gujarat High Court disposing of the Letters Patent Appeal Nos.
52 to 55 of 1973 and also Letters Patent Appeal No. 50 of 1973.
It is a common ground that the appellants are the tenants of certain lands which form part of the estate or wanta of a Taluqdar.
The question is whether the provisions of Section 6 of the Bombay Taluqdari Tenure Abolition Act, 1949, are applicable to the lands in question, and whether under the Bombay Taluqdari Tenure Abolition Act, 1949, which came into effect from 15th August, 1950, the said lands became vested in the State and all rights in the said land held by the Taluqdar became the property of the Government.
Under the provisions of Section 6 of the said Act, inter alia, all uncultivated lands excluding the land used for building and other non agricultural purposes, vest in the State.
Section 6 of the Bombay Taluqdari Tenure Abolition Act, 1949, runs as fol lows: "All public roads, lanes and paths, the bridges, ditches, dikes and fences on, or beside, the same.
the bed of the sea and of harbours, creeks below high water mark, and of rivers, streams, nailas, lakes, wells and tanks, and all canals, and water courses, and all standing and flowing water, all unbuilt village site lands, all waste lands and all uncultivated lands (excluding lands used for building or other non agricultural purposes), which are not situate within the limits of the wantas as belonging to a taluqdar in a taluq dari estate shall except in so far as any rights of any person other than the taluqdar may be established in and over the same and except as may otherwise be provided by any law for the time being in force, vest in and shall be deemed to be, with all rights in or over the same or appertaining thereto, the property of the Government and all rights held by a taluqdar in such property shall be deemed to have been extinguished and it shall be lawful for the Collector, subject to the 499 general or special orders of the Commis sioner, to dispose them of as he deems fit, subject always to the rights of way and of other rights of the public or of individuals legally subsisting.
Explanation: For the purposes of this section, land shall be deemed to be unculti vated, if it has not been cultivated for a continuous period of three years immediately before the date on which this Act comes into force.
" The question is whether for the purposes of this section the lands in question were uncultivated lands.
It is an admitted position that the lands were leased by the Taluqdar to the tenants.
There is also a clear and categorical find ing of facts that these lands had remained uncultivated for a period of 3 years immediately before the said Act came into force.
Prima facie it would appear that in view of the said explanation to section 6 the lands must be regarded as uncultivated lands for the purposes of section 6 of the said Act and must be deemed to be vested in Government.
Learned Counsel for the appellants, however, contended that as the lands had been put to cultivation earlier for some time even though not cultivated for continuous three years prior to vesting they cannot be regarded as uncultivated lands.
According to learned Counsel, if the land is capable of being cultivated, it cannot be treated as uncultivated land within the meaning of section 6.
He relied on a decision of this Court in State of Gujarat vs Gujarat Revenue Tribunal reported in [1980] 1 SCR page 233.
Our attention has been drawn to the observation made at page 239 of the said re port.
After setting out the provision of Section 6 it has been observed, as follows: "On a fair reading of the section, it would be evident that the vesting is in respect of properties which could be put to public use.
It leaves the private properties of the taluq dar untouched.
The legislative intent is manifested by clear enumeration of certain specific properties not situate within the wantas of a taluqdar.
It begins by specifying 'All public roads, lanes, paths, bridges etc. ' and ends up with 'all village site lands, all waste lands and all uncultivated lands ', and these being public properties situate in a taluqdar 's estate must necessarily vest in the Government because they are meant for public use.
In spite of vesting of such property in the Government, however, the conferral of the rights of an occupant on a taluqdar under section 5(1)(b) in respect of the lands in his actual possession, is saved.
Pausing there, it is fair to observe that the words in parenthesis 'excluding lands used for building or other non agricultural 500 purposes ', exemplify the intention of the legislature not to deprive a taluqdar of such land, even though such property is uncultivated land, due to its inherent charac ter as well as by reason of the Explana tion.
It is, therefore, evident that the determina tion of the question whether a particular category of property belonging to a taluqdar in a taluqdan estate is vested in the Govern ment or not, and the determination of the question whether the rights held by a taluqdar in such property shall be deemed to have been extinguished or not, will depend upon the category of that property.
The expression 'all waste lands ' has been joined by conjunctive 'and ' with the expression 'all uncultivated lands '.
They, therefore, indicate two distinct types of land.
If the legislature had intended that the aforesaid expression should indicate one class of lands, the expression rather would have been 'all waste and uncultivated lands ' as against the expression 'all waste lands and all uncultivated lands '.
Here we have, therefore, two distinct categories of proporties viz. (1) waste lands, and (2) uncultivated lands.
The contention that the grass lands on hilly tracts which are incapa ble of cultivation were 'waste lands ' or 'uncultivated lands ' within the meaning of section 6 cannot be accepted .
" The said decision of this Court and the observation relied on by the learned Counsel do not come in the aid of the contention made by the learned Counsel for the appel lants.
Even according to the appellants themselves, the lands were under cultivation for some time prior to the coming into force of the said Act and hence, it could not be said that they were uncultivable lands.
They were in fact, lands which were capable of cultivation and as a matter of fact subjected to cultivation for some time but, which as found by the High Court were not cultivated for continuous period of three years prior to the coming into force of the said Act.
In these circumstances, the said lands are clearly covered by the definition of the expression "uncultivated land" as set out in the Explanation to section 6.
As the said lands were uncultivated lands within the meaning of section 6, they must be deemed to have been vested in the Government and the contention of the appellants to the contrary must be rejected.
In the result, there is no merit in the appeal and it is dismissed.
There will, however, be no order as to costs.
T.N.A Appeals dismissed.
| The appellants were tenants of certain lands which formed part of a Taluqdari Estate.
These lands though cul tivable were not cultivated for a continuous period of 3 years prior to the coming into Iorce of the Bombay Taluqdari Tenure Abolition Act, 1949.
In the tenant 's appeal to this Court, on the question whether these lands were uncultivated lands within the meaning of Section 6 of the 1949 Act and thus became vested in the State: Dismissing the appeals, this Court, HELD: 1.
The lands in question are clearly covered by the definition of the expression "uncultivated land" as set out in the Explanation to Section 6 of the Bombay Taluqdari Tenure Abolition Act, 1949.
[500 F].
1.1 Even according to the appellants themselves, the lands were under cultivation for some time prior to the coming into force of the said Act and hence it could not be said that they were uncultivable lands.
They were in fact lands which were capable of cultivation and as a matter of fact had been subjected to cultivation for some time but were not cultivated 1or continuous period of three years prior to the coming into force of the Act.
Accordingly the lands must be regarded as "uncultivated lands" for the purposes of Section 6 of the Act and must be deemed to be vested in the State Government.
[500 E F, 499 C].
State of Gujarat vs Gujarat Revenue Tribunal, [1980]1 SCR233, held inapplicable.
497 498
|
Appeal No. 4088 of 1991.
From the Judgment and Order dated 24.5.1990 of the Karnataka Administrative Tribunal, Bangalore in Application No. 887 of 1989 C/W. A. No. 2101/1989.
495 Naresh Kaushik, Mrs. Lalita Kaushik and Shankar Divate for the Appellants.
M. Veerappa, S.R. Bhatt and Naveen R. Nath for the Respond ents.
The Judgment of the Court was delivered by KASLIWAL, J.
Special leave granted.
Sri Ashok alias Somanna Gowda appellant No. 1 is a Bachelor of Engineering (Civil) having secured. first class with distinction getting 69.96% marks from Karnataka Univer sity.
Shri Rajendra appellant No. 2 is a Bachelor of Engi neering (Mech.) from Karnataka University and secured 66.40 marks in the qualifying examination.
The Govt.
of Karnataka by notification dated 4th April, 1985 invited applications for recruitment of Asstt.
Engineers (Civil) and (Mech.) for the Public Works Deptt.
The selections were to be made on the basis of marks obtained in the qualifying examination and marks secured in the interview, in accordance with the K.S.C.S. (Direct Recruitment By Selection) Rules, 1973 (hereinafter referred to as 'the Rules ').
According to these Rules total marks for qualifying examination were kept at 100 and 50 for interview.
Thus the marks allotted for inter view amounted to 33.3% of the total marks.
Applications were invited for 300 posts of Civil Engineers and 100 Mechanical Engineers initially and subsequently added additional posts of 150 Civil Engineers and 10 Mechanical Engineers thus in all 450 Civil Engineers and 110 Mechanical Engineers.
Both the appellants applied for the posts of their choices in the Public Works Department, Government of Karnataka.
Appellant No. 1 secured 29.50 marks out of 50 marks in the interview and 69.96 marks in the qualifying examination thus in all 99.46 marks out of 150.
The 2nd appellant obtained 24.83 marks in the interview and 66.40 marks in the qualifying examination thus in all 91.23 marks out of 150.
Both the appellants were not selected in merit as the last candidate selected for the above posts secured higher marks than the appellants.
The appellants filed a petition before the Karnataka Administrative.
Tribunal challenging the Rules on the ground that the percentage of marks for viva voce as 33.3 were excessive and in violation of the decisions of this Court.
The Tribunal by its order dated 24th May, 1990 dismissed the petitions and the appellants aggrieved against the aforesaid decision have approached this Court by grant of special leave.
It is not necessary to examine ' the matter in detail inasmuch as 50 marks for interview out of 150 are clearly in violation of the judgment of this Court in Ashok Kumar Yadav & Ors.
vs State of Haryana & Ors.
, [1988] Sup.
S.C.R., 657 and Mohinder Sain Garg vs State of Punjab & Ors., J .T.
On a direction given by this Court on 4th September, 1991 the record of the 496 Selection Committee was produced before this Court at the time of hearing.
From a perusal of the marks awarded to the selected candidates it is clear that a large number of candidates have been selected though they had secured much lesser marks than the appellants in the qualifying examina tion but had secured very high marks in the viva voce out of 50 marks kept for this purpose.
Thus it is an admitted position that if the marks for interview were kept even at 15% of the total marks and merit list is prepared according ly then both the appellants were bound to be selected and a large number of selected candidates would have gone much lower in the merit list than the appellants.
In view of the fact that the result of the impugned selections was declared in 1987 and the selected candidates have already joined the posts, we do not consider it just and proper to quash the selections on the above ground.
Further the selections were made according to the Rules of 1973 and this practice is being consistently followed for the last 17 years and there is no allegation of any malafides in the matter of the impugned selections.
However, the Rules are clearly in violation of the dictum laid down by this Court in the above referred cases and in case the marks for viva voce would have been kept say at 15% of the total marks, the appellants before us were bound to be selected on the basis of marks secured by them in interview, calculated on the basis of converting the same to 15% of the total marks.
We, therefore, allow the appeal and direct the respond ents to give appointment to the appellant Ashok alias Soman na Gowda on the post of Asstt.
Engineer (Civil) and appel lant Rajendra on the post of Asstt.
Engineer (Mech.) in Public Works Department within a period of two months of the communication of this order in case the appellants are found suitable in all other respects according to the Rules.
Learned counsel appearing on behalf of the State of Karnata ka pointed out that there are many other candidates who had secured much higher marks than the appellants in case the above criteria is applied for selection.
In view of the fact that appointments under the impugned Rules were made as back as in 1987 and only the present appellants had approached the Tribunal for relief, the case of other candidates cannot be considered as they never approached for redress within reasonable time.
We are thus inclined to grant relief only to the present appellants who were vigilant in making griev ance and approaching the Tribunal in time.
Learned counsel for the State also submitted that the State Government has already framed new rules, and as such we do not find it necessary to quash the Rules under which the present selec tions were made as they are no longer in existence.
No order as to costs.
G.N. Appeal allowed.
| The Respondent State invited applications for recruit ment of Assistant Engineers (Civil) and (Mech.) for the Public Works Department.
According to the rules governing the recruitment, viz. Karnataka State Civil Services (Direct Recruitment by Selection) Rules, 1973 the marks obtained In the qualifying examination and the marks secured in the interview would be the basis for selection.
The total marks for qualifying examination was kept at 100 and 50 marks were kept for interview.
Thus the marks allotted for interview was 333% of the total marks.
Appellant No. 1 who applied for the post of Assistant Engineer (Civil) secured 29.50 marks out of 50 marks in the interview, his marks in the qualifying examination were 69.96, totalling in all 99.46 marks out of 150.
The second appellant, a candidate for the post of Assistant Engineer (Mech.) secured 24.83 marks in the interview and his marks in the qualifying examination being 66.40, he got 91.23 marks out of the total of 150 marks.
Both the appellants were not selected as they got less marks titan the last candidate selected, and they filed a petition before the State Administrative Tribunal challenging the rides on the ground that the percentage of marks for viva voce fixed at 333 was excessive.
The Tribunal having dismissed the peti tions, the appellants have preferred the present appeal, by special leave.
Allowing the appeal, this Court, HELD: 1. 50 marks for interview out of 150 are clearly in violation of the settled law on this point.
Some candi dates have been selected though 494 they had secured much lesser marks than the appellants in the qualifying examination but had secured very high marks in the viva voce out of 50 marks kept for this purpose.
If the marks for interview were kept even at 15% of the total marks and merit list was prepared accordingly then both the appellants would have been selected and a large number of selected candidates would have gone much lower in the merit list than the appellants.
[495 G, 496 A B] Ashok Kumar Yadav & Ors.
vs State of Haryana & Ors.
, [1988] Supp.
S.C.R. 657; Mohinder Sain Garg vs State of Punjab & Ors., J.T. , relied on.
Though the Karnataka State Civil Services (Direct Recruitment by Selection) Rules are clearly in violation of the dictum laid down by this Court, since the result of the selections was declared in 1987 and the selected candidates have already joined the posts, it would not be just and proper to quash the selections on the above ground.
Further the selections were made according to the Rules of 1973 and this practice is being consistently followed for the last 17 years and there Is no allegation of any malafides in the matter of selections.
[496 C D] 3.
The respondents are directed to give appointment to the two appellants on the post of Assistant Engineer (Civil) and Assistant Engineer (Mech.), respectively in Public Works Department within a period of two months in case the appel lants are found suitable In all other respects according to the Rules.
[496 E] 4.
Since the appointments under the Rules were made way back in 1987, the case of other candidates cannot be considered as they never approached for redress within reasonable time.
The relief is thus restricted only to the present appellants who were vigilant in making grievance and approaching the Tribunal in time.
[496 F G]
|
tion No. 5723 of 1982 & 219 of 1986.
(Under Article 32 of the Constitution of India).
Mrs Pinky Anand and D.N. Goburdhan for the Petitioners.
B.B. Singh, Pramod Swarup, J.P. Verghese, LJ.
Vadakare and Ms. Kamini Jaiswal (N.P.) for the Respondents.
The following Order of the Court was delivered These two petitions under article 32 of the Constitution challenge the provisions of the Chhota Nagpur Tenancy Act which confines succession to property to the male line by contending that the provision is discriminatory against women and, therefore, ultra vires the equality clause in the Constitution.
Petitioner No. 1 in the first writ petition is the editor of a magazine while petitioners nos.
2 and 3 are two ladies of the 'Ho ' tribe, admittedly one of the sched uled tribes residing in Singhbhum district of Bihar.
The petitioners in the other writ petition belong to the 'Oraon ' tribe of the Chhota Nagpur area.
Challenge is essentially to sections 7 and 8 of the Chhota Nagpur Tenancy Act of 1908.
Sec tions 7 and 8 of the Act provide: "7.(1) Meaning of 'raiyat having khunt khatti rights '.
"Raiyat having khunt katti rights" means a raiyat in occupation of, or having any subsisting title to, land reclaimed from jungle by the original founders of the village or their descendants in the male line, when such raiyat is a member of the family which rounded the village or a descendant in the male line of any member of such family: Provided that no raiyat shall be deemed to have khunt katti 479 rights in any land unless he and all his predecessors in title have held such land or obtained a title thereto by virtue of inheri tance from the original founders of the vil lage.
(2) Nothing in this Act shall prejudicially affect the rights of any person who has law fully acquired a title to a khunt kattidari tenancy before the commencement of this Act.
Meaning of Mundan Khunt khattidar.
"Mundari khuntkattidar" means a Mundari who has acquired a right to hold jungle land for the purpose of bringing suitable portions thereof under cultivation by himself or by male members of his family, and includes (a) the heirs male in the line of any such Mundari, when they are in possession of such land or have any subsisting title thereto; and (b) as regards any portions of such land which have remained continuously in the possession of any such Mundari and his descendants in the male line, such descendants.
" Reliance has been placed on a Division Bench decision of the Patna High court in the case of Jitmohan singh Munda vs Ramaratan Singh & Anr., in support of the proposition that the Patna High Court had more than 30 years back taken the view that the provision was not operative and a widow was also entitled to inherit.
When analysed the judgment of the Patna High Court does not seem to provide prop for the argument raised in the writ petitions.
In paragraph 4 of the judgment the High Court indicated: "The contention based on section 8 also terminologically cannot be accepted in the first place, in defining khunt kattidari interest.
As quoted above, the word used is "includes" whereafter occur clauses (a) and (b) containing reference to the male in the male line of a Mundari.
The word "includes" cannot be taken to be exhaustive.
It only states that the heirs in the male line alone are in the category of a Mundari khunt kattidari in their possession, but in implication it may well be that the heirs of the deceased Mundari who are females will not be entitled to succeed to it.
That does not mean that the section is so definite as to exclude the inclusion of the widow of the deceased Mundari as a person who can hold the land during 480 her life time.
Moreover, clause (a) refers to the heirs male in the male fine.
The word "line" is also significant be cause it evidently refers to a person who has descended from the deceased Mundari whose interest may be in question.
Even, therefore, if these words "the heirs male in the male line" were to be given exclusive meaning, then also it would mean only the persons who are descended from him or repre sent another male line altogether.
There is no reference whatsoever to the exclusion of the widow of the particular Mundari.
In my opinion, the position in respect of the interest of the widow of the deceased Mundari is the same in respect of this property as it would be her position in regard to the other properties of her late husband.
Since the court below has accepted that the family has followed the Hindu rites and Hindu religion, the widow of Kartik Singh would be entitled to be in possession.
Section 8, as I have discussed, is not inconsistent with this position of the widow and, as such, the court below took the correct view in holding that the plaintiff could not recover posses sion of the property during the life time of defendant No. 1, but he is entitled to a declaration that he will succeed after the death of the widow.
" The interpretation given of section 8 in the Division Bench decision, therefore, does not provide full support to the point raised before us by the writ petitioners in the two cases.
It was a case confined to its own facts and the Court proceeded to dispose of the case with reference to the widow by bringing in the concept of Hindu law on the finding that the family had adopted Hindu law and was not bound by its own caste custom.
At an earlier stage while one of these writ petitions was heard we had given time to the State of Bihar to consid er the feasibility of carrying out an amendment in the offending sections and to clearly provide that succession was not confined to the male in the male line.
A committee appears to have been set up by the State of Bihar to examine this question and it has come to the conclusion that by custom prevalent among the scheduled tribes a female heir is excluded from succession and in case the law was otherwise interpreted or changed and property was allowed to go into the hands of female heirs, there would be great agitation and unrest in the area among the scheduled tribe people who have custom based living.
Scheduled tribe people are as much citizens as others and they are entitled to the benefit of guarantees of the Constitution.
It may be that the 481 law can provide reasonable regulation in the matter of succession to property with a view to maintaining cohesive ness in regard to Scheduled Tribes and their properties.
But exclusion from inheritance would not be appropriate.
Since this aspect of the matter has not been examined by the State of Bihar and the feasibility of permitting inheritance and simultaneously regulating such inheritance for the purpose of ensuring that the property does not go out of the family by way of transfer or otherwise we arc of the view that in the peculiar facts of the case the State of Bihar should re examine the matter.
In these circumstances, instead of disposing of the two writ petitions by a final order we adjourn the hearing thereof for three months and direct the State of Bihar to immediately take into consideration our order and undertake the exercise indicated and report to the Court by way of an affidavit and along with that a copy of the report may be furnished by the Committee to be set up by the State of Bihar.
This matter shall not be considered as part heard and shall be next listed before a Bench where Justice Kuldip Singh is one of the members.
R.P. Petitions adjourned.
| Chhota Nagpur Tenancy Act, 1908 confined succession to property to descendants in the male line of Scheduled Tribes covered by the Act.
The petitioners who were the ladies belonging to the 'Ho ' and 'Oraon ' Tribes of the Chhota Nagpur area contended that the provisions of Sections 7 & 8 of the Act were dis criminatory against women and, therefore, ultra vires the equality clause in the Constitution.
The Court at an earlier stage while hearing one of the writ petitions, gave time to the respondent State of Bihar to consider the feasibility of carrying out an amendment in the offending sections so as to clearly provide that succes sion was not confined in the male line.
In pursuance there of, a Committee was set up by the State which came to the conclusion that a custom prevailed among the Scheduled Tribes that a female heir be excluded from succession, and that if there was any change, and the property be allowed to go into the hands of female heirs there would be agitation and unrest.
Adjourning the hearing of the petitions, this Court, HELD: Scheduled Tribe people are as much citizens as others and they are entitled to the benefit of guarantees of the Constitution.
It may be that the law can provide reasonable regulation in the matter of succession to proper ty with a view to maintaining cohesiveness in regard to Scheduled Tribes and their properties.
But exclusion from inheritance would not be appropriate.
Since this aspect of the matter was not examined by the State, it should re examine the feasibility of permitting inheritance and simul taneously regulating such inheritance for the purpose of ensuring 478 that the property does not go out of the family by way of transfer or otherwise.
[480 H; 481 AB] Jitmohan Singh Munda vs Ramratan Singh & Anr., , referred to.
In the circumstances, hearing of the matter be adjourned for three months and the State of Bihar would immediately take into consideration the order and undertake the exercise indicated and report to the Court by way of an affidavit, and along with that a copy of the report may be furnished by the Committee to be set up by the State of Bihar.
[481 B C]
|
vil Appeal No. 1681A(L) of 1979.
From the award dated 2.8.1978 of the Additional Labour Court, Rajasthan in Reference Case No. ALC 120 of 1974.
V.M. Tarkunde, P.H. Parekh and Sunil Dogra for the Appel lant.
474 J.D. Jain for the Respondent.
The Judgment of the Court was delivered by V. RAMASWAMI, J.
The appellant who had been in the service of the respondent company as a Section Salesman was terminated from service on 12th July, 1973 on the ground that he was on an unauthorised absence since 13th January, 1973 and shall be deemed to have left the company 's service of his own account.
At the instance of the appellant the Government of Rajasthan referred to the Labour Court/or adjudication the question whether the termination of the services of the appellant by the respondent company was legal and justified and if not to what relief he was enti tled to.
The Labour Court by its award dated 2.8.1978 held that the appellant was not a "workman" and that, therefore, the reference was incompetent.
We may, however, state that the Labour Court has given findings in favour of the appel lant on the question whether the termination itself was illegal.
The facts as found by the Labour Court for coming to the conclusion that the appellant was not a "workman" are these.
The head office of the company is at Calcutta in West Bengal.
The appellant was appointed as a section salesman and his services were controlled by the head office through its territory office situated in Delhi.
Section salesman are appointed for certain number of districts and in the area of each section salesman, a number of local salesmen and local travelling salesmen are appointed.
The appellant was ap pointed as a section salesman for the districts of Bikaner, Ganganagar, Merta and Barmer in Rajasthan with his head quarters at Bikaner.
There were seven other local salesmen and local travelling salesmen in his area.
The various correspondence and other evidence produced before the Labour Court showed that the appellant was employed for canvassing and pushing and promoting the sales of the company 's product in his area.
The Tribunal also found and in fact it has referred to as an admitted case of both the parties that the respondent company sells its product i.e. cigarettes manu factured by it directly through their wholesalers who in their turn sell the product to the various dealers appointed by the company in the area.
The section salesman neither sells nor collects any money from the wholesaler or retail dealers.
The company controls this through the territory office at Delhi.
Neither the section sales .
man nor the local salesmen or local travelling salesmen are employed in the shop of the wholesaler or any retail dealer to sell the products of the company and to collect the amount of sale.
The section salesmen and the local salesmen and local trav elling salesmen were employed by the company in order to canvass and promote the sales of the company.
From 475 perusal of the records produced before the Labour Court the Tribunal further observed "it was apparent that the appel lant is required to send reports about the publicity and advertisement and of placing posters, holders, cinema slides and suggest means to canvass the sale in this area.
Some of the document relate to matters of publicity in melas, some relate to the existing position of the stock of the goods of the company in the area and the action taken to ameliorate stocks".
It was not the duty of the appellant to procure orders for the company.
None of the salesmen were employed to sell the product of the company in any particular area or collecting the sale proceeds and depositing the same with the company.
However, the Tribunal noted that the appellant was required to supervise the work of the local ' salesmen and local travelling salesmen appointed in the area of his operation as well but it was only incidental to his main function of canvassing and promoting the sale of the product of the company in the four districts allotted to him.
On these facts found, the Tribunal came to the conclusion that the appellant cannot be held to be a workman employed for manual, skilled, unskilled and/or clerical nature and that the provisions of the Industrial Disputes Act was not ap plicable and the reference, therefore, was incompetent.
It is against this order the appeal was filed.
In order to come within the definition of workman under the Industrial Disputes Act as it stood in the year 1973 when the appellant 's service was terminated, the employee has to be ' under the employment to do the work of one of the types of work referred to in the Section i.e. manual, skilled and/or clerical in nature.
The finding of the Tribu nal on the nature of the work is a finding on a question of fact and it is also borne out by the document produced before the Labour Court.
It is seen from the facts found that the appellant was employed to do canvassing and promot ing sales for the company.
The duties involve the suggesting of ways and means to improve the sales, a study of the type or status of the public to whom the product has to reach and a study of the market condition.
He was also required to suggest about the publicity in markets and melas, advertise ments including the need for posters, holders and cinema slides.
These duties do require the imaginative and creative mind which could not be termed as either manual, skilled, unskilled or clerical in nature.
The supervising work of the other local salesmen was part of his work considered by the Tribunal as only incidental to his main work of canvassing and promotion in the area of his operation.
Such a person cannot be termed as a workman is also the ratio of the decision of this Court in Burmah Shell Oil Storage and Distribution Company vs Burmah Shell Management and Staff; ; , D.S. Nagraj vs Labour Officer, Kamal and others, 1973 F.J.R. (42) P. 440, J.J. Dechane Distributor vs State 476 of Kerala and others (1974 11 LLJ.9).
We may also refer to the subsequent passing of the .
This Act defines "sales promotion employees" as meaning a person employed or engaged in any establishment for hire or reward to do any work relating to promotion of sales or business or both.
This Act is to apply in the first instance to every establishment engaged in pharmaceuticals industry.
It enables the Central Government by notification to apply the provisions to any Other establishment engaged in any notified industry.
If an industry is notified under this Act then the provisions of the would also be attracted to these types of workmen.
This is a subsequent enactment and it is not applicable to the termination in the instant case which was long prior to the enactment of this Act.
Further no notification under this Act bringing the provisions to the employees like that of the company has been made under the provisions of this Act.
The object of this enactment and the employees covered by the enactment also go to show that persons employed for sales promotion normally would not come within the definition of workmen under the Industrial Dis putes Act.
The Labour Court considered the merits in detail and ultimately held that the termination of the appellant from service was illegal but dismissed the application only on the ground that the was not applica ble.
We would not have interfered with that finding had we differed from the Labour Court on the question whether the appellant is a workman.
In the light of our holding that the is not applicable to him and in view of the fact that a long period of over 16 years had passed it would be unjust to leave the appellant without any remedy at this stage.
In the circumstances, we consider that a direction to the Management to pay some compensation is necessary to meet the ends of justice.
We accordingly direct the Company to pay an amount equivalent to three years salary at the rate he was drawing when the appellant 's services were terminated, in addition to whatever amount they were paying during the pendency of the appeal under orders of this Court.
But this direction will not be treated as precedent.
For the foregoing reasons we are of the view that no interference is called for with the decisions of the Labour Court and this appeal accordingly fails and it is dismissed subject to the directions given above.
However, there will be no order as to costs.
V.P.R Appeal dismissed.
| The appellant was in the service of the respondent company as a Section Salesman.
He was terminated from serv ice on 12th July, 1973 on the ground that he was on an unauthorised absence since 13th January, 1973.
At the instance of the appellant the Government referred to the Labour Court for adjudication the question whether the termination of the services of the appellant by the respondent company was legal and justified and if not to what relief he was entitled to.
The Labour Court held that the appellant was not a "workman" and that, therefore, the reference was incompetent but it answered the question whether the termination itself was illegal in favour of the appellant.
The appeal was filed in this Court against the order of the Labour Court.
Dismissing the appeal, this Court, HELD: 1.
In order to come within the definition of "workman" under the Industrial Disputes Act as it stood in the year 1973 when the appellant 's service was terminated, the employee has to be under the employment to do the work of one of the types of work i.e. manual, skilled rod/or clerical in nature.
[475 E] 473 2.
The appellant was employed to do canvassing and promoting sales for the company.
The duties involve the suggesting of ways and means to improve the sales; a study of the type or status of the public to whom the product has to reach and a study of the market condition.
He was also required to suggest about the publicity in markets and melas, advertisement including the need for posters, holders and cinema slides.
These duties do require the imaginative and creative mind which could not be termed as either manu al, skilled, unskilled or clerical in nature.
The supervis ing work of the other local salesman was only incidental to his main work of canvassing and promotion in the areas of his operation.
Such a person cannot be termed as a workman.
[475 F G] 3.
The Sales Promotion Employees (Conditions of Service)Act, 1976, defines "sales promotion employees" as meaning a person employed or engaged in any establishment for hire or reward to do any work relating to promotion of sales or business or both.
[476 A B] 4.
The object of the enactment and the employees covered by the enactment also go to show that persons who are em ployed for sales promotion normally would not come within the definition of workmen under the Industrial Disputes Act.
[476C D] In view of the fact that a long period of over 16 years had passed it would be unjust to leave the appellant without any remedy at this stage.
To meet the ends of justice, the Company is to pay an amount equivalent to three years salary at the rate he was drawing when the appellant 's services were terminated, in addition to whatever amount they were paying during the pendency of the appeal.
[476 E,F] Burmah Shell Oil Storage and Distribution Company vs Burmah Shell Management and Staff, ; ; D.S. Nagraj vs Labour Officer, Kamal & Ors., ; JJ.
Decbane Distributor vs State of Kerala and Ors., , referred to.
|
Appeal No. 849 of 1987.
From the Judgment and Order dated 24.9.1985 of the Delhi High Court in S.A.O. ( 'Second Appeal From Order) No. 295 of 1981.
K.R. Nagaraja, R.S. Hegde and C.B. Nath Babu for the Appel lant.
M .L. Bhargava and Randbit Jain for the Respondents.
The following Order of the Court was delivered: The appellant landlord had filed an application under Sec.
14(1)(b) of the Delhi Rent Control Act, 1958 (for short the 'Act ') for ejectment of the respondents.
All the three courts concurrently found that Gulzar Singh was the sole tenant.
The Rent Controller and the Tribunal found that he sublet the demised premises to Avtar Singh, his brother and therefore ordered ejectment.
The High Court found that the tenant was in exclusive possession of the premises bearing No. W.Z. 258/4, Subash Bazar, Nangal 540 Raya, New Jail Road, New Delhi, and that he did not sublet the premises to Avtar Singh.
On that premise the petition for ejectment was dismissed.
Thus this appeal by special leave under article 136 of the Constitution.
Shri Nagaraja, learned counsel for the appellant has con tended that the High Court has committed a gross error in interfering with the concurrent finding of fact recorded by the Addl.
Rent Controller and the Rent control Tribunal that the tenant, Gulzar Singh has sublet the premises in question to his brother, Avtar Singh and that it is not open to the High court to interfere with the concurrent finding of fact.
He placed reliance on Sec. 18 of the Evidence Act and said that in an affidavit filed by Avtar singh before Income Tax Authorities he claimed exclusive possession as a tenant and that, therefore, the admission made by him would be binding on Gulzar Singh.
The Addl.
Rent Controller and the Rent Control Tribunal relying upon this admission of Avtar Singh and other oral evidence concluded that Avtar Singh alone was in exclusive possession and that, therefore, subletting was proved as a fact.
We find no substance in the contention.
Section 18 of the Evidence Act.
reads as under: "18.
Admission by party to proceeding or his agent; by suitor in representative character; by party interested in subject matter by person from whom interest derived.
State ments made by a party to the proceedings, or by an agent to any such party, whom the court regards, under the circumstances of the case, as expressly or impliedly authorised by him to made them, are admissions.
Statements made by parties to suits, suing or sued in a representative character, are not admissions, unless they were made while the party making them held that character.
Statements made by (1) persons whom have any proprietary or pecuniary interest in the subject matter of the proceeding and who make the statement in their character of persons so interested, or (2) persons from whom the parties to the suit have derived their interest in the subject matter of the suit, are admissions, if they are made during the continuance of the inter est of the persons making the statement.
" Section 18 postulates that statements made by a party to the 541 proceeding, or by an agent to any such party, whom the Court regards, under the circumstances of the. case, as expressly or impliedly authorised by him to make them, are admissions.
Equally statement made by a person who has an proprietary or pecuniary interest in the subject matter of the proceedings or persons having derivative interest make statements during the continuance of the interest also are admissions.
In this case, admittedly, Gulzar Singh was not a party to the .affidavit signed by Avtar Singh.
Therefore, the admis sion made by Avtar Singh that he is the tenant m exclusive possession of the demised premises does not bind Gulzar Singh.
In view of the plea and stand of the appellant, Avtar Singh cannot claim to have any pecuniary interest or any joint interest alongwith Gulzar Singh in the demised prem ises.
Once it is found that Gulzar Singh alone is the ten ant, as admittedly pleaded by the appellant, Avtar Singh cannot claim to have any pecuniary or derivative interest in the demised premises.
He is not an agent of Gulzar Singh.
Under those circumstances, as rightly found by the High Court, that the admission made by Avtar Singh in the affida vit is inadmissible and does not bind Gulzar Singh.
Once that admission is excluded from consideration, there is no other evidence worth accepting to conclude that Avtar Singh was in exclusive possession as a tenant.
The High Court rightly held that the finding of subletting or parting with possession of the premises in dispute was vitiated in law as it was primarily based on inadmissible evidence.
Having found the finding vitiated, it was open to the High Court to re examine and reappreciate the evidence on record.
On reappraisal it disbelieved the oral evidence.
We do not find any error in such reappraisal.
It is then sought to be contended that Gulzar Singh had other business and it im plies that he is not in exclusive possession of the demised premises.
We find no force in the contention.
It may be that Gulzar Singh had other business but that does not lead to the conclusion that Gulzar singh is not in exclusive posses sion of the demised premises as tenant or that he sublet the premises to Avtar Singh.
Accordingly, the appeal is dismissed, but in the circum stances, without costs.
T.N.A. Appeal dismissed.
| The appellant landlord filed an application under Section 14(1)(b) of the Delhi Rent Control Act, 1958 for ejectment of the respondents and the three courts concurrently found that the respondent was the sole tenant.
Relying on an affidavit filed by tenant 's brother before Income Tax au thorities in which he claimed exclusive possession as ten ant, the Rent Controller and the Tribunal concluded that the admission made by the tenant 's brother was binding on the tenant as a result of which sub letting by tenant was proved and consequently allowed the landlord 's eviction petition.
But the High Court dismissed the eviction petition by holding that since the admission made by tenant 's brother was not binding on the tenant, the finding of sub letting by tenant was vitiated in law because it was based on inadmis sible evidence.
In appeal to this court it was contended on behalf of the landlord that (i) the admission made by tenant 's brother was binding on the tenant under section 18 of the Evidence Act; (ii) the High Court erred in interfering with the concurrent finding of fact.
Dismissing the appeal, this Court, 538 539 HELD: 1.
Section 18 of the Evidence Act postulates that statements made by a party to the proceeding, or by an agent to any such party, whom the Court regards, under the circum stances of the case, as expressly or impliedly authorised by him to make them, are admissions.
Equally statement made by a person who has any proprietary or pecuniary interest in the subject matter of the proceedings or persons having derivative interest make statements during the continuance of the interest also are admissions.
[540 H, 541 A B] 2.
In the instant case, admittedly, the respondent tenant was not a party to the affidavit signed by his broth er.
Therefore, the admission made by his brother that he is the tenant in exclusive possession of the demised premises does not bind the respondent tenant.
Once it is found that respondent alone is the tenant, his brother cannot claim to have any pecuniary or derivative interest in the demised premises.
He is not an agent of his tenant brother.
Since the admission made by tenant 's brother was inadmissible and not binding on the tenant, the High Court rightly held that the finding of sob letting or parting with possession of the premises in dispute was vitiated in law as it was primarily based on inadmissible evidence.
Consequently, it was open to the High Court to re examine and reappreciate the evidence on record.
[541 B E]
|
Appeal No. 129 of 1986.
From the Judgment and Order dated 12.5.1982 of the Allahabad High Court in Civil Misc.
Writ Petition No. 13431 of 1981.
B.D. Agarwal and Indeever Goodwill for the appellant.
A.K. Srivastava for the Respondents.
The following Order of the Court was delivered: This appeal by special leave has been filed by the landlady.
She laid action under s.21 of the U.P. Urban Building (Regulation of letting, rent and eviction) Act, 1972 (for short 'the Act ') for eviction of the tenant on the ground of bona fide requirement to start business by her son.
The prescribed authority and the Appellate Tribunal found as a fact that the appellant required the premises bona fide to start the business.
But the High Court allowed the writ petition, set aside the order on the sole ground that the married daughters of the original tenant, Lalu were not impleaded who are the necessary parties and, therefore, the non joinder of the necessary parties disentitle the landlady to have the ejectment of the tenants namely the sons and the widow of the deceased tenant Lalu.
The only question that arises in this case is whether the married daughters of the deceased tenant are necessary parties and that non impleading them would disentitle the landlady to maintain the action for ejectment.
Admittedly, Lalu the original tenant died in 1%5.
Thereafter, the pro ceedings were initiated in 1974.
Till then, one of the sons of Lalu, 537 namely, Bhole Nath was in occupation of the premises and did carry on business as admitted by him in affidavit Exhibit SA II "that the deponent is the tenant of a portion of house No. 55, Thatheri Bazar, Allahabad on payment of Rs. 40/ per month as rent including electric charges".
It is also not in dispute that the married daughters never participated, nor claimed interest in the business conducted by Bhole Nath.
It is also an admitted fact that even before the death of the father they were married and they are living with their husbands elsewhere.
Indisputably s.3 (a)(2) postulates that "In this Act, unless the context otherwise requires (a) tenant in relation to a building means a person by whom its rent is payable, and on the tenant 's death (2) in the case of a non residential building, his heirs.
" Therefore, as defined under s.3(a)(2) all heirs of the tenants are the tenants who succeeded intestate as per the .
Certainly, therefore, they are tenants within the meaning of s.3(a)(2).
They are entitled to succeed to the tenant 's lease hold rights under the Act, including not merely to the liabilities to pay rent as contended by the appellant but also to continue the business until duly ejected as per the provisions of the Act.
Whether non im pleadment of the married daughters would vitiate maintain ability of the proceedings for ejectment.
The finding re corded by the Rent Appellate Tribunal that by necessary implication, the married daughters surrendered their tenancy rights inherited under the Act.
After the demise of Lalu, the daughters evinced no interest to assert their rights, is well justified.
Once that is found to be so, their nonim pleadment as respondents does not vitiate the action for non joinder of them as necessary parties nor maintainability of the proceedings for ejectment itself.
The High Court committed grave errors of law in allowing the writ petition and dismissing the application for ejectment.
The order of the High Court is set aside and that of the Prescribed Authority and the Tribunal are restored.
It is not in dis pute that the landlady offered a reasonable portion of the premises to the respondent to an extent of 3 1/2 'x 6 ' in the Varanda but respondent had refused to accept that offer but in this Court the learned counsel for the respondents re quested to allow the tenant to retain the portion offered.
In fairness, Mr. Agarwal, learned senior counsel for the appellant, has not objected to it.
Accordingly it is open to the tenant to occupy the portion offered by the appellant and vacate the other portion which is required by the peti tioner for starting the business of her son.
The appellant would carve out the portion in a suitable and convenient manner to run the business by the respondent.
The appeal is allowed with the above modifications, but in the circum stances parties are directed to bear their own costs.
N.P.V. Appeal Allowed.
| The appellant landlady, filed a suit under s.21 of the U.P. Urban Building (Regulation of letting, rent and evic tion) Act, 1972 for eviction of the tenant on the ground of bona fide requirement The prescribed authority and the Appellate Tribunal found as a fact that the appellant 's requirement was bona fide and decreed the suit.
But, the High Court set aside the order on the sole ground that the married daughters of the original tenant, who were the necessary parties, were not impleaded and, therefore, the non joinder of the necessary parties disentitled the appel lant landlady to have the ejectment of the tenants, namely, the sons and the widow of the deceased tenant.
Allowing the appeal of the landlady, this Court, HELD: 1.1 Section 3(a)(2) of the U.P. Urban Building (Regulation, of letting, rent and eviction) Act, 1972 postulates that tenant in relation to a building means a person by whom rent is payable, and on the tenant 's death, in the case of a non residential building, his heirs.
There fore, as defined under s3(a)(2) all heirs of the tenants are the tenants who succeeded intestate as per the Hindu Succes sion Act, 1956.
Consequently, the married daughters are tenants within the meaning of section 3(a)(2), and entitled to succeed to the tenant 's lease hold rights under the Act, including not merely to the liabilities to pay rent but also to continue the business until duly ejected as per the provisions of the Act.
[537 B C] 1.2 However, in the instant case, the original tenant died in 1965.
536 Thereafter, the proceedings were initiated in 1974.
Till then, one of the sons of the deceased tenant.
namely, the first respondent was in occupation of the premises and did carry on business.
The married daughters never participated, nor claimed interest in the business conducted by the first respondent and even before the death of the father, they were married and they were living with their husbands else where.
The Rent Appellate Tribunal has found that by neces sary implication, the married daughters surrendered their tenancy rights inherited under the Act, since after the demise of the original tenant, the daughters evinced no interest to assert their rights.
In view of this, their non impleadment as respondents does not vitiate the action for non joinder of them as necessary parties nor maintain ability of the proceedings for ejectment itself.
[S36 H, 537 AB, D E]
|
Appeal No. 1677 of 1984.
From the Judgment and Order dated 7.7.1983 of the Rajasthan High Court in S.B. Civil Misc.
Appeal No. 6 of 1983.
S.K. Jain, Mrs. Pratibha Jain and Sudhanshu Atreya for the Appellant.
C.K. Sucharita, Y. Prabhakara Rao (N.P.) and Ganpathi Iyer Gopalkrishnan for the Respondents.
544 The following Order of the Court was delivered: This appeal by special leave under article 136 of the Constitution is against the order of the High Court of Rajasthan dated July 7, 1983.
The appellant a partnership firm consists of nine partners of which Satya Narain is one of the partners.
On July 2.5, 1973 Satya Narain submitted a tender to the respondents offering to supply 1000 quintals of Gram Dal at the rate of Rs. 185/ per bag.
This was accepted by the respondents by letter dated August 28, 1973 followed by confirmation letter by the firm on August 31, 1973.
It is the case of the respondents that the appellant committed breach of the contract and as a result, the re spondents filed an application under sec.
20 of the Arbitra tion Act, 1940 (for short as the 'Act ') before the District Court for making reference for arbitration in terms of the contract.
The Addi.
District Judge after considering the evidence and the objections allowed the application and referred the dispute for arbitration.
Against that order, the appeal was filed and the High Court confirmed the order of the Addi.
District Judge.
The contention raised by Sri Sushil Kumar Jain, learned counsel for the appellant is that by operation of Sec.
19(2)(a) of the (for short as the 'Partnership Act ') there is no implied authority given to one of the partners to refer the dispute relating to the business of the firm for arbitration and therefore the reference made by the court, pursuant to a contract entered into by Satya Narain on behalf of the firm, is without jurisdiction.
The High Court found as a fact that none of the partners have entered into the witness box to deny the validity of the contract nor raised any objection that they had not authorised Satya Narain to enter into the contract nor that they were bound by any acts done by him.
It is also found that Satya Narain signed the tender and at that time no other .partners raised objection regarding the signing of the tender by Satya Narain on behalf of the firm.
In view of these facts it is clear that they ratified the contract.
It is also further to be noted that.
in terms of the contract, the corporation had appropriated the security deposit made by the appellant firm and that was not objected to at any time.
This itself would fortify.
the conclusion that the firm had entered into a binding contract with the corpora tion and contract contained the arbitration clause which binds the partners.
The contention raised that the contract is void and that in terms of the contract, making a refer ence is without jurisdiction bears no substance.
The High Court found that Satya Narain has implied power to con duct business on behalf of the partnership firm and the implied authority 545 binds all the partners.
18 of the Partnership Act postulates that "subject to the provisions of the Act a partner is the agent of the firm for the purposes of the business of the firm".
19(1) adumbrates that "subject to the provisions of Sec.
22 the act of the partners which is done to carry on in the usual way the business of the kind carried on by the firm, binds the firm".
Thus, Satya Narain has implied authority to enter into the contract with the corporation to supply the Dal of 1000 quintals at the contracted rate which is the usual course of the business of the appellant.
But it is settled law that the operation of Sees.
18 & 19(1) is subject to the exceptions engrafted in sub sec.
(2) of Sec. provides that in the absence of any usage or custom of trade to the contrary, the implied authority of a partner does not empower him to submit a dispute relating to the business of the firm to arbitration.
Satya Narain has power to do business on behalf of the firm and in exercise thereof he entered into the contract with the corporation during the usual control of business to supply the Dal.
Then crucial question is whether a valid contract which was not repudiated as per law, binds the other partners? Our answer is yes.
It is not in dispute that the contract engrafts an arbitration clause and in terms thereof the dispute is to be referred to the arbitra tion.
Therefore, the reference made by the Addi.
District Judge under Sec.
20 of the is perfectly within the jurisdiction and in terms of the contract.
It is not the case of the partners that the firm is not carrying on the business of the supply of Dal and that Satya Narain, as found by the Trial Court, was authorised to do business on behalf of the firm.
Under those circumstances, the reference is clearly valid.
We do not find any illegality to interfere with the order of the High Court.
In this view, the decisions in Gopal Das vs Bail Nath & Ors., AIR 1926 Allahabad 238; Finn Radhakishan Chunnilal vs Finn Ashamal lshardas, AIR 1926 Lahore 91; Rajendra Prasad vs Pannalal Champalal & Ors.
AIR 1932 Calcutta 343; Mansab dar Khan vs
M.T. Allah Devi & Ors., AIR 1934 Lahore 48S; Sohanlal vs Finn Madhoram Banwarilal, AIR 19S2 Punjab 240; and M/s Alazappa Cotton Mills vs Indo Bunna Trading Corpora tion, ; cited by learned counsel are of little assistance to the appellant.
In M/s Alazappa Cotton Mills case the original contract does not contain arbitra tion clause.
In a separate letter with a rubber stamp (facsimile) of the firm one of the partners agreed for reference to arbitration.
On those facts it was held that the reference does not bind the other partners.
The appeal is accordingly dismissed.
Since we do not call upon the respondents to argue, there will be no order as to costs.
V.P.R. Appeal dismissed.
| The appellant a partnership firm consisted of nine partners.
One Satya Narain was one of the partners.
He submitted a tender to the respondents on July 25, 1973 on behalf of the firm offering to supply 1000 quintals of Gram Dal at the rate of Rs.185/ per bag.
Tender was accepted by the respondents.
The appellant committed breach of the contract and as a result, the respondents filed an applica tion under sec.
20 of the before the District Court for making reference for arbitration in terms of the contract.
The application was allowed and the dispute was re ferred for arbitration.
Against the order of the Addl.
District Judge, an appeal was filed before the High Court and the High Court confirmed the order of the Additional District Judge.
This appeal by special leave under article 136 of the Constitution is against the order of the High Court.
The appellant contended that by operation of Sec.19(2)(a) of the Partnership Act, 1932, there was no implied authority given to one of the partners to refer the dispute relating to the business of the firm for arbitration and therefore the reference made by the court, pursuant to a contract entered into by one of its partner, Satya Narain on behalf of the firm, was without jurisdiction and that the original con tract did not contain arbitration clause.
In a separate letter with a rubber stamp (facsimile) of the firm, one of the partners agreed for reference to arbitration and there fore the reference did not bind the other partners.
Dismissing the appeal, this Court, 543 HELD: 1.
The operation of Secs.
18 & 19(1) is subject to the exceptions engrafted in sub sec.
(2) of Sec. 19.
19(2)(a) provides that in the absence of any usage or custom of trade to the contrary, the implied authority of a partner does not empower him to submit a dispute relating to the business of the firm to arbitration.
[545B C] 2.
None of the partners have entered into the witness box to deny the validity of the contract nor raised any objection that they had not authorised the partner (Satya Narain) to enter into the contract nor that they were bound by any acts done by him.
When the partner signed the tender, at that time no other partners raised objection regarding the signing of the tender by the partner on behalf of the firm.
In view of these facts it is clear that they ratified the contract.
[544 E F] 3.
The firm had entered into a binding contract with the corporation and contract contained the arbitration clause which binds the partners.
[544 G] 4.
The contract engrafts an arbitration clause and in terms thereof the dispute is to be referred to the arbitra tion.
Therefore, the reference made by the Addl.
District Judge under Sec.
20 of time is within the jurisdiction and in terms of the contract.
[545 D] Gopal Das vs Brij Nath & Ors., AIR 1926 Allahabad 238; Firm Radhakishan Chunnilal vs Firm Ashamal Ishardas, AIR 1926 Lahore 92; Rajendra Prasad vs Pannalal Champalal & Ors, AIR 1932 Calcutta 343; Mansabdar Khan vs M.T. Allah Devi & Or3 '.
, AIR 1934 Lahore 485; Sohanlal vs Firm Madhoram Ban warilal, AIR 1952 Punjab 240; and M/s. Alazappa Cotton Mills vs Indo Burma Trading Corporation, , referred to.
|
Appeal No. 1518 of 1980.
From the Judgment and Order dated 21.8.1979 of the Allahabad High Court in Civil Misc.
Writ No. 9724 of 1978.
J.D. Jain, A. Subba Rao, C.V.S. Rao and Ms. A. Subha shini for the Appellants.
S.S. Khanduja, V.J. Francis and N.M. Popli for the Respondents.
The Judgment of the Court was delivered by YOGESHWAR DAYAL, J.
This appeal by special leave is directed against the judgment of the Division Bench of the High Court of Allahabad dated 21st August, 1979 whereby the High Court allowed the writ petition filed by the four petitioners therein and issued a writ of mandamus directing respondents 1, 2 and 3 (Comptroller & Auditor General of India, New Delhi, The Accountant General, I, U.P. Allahabad and the Union of In&a) not to enforce the circular dated 25th January, 1973 as a rule regarding reservation of Sched uled Caste and Scheduled Tribes in relation to filling up of posts by promotion on the basis of seniority subject to fitness.
The aforesaid respondents were further restrained from promoting respondents 4, 5 and 6 in the writ petition to the post of Accounts Officers on the basis of the im pugned circular dated 25th January, 1973.
We would continue to refer to the parties as per the cause title of the writ petition in the High Court.
The writ petition came to be filed by the petitioners, M.L. Mehrotra and three others.
The petitioners said to be working as Section Officers in the office of the Accountant General I, II and III, Allahabad and they prayed for re straining respondents 1, 2 and 3 from promoting Yamuna Prasad Kureel, respondent No. 4, Ram Raj Ram, respondent No. 5 and Ram Dihal, respondent No. 6, in the writ petition, who were working as 485 Section Officers and belonged to the Scheduled Caste, to the post of Accounts Officer.
The case of the writ petitioners was that they were senior to respondents 4, 5 and 6 and they cannot be promoted to the post of Accounts Officers through seniority quota before the writ petitioners.
Their case was that the promo tion to the post of Accounts Officers is regulated by the rules made by the President in exercise of the powers con ferred by proviso to Article 309 and clause (5) of Article 148 of the Constitution after consultations with the Comp troller and Auditor General of India.
These rules are known as "Indian Audit & Accounts Department (Administrative Officers, Assistant Accounts Officers and Assistant Audit Officers) Recruitment Rules, 1963" (hereinafter referred to as the Rules).
In the counter affidavit filed it was pleaded that the Assistant Accounts Officers and Assistant Audit Officers are now called Accounts Officers and Audit Offi cers.
The aforesaid rules lay down the method of recruitment to the post of Administrative Officers, Assistant Accounts Officers and Assistant Audit Officers in the Indian Audit and Accounts Department.
The method of recruitment laid down in these rules in respect of these posts is by promotion.
They do not contain any specific provisions for reservation for Scheduled Caste and Scheduled Tribes.
The appellants herein relied upon the administrative instructions contained in the circular letter dated 25th January, 1973 issued by the Comptroller and Auditor General of India for the purpose of reservation for Scheduled Castes and Scheduled Tribes for these promotion posts.
The writ petitioners challenged the validity of these administrative instructions contained in the circular dated 25th January, 1973.
It was further pleaded that the lowest post in the Office of the Accountant General U.P. 1, I1 and II1 is of group 'D ' employees who are selected directly on the basis of merit.
There is a quota fixed for Scheduled Castes and Scheduled Tribes.
Then there are posts of clerks, a fixed quota percentage of which is filled in directly through examination and quota is fixed for Scheduled Castes and Scheduled Tribes.
The remaining posts of clerks are filled in by selection from class 'D ' employees by promotion on the basis of seniority.
The next higher posts are the post of Auditors.
A fixed percentage whereof is filled in directly through examination and a quota is fixed for Scheduled Castes and Scheduled Tribes.
The remaining posts of Auditors are filled in by promotion from clerks on the basis of seniority.
The next higher post is of Section Officers in which the writ petitioners and respondents to the writ petition were working.
These posts are filled in from the cadre of Auditors and clerks.
The Auditors as well as 486 clerks have to pass examination known as Subordinate Ac counts Service.
Normally more candidates pass this examina tion then the number of posts available for the Section Officers.
Here also there is a quota fixed for Scheduled Castes and Scheduled Tribes candidates.
The post of Accounts Officers (i.e. the posts in question) are filled in by promotion from Section Officers.
50 per cent of the vacancies are filled on the basis of merit (called the merit quota) and the remaining 50 per cent are required to be filled in on the basis of seniority (called seniority quota).
Normally the number of candidates avail able in the merit quota are less than 50 per cent of the posts available; hence the number of posts available in seniority quota is usually more than 50 per cent.
It was pleaded in the counter affidavit that the promotion will continue to be made in accordance the existing rules and orders on the subject namely those referred to above includ ing the circular dated 25th January, 1973, validity of which had been challenged.
The High Court took the view (1) that there is no reser vation for Scheduled Castes and Scheduled Tribes made under the rules; (2) that the administrative instructions con tained in the circular No.172 NGE ll/56 72 1 dated 25th January, 1973 issued from the office of Comptroller and Auditor General of India, New Delhi, inter alia, to all the Accountants General and the offices subordinate to them, on its own did not make a provision for the proposed reserva tion in pursuance to the policy decision.
(3) It also took the view that the statutory rules were not silent on the subject of promotion to the post of Assistant Accounts Officer (now called Accounts Officers).
This being so, it was not open to the Government to supplement the statutory rules to fill up the gaps.
This could be done by only amend ing the statutory rules in compliance with the provisions of Article 148(5) of the Constitution.
The High Court drew support from a Division Bench of the Madras High Court in Accountant General, Tamil Nadu & Others vs Doraswami & Oth ers, 1974 Labour Industrial Cases 384 and the decision of the Orissa High Court in the Original Jurisdiction cases No. 357 and 359 of 1977, P. Parbhakar Rao vs Union of India decided on 31st of July, 1978.
The High Court took the view that the administrative Instructions contained in the circu lar letter dated 25th January, 1973 cannot help respondents and no reservations for Scheduled Castes and not Scheduled Tribes can be made on that basis.
The High Court accordingly allowed the writ petition as stated earlier.
Before the High Court the counsel for the writ petition ers also submitted that the administrative instructions contained in the circular dated 487 25th January, 1973 could not be said to be the rules made by the President after consultations with the Comptroller and Auditor General of India as contemplated by Article 148(5) of the Constitution and referred to the language of the circular letter dated 25th January, 1973.
A supplementary counter affidavit of Shri P.P. Dhir, Accountant General l had also been filed where it was stated that the language used in the circular in substance, are the orders of the President.
The High Court took the view that no other mate rial has been referred to in the counter affidavit filed, which will show that the instructions contained in the circular dated 25th January, 1973 were based on the decision of the President of India.
However, the High Court held that they considered it unnecessary to go into this question any further since they had already held that the administrative instructions contained in the circular were of no avail to the respondents in the writ petition as they could not alter the statutory rules in force.
It appears the Department of Personnel issued a memoran dum No. 27/2/71.Estt. (SCT) dated 27th November, 1972 to all Ministries.
The subject of this memorandum was reservation for Scheduled Castes and Scheduled Tribes in posts filled by promotion on the basis of seniority subject to fitness.
This memorandum noted in paragraph 2 thereof that the policy in regard to reservation for Scheduled Castes and ScheduLed Tribes officers in posts to be filled by promotion on the basis of seniority subject to fitness now has been reviewed and it has been decided, in supersession of the orders contained in the aforesaid para 2 C of the O.M. dated 11th July, 1968 that there will be reservation at 15 percent for Scheduled Castes and 7 1/2 per cent for Scheduled Tribes in promotions made on the basis of seniority subject to fit ness, in grades or services in which the element of direct recruitment, if any, does not exceed 50 per cent and gave detailed procedure how promotions have to be made on the basis of seniority subject to fitness in the light of the aforesaid reservations.
It was stated in the memorandum that the Ministry of Finance etc.
arc requested kindly to bring the above decisions to the notice of all attached and subor dinate offices under them and semi Government and autonomous bodies.
This memorandum also stated in paragraph 6 thereof as under: "In so far as officers serving under Indian Audit & Accounts Department are concerned, separate orders will issue in due course.
" Thereafter, Shri section Krishnan, Deputy Secretary, De partment of Personnel, Cabinet Secretariat, New Delhi wrote a D.C. No. 27/2/71 Estt 488 (SCT) dated 1st January, 1973 to Shri R. Hariharan, Assist ant Comptroller & Auditor General (N), Office of the Comp troller and Auditor General of India, New Delhi.
In this letter the Deputy Secretary of the Department of Personnel wrote as under "Dear Shri Hariharan, Please refer to your D.O. letter No.2859/NGEII/56 72 dated the 24th November, 1972 regarding reservations for Scheduled Castes and Scheduled Tribes in posts filled by promotion on the basis of seniority subject to fitness.
A copy of the orders issued in this Department 's O.M. No.27/2/71 Est(SCT) dated 27.11.1972 has already been endorsed to the C. & A.G. A copy of the said O.M. is enclosed for ready reference.
We shall be grateful to know whether separate instructions which are pro posed to be issued by C. & A.G. in this regard in respect of persons serving under the Indian Audit & Accounts Department have since been finalised.
The draft of the instructions may please be shown to us, if since finalised.
I need hardly emphasise that it is desirable to expedite issue of such orders.
Yours sincerely, sd/ (section Krishnan)" Thereafter, the Assistant Comptroller & Auditor General (P) also met the said Deputy Secretary of the Department of Personnel and also sent a draft of instructions proposed to be issued to the offices under the Comptroller and Auditor General of India to Deputy Secretary, Department of Person nel vide a D.O.letter No.20 NGE II/56 72 I dated 5th Janu ary, 1973 by Shri R. Hariharan, Assistant Comptroller and Auditor General, Office of Comptroller and Auditor General of India, New Delhi.
Alongwith this letter a draft of in structions proposed to be issued to the offices under the Comptroller and Auditor General was forwarded.
The Deputy Secretary, Department of Personnel, Shri section Krishnan vide their communication dated 22nd January, 1973 informed Shri R. Hariharan, aforesaid, that the draft of instructions proposed to be issued were in order and it was requested that a copy of the instructions when issued may be 489 sent to their department.
It was in pursuance of these consultations that the impugned circular dated 25th January, 1973 was issued from the office of the Comptroller and Auditor General of India, New Delhi.
For facility of under standing the relevant part of the circular dated 25th Janu ary, 1973 issued from the office of the Comptroller and Auditor General of India, New Delhi is reproduced hereunder: No.172 NGE II/56 72 I OFFICE OF THE COMPTROLLER & AUDITOR GENERAL OF INDIA, NEW DELHI 1.
Dated the 25 1 1973.
To All Accountants General and Offices subordi nate to them.
All Chief Auditors of Rlys.
and offices subor dinate to them.
All Regional Directors of Commercial Audit, Chief Auditors of Commercial Accounts and offices subordinate to them.
The Directors, I.A. & A.S. Staff College, Simla.
The Director of Audit, Defence Services and offices subordinate to him.
The Assistant Comptroller and Auditor General (P).
(For G.E.I, G.E.II, &OE & A.Sections) Subject: Reservation for Scheduled Castes and Scheduled Tribes in posts filled by promotion promotions on the basis of sen iority subject to fitness.
Sir, I am to invite a reference to para 3(c) of this office circular letter No. 1989 NGE.II/89 68, dated 3.10.1968 according to which there is no reservation for Scheduled Castes & 490 Scheduled Tribes in appointments made by promotion on the basis of seniority subject to fitness although cases involving supersession of Scheduled Castes and Scheduled Tribe Officers in Class II appointments are required to be submitted for prior approval of the Comptroller and Auditor General of India and the cases involving supersession of Scheduled Caste and Scheduled Tribe officers in Class III & Class IV appointments have to be report ed within a month to the Comptroller and Auditor General of India for information.
The policy in regard to reserva tions of Scheduled Caste and Scheduled Tribe officers in posts filled by promotion on the basis of seniority subject to fitness has now been reviewed by the Government of India in consultation with the Comptroller and Auditor General of India and it has been decided, in supersession of the orders contained in the aforesaid para 3(c) of our circular letter dated 3.10.1968 that there will be reservation at 15% for Scheduled Caste and 71% for Sched uled Tribes in promotions made on the basis of seniority subject to fitness in appointments to all Class I, Class II, Class III and Class IV posts in grades, of services in which the element of direct recruitment, if any does not exceed 50%.
The above orders will necessitate reservation for Scheduled Castes and Scheduled Tribes in promotions made on the basis of seniority subject to fitness to the following grades in the I.A. & A.D. Promotions from Class III to Class II The existing procedure of promotions to A.Os.
grade will not undergo any change, as far as the posts filled by selection is con cerned.
Reservation to the extent of 15% for Scheduled Castes and 7 1/4% for Scheduled Tribes will, however, have to be made with reference to the number of posts of Accounts Officers filled in a year on the basis of seniority subject to fitness and for this purpose, a roster maintained in respect of such promotions.
491 4.
The following procedure may be followed to give effect to the decision men tioned in paragraph 2 above.
The above instructions take effect from 27.11.1972 except where a Select List, if any, for promotion by seniority subject to fitness has ' already been prepared by a De partmental Promotion Committee and approved by the appropriate authority before issue of these orders (i.e. 27.11.1972).
The receipt of this circular letter may kindly be acknowledged.
Yours faithfully, Sd/ (R. Hariharan) Asstt.
Comptr.
Genl.(N) The High Court is not right in stating that there cannot be an administrative order directing reservation for Sched uled Castes and Scheduled Tribes as it would alter the statutory rules in force.
The rules do not provide for any reservation.
In fact, it is silent on the subject of reser vation.
The Government could direct the reservation by executive orders.
The administrative orders cannot be issued in contravention of the statutory rules but it could be issued to supplement the statutory rules.
(See: the observa tions in Santram Sharma vs State of Rajasthan and Anr., ; In fact similar circulars were issued by the Railway Board introducing reservations for Scheduled Castes and Scheduled Tribes in the Railway services both for selection and non selection categories of posts.
They were issued to implement the policy of the Central Government and they have been upheld by this Court in Akhil Bhartiya Soshit Karamchari Sangh (Railways) vs Union of India & ors.
; The High Court has also touched upon the validity of the impugned circular and stated that they were not issued by the President after consultation with the Comptroller & Auditor General.
In the present case, the President has not issued the circular, but Comptroller and Auditor General has issued it.
There was however, proper consultation between the Government and the Comptroller & Auditor General for issuing the circular.
The infirmity pointed out that it was not issued in the name of the 492 President, therefore, relates only about the form and not with regard to the substance.
The circular of course, ought to have been issued in the name of the President as required under Article 148(5) of the Constitution, as it affects the service conditions of persons in the Audit and Accounts Department.
But since the Government has approved the circu lar and the circular was in accordance with the declared policy of reservation, we do not want to restrain the Comp troller & Auditor General from enforcing it.
We are thus of the view that the impugned circular is valid and binding.
The circular by its own provides for reservation.
The authorities concerned must take that into account while affecting promotions under the rules.
The result is that the impugned judgment of the High Court is set aside and the appeal is allowed.
In the circumstances of the case, however, we make no order as to costs.
N.P.V. Appeal allowed.
| The respondents, Section Officers in the offices of the Accountant General I, II and III, Allahabad, filed a writ petition before the High Court challenging the validity of administrative instructions contained in Circular No. 172 NGE 11/56 72 I dated 25th January, 1973 issued by the first appellant, regarding the reservations for Scheduled Castes and Scheduled Tribes in relation to filling up of posts by promotion on the basis of seniority subject to fitness, and praying that the first appellant and two others be re strained from promoting three of the Section Officers, belonging to the Scheduled Castes to the post of Accounts Officer, contending that since the respondents were senior, those three Section Officers could not be promoted to the post of Accounts Officers through seniority quota before the respondents.
It was also contended that the promotion to the post of Accounts Officers was regulated by Indian Audit & Accounts Department (Administrative Officers, Assistant Accounts Officers and Assistant Audit Officers) Recruitment Rules 1963 made by the President in exercise of the powers conferred by proviso to Article 309 and clause (5) of Arti cle 148 of the Constitution after consultations with the Comptroller and Auditor General of India, which laid down that recruitment to the post of Administrative Officers, Assistant Accounts Officers and Assistant Audit Officers in the Indian Audit and Accounts Department was by promotion, that the rules did not contain any specific provisions for reservation for Scheduled Castes and Scheduled Tribes and hat the administrative instructions contained in the circu lar could not be said to be rules made by the President after consultation with the first 483 appellant as contemplated by Article 148(5) of the Constitu tion.
Allowing the writ petition, the High Court held that there was no reservation for scheduled castes and scheduled tribes made under the rules, that the administrative in structions contained in the circular in question did not make provision for the proposed reservation in pursuance to the policy decision and that the statutory rules were not silent on the subject of promotion to the post of Assistant Accounts Officers, subsequently designated as Accounts Officers and, therefore, it was not open to the Government to supplement the statutory rules to fill up the gaps, which could be done by only amending the statutory rules in com pliance with the provisions of Article 148(5) of the Consti tution.
Hence the appeal by the Department.
Allowing the appeal, this Court, HELD: 1.1 The High Court is not right in stating that there cannot be an administrative order directing reserva tion for Scheduled Castes and Scheduled Tribes as It would alter the statutory rules in force.
The rules do not provide for any reservation.
In fact, they are silent on the subject of reservation.
The Government could direct the reservation by executive orders.
No doubt, administrative orders cannot be Issued In contravention of the statutory rules, but they could be issued to supplement the statutory rules.
In fact, similar circulars were issued by the Railway Board introduc ing reservations for Scheduled Castes and Scheduled Tribes In the Railway Services both for selection and non selection categories of posts.
They were issued to Implement the policy of the Central Government.
[491 D F] Santram Shams vs State of Rajasthan and Anr., ; and Akhil Bhartiya Soshit Karamchari Sangh (Rail ways) vs Union of India & Ors., ; , referred to.
1.2 It is true that the President has not issued the circular in question but the first appellant has issued it.
There was, however, proper consultation between the Govern ment and the first appellant for issuing the circular.
The infirmity pointed out that it was not issued in the name of the President, therefore, relates only to the form and not with regard to the substance.
The circular, of course, ought to have been issued in the name of the President as required under.
Article 148(5) of the Constitution, as it 484 affects the service conditions of persons in the Audit and Accounts Department.
But since the Government has approved the circular and the circular was in accordance with the declared policy of reservation, the first appellant cannot be restrained from enforcing it.
[491 G H, 492 A B] The circular in question is valid and binding.
The circular by itself provides for reservation.
The authorities concerned must take that into account while effecting promo tions under the rules.
[492 B]
|
Appeal No. 2383 of 1988.
From the Judgment and Order dated 1.4.1988 of the Hima chal Pradesh High Court in Civil Revision No. 29 of 1988.
N.S. Hegde and Ms. Madhu Moolchandani for the Appellant.
469 Ms. Asha Jain Madan for the Respondent.
The Judgment of the Court was delivered by R.M. SAHAI, J.
The short but interesting question of law that arises or consideration in this appeal, directed against judgment of the Himachal Pradesh High Court, is if possession given to competent authority under Himachal Pradesh Requisition and Acquisition of Immovable Property Act, 1972 (for brevity 'Requisition Act ') is vacation of premises without sufficient cause within second proviso to sub section (3) of Section 14 of Himachal Pradesh Urban Rent Control Act, 1987 deemed to have come into force with effect from 17th November 1971 (hereinafter referred to as the Act ').
Sub section (3) of Section 14 is extracted below: "(3) A landlord may apply to the Controller for an order directing the tenant to put the landlord in possession (a) in the case of a residential building, if (i) he requires it for his own occupation: Provided that he is not occupying another residential building owned by him, in the urban area concerned: Provided further that he has not vacated such a building without suffi cient cause within five years of the filing of the application, in the said urban area;" It enables a landlord to obtain an order for eviction of the tenant if he requires the building for his own occupa tion and he has no other building in the area concerned.
This right however stands deferred under second proviso for a period of five years if the landlord has vacated a build ing in his use without sufficient cause.
The question is how the expression he has not vacated such building without sufficient cause ' in the second proviso should be construed.
It has two aspects one whether the proviso applies to volun tary vacation only or it extends to vacating under pressure of legal proceedings such as requisition order by competent Authority.
Second even assuming that the expression 'vacate such building ' is given wide interpretation does giving up possession in consequence of a requisition order amounts to vacation without sufficient cause? Vacate, normally, means to go away, to leave.
The setting or context in which the word has been used does not indicate ,my different meaning.
Nor it is 470 necessary to decide if it applies to voluntary vacation only as it was urged that even assuming that giving up possession in pursuance of requisition order is included in the proviso can it be said to be without sufficient cause Sufficient cause is an expression which is found in various statutes.
It has been construed liberally in keeping with its ordi nary dictionary meaning of adequate or enough.
That is any justifiable reason resulting in vacation has to be under stood as sufficient.
cause.
For instance economic difficulty in financial stringency or family reasons may compel a land lord to let out building in his occupation.
So long it is found to be genuine and bona fide and would amount to vacat ing a building for sufficient cause.
And the bar of second proviso stands lifted.
In other words if the vacation of the building was not a pretence or pretext the proviso could not frustrate the right of landlord to approach the controller for necessary direction to tenant to hand over possession to him.
Vacation of a building by landlord in pursuance of an order of requisition by the competent authority could not be characterised as, 'not without sufficient cause '.
A landlord has no option.
He is required to vacate under constraint of law.
Therefore the statutory restriction created by second proviso would not apply in such a case.
Does it make any difference in law or the action of the landlord is rendered without sufficient cause as he did not file any objection in requisition proceedings either under mistaken advice or ignorance of law? For this it is necessary to narrate facts in brief.
The appellant is owner of Kennilworth house/Simla and its annexure He was in occupation of first floor of Kennilworth house.
Second floor was let out to the District Judge, who, later was elevated to the Bench.
For his occupa tion the entire house was requisitioned.
The appellant did not file any objection.
After vacating, the building he applied for eviction to respondent from the annexe.
His application was rejected as it would found to be in teeth of the second proviso.
It was held that the order of requisi tion was passed because the appellant did not show any cause be filing any objection under sub section (2) of Section 3 of the Requisition Act even though proviso to the sub sec tion precluded any property or part from being requisitioned if it was in bonafide use by the owner.
The explanation of the appellant that he was advised by his lawyer not to file an objection as the building was required for a High Court judge, was not accepted.
Validity or invalidity of an order under Requisition Act could not adversely reflect on sufficiency of cause under Rent Control Act.
Reason for either arises in different circumstances.
Vacating a building, even under an incorrect order passed by a competent authority under Requis 471 tion Act would be for sufficient reason.
The Rent Control authorities could not examine merit of the order under Requisition Act.
Therefore it could not be a valid consider ation for holding that the building was vacated without sufficient cause.
The courts below thus committed an error of law in applying second proviso to reject the application filed on behalf of the appellant.
Even the finding on requirement of the appellant to occupy the building is not well founded.
The inference drawn by the two courts below that the appellant being a rich man would not occupy the annexe or that he would use it occa sionally is not well founded.
It being undisputed that the appellant has no other building in the urban area and it having been found that he vacated the other building for sufficient reason there was no fetter on the right of appel lant to seek eviction of the tenant.
In the result this appeal succeeds and is allowed.
The orders of all the courts below are set aside.
The applica tion of appellant shall stand allowed.
He shall approach the Rent Control authorities for appropriate directions.
Parties shall bear their own costs.
T.N.A Appeal allowed.
| "Vacation " "Sufficient Cause" Meaning of.
Section 14(3) of the Himachal Pradesh Urban Rent Control Act 1987 enables a landlord to obtain an order for eviction of the tenant if he requires the building for his own occu pation and he has no other building in the area concerned.
This right however stands deferred under second proviso for a period of five years if the landlord has vacated a build ing in use without sufficient cause.
The appellant, an owner of a house, was in occupation of first floor of the house, while the second floor was let out to a Judge.
His entire house is requisitioned for occupation of a Judge.
The appellant did not file any objection under section 3(2) of the Requisition Act.
However, after vacating the building he applied for eviction of respondent.
The Courts in view rejected his application by applying the second proviso to section 14(3) of the Himachal Rent Control Act.
468 Allowing the Landlord 's appeal and setting aside the order of Courts below, this Court, HELD: 1. 'Sufficient cause ' is an expression which is found in various statutes.
It has been construed liberally in keeping with its ordinary dictionary meaning as adequate or enough.
That is any justifiable reason resulting in vacation has to be understood as sufficient cause.
For instance economic difficulty or financial stringency or family reasons may compel a landlord to let out a building in his occupation.
So long it is found to be genuine and bona fide it would amount to vacating a building for suffi cient cause.
And the bar of second proviso stands lifted In other words if the vacation of the building was not a pre tence or pretext the proviso could not frustrate the right of landlord to approach the controller for necessary direc tion to tenant to hand over possession to him.
[470 B C] 1.1 Vacation of a building by landlord in pursuance of an order of requisition by the competent authority could not be characterised as 'not without sufficient cause '.
A land lord has no option.
He is required to vacate under con straint of law.
Therefore the statutory restriction created by second proviso would not apply in such a case.
[470 D] 2.
Validity or invalidity of an order under Requisition Act could not adversely reflect on sufficiency of cause under Rent Control Act.
Reason for either arises in differ ent circumstances.
Vacating a building, even under an incor rect order passed by a competent authority under Requisition Act would be for sufficient reason.
The Rent Control author ities could not examine merit of the order under Requisition Act Therefore it could not be a valid consideration for holding that the building was vacated without sufficient cause.
The courts below thus committed an error of law in applying second proviso to reject the application filed on behalf of the appellant.
[470 H, 471 A B]
|
vil Appeal No. 4289 of F 1991 etc.
From the Judgment and Order dated 25.8.1989 of the Punjab & Haryana High Court in Civil Writ Petition No. 2635 of 1989.
Soli J. Sorabjee, Krishnamurthy lyer, Bishamber Lal Khanna, H.K. Puri, Ms. Geetanjali Mohan, Ms. A.K. Verma, P.R. Ramasesh, MahabirSingh, R. Mohan and Ayyam Perumal for the appearing parties.
The Judgment of the Court was delivered by V. RAMASWAMI, J.
Leave granted in all Special Leave Peti tions.
526 In this batch of civil appeals, writ petition and trans ferred case, a common question of law arises as to whether the industries which manufacture sugar from sugar cane are covered by Entry 15 of Schedule I to the (Central Act 36 of 1977) (hereinafter called the 'Cess Act ').
Originally the Water (Prevention and Control of Pollu tion Act), 1974 (hereinafter called the Act) was enacted by the Parliament under Article 252 of the Constitution with a view to control the pollution of rivers and streams which has assumed considerable importance and urgency in recent years as a result of increasing industrialisation and urban isation.
The Act is intended to ensure that the domestic and industrial affluence are not allowed to be discharged into water coarses without adequate treatment.
This Act is now in force in almost all States and in all Union Territories.
The Act provides for the constitution of a Central Board by the Central Government and State Boards by the State Governments concerned for the prevention and control of water pollution.
There are also certain provisions relating to constitution of joint boards the details of which need not detain us.
The Act sets out in detail the functions and powers of these Boards.
Chapter VI of the Act requires the Central Govern ment and the State Governments to provide funds to the Central Board and the State Boards respectively for imple menting the provisions of the Act.
The Cess Act 36 of 1977 provides for levy of cess on water consumed by persons carrying on certain industries and by the local authorities with a view to augment the resources of the Central Board and the State Boards constituted for the prevention and control of water pollution.
Section 3 of the Cess Act which may be termed as the charging section states that "there shall be levied and collected a cess for the purposes of the and utilisation thereunder".
The cess is payable by every person carrying on any specified industry and every local authority and is calculated on the basis of water consumed by such person or local authority as the case may be for any of the purposes specified in column I of Schedule II to the Act, at such rate not exceeding the rates specified in the corre sponding Entry in column II thereof as the Central Govern ment may by notification in the Official Gazette from time to time, specify.
"Specified industry" is defined in the Act as meaning any industry specified in Schedule I.
There are 15 entries in Schedule I and they read as follows: SCHEDULE I (See Section 2(c)) 1.
Ferrous metallurgical industry.
527 2.
Non ferrous metallurgical industry.
Mining industry.
Ore processing industry.
Petroleum industry.
Petro chemical industry.
Chemical industry.
Ceramic industry.
Cement industry.
Textile industry.
Paper industry.
Fertilizer industry.
Coal (including coke) industry.
Power (thermal and diesel) generating industry. ' 15.
Processing of animal or vegetable products industry.
The concerned assessing authorities have in all the cases under consideration issued notices demanding water cess from the sugar manufacturers on the ground that this industry falls under item 15 "processing of animal or vege table products industry".
The Punjab and Haryana High Court and the Allahabad High Court have taken the view that the sugar manufacturing industries would come within Entry 15 as "processing vegetable products industry".
On the other hand the Andhra Pradesh High Court and Patna High Court have taken the view that sugar manufacturing industries would not come within Entry 15 of the ist Schedule.
A writ petition which was filed in the High Court of Karnataka, Bangalore, by one of the sugar mills in Karnataka raising similar question has been withdrawn to this Court in transfer peti tion No. 276 of 1984 to be dealt with along with other appeals raising identical question.
Similarly another writ petition has been withdrawn from the Allahabad High Court in Transfer Petition No. 277 of 1984 to be dealt with along with this group of cases.
The object of the Act is to control the water pollution and to ensure 528 that industrial affluents are not allowed to be discharged into the water coarses without adequate treatment.
The Cess Act is not an enactment to regulate and control pollution but a fiscal measure to raise revenue for augmenting the resources of the Pollution Control Boards.
The levy and collection of cess provided under the Cess Act is on water consumed by persons carrying on the industries specified in the Schedule.
The Cess is levied on the person carrying on the specified industry.
The question is whether industries manufacturing sugar is covered by Entry 15 that is "process ing of vegetable product industry".
From the botanic point of view 'vegetable ' may include any plant but in common parlance it is understood as refer ring to edible plants or parts of edible plants.
The word 'vegetable ' has been defined in many ways.
In the World Book it is defined as follows: "In the usual sense, the word vegetable is applied to those plants whose leaves, stalks, roots or tubers are used for food, such as lettuce, asparagus, cabbage, beet and turnip.
It also includes several plants whose fruits are the edible portions, as peas, beans, melons and tomatoes.
" In the Concise Oxford Dictionary, 3rd Ed. p. 1365, it is defined as: "Plant, esp.
herbaceous plant, used for culi nary purposes or for feeding cattle, e.g. cabbage, potato, turnip bean.
" Again in Webster 's International Dictionary, vegetable is defined as: "A plant used or cultivated for food for man or domestic animals, as the cabbage, turnip, potato, bean, dandelion, etc., also the edible part of such a plant, as prepared for market or the table.
Vegetables and fruits are some times loosely distinguished by the used need of cooking the former or the use of man, while the latter may be eaten raw; but the distinc tion often fails, as in the case of quinces, barberries, and other fruits, and lettuce, celery, and other vegetable.
Tomatoes if cooked are vegetables, if eaten raw are fruit.
" In the Encyclopaedie Britannica, vol.
23, 'vegetable ' is defined as: "A general term used as an adjective in refer ring to any kind of plant life or plant product, viz. 'vegetable matter '.
More common ly and specifically, in common language, the word is used 529 as a noun in referring to those generally herbaceous plants or any parts of such plants as are eaten by man.
The edible ' portions of many plants considered aS vegetables are in a botanical sense, fruits.
The common distinc tion between fruits and vegetables is often indefinite and confusing, since it is based generally on how the plant or plant part is used rather than on what it This Court in State of West Bengal & Ors.
vs Washi Ahmed etc.
; , with reference to the meaning of the word 'vegetable ' in Item (6) of Schedule I to the Bengal Finance (Sales Tax) Act, 1941 held: "That the word 'vegetable ' in Item (6) of Schedule I to the Act must be construed as understood in common parlance and it must be given its popular sense meaning 'that sense which people conversant with the subject matter with which the statute is dealing would attribute to it ' and so construed, it denotes those classes of vegetables which are grown in a kitchen garden or in a farm and are used for the table.
" The interpretation of one of the entries in Schedule I to the Cess Act came up for consideration in Member Secre tary, Andhra Pradesh State Board for Prevention and Control of Water Pollution vs Andhra Pradesh Rayons Ltd. and others; , The question for consideration was whether manufacturing of rayon grade pulp a base material for manu facturing of synthetics or manmade fabrics is an industry as mentioned in Schedule I to the Cess Act.
It was held: .lm13 "Whether a particular industry is an industry as covered in Schedule I of the Act, it has to be judged normally by what that industry produces mainly.
Every industry carries out multifarious activities to reach its goal through various multifarious methods.
Whether a particular industry falls within the realm of taxation, must be judged by the predominant purpose and process and not by any ancillary or incidental process carried on by a particular industry in running its business." This Court also observed: "It has to be borne in mind that this Act with which we are concerned is an Act imposing li ability for cess.
The Act is fiscal in nature.
The Act must, therefore, be strictly construed in order to find out whether a liability is fas tened on a particular 530 industry.
The subject is not to be taxed without clear words for that purpose, and also that every Act of Parliament must be read according to its natural construction of words.
See the observations In Re. Nicklethwait, 1985 (11) exhibit 452, 456.
Also see the observations in Tenant vs Smith ; and Lord Halsbury 's observa tions at page 154.
See also the observations of Lord Simonds in St. Aubyn vs A.G. 1951 (2) All.
ER, 473, 485.
Justice Rowlatt of England said a long time ago, that in a taxing Act one has to look merely at what is clearly said.
There is no room for any intendment.
There is no equity about a tax.
There is no presumption as to tax.
Nothing is to be read in, nothing is to be implied.
One has to look fairly at the language used.
See the observations in Cape Brandy Syndi cate vs IRC, , 71.
This Court has also reiterated the same view in Gursahai Saigal vs CIT, , CIT vs Mr. P. Firm, Muar, ; Controller of Estate duty vs Kantilal Trikamlal; , The question as to what is covered must be found out from the language according to its natural meaning fairly and squarely read.
See the obser vations in IRC vs Duke of Westminster, ([1963] AC 1, 24) and of this Court in A.V. Fernandez vs State of Kerala ; Justice Krishna Iyer of this Court in Martand Dairy & Fawn vs Union of India ; has observed that taxing consideration may stem from adminis trative experience and other factors of life and not artistic visualisation or neat logic and so the literal, though pedestrain, interpretation must prevail." This Court considered the question as to whether sugar cane is green vegetable with reference to an exemption given under Sales Tax Enactment in the decision in M/s. Motipur Zamindary Co. (P) Ltd. vs The State of Bihar [1962] Supp. 1 SCR 498.
This Court quoted with the approval a passage from the judgment of the Nagput High Court in Madhya Pradesh Pan Merchants Association vs State of Madhya Pradesh (1956 (7) S.T.C. 99) wherein it was held "the word vegetable in taxing statutes is to be understood as in common parlance that is denoting class of vegetables which are grown in a kitchen garden or in a farm and are used for the table".
It was further held that sugarcane is normally considered to be a grass specie and it would not fail within the definition of words green vegetable.
The use of the word processing is also significant.
Processing of 531 vegetable products industry are normally understood in the sense they relate processing of vegetables which even after processing retain its character as vegetable.
Processing: Section 3(1), Marine Product Export Develop ment Authority Act, 1972 defines processing in relation to marine products, as including the preservation of such products as canning, freezing, drying, salting, smoking, peeling or filleting or any other method of processing which the authority made by notification in the Gazette of India, specified in this behalf.
Section 2(g) of the Agricultural and Processed Food Products Export Development Authority Act, 1985 defines processing in relation to scheduled products as including the process of preservation of such products such as canning, freezing, drying, salting, smok ing, peeling or rilleting and any other methods of process ing which the authority made by notification in the official Gazette specified in this behalf.
Thus processing as gener ally understood in marine, agricultural and food products industries is an action, operation or method of treatment applying it to something.
It is refining, development, preparation or converting of material especially that in a raw state into marketable form.
It would be interesting to note that this Act contains a Schedule of the agricultural or processed food products" which are to be governed by the Act which reads as follows: THE SCHEDULE (See Section 2(i)) 1.
Fruits, vegetables and their products.
Meat and meat products.
Poultry and poultry products.
Dairy products.
Confectionary, biscuits and bakery products.
Honey, jaggery and sugar products.
Cocoa and its products, chocolates of all kinds.
Alcoholic and non alcoholic beverages.
Cereal products.
532 10.
Cashewnuts, groundnuts, peanuts and wal nuts.
Pickles, chutneys and papads.
Guar Gum. 13.
Floriculture and floriculture products.
Herbal and medicinal plants.
In CST v.A.R.Alladin, AIR 1964 Guj. 27 the expression "who processes any goods" in the Bombay Sales Tax was held to refer to the subjecting of any goods to a treatment or process.
In Addl.
CIT vs Farrukhabad Cold Storage, held that processing of goods means that the goods must be adopted for a particular use.
The variety of acts performed in respect of goods or their subjection to a process need not be such as may lead to the production of any new article.
The act of subjecting ' goods to a particu lar temperature for a long period of time as in cold storage amounts to processing of goods.
On the other hand manufac ture is a transformation of an article which is commercially different from the one which is converted.
The essence of manufacture is the change of one object to another for the purpose of making it marketable.
In Union of India vs Delhi Cloth and General Mills, AIR 1963 SC 79 this Court pointed out: "The word 'manufacture ' used as a verb is generally understood to mean as bringing into existence a new substance and does not mean 'merely ' to produce some change in a sub stance, however minor in consequence, the change may be." In the same decision the following passage from the Permanent Edition of Words and Phrases from an American Judgment was quoted with approval: "Manufacture implies a change but every change is not manufacture, and yet every change of an article is the result of treatment, labour and manipulation.
But something more is necessary and there must be transformation, a new and different article must emerges having a dis tinctive name, character or use.
" The essential point thus is that in manufacture some thing is brought into existence which is different from that originally existed in the sense that the thing produced is by itself a commercially different commodity 533 whereas in the case of processing it is not necessary to produce a commer cially different article.
Processing essentially effectuates a change in form, contour, physical appearance or chemical combination or otherwise by artificial or natural means and in its more complicated form involves progressive action in performing, producing or making something.
Vide Com Products Refining 60.
vs Federal Trade Commission, CCA.
7, In the decisions under appeal, the Allahabad High Court held that sugar mills will come within the meaning of 'pro cessing vegetable products industry ' in Entry 15 on the ground that the word 'vegetable ' has been used in opposition to the expression 'animal ' and that it could not be given the meaning of vegetables which are kept on the dining tables for dinner purposes, and it has a wider amplitude.
It was further of the view that in interpreting the word 'veg etable ' one has to keep in mind the object for which the Cess Act was made.
The learned Judges then stated that sugar industry is one of the main source of causing water pollu tion and since the object of the Pollution Act and the Cess Act were intended to control water pollution and since the entries are to be given a wider meaning sugar industry would be covered by the Act.
The Punjab & Haryana High Court also took a similar line of reasoning and said that 'vegetable products ' essentially mean what belongs to the plant kingdom as opposed to the animal kingdom.
In another words the word 'vegetable ' has been used in contra distinction to the word 'animal '.
Though the learned Judges were not prepared.to hold that sugar cane is vegetable, the word 'product ' gives a definite colour, meaning thereby all that belongs to the world of plants would come within the entry.
We are unable to appredate the reasonings of the learned judges.
Pollution Act may be a regulating Act but Cess Act is a fiscal enactment, as is held by this Court in Member Secretary, Andhra Pradesh State Board for Prevention and Control of Water Pollution vs Andhra Pradesh Rayons Ltd. and Others (supra) and Rajasthan State Electricity Board vs The Cess Appellate Committee & Anr., JT There fore we have to look merely at what is clearly said.
There is no room for any intendment and there is no room for bringing within the provision of the Act anything by impli cation.
Unless we give the botanical meaning to the word 'vegetable ' it is not possible to conclude sugar cane as vegetable.
The Patna High Court in Civil Writ Jurisdiction Case Nos.
4413 of 1981 and 2346 of 1983 M/s Champaran Sugar Co. Ltd. vs State of Bihar & 534 Ors.
held that sugar manufacturing industry would not fall under Entry 15 Of Schedule I.
The Andhra Pradesh High Court also seems to be as the same view and it had dismissed a Writ Petition without a speaking order.
Construction of words and the meaning to be given for such words shall normally depend on the nature, scope and purpose of the statute in which it is occurring and to the fitness of the matter to the statute.
The meaning given to the same word occurring in a. social security measure or a regulating enactment may not be apposite or appropriate when the same word is interpreted with reference to a taxing statute.
The Cess Act is a fiscal enactment.
In the context in which the word 'vegetable ' is used in Entry 15 'vegetable product ' means product of or made of or out of vegetable. 'Vegetables ' as understood in common parlance are not products of manufacture unless we say that agriculture is an industry for certain purposes and vegetables are products of that industry.
In order to bring an industry within any of the entires in Schedule I it has to be seen what is the end product produced by that industry.
Sugar cane is not a vegetable though it may be an agricultural product.
If the botanic meaning of vegetable as referring to any and every kind of plant life is to be given then some of the indus tries listed in Schedule I like Paper Industry and Textile Industry and even chemical industry which are covered by other entries could also be brought within Entry 15.
The word vegetable in the context does not attract the botanic meaning.
The sugar manufacturing industry do not, therefore, come within Entry 15 of Schedule I of the Cess Act.
In Civil Appeal (arising out of Special Leave Petition No. 814 of 1990) the appellant is Haryana Distillery who purchases molasses which is a by product of the .manufacture of sugar and manufactures alcohol.
Manufacture of alchohol was held by the High Court to come within Entry 15 of Sched ule I as processing agricultural prOduct industry.
We have held already that the industry manufacturing sugar itself is not an industry within the meaning of Entry 15 and a fortio ri the manufacture of alcohol from molasses could not be considered to be an industry within Entry 15 of Schedule I.
In the result we allow Civil Appeals (arising out of SLP Nos.
15828 of 1989, 7496 of 1989, 778, 814, 830, 1286, 1433 of 1990 and SLP No . . . of 1991 entitled Upper Doab Sugar Mills Ltd & Anr.
vs Union of India & Ors.
Writ Petition No. 77 of 1990, and Transfer CaSe (C) Nos.
6 of 1986 & 91 of 1989 and dismiss Civil Appeals (arising out of SLP Nos.
9558 62 of 1988) and the Rule Nisi is made abso lute.
N.P.V. Appeals disposed of.
| Section 3 of the Water (Prevention of Pollution and Control) Cess Act, 1977 provided that water cess was payable by every person carrying on any specified industry and every local authority, for the purposes of the .
"Specified industry" was defined in the Act meaning any industry specified in Schedule 1.
There were 15 items under Schedule I, including "processing of animal or vegetable products industry", under Entry 15.
The question for consideration in the batch of appeals, writ petitions and transferred cases arising out of the notices issued by the concerned assessing authorities de manding water cess from the sugar manufacturers was whether sugar manufacturing industry fell under Entry 15 of Schedule I of the .
Disposing of the appeals, writ petitions and transferred cases, this Court, HELD: 1.
In the context in which the word 'vegetable ' is used in Entry 15, Schedule I of the , 'vegetable product ' means product of or made of or out of 524 vegetable. 'Vegetables ' as understood in common parlance are not products of manufacture unless it is said that agricul ture is an industry for certain purposes and vegetables are products of that industry.
In order to bring an industry within any of the entries in Schedule 1 it has to be seen what is the end product produced by that industry.
Sugarcane is not a vegetable though it may be an agricultural product.
If the botanic meaning of vegetable as referring to any and every kind of plant life is to be given then some of the industries listed in Schedule I like Paper Industry and Textile Industry and even Chemical Industry which are cov ered by other entries could also be brought within Entry 15.
The word 'vegetable ' in the context does not attract the botanic meaning.
The sugar manufacturing industry does not, therefore, come within Entry 15 of Schedule I of the Cess Act.
Consequently, the manufacture of alcohol from molasses, which is a by product of manufacture of sugar, could not be considered to be an industry within Entry 15 of Schedule I. [534 C E, F] 2.1 The word 'vegetable ' has been defined in many ways.
From the botanic point of view 'vegetable ' may include any plant but in common parlance it is understood as referred to edible plants or parts of edible plants.
Unless the botani cal meaning is given to the word 'vegetable ' it is not possible to conclude sugarcane as vegetable.
[528 C] 2.2 Pollution Act may be a regulating Act, but Cess Act is a fiscal enactment.
Therefore, the Court has to look merely at what is clearly said.
There is no room for any intendment and no room for bringing within the provision of the Cess Act anything by implication.
[533 E,F] State of West Bengal & Ors.
vs Washi Ahmed Etc.
; ; Member Secretary, Andhra Pradesh State Board for Prevention and Control of Water Pollution vs
Andhra Pradesh Rayons Ltd. and others; , , M/s Motipur Zamind ary Co. (P) Ltd. vs The State of Bihar, [1962] Suppl.
1 SCR 498 and Rajasthan State Electricity Board vs The Cess Appel late Committee & Anr., JT , referred to.
World Book, Concise Oxford Dictionary, 3rd Ed.
p. 1365, Webster 's International Dictionary and Encyclopaedia Brit tannica, Vol. 23, referred to.
2.3 Construction of words and the meaning to be given for such words shall normally depend on the nature, scope and purpose of the statute in which it is occurring and to the fitness of the matter to the 525 statute.
The meaning given to the same word occurring in a social security measure or a regulating enactment may not be apposite or.
appropriate when the same word is interpreted with reference to a taxing state.
The Cess Act is a fiscal enactment.
[534 B] 3.1.
Processing of vegetable products industry is nor mally understood in the sense that it relates to processing of vegetables, which even after processing retain its char acter as vegetable.
[530 H,531A] 3.2 Processing as generally understood in marine, agri cultural and food products industries is an action, opera tion or method of treatment applying it to something.
It is refining, development, preparation or converting of material especially that in a raw state into marketable form.
In manufacture something is brought into existence, which is different from that originally existed in the sense that the thing produced is by itself a commercially different commod ity, whereas in the case of processing it is not necessary to produce a commercially different article.
[531 C,D] 3.3 Processing essentially effectuates a change in form, cantour, physical appearance or chemical combination or otherwise by artificial or natural means and in its more complicated form involves progressive action in performing, producing or making something.
[533 A,B] CST v.
A.R.Aladin, AIR 1964 Guj. 27.
CIT vs Farruk habad Cold Storage, ; Union of India vs Delhi Cloth and General Mills, AIR 1963 SC 79 and Corn Products Refining Co. vs Federal Trade Commission, CCA.7. , referred to.
|
peaINo. 4235 of 1991.
From the Judgment and Order dated 5.6.1987 of the Cal cutta High Court in original order No. 129 of 1985 and/915 of 1983.
A.K. Ganguly, A.K. Chakraborty, A.D. Sikri and Ms. Mridula Ray for the Appellants.
D.N. Mukherjee and Rathin Das for the Respondents.
The Judgment of the Court was delivered by PUNCHHI, J.
We are required in this matter to interplay some of the provisions of the Urban Land (Ceiling and Regu lation) Act, 1976 to determine whether the appellant herein had any excess vacant land.
Probhavati Poddar (Proforma respondent herein) was the owner of two properties in the city of Calcutta being (i) premises No. P 290, C.I.T. Road, comprising 414.56 sq.
of land of which 321 sq.
was covered by a build ing, constructed thereon long before the coming into force of the Urban Land (Ceiling and Regulation) Act, 1976 (hereafter referred to as 'the Act '), with a dwelling unit therein, and (ii) property No. P 210, C.I.T. Scheme VII(M), Calcutta comprising 339.65 sq.
of vacant land.
Hereaf ter these would be referred to as the 'built up property ' and 'vacant property ' respectively.
The exact date/period of the construction of the built up property is not available on the present record but the litigation has proceeded on the footing that it was constructed long before February 17, 1976, the day when the Act came into force in the State of West Bengal.
The State 1egislatures of 11 States, including the State of West Bengal, considered it desirable to have a uniform legislation enacted by Parlia 506 ment for the imposition of ceiling on urban property for the country as a whole, and in compliance with clause (1) of Article 252 of the Constitution, passed a Resolution to that effect.
Accordingly, the Urban Land (Ceiling and Regulation) Bill, 1976 was introduced in the Lock Sabha on January 28, 1976 covering all the Union Territories and the 11 resolving States.
After the passing of the Bill by the Parliament, the Act came into force on February 17, 1976 at once.
Later from time to time, the Act was adopted by some other States after passing Resolutions under Article 252(1) of the Constitu tion.
The Act now apparently is in force in 17 States and all the Union Territories in the country.
The primary object and purpose of the Act was to provide for the imposition of the ceiling on vacant land in urban ag glomerations, for the 'acquisition of such land in excess of the ceiling limit, to regulate the construction of buildings on such land and for matters connected therewith, with a view to preventing the concentration of urban land in the hands of a few persons and speculation and profiteering therein, and with a view to bringing about an equitable distribution of land in urban agglomerations to sub serve the common good, and in furtherance of the directive princi ples of Articles 39(B) & (C) of the Constitution.
These features were .spelled out by this Court in Union of India etc.
V.B. Chaudhary etc.
[1979]3 SCR 802.
That it is valid piece of legislation, save and except Section 27(1), and had received the protective umbrella of Article 31 C as it stood prior to its amendment by 42nd Amendment Act was held by this Court in Maharao Sahib Shri Bhim Singhji etc.
vs Union of India & Others.
[1981]1 SCC 166. "Appointed day" has been defined in Section 2 A of the Act.
It means (i) in relation to any State to which the Act applies in the first instance, the date of introduction of the Urban Land (Ceiling and Regulation) Bill, 1976 in Par liament, and (ii) in relation to any State which adopts the Act under Clause (1) of Article 252 of the Constitution, the date of such adoption.
In relation to the State of West Bengal, in which the town of Calcutta is situated, the "appointed day" is January 28, 1976.
It is thus evident that between the appointed day and the date of enforcement of the Act, there is a 20 day 's gap.
The Act ordains a ceiling limit of 500 sq. mtrs.
for the urban agglomeration of Calcutta, as per item 15 of Category A in .Schedule
I of the Act.
Both the properties of Smt.
Poddar,.
the proforma respondent herein, thus became liable to be screened by the Authorities under the Act.
Before hand on July 8, 1978, Smt.
Poddar entered into an agreement with Smt.
Meera Gupta, the appellant herein, to sell the vacant property on 507 terms entered.
On November 23, 1978, the proposed vendor and the proposed vendee gave notice under Section 26 of the Act to the Competent Authority, appointed for the purpose of the proposed sale.
On August 7, 1980, the competent authority in exercise of powers under Section 6(2) of the said Act, issued a notice under Section 6(1) thereof to Smt.
Poddar directing her to file a statement in Form No. 1 on the basis that she held vacant land in the Calcutta Urban Area in excess of the ceiling limit of 500 sq. mtrs.
Having got no response, a reminder was sent to her, but in vain.
The Competent Authority thereafter initiated suomo to proceed ings against Smt.
Poddar and sent her a draft statement on September 18, 1979, exercising powers under Section 8(1) of the Act intimating that she could submit her objection, if any, to the draft statement.
It was specified in the said statement that she was tentatively required to surrender 254.21 sq.
of land (figure arrived by totalling .414.56 sq. mtrs.
of the built up property and 339.65 sq. mtrs.
of the vacant property to 754.21 sq. mtrs, are substracting therefrom 500 sq.
resulting in 254.21 sq. mtrs.).
The objections of Smt.
Poddar filed to the draft statement were rejected by the Competent Authority, who published the final statement under section 9 of the Act vesting the said 254.21 sq.
of excess land in the State, and the same was communicated to Smt.
Poddar on June 22, 1981.
She preferred an appeal under Section 33 of the Act before the Special Secretary, Land and Land Reforms Department, Government of West Bengal, the Appellate Author ity under the Act, but the same was dismissed in default on January 18, 1983.
Before hand the appellant herein filed suit No. 121 of 1981 against Smt.
Poddar in the Calcutta High Court claiming specific performance of the agreement dated July 8, 1978.
On August 21, 1981, a decree for specific performance was passed in favour of the appellant in the usual terms.
Pursu ant to the said decree, the deed of conveyance in respect of the vacant property was executed in favour of the appellant on November 19, 1981 for a consideration of Rs.1,26,000/ paid over to Smt.
Poddar.
Possession of the vacant property was delivered to the appellant and necessary entries were made in the municipal and revenue registers.
The appellant then got scent of the dismissal of the appeal of Smt.
Poddar in default on July 2, 1983.
The appel lant then filed a Review Petition before the Appellate Authority stating, inter alia, that she had become the owner of the vacant property and prayed for retrieval of the same from being treated as excess land in the hands of Smt.
Podar.
The Review Petition was rejected on August 10, 1983, which occasioned a petition under Article 226 of the Consti tution being filed by the appellant in the Calcutta 508 High Court on a variety of grounds.
The Writ Petition was opposed on each and every ground.
The learned Single Judge, before whom the writ petition was placed, taking aid from some observations in two decisions of this Court in Maharao Sahib Shri Bhim Singhji 's case (supra), and State of U.P. & Others vs L J. Johnson & Others, allowed the writ petition on November 27, 1984.
On appeal by the State of West Bengal and its responding officers, a Division Bench of the High Court reversed the judgment and order of the Single Judge on June 5, 1987 in Appeal No. 129 of 1985, leading to this appeal by special leave at the instance of the appellant.
The matter having come before a two Judge Bench of this Court, of which one of us was a member, on 28.7.1988, it was felt that lohnson 's case (supra) may have to be tested, and thus the matter was ordered to be heard by a larger Bench at least of three Judges.
This is how the matter stands placed before us.
As said at the outset, we have to interplay some of the provisions occurring in Chapter 3 titled as "Ceiling on Vacant Lands" in the Act.
We shall presently set out those provisions which have a bearing in the case.
But before we do that we do not wish to leave the impression that we have not viewed the statute as a whole.
The endeavour on our behalf to construe the provisions has not left any part thereof altogether.
So we proceed thenceforth to the interpretative process.
Section 3 of the Act provides that except as otherwise provided in this Act, on and from the commencement of this Act, no person shall be entitled to hold any vacant land in excess of the ceiling limit in the territories to which this Act applies under sub section (2) of Section 1.
Ceiling limit of vacant land in case of every person like the prece dessor in interest of the appellant is 500 sq.
as set up under Section 4.
Clauses (g) and (q) defining "vacant land" and "land appurtenant" and sub sections (9) and (11) of Section 4 which have precedence in engaging our attention are set out below, but without the Explanation to sub sec tion (11), for it is not relevant for our purpose: "2(g) "Land appurtenant", in rela tion to any building means (i) in an area where there are building regulations, the minimum extent of land required under such regulations to be kept as open space for the enjoyment of such building, which is no case shall exceed five hundred square meters; or (ii) in an area where there are no building regulations, an extent of five hundred square metres contiguous to the land oc 509 cupied by such building, and includes, in the case of any building constructed before the appointed day and with a dwelling unit therein, an additional extent not exceeding five hundred square metres of land, if any, contiguous to the minimum extent referred to in subclause (i) or the extent referred to in sub clause (ii), as the case may be; 2(q) "Vacant Land", means land, not being land mainly used for the purpose of agricul ture, in an urban agglomeration, but does not include (i) land on which construction of a building is not permissible under the building regula tions in force in the area in which such land is situated; (ii) in an area where there are building regulations, the land occupied by any building which has been constructed before, or is being constructed on, the appointed day with the approval of the appropriate authority and the land appurtenant to such building; and (iii) in an area where there are no building regulations, the land occupied by any building which has been constructed before, or is being constructed on, the appointed day and the land appurtenant to such building.
4(9) where a person holds vacant land and also holds any other land on which there is a building with a dwelling unit therein, the extent of such other land occupied by the building and the land appurtenant thereto shall also be taken into account in calculat ing the extent of vacant land held by such person.
4(11) For the removal of doubts it is hereby declared that nothing in sub sections (5), (6), (7), (9) and (10) shall be construed as empowering the competent authority to declare any land referred to in sub clause (ii) or sub clause (iii) of clause (q) of section 2 as excess vacant land under this Chapter.
" To begin with "vacant land" as per the definition given in clause (q) of Section 2 means land as such, not being land mainly used for the put 510 pose of agriculture, but situated in an urban agglomeration. "Vacant Land", however, does not include, as per the defini tion, land of three categories.
The first category is land on which construction of a building is not permissible under the building regulations in force in the area in which such land is situated.
But this is a category with which we are not concerned in the instant case.
Johnson 's case (supra) is of this category.
The second category is of land occupied by any building in an area, where there are building regula tions, which has been constructed upon, or is under con struction on the appointed day, with the approval of the appropriate authority, and the land appurtenant to such building.
This means that if the building stood constructed on the land prior to January 28, 1976, the land occupied under the building is not vacant land.
It also covers the land on which any building was in the process of construc tion on January 28, 1976 with the approval of the appropri ate authority.
That too is not "vacant land".
Additionally, the land appurtenant to these two kinds of buildings is also not "vacant land".
The third category likewise conditioned is of land occupied by any building in an area where there are no building regulations, which has been constructed before January 28, 1976 or is in the process of construction on such date, and the land appurtenant to these two kinds of buildings.
The aforesaid three categories of lands would otherwise be "vacant land" but for the definitional exclusion.
The specific non inclusion of these three categories of land is by itself an integral part of the definitional and function al sphere.
The question that arises what happens to lands over which buildings are commenced after the appointed day and the building progresses to complete thereafter.
On the appointed day, these lands were vacant lands, but not so thereafter because of the surface change.
Here the skill of the draftsman and the wisdom of the legislature comes to the fore in cognizing and filling up the gap period and covering it up in the scheme of sub section (9) of Section 4.
The visible contrast between "vacant land" and "any other land" held by a person on which there is a building with a dwell ing unit therein becomes prominent.
The said "any other land" is reckoned and brought at par with the "vacant land" for the purpose of calculating the final extent of vacant land.
It seems to us that the expression "vacant land" in the first portion of the provision connotes land minus land under buildings constructed or in the process of construc tion before and on the appointed day, and the expression "vacant land" in the latter portion of the provision con notes the sum total of "vacant land" of the first order and distinctly the "other land" on which is a building with a dwelling unit therein of which construction commenced after the appointed day, and the land appurtenant thereto.
Such an interpretation is required by the conext 511 as otherwise the concept of the appointed day and the gap period would be rendered otiose.
The legislature cannot be accused to have indulged in trickery or futility in giving something with one hand and taking it away with the other.
"Any other land"in the sequence would thus mean any other built upon land except the one excluded from the expression "vacant land" on account of it being occupied by a building which stood constructed, or was in the process of construc tion, on the appointed day.
Such interpretation of ours finds support from Section 5 of the Act which pursues and does not leave alone transfer of vacant land in the gap period.
It provides as follows: "5.
TRANSFER OF VACANT LAND (1) In any State to which this Act applies in the first in stance, where any person who had held vacant land in excess of the ceiling limit at any time during the period commencing on the appointed day and ending with the commencement of this Act, has transferred such land or part thereof by way of sale, mortgage, gift, lease or otherwise, the extent of the land so trans ferred shall also be taken into account in calculating the extent of vacant land held by such person and the excess vacant land in relation to such person shall, for the pur poses of this Chapter, be selected out of the vacant land held by him after such transfer and in case the entire excess vacant land cannot be so selected, the balance, or, where no vacant land is held by him after the trans fer, the entire excess vacant land, shall be selected out of the vacant land held by the transferee: Provided that where such person has trans ferred his vacant land to more than one per son, the balance, or, as the case may be, the entire excess vacant land aforesaid, shall be selected out of the vacant land held by each of the transferees in the same proportion as the area of the vacant land transferred to him bears to the total area of the land trans ferred to all the transferees.
(2) Where any excess vacant land is selected out of the vacant land transferred under sub section (1), the transfer of the excess vacant land so selected shah be deemed to be null and void.
(3) In any State to which this Act applies in the first instance and in any State which adopts this Act under clause (1) of Article 252 of the Constitution, no person holding vacant land 512 in excess of the ceiling limit immediately before the commencement of this Act shall transfer any such land or part thereof by way of sale, mortgage, gift, lease or otherwise until he has furnished a statement under Section 6 and a notification regarding the excess vacant land held by him has been pub lished under sub section (1.) of Section 10; and any such transfer made in contravention of this provision shall be deemed to be null and void." [Underlining ours].
The underlining is reflective of the scheme of the Act in as much as transfers of vacant land within the gap period are ignorable, and likewise, in our view, vacant land brought under construction of building by a person within the gap period is also ignorable for the purposes of calcu lating the extent of vacant land, so that the provisions of law are not defeated by human ingenuity.
At this juncture, sub section (11) of Section 4 may be noticed.
It provides removal of doubts declaring.
inter alia, that nothing in sub section (9) shall be construed as empowering the competent authority to declare any land referred to in sub clause (ii) or sub clause (iii) of clause (q) of Section 2 as excess vacant land under this Chapter.
Though this provision is not happily worded, yet when mean ingfully construed in the context, it means that a building which gets excluded by virtue of the definition of "vacant land" gets clothed with the protective cloak for not being reckoned again as any other land, over which there is a building with a dwelling unit therein.
Sub section (11) of Section 4 means to convey that what is not vacant land under sub clauses (ii) and (iii) of clause (q) of Section 2 cannot go to add up as "vacant land" under sub section (9) of Section 4 by descriptive overlapping.
If we wipe out the distinction of "vacant land" and "any other land" as demon strated in sub section (9) of section 4, we strangulate and destroy the spirit and life blood of the "appointed day" and the gap period.
We would loathe giving such a construction and would rather opt for a construction which carries out the objectives of the Act, primary of which is to fix a ceiling limit on the holding of vacant lands, conditioned as they are on the appointed day, and as held on the date of the commencement of the Act.
It would be worthwhile at this stage to take note of the expression "land appurtenant" as defined in Section 2(g).
When related to any building in an area where there are building regulations, as well as in an area where there are no building regulations, the additional extent as permitted is based on the principle of contiguity.
The expression applies to buildings constructed before the "appointed day" as well as to buildings, construction of which commenced before the "appointed day", and was in progress on that day.
It, no doubt, applies to buildings, constructed thereafter too.
513 When we import this understanding to sub section (9) of Section 4, two different results discernably follow, based on the commencement of the construction.
If the construction of a building with a dwelling unit therein had begun after the appointed day, then it is all the same "any other land" to be reckoned for calculating the extent of vacant land held by a person.
And if the construction of a building with a dwelling unit therein on land had been completed or was in progress by and on the appointee day, then is not "any ' other land" to be reckoned for calculating the extent of vacant land held by a person.
This is the interpretation which commends to us of sub section (9) of Section 4 as also of sub section (11) of Section 4 and the definitive expres sions used therein as explained and highlighted earlier.
Applying that interpretation on the facts found by the High Court we hold that the built up property, which in any event had been built up prior to the commencement of the Act, and it is nobody 's case that construction thereof had begun after the "appointed day", is outside the purview of "vacant land".
If that is excluded from being reckoned towards calculating the extent of vacant land held by the predeces sor in interest of the appellant, the vacant land in the vacant property cannot be declared excess for that is within the permissible limits.
Even if no land is left as land appurtenant to the built up area, then 93.56 sq. mtrs, the remainder plus 339.65 sq. mtrs, of the unbuilt property would total up to the figure less than 500 sq.
; again within the permissible limit.
Therefore, interpretation to the contrary of the dealt with provisions by the Division Bench of the High Court, bereft as it is of the concept of the appointed day and the gap period, would have to give way, meriting the acceptance of this appeal and setting aside of the judgment of the Division Bench of the High Court by issuing the necessary writ, direction and order so as to quash the entire proceedings towards declaring excess land in the hands of the appellant and her predecessor in title.
We order accordingly.
The interpretation we have put to the provisions pertinently relate to sub clause (ii) and (iii) of clause (q) of Section 2.
This interpretation in express terms cannot apply to sub clause (i) of clause (q) of Section 2.
Johnson 's case (supra) as said before, is a case under sub clause (i) of clause (q) of Section 2.
In the instant case, there appears to be no occasion to test its correctness or even to dilate upon the judgments of the High Courts reported in AIR 1981 Madhya Pradesh 17, AIR 1984 Bombay 122 and AIR 1987 Allahabad 272, cited at the bar.
As a result, this appeal is allowed.
The appellant shall have her costs throughout.
T.N.A. Appeal allowed.
| The appellant 's predecessor in interest, respondent herein, was the owner of two properties consisting of a 'built up property ' and a 'vacant property ' in the city of Calcutta.
The built up property comprised of 414.56 sq. mtrs.
of land of which 321 sq.
was covered by a build ing with a dwelling unit therein and the said property was constructed long before the Urban Land (Ceiling and Regula tion) Act, 1976 came into force.
The second property com prised of 339.65 sq.
of vacant land.
The Act came into force on February 17, 1976 but under Section 2A of the Act the appointed day in relation to State of West Bengal was 28th January, 1976.
Thus between the appointed day and the date of enforcement of the Act there was a 20 days ' gap.
On 8th July, 1978 the respondent entered into an agree ment with the appellant to sell the vacant property.
Since both the properties were covered by the Urban agglomeration as specified in category 'A ' in Scheduled 1 to the 1976 Act, under which the ceiling limit prescribed was 500 sq.
, the appellant and the respondent gave a notice of the pro posed sale under Section 26 of the Act to the competent authority.
The competent authority held that the respondent was holding 25421 sq.
of land in excess of the ceiling limit.
The excess land was determined by totalling 414.56 sq.
of the built up property and 339.65 sq. mtrs.
of vacant property to 754.21 sq.
, and substracting 502 therefrom 500 sq.mtrs.
resulting in 254.21 sq. mtrs.
in excess of the ceiling limit.
Accordingly the competent authority issued order vesting the excess land in the State.
Against the decision of the competent authority the respond ent preferred an appeal before the Appellate Authority which was dismissed in default.
In the meantime the appellant filed a suit against the respondent for specific performance of the agreement dated 8th July, 1978 which was decreed and consequently a deed of conveyance was executed in favour of the appellant and the possession of the property was also given to her.
Subsequently the appellant came to know of the dis missal of the respondent 's appeal.
Thereupon she filed a Review Petition before the Appellate Authority stating that she had become the owner of the vacant property and prayed for retrieval of the same from being treated as excess land in the hands of respondent which was dismissed.
The appel lant filed a writ petition in the High Court and a Single Judge allowed the same.
On appeal by State a Division Bench of the High Court reversed the judgment of the Single Judge.
Against the decision of the Division Bench, appeal was filed in this Court.
Setting aside the judgment of the Division Bench of the High Court and allowing the appeal, this Court, HELD: 1.
The primary objective of the Urban Land Ceiling and Regulation Act, 1976 is to fix a ceiling limit on the holding of vacant lands, conditioned as they are on the appointed day, and as held on the date of commencement of the Act.
[512 F] 2.
Under Section 3 of the Urban Land (Ceiling and Regulation) Act, 1973 no person is entitled to bold any vacant land in excess of the ceiling limit.
Ceiling limit of vacant land in case of every person like the predecessor in interest of the appellant is 500 sq.
as set up under Section 4.
[508 E F] 2.1 However, as per Section 2(g), 'Vacant land ' does not include land of three categories.
The first category is land on which construction of a building is not permissible under building regulation in force in the area in which such land is situated.
The second category is of land occu pied by any building in an area, where there are building regulations, which has 503 been constructed upon, or is under construction on the appointed day, with the approval of the appropriate authori ty, and the land appurtenant tO such building.
Thus if the building stood constructed on the land prior to January 28, 1976, the land occupied under the building is not vacant land.
It also covers the land on which any building was in the process of construction on January 28, 1976 with the approval of the appropriate authority.
Additionally, the land appurtenant to these two kinds of buildings is also not "vacant land".
The third category likewise conditioned is of land occupied by any building in an area where there are no building regulations, which has been constructed before January 28, 1976 or is in the process of construction on such date, and the land appurtenant to these two kinds of buildings.
[510A D] 2.2 The expression "land appurtenant" as defined in Section 2(g) when related to any building in an area where there are building regulations as well as in an area where there are no building regulations reveals that the addition al extent as permitted is based on the principle of conti guity.
The expression applies to buildings constructed before the "appointed day" as well as to buildings, con struction of which commenced before the "appointed day", and was in progress on that day.
Therefore, if the construction of a building with a dwelling unit therein had begun after the appointed day, then it is all the same "any other land" to be reckoned for calculating the extent of vacant land held by a person.
And if the construction of a building with a dwelling unit therein on land had been completed or was in progress by and on the appointed day, then it is not "any other land" to be reckoned for calculating the extent of vacant land held by a person.
[512G H, 513A B] The built up property in question had been constructed prior to the commencement of the Act.
Therefore, it is outside the purview of "vacant land".
If that is excluded from being reckoned towards calculating the extent of vacant land held by the predecessor in interest of the appellant, the vacant land in the vacant property cannot be declared excess for that is within the permissible limits.
Even if no land is left as land appurtenant to the built up area, then 93.56 sq. mtrs.
the remainder plus 339.65 sq.
of the unbuilt property would total up to the figure less than 500 sq.
; which is again within the permissible limit.
Accordingly the entire proceedings towards declaring excess land in the hands of the appellant and her predecessor in title are quashed.
[513C E] 504 State of U.P. & Or3.
L.J. Johnson & Ors. , held inapplicable.
Union of India etc.
V.B. Chaudhary etc.
; ; Maharao Sahib Shri Bhim Singhji etc.
vs Union of India & Ors., , referred to.
Eastern Oxygen vs State AIR 1981 M.P. 17; Prabhakar Narhar Pawar vs State, AIR 1984 Bom.
122; State vs Radha Raman Aggarwal, AIR 1987 All. 272, cited.
In the scheme of sub section (9) of Section 4 of the Act the visible contrast between "vacant land" and "any other land" held by a person on which there is a building with a dwelling unit therein is prominent.
The said "any other land" is reckoned and brought at par with the "vacant land" for the purpose of calculating the final extent of vacant land.
The expression "vacant land" in the first portion of the provision connotes land minus land under buildings constructed or in the process of construction before and on the appointed day, and the expression "vacant land" in the latter portion of the provision connotes the sum total of "vacant land" of the first order and distinctly the "other land" on which is a building with a dwelling unit therein of which construction commenced after the appointed day, and the land appurtenant thereto.
Such an interpreta tion is required by the context as otherwise the concept of the appointed day and the gap period would be rendered otiose.
The legislature cannot be accused to have indulged in trickery in giving something with one hand and taking it away with the other.
"Any other land" in the sequence would thus mean any other built upon land except the one excluded from the expression "vacant land" on account of it being occupied by a building which stood constructed.
or was in the process of construction, on the appointed day.
[510F H, 511A B] 4.
Section 5 is reflective of the scheme of the Act in as much as transfers of vacant land within the gap period are ignorable, and likewise, vacant land brought under construction of building by a person within the j gap period is also ignorable for the purposes of calculat ing the extent of vacant land, so that the provision of law are not defeated by human ingenuity.
[512 BC] 5.
Though Sub section (11) of Section 4 is not happily worded, yet when meaningfully construed in the context, it means that a building which 505 gets excluded by virtue of the definition of "vacant land" gets clothed with the protective cloak for not being reck oned again as any other land, over which there is a building with a dwelling unit therein.
This provision means to convey that what is not vacant land under sub clauses (ii) and (iii) of clause (q) of Section 2 cannot go to add up as "vacant land" under sub section (9) of Section 4 by descrip tive overlapping.
To wipe out the distinction of "vacant land" and "any other land" as demonstrated in sub section (9) of section 4 is to strangulate and destroy the spirit and life blood of the "appointed day" and the gap period.
[512 D F]
|
ivil Appeal No. 1187 (NT) of 1976.
From the Judgment and order dated 22.7.75 of the Bombay High Court in ITR No. 95 of 1965.
Harish N. Salve and Mrs. A.K. Verma for the Appellants.
S.C. Manchanda, K.P. Bhatnagar and Ms. A. Subhashini for the Respondent.
550 The Judgment of the Court was delivered by OJHA, J.
This appeal by special leave has been pre ferred against the judgment dated 22nd July, 1975 of the Bombay High Court in I.T. Ref.
No. 95 of 1%5 made under Section 66(1) of the Indian Income tax Act, 1922.
The as sessment year under reference was 1%1 62.
Chandrakant Manilal Shah was the Karta of a Hindu undi vided family (HUF) and the family was carrying on business of cloth.
Naresh Chandrakant, one of the sons of Chandrakant Manilal Shah, joined the business on a monthly salary of Rs. 100/ since about April 1959.
It was asserted that with effect from 1st November 1959 the business had been convert ed into a partnership between Chandrakant Manilal Shah as Karta of HUF and Naresh Chandrakant.
The deed of partnership executed in this behalf on 12th November, 1959 indicated that Naresh Chandrakant had been admitted as a working partner with effect from 1st November, 1959 having 35 per cent share in the profits and losses of the firm and the remaining 65 per cent share was held by Chandrakant Manilal as the Kartas of the HUF.
An application was made for regis tration of the firm which was dismissed by the Income tax officer on the ground that there was no valid partnership.
The view taken by the Income tax officer was upheld in appeal by the Appellate Assistant Commissioner.
On further appeal, the Income tax Appellate Tribunal also came to the same conclusion that there was no valid partnership and the business consequently must be taken to continue in the hands of the joint family.
However, at the instance of the asses see the following question was referred by the Tribunal to the High Court for its opinion: Whether on the facts and in the circumstances of the case, there was a valid partnership under Annexure 'A ' between Shri Chandrakant, as the Karta of the HUF and Shri Naresh, a member of the family? The High Court by the judgment under appeal answered the aforesaid question in the negative, in favour of the Revenue and against the assessee.
In doing so, it relied on an earlier decision of that Court in Shah Prabhudas Gulabchand vs Commissioner of Income tax, Bombay, 119701 (77) ITR page 870.
It is against this judgment that the assessee has come up in appeal to this Court.
It has been urged by the learned counsel for the appel lants that the mere fact that Naresh Chandrakant had neither separated from the HUF nor brought in any cash asset as his capital contribution to the partnership 551 but was contributing only his skill and labour, could not in law detract from a valid partnership being created.
Learned counsel for the respondent, on the other hand, contended that the view taken in this behalf by the Tribunal and the High Court was correct and was not only supported by the decision relied on by the High Court referred to above but also by another decision of the Gujarat High Court in Pitam berdas Bhikhabhai & Co. vs Commissioner of Income tax, Gujarat [1964] (53) ITR page 341.
Having heard learned counsel for the parties, we are inclined to agree with the submission made by learned coun sel for the appellants.
In our view, this contention derives full support from the view of the Judicial Committee of the Privy Council in Lachhman Das vs Commissioner of Income tax, Punjab [1948] (16) ITR page 35.
There the question which fell for consideration was: "Whether in the circumstances of this case, there could be a valid partnership between Lachhman Das as representing a Hindu undivided family on the one hand and Daulat Ram, a member of that undivided Hindu family in his individual capacity, on the other?" In other words, the question was the same as the one arising in the present case but for the difference in the factual background that, whereas in the ease before the Judicial Committee the member had brought in his separate capital, the member in the present case claims only to be a working partner.
Does this difference in facts make a dif ference in principle? That is the question.
In Lachhman Das, it had been urged before the High Court for the assessee that, when a Karta of a HUF could enter into a partnership with a stranger as held by the Privy Council in P.K.P.S. Pichappa Chettiar vs Chockalingam Pillai A.I.R. 1934 P.C. 192, there was no reason why a coparcener also could not enter into such a partnership by making contributions in his individual capacity from his separate funds.
This plea was repelled by the High Court on the ground that a coparcener could not be regarded as a stranger so long as he continued his connection with his undivided family in the capacity as a coparcener.
While reversing the judgment of the High Court, it was held by the Privy Coun cil: "After careful consideration, their Lordships cannot accept this vicw and on general princi ples they cannot find any sound reason to distinguish the case of a stranger from that of a coparcener who puts into the partnership what is admittedly 552 his separate property held in his individual capacity and unconnected with the family funds.
Whatever the view of a Hindu joint family and its property might have been at the early stages of its development, their Lord ships think that it is now firmly established that an individual coparcener, while remaining joint, can possess, enjoy and utilise, in any way he likes, property which was his individu al property, not acquired with the aid of or with any detriment to the joint family proper ty.
It follows from this that, to be able to utilise this property at his will, he must be accorded the freedom to enter into contractual relations with others, including his family, so long as it is represented in such transac tions by a definite personality like its manager.
In such a case he retains his share and interests in the property of the family, while he simultaneously enjoys the benefit of his separate property and the fruits of its investment.
To be able to do this, it is not necessary for him to separate himself from his family.
This must be dependent on other con siderations, and the result of a separate act evincing a clear intention to break away from the family.
The error of the Income tax Offi cer lay in his view that, before such a con tractual relationship can validly come into existence, the "natural family relationship must be brought to an end.
" This erroneous view appears to have coloured this and the subsequent decisions of the Income tax author ities.
In this view of the Hindu law, it is clear that if a stranger can enter into partnership, with reference to his own property, with a joint Hindu family through its Karta, there is no sound reason in their Lordships ' view to withhold such opportunity from a coparcener in respect of his separate and individual property.
The aforesaid view of the Privy Council was approved by this Court in Firm Bhagat Ram Mohanlal vs Commissioner of Excess Profits Tax, Nagpur [1956] (29) ITR page 521 but on the facts of that case it was held that the partnership set up in that case was not valid.
The above principle has been applied by several High Courts to uphold the validity of a partnership between the Karta of a HUF and an individual member of the family where the latter is taken in as a working partner.
In I.P. Munav alli vs Commissioner of Income tax, Mysore [1969] (74) ITR page 529, it was held by the Mysore High Court, after refer ring to 553 the decision of the Privy Council in the case of Lachhmandas (supra) and of this Court in the case of Bhagat Ram (supra): "So it is clear that the Supreme Court did not dissent from the opinion expressed by the Privy Council that "in respect of their separate or undivided property" the coparcen ers of a Hindu joint family, even though they had not become divided from one another and there had been no partition of the family properties could become partners of a firm of which the joint Hindu family represented by its karta is itself a partner.
If a partner by putting into the partnership by way of his capital his separate property or the property which he obtained at a partition on division and thus can become a partner with the family represented by its karta, it is difficult to understand how such a partnership cannot come into being and why a coparcener who continues to remain a member of the copar cenary cannot become a working partner of a firm of which he and the family represented by its karta are the partners.
In Lachhman Das 's case the coparcener placed at the disposal of the firm as his capital his separate property, and in the case of a working partner he con tributes his.
skill or labour or both as the case may be.
If the partnership is permissible in one case, it would be difficult.to assign any reason for reaching the conclusion that it is not permissible in the other." In Ramchand Nawalrai vs Commissioner of Income tax, M.P. 119811 (130) ITR page 826, it was held by the Madhya Pradesh High Court as hereunder: "it will be clear from the facts of the case of Firm Bhagat Ram Mohanlal that the question whether a coparcen er can enter into a valid partnership with the karta of his family by contributing merely skill and labour did not arise for decision.
The only question in the case was whether the individual members of a HUF can, without contributing anything, become members of a partnership constituted between the karta and strangers.
This question had necessarily to be answered in the negative on the settled view that when a karta enters into a partnership with strangers it is the karta alone who becomes the partner.
The observations of the Supreme Court that (p.526): "If members of a coparcenary are to be 554 regarded as having become partners in a firm with strangers, they would also become under the partnership law partners inter se, and it would cut at the very root of the notion of a joint undivided family to hold that with reference to coparcenary properties the mem bers can at the same time be both coparceners and partners", as contained in the passage quoted above, must be limited to the facts on which Firm Bhagat Ram Mohanlal 's case was decided.
The Supreme Court in the same passage referred to the decision of the Privy Council in Lachhrnandas ' case and did not disapprove of it.
If a coparcener by contrib Uting his separate property can enter into a valid partnership with the karta of his fami ly, as held by the Privy Council in Lachhman das ' case, there seems no valid reason why a coparcener cannot, by contributing merely his skill and labour, enter into a partnership with the karta.
If the former does not cut at the root of the notion of the joint Hindu family, the latter also does not.
Even in the case of the former, the partnership property will consist of the contribution made by the karta from the coparcenary property and the contribution made by the coparcener of his individual property Both taken together would become partnership property in which all the partners would have interest in proportion to their share in the joint venture of the busi ness of partnership (Narayanappa vs Bhaskara Knshnappa; , , 1304 (para 5).
If in such a situation the coparcener entering into the partnership can be a partner in relation to coparcenary property contributed for the partnership business, there can be no difficulty in holding that the same result would follow when the coparcener entering into a partnership only contributes his skill and labour.
In the former case, as stated by the Privy Council in Lachhmandas ' case , the coparcener entering into the partnership, retains his share and interest in the family property while simultaneously enjoying the benefit of his separate property and the fruits of its investment.
In the same way, it can be said that in the latter case the coparcener retains his share and interest in the property of the family while simultane ously enjoying the benefits of his skill and labour which he contributes as consideration for formation of the partnership and for sharing profits.
Learned standing counsel for the department further sub 555 mitted that as the profits earned by a part nership in which the contribution of capital is only of joint family funds from the side of the karta would ensure to the benefit of the entire joint family being earned with the help of the joint family funds, a coparcener who only contributes his skill and labour for becoming a partner cannot claim any share in the profits as his separate property and, therefore, there cannot be any valid partner ship.
Learned counsel in this connection relied upon the case of V. D. Dhanwatey vs CIT Dhanwatey 's case has to be read along with the case of CIT vs D.C. Shah In Dhanwatey 's case [19681 (68) ITR 365 (SC) a karta of a HUF who entered into a partnership was paid a salary from the partnership and it was held that the salary income was the income of the HUF.
The basis of the decision was that the salary was paid because of the investments of the assets of the family in the partnership business and there was a real and sufficient connection between the investments from the joint family funds and the remuneration paid to the karta.
In Shah 's case also the karta entered into a part nership and was paid remuneration.
But as the remuneration was paid for the specific acts of management done by the karta resting on his personal qualification and not because he represented.
the HUF, it was held that the remuneration was his individual income.
Apply ing the same principle, if a coparcener be comes a working partner in a partnership with the karta and gets a share in profits in consideration of the skill and labour contrib uted by him, his share in the profits would be his separate property for the profits coming to his share would be directly related to his skill and labour and not to be investments of the joint family funds in the business.
The question, however, whether a coparcener enter ing into a partnership with the karta does really contribute any labour or skill for the management of the partnership business in which he is given a share in profits is a question of fact which will have to be deter mined in the light of the circumstances of each case.
In case it is found that there is no real contribution of skill or labour by the coparcener for sharing the profits, the part nership will be held to be unreal and ficti tious but that is an entirely different thing from saying that there cannot at all be a valid partnership between the karta and a coparcener when the latter only con 556 tributes his skill and labour and is merely a working partner.
In our opinion, the argument that as the capital investment in the partner ship is only of the funds of the undivided family, there cannot be any partnership, cannot be accepted.
The conclusion reached by us is fully support ed by a decision of the Mysore High Court in I.P.Munavalli vs CIT , with which we respectfully agree.
The Bombay High Court in Shah Prabhudas Gulabchand vs CIT took a contrary view.
With great respect and for the reasons give above, we are unable to agree with In Commissioner of Income tax, Lucknow vs Gupta Brothers , the Alla habad High Court took the same view when it said : "The observations of the Privy Council that a partnership can be, formed with a junior member by the karta qua his separate property is by way of illustration of a particular eventuality when the separate property consti tutes consideration for the induction of a junior member into the partnership.
It cannot be read as being exhaustive of cases where consideration may take other forms.
Now, as labour and skill would also be consideration as contemplatedby the Contract Act, a valid partnership had come into existence, which ought to have been registered.
" Learned counsel for the respondent has laid considerable emphasis on two points.
Firstly, it was urged that Hindu Law does not recognise any contract among the coparceners inter se except in two cases, namely, where there is a partial partition and where a coparcener has separate property and brings in such separate property as capital towards consid eration for becoming a partner.
While elaborating the first point, it has been urged that if, even in a case where there is neither partial partition nor any separate property is brought in by the coparcener as consideration for the part nership it is held that a valid partnership can still come into existence, it would create an anomalous situation inasmuch as such coparcener would be having an interest in the coparcenary property both as a coparcener and partner.
Reliance in.
this behalf has been placed on the following observations made in the case of Bhagat Ram Mohanlal (supra): "If members of a coparcenary are to be regard ed as having become partners in a firm with strangers, they would also become under the partnership law partners inter se, and it would 557 cut at the very root of the notion of a joint undivided family to hold that with reference to coparcenary properties the members can at the same time be both coparceners and part ners.
The second point emphasised by learned counsel for the respondent is that skill and labour cannot be treated as property.
It must be confessed that the observations made in ' the case of Bhagat Ram Mohanlal (supra) relied upon do appear to support the contention of the Revenue.
In the case of Firm Bhagat Ram Mohan Lal vs 'CEPT[1956] (29) I.T.R. 521 (S.C.), a partnership had been entered into in 1940 between Mohan Lal (M) and two outsiders (R&G), M admittedly representing a HUF consisting of himself and his two brothers Chotelal (C) and Bansilal (B).
In 1944, the HUF got divided and, conse quently, the firm was reconstituted with five partners viz. the two outsiders (R&G), M, C and B. This, according to the Revenue, had resulted in a "change in the persons carrying on the business" leading to certain consequences adverse to the assesses in the context of the Excess Profits Tax Act.
The firm attempted to get over the difficulty in two ways: (a) It was contended that, even initially, in 1940, the firm must be considered as having been constituted with all the five persons, R, G, M, C and B, as partners; in other words when M entered into the partnership on behalf of the HUF, the consequence was that not only he but his two undivided brothers B & C also became partners in the firm in their individu al capacity; and (b) It was suggested that when M entered into the partnership agreement in 1940, all the three coparceners M, C & B, could be regarded as having entered into the contract as kartas of (i.e, representing) the HUF.
Both these contentions were negatived.
So far as the first contention was concerned, the Court observed that it could be disposed of as being an afterthought opposed to the factual findings in the case.
However, the Court proceeded to observe that it was difficult to visualise a situation, which the appellants contended for, of a HUF entering into a partnership with strangers through its karta and the junior members of the family also becoming its partners in their personal capacity.
After referring to Lachman Das (supra) and Sunder Singh Majithia vs CIT where divided members of a family were held competent to carry on the erstwhile joint family business in partnership, the Court pointed out: 558 "But in the present case, the basis of the partnership agreement of 1940 is that the family was joint and that Mohanlal was its karta and that he entered into the partnership as karta on behalf of the joint family.
It is difficult to reconcile this position with that of Chotelal and Bansilal being also partners in the firm in their individ ual capacity, which can only be in respect of their separate or divided property. ' (Emphasis supplied).
This was followed by the observations on which Sri Manchanda, learned counsel for the Revenue has placed con siderable reliance.
Similarly, so far as contention (b) was concerned, the Court observed that "even if such a conten tion could be raised consistently with the principles of Hindu LAW ', it was in the teeth of the pleadings in the case and so could not be allowed to be raised.
These passages no doubt suggest that, in the Court 's view, an undivided member of a HUF cannot be a partner along with the karta of the family, except where he furnishes capital in the form of property belonging to him in his individual right or ob tained by him on a partition of the family and that the Court left open the question whether more than one member of a HUF can represent the family in a partnership with outsid ers.
It will be apparent that this Court had rejected both contentions of the assessee as being an afterthought or contrary to the factual findings in the case.
This was sufficient to dispose of the case.
However, the further expressions of opinion, coming from such an eminent Judge as Venkatarama Ayyar, J., are entitled to the greatest weight and respect.
We, however, think that the scope of these observations, made in the context of the special facts and circumstances of the case, has been magnified by the learned counsel for the Revenue.
We may observe, at the outset, that his basic postulate that, under the Hindu Law, there can be no contract inter se between the undivided members of the family is basically incorrect.
This Court has recognised the validity of such contract in various situations.
For in stance, an undivided member of a HUF (including its karta) can be employed by the HUF for looking after the family business and paid a remuneration therefor: vide, Jitmal Bhuramal vs CIT ( S C ) and Jugal Iri shore Baitleo Sahai vs CIT [1967] ( 63 ) ITR 238 S.C. Again on the second contention which was left open, subsequent decisions of this Court have held that it is open to more than one member of a HUF to represent the family in partner ship with strangers.
In Commissioner of Income tax vs Sir Hukumchand Mannalal and Co. , it was 559 held by this Court: "The Indian Contract Act imposes no disability upon members of a Hindu undivided family in the matter of entering into a contract inter se or with a stranger.
A member of a Hindu undivided family has the same liberty of contract as any other individual: it is re stricted only in the manner and to the extent provided by the Indian Contract Act.
Partner ship is under section 4 of the Partnership Act the relation between persons who have agreed to share the profits of a business carried on by all or any of them acting for all: if such a relation exists, it will not be invalid merely because two or more of the persons who have so agreed are members of a Hindu undivid ed family." This position has also been recognised in Ratanchand Darbarilal vs Commissioner of Income Tax In that case, there were two firms, one at Katni and one at Satna, constituted by two members of an undivided family with others.
The question posed however was whether the Satna firm could be treated as an independent unit of assessment.
This Court held that it was a question of fact on which the Tribunal 's findings were conclusive.
In this view, it left unanswered, as academic, the following ques tion on which the Commissioner had sought a reference: "Whether, on the facts and in the circum stances of the case, the Appellate Tribunal was justified in directing that the firm owning the Satna business should be registered in spite of the fact that the members of the two HUFs entered as partners inter se without their effecting in the first instance a sever ance of joint status by partitioning either partially or totally, the assets of the re spective HUFs?" However, in the course of its judgment, the Court observed: "The High Court obviously fell into an error in proceeding on the footing that, without a partition or a partial partition,.
some of the members belonging to the Hindu undivided family could not constitute themselves into a partnership firm.
We do not think this view is correct in law.
It is a well settled proposi tion applicable to Hindu Law that members of the joint family and even coparceners can, without disturbing the status of a joint family or the coparcenary, acquire separate property or run independent business for themselves.
" 560 Turning now to the specific observations on which reliance has been placed, we do not think that they should be read as permitting a partnership between the karta of a HUF and its individual member only when he brings in some capital but not otherwise.
In the context in which they were made, it is seen that they were only limited to point out that there was no claim before the Court, as in Lachmandas or Majithia that the other member had brought in any sepa rate or divided.
property as capital.
On the contrary, the claim was that the coparceners of the HUF other than the karta, who was the co nominee partner, should be regarded as partners, though they had not entered into any such agree ment and had placed neither capital nor services at the disposal of the firm.
It was this claim that was held un tenable.
Much more significance cannot be read into these observations for, if construed too strictly and in the manner suggested, they will militate against the possibility of a valid partnership being formed in two classes of cases about which there can be no doubt.
The first is where an undivided member seeks to become a partner by furnishing capital which has been held permissible in Lachmandas and approved in Firm Bhagat Ram Mohanlal itself.
The other is the case of a partnership firm on which more than one part ner represents a HUF, the validity of which has been upheld in the cases referred to earlier.
The observations cannot, therefore, be read as precluding altogether a claim by an undivided member of a HUF that he has in fact agreed to become a partner along with the karta for genuine and valid reasons.
In our view, the Allahabad, Madhya Pradesh and Mysore decisions rightly held that the observations in Finn Bhagat Ram Mohanlal do not militate against the formation of a valid partnership in such cases.
This takes us on to the second point made by Sri Man chanda that, though an undivided member can, by contributing separate capital, enter into a partnership with the karta qua the family business, he cannot do so by offering as his contribution to the firm not material capital but only his labour and skill.
With regard to this submission made by the learned counsel for the respondent that skill and labour cannot be equated with property, it may not be out of place to refer to some earlier history.
As has been stated in Mulla 's Hindu Law, before the commencement of the (hereinafter referred to as the Act) it was settled law that income earned by a member of a joint family by the practice of a profession or occupation requiring special training was joint family property if such training was imparted at the expense of joint family proper ty.
This being so, if such a member of a joint family were to enter into a partnership with the karta of the family to carry on business, the fruits even of his skill and labour would have been property of the joint 561 family and the very purpose of entering into a partnership namely having a share of his own in the profits of the business would have been defeated.
In this state of law if an agreement was reached between such member of the joint family and the karta that out of the profits of the business a defined share will be payable to and be the separate property of such member, the agreement would have been illegal.
Indeed such a member would have been getting a separate share in the profits of the business without making any contribution of his own.
However, an almost complete transformation in the legal position was brought about by the Act.
Sections 2 and 3 of the Act which are relevant in this behalf read as hereunder: "2.
In this Act, unless there is anything repugnant in the subject or context, (a) 'acquirer" means a member of a Hindu undivided family, who acquires gains of learn ing; (b) "gains of learning" means all acquisitions of property made substantially by means of learning, whether such acquisitions be made before or after the commencement of this Act and whether such acquisitions be the ordinary or the extraordinary result of such learning; and (c) ' "learning" means education, whether elementary, technical scientific, special or general, and training of every kind which is usually intended to enable a person to pursue any trade, industry, profession or avocation in life.
Notwithstanding any custom, rule or inter pretation of the Hindu law, no gains of learn ing shall be held not to be the exclusive and separate property of the acquirer merely by reason of (a) his learning having been, in whole or in part imparted to him by any member living or deceased, of his family, or with the aid of the joint funds of his family or with the aid of the funds of any member thereof, or (b) himself or his family having, while he was acquiring his learning, been maintained or supported, wholly or in part, by the joint funds of his family, or by the funds of any member thereof.
" 562 As seen above, the definition of the term "learning" is very wide and almost encompasses within its sweep every acquired capacity which enables the acquirer of the capacity "to pursue any trade, industry, profession or avocation in life.
" The dictionary meaning of "skill", inter alia, is: "the familiar knowledge of any science, art, or handicraft, as shown by dexterity in execution or performance; technical ability" and the meaning of "labour" inter alia is: "physi cal or mental exertion, particularly for some useful or desired end." Whether or not skill and labour would squarely fall within the traditional jurisprudential connotation of property e.g. jura in re propria, jura in re aliena, corpo real and incorporeal etc.
may be a moot point but it cannot be denied that skill and labour involve as well as generate mental and physical capacity.
This capacity is in its very nature an individual achievement and normally varies from individual to individual.
It is by utilisation of this capacity that an object or goal is achieved by the person possessing the capacity.
Achievement of an object or goal is a benefit.
This benefit accrues in favour of the individual possessing and utilising the capacity.
Such individual may, for consideration, utilise the capacity possessed by him even for the benefit of some other individual.
The nature of consideration will depend on the nature of the contract between the two individuals.
As is well known, the aim of business is earning of profit.
When an individual contrib utes cash asset to become partner of a partnership firm in consideration of a share in the profits of the firm, such contribution helps and at any rate is calculated to help the achievement of the purpose of the firm namely to earn prof it.
The same purpose is, undoubtedly, achieved also when an individual in place of cash asset contributes his skill and labour in consideration of a share in the profits of the firm.
Just like a cash asset, the mental and physical capac ity generated by the skill and labour of an individual is possessed by or is a possession of such individual.
Indeed, skill and labour are by themselves possessions.
"Any posses sion" is one of the dictionary meanings of the word 'proper ty '.
In its wider connotation, therefore, the mental and physical capacity generated by skill and labour of an indi vidual and indeed the skill and labour by themselves would be the property of the individual possessing them.
They are certainly assets of that individual and there seems to be no reason why they cannot be contributed as a consideration for earning profit in the business of a partnership firm.
They certainly are not the properties of the HUF but are the separate properties of the individual concerned.
To hold to the contrary, we may observe, would also be incompatible with the practical, economic and social reali ties of present day living.
We no longer live in an age when every member of a HUF considered it his duty to place his personal skill and labour at the services of the family with no quid pro quo except the right to share ultimately, on a partition, in its general prosperity.
Today, where an undi vided member of a family 563 qualifies in technical fields may be at the expense of the family he is free to employ his technical expertise else where and the earnings will be his absolute property; he will, therefore, not agree to utilise them in the family business, unless the latter is agreeable to remunerate him therefor immediately in the form of a salary or share of profits.
Suppose a family is running a business in the manufacture of cloth and one of its members becomes a tex tile expert, there is nothing wrong in the family remunerat ing him by a share of profits for his expert services over and above his general share in the family properties.
Like wise, a HUF may start running a diagnostic laboratory or a nursing home banking on the services of its undivided mem bers who may have qualified as nurses and doctors and prom ising them a share of profits of the 'business ' by way of remuneration.
This will, of course, have to be the subject matter of an agreement between them but, where there is such an agreement, it cannot be characterised as invalid.
It is certainly illogical to hold that an undivided member of the family can qualify for a share of profits in the family business by offering moneys either his own or those de rived by way of partition from the family but not when he offers to be a working partner contributing labour and services or much more valuable expertise, skill and knowl edge for making the family business more prosperous.
For the reasons discussed above, we have reached the conclusion that the decisions referred to above which sup port the contentions of learned counsel for the appellants lay down the correct legal position.
The two decisions relied on by the learned counsel for the respondent in the cases of Pitamberdas Bhikhabhai and Co. and Shah Prabhudas Gulabchand of the Gujarat and Bombay High Courts respective ly turned on their particular facts and, if read as laying down a contrary rule, do not lay down good law.
In this view of the matter, it cannot be said that when a coparcener enters into a partnership with the karta of a HUF and con tributes only his skill and labour, no contribution of any separate asset belonging to such parruer is made to meet the requirement of a valid partnership.
Reverting to the facts of the instant case it is noteworthy that it is not the case of the Revenue that the partnership between Chandrakant Manilal Shah as karta of HUF and Naresh Chandrakant was fictitious or invalid on any other ground.
Consequently, the judgment of the High Court cannot be sustained.
In view of the foregoing discussion, this appeal suc ceeds and is allowed.
The judgment of the High Court is set aside and the question referred to the High Court is an swered in the affirmative, in favour of the assessee and against the Revenue.
In the circumstances of the case, however, there shall be no order as to costs.
N.P.V, Appeal allowed.
| The business being carried on by a HUF, of which the first appellant was the Karta, was converted into a partnership between the first appellant and one of his sons, who had earlier joined the business on monthly remuneration.
The deed of partnership executed in that behalf indicated that the son had been admitted as a working partner, having 35 per cent share in the profits and losses of the firm and the remaining 65 per cent share was held by the first appellant as the Karta of the HUF.
An 547 application made for registration of the firm was dismissed by the Income tax Officer on the ground that there was no valid partnership.
This was upheld in appeal by the Appel late Tribunal.
However, at the instance of the assessee the matter was referred to the High Court for its opinion.
The High Court also held that there was no valid partnership.
In the appeal before this Court, on behalf of the asses seeappellants, it was contended that the mere fact that the son had neither separated from the HUF nor brought in any cash asset as his capital contribution to the partnership but was contributing only his skill and labour, could not in law detract from a valid partnership being created.
On behalf of the respondent Revenue it was contended that Hindu Law did not recognise any contract among the coparceners inter se except in two cases, namely, where there was a partial partition and where a coparcener had separate property and brought in such separate property as capital towards consideration for becoming a partner and that skill and labour could not be treated as property.
Allowing the appeal by the assessee appellants, this Court, HELD: 1.1 It cannot be said that when a coparcener enters into a partnership with a karta of a HUF and contrib utes only his skill and labour, no contribution of any separate asset belonging to such partner is made to meet the requirement of a valid partnership.
The aim of business is earning of profit.
When an individual contributes cash asset to become partner of a partnership firm in consideration of a share in the profits of the firm, such contribution helps and at any rate is calculated to help the achievement of the purpose of the firm, namely, to earn profit.
The same purpose is, undoubt edly, achieved also when an individual, in place of cash asset, contributes his skill and labour in consideration of a share in the profits of the firm.
[562 D E] 1.3 Just like a cash asset, the mental and physical capacity generated by the skill and labour of an individual is possessed by or is a possession of such individual.
Indeed, skill and labour are by themselves possessions.
"Any possession" is one of the dictionary meaning of the word 'property '.
In its wider connotation, therefore, the mental and physical capacity generated by skill and labour of an individual and indeed the skill and 548 labour by themselves would be the property of the individ ual possessing them.
They are certainly assets of that individual and there is no reason why they cannot be con tributed as a consideration for earning profit in the busi ness of a partnership.
They certainly are not the properties of the HUF, but are separate properties of the individual concerned.
To hold to the contrary, would also be incompati ble with the practical, economic and social realities of present day living.
[562 E G] 1.4 Where an undivided member of a family qualifies in technical fields may be at the expense of the family he is free to employ his technical expertise elsewhere and the earnings will be his absolute property; he will, therefore, not agree to utilise them in the family business unless the latter is agreeable to remunerate him therefor immediately in the form of a salary or share of profits.
This, of course, will have to be the subject matter of an agreement between the HUF and the member, but where there is such an agreement, it cannot be characterised as invalid.
[562 H, 563 A B,C] 1.5 It is, therefore, illogical to hold that an undi vided member of the family can qualify for a share of prof its in the family business by offering moneys either his own or those derived by way of partition from the family but not when he offers to be a working partner contributing labour and services or much more valuable expertise, skill and knowledge for making the family business more prosper ous.
[563 C D] 1.6 In the instant case, it is not the case of Revenue that the partnership between the first appellant as karta of HUF and his son was fictitious or invalid on any other ground.
Hence, the judgment of the High Court cannot be sustained.
[563 F G] I.P. Munavalli vs Commissioner of Income Tax, Mysore, [1969] 74 ITR page 529; Ramchand Nawalrai vs Commissioner of Income Tax, M.P. [1981] 130 ITR page 826; Commissioner of Income Tex; Lucknow vs Gupta Brothers, ; approved.
Shah Prabhudas Gulabchand vs Cornmissioner of Income Tax; Bombay, [1970] 77 ITR page 870; Pitamberdas Bhikhabhai page 341; disapproved.
Lachman Das vs Commissioner of Income tax, Punjab, [ 1948] 16 ITR I 35; P.K.P.S. Pichappa Chettiar vs Chockalin gam Pillai, A.I.R. 1934 P.C. 192; 549 Finn Bhagat Ram Mohanlal vs Commissioner of Excess profits Tax; Nagpur, [1956] 29 ITR page 521; Jitmal Bhuramal vs CIT, ; and Jugal Kishore Baldeo Sahai vs CIT, [ 19671 S.C.; Commissioner of Income tax vs Sir Hukumchand Mannalal and Co., ; and Ratanchand Darbarilal vs Commissioner of Income Tax, ; referred to.
The definition of the term "learning" under Section 2 of the is very wide and almost encompasses within its sweep every acquired capacity which enables the acquirer of the capacity 'to pursue any trade, industry, profession of vocation in life".
The dic tionary meaning of "skill" inter alia, is: "the familiar 'knowledge of any science, art, or handicraft, as shown by dexterity in execution or performance; technical ability" and the meaning of "labour" inter alia is: "physical or mental exertion, particularly for some useful or desired end." Whether or not skill and labour would squarely fail within the traditional jurisprudential connotation of property e.g. jura in re propria, jura in re aliena, corpo real and incorporeal etc.
may be a moot point but it cannot be denied that skill and labour involve as well as generate mental and physical capacity.
This capacity is in its very nature an individual achievement and normally varies from individual to individual.
It is by utilisation of this capacity that an object or goal is achieved by the person possessing the capacity.
Achievement of an object or goal is a benefit.
This benefit accrues in favour of the individual possessing and utilising the capacity.
Such individual may, for consideration, utilise the capacity possessed by him even for the benefit of some other individual.
The nature of consideration will depend on the nature of the contract between the two individuals.
[562 A D] Mulla 's Hindu Law, referred to.
|
(Criminal)No.
1339 of 1991.
(Under Article 32 of the Constitution of India).
R.K: Jain, A. Mariarputham, Ms. Aruna Mathut, Udai Lalit, Shankar C. Ghosh and Ms. Chanchal Ganguli for the Petitioner.
The Judgment of the Court was delivered by K.N. SINGH, J.
Smt.
Shashi Nayar wife of Raj Gopal Nayar who has been awarded death sentence for offence under Sec tion 302 of the Indian Penal Code [ 'IPC ' for short] has approached this Court by means of this petition under Arti cle 32 of the Constitution challenging the constitutional validity of death penalty.
Raj Goapal Nayar, the petitioner 's husband was tried for offence under Section 302, IPC for having killed his father and step brother.
The Sessions Judge by his judgment and order dated 24.4.1986 convicted Raj Gopal Nayar and awarded sentence of death.
On appeal, the High Court confirmed the death penalty and dismissed Raj Gopal 's appeal against the order of the Sessions Judge.
Raj Gopal thereafter filed a special leave petition before this Court challenging the judgment and order of the Sessions Judge and the High Court, but the special leave petition was also dismissed by this Court.
Review petition filed by him was also dismissed.
Consequently, his conviction and the sentence of death stood confirmed by all the courts.
Thereupon, he filed mercy petitions before the Governor of Jammu & Kashmir and the President of India, but the same were rejected. 'He chal lenged the order of the President of India rejecting the mercy petition before this Court by means of a writ petition under Article 32 of the Constitution, but the same was also dismissed.
Another writ petition under Article 226 of the Constitution was filed before the Jammu & Kashmir High Court for quashing the sentence imposed on him but the same was also rejected.
As the legal proceedings before the court failed, he was to be hanged on 26.10.1991.
Shashi Nayar, the petitioner, thereupon filed the present petition under Article 32 of the Constitution before this Court challenging the validity of the capital punishment with a prayer for the quashing of the sentence awarded to Raj Gopal Nayar.
The petition was entertained by a Division Bench on 25.10.1991 and the matter was referred to the Constitution Bench for consideration, and meanwhile the execution of the condemned prisoner was stayed.
Mr. Ravi K. jain, learned counsel for the petitioner made the following submissions: 106 (1) Capital punishment is violative of Article 21 of the Constitution of India as the Article absolutely prohibits deprivation of a person 's life.
(2) Capital punishment does not serve any social purpose and in the absence of any study, the barbaric penalty of death should not be awarded to any person as it has no deterrent effect.
(3) The penalty of death sentence has a dehumanising effect on the close relations of the victims and it deprives them of their fundamental rights under Article 21 of the Constitution, to a meaningful life.
(4) The execution of capital punishment by hanging is barbaric and dehumanising.
This should be substituted by d some other decent and less painful method in executing the sentence.
The questions raised by Shri Jain have already been consid ered by this Court in detail on more than one occasion.
In Jagmohan Singh vs State of U.P.,[1973] 1 SCC 20 and in Bachan Singh vs State of Punjab, , this Court has on a detailed consideration, held that the capital punishment does not violate Article 21 of the Constitution.
In Bachan Singh 's case (supra), the court considered all the questions raised in this petition except question No.4, and the majority judgment rejected the same by a detailed rea soned order.
Since we fully agree with those reasons, we do not consider it necessary to reiterate the same.
Learned counsel further urged that the view taken in Jagmohan Singh 's and Bachan Singh 's cases (supra) is incor rect and it requires reconsideration by a larger Bench.
He, therefore, requested us to refer the matter to a larger Bench as the question relates to the life of a citizen.
He urged that the award of death penalty is a serious matter as it deprives a citizen of his life in violation of Article 21 of the Constitution and as such the court should consider the matter again.
We are fully conscious of the effect of the award of capital punishment.
But we are of the opinion that the capital punishment as provided by the law is to be awarded in rarest of the rare cases as held by this Court.
The procedure established by law for awarding the death penalty is reasonable and it does not in any way violate the mandate of Article 21 of the Constitution.
Since we agree with the view taken by the majority in Bachan Singh 's and Jagmohan Singh 's cases (supra), we do not find any valid ground to refer the matter to a larger Bench.
Learned coun sel urged that the majority opinion in Bachan Singh 's case (supra) was founded upon the 35th Report of the Law Commis sion submitted in 1967, which summarises the recommendations in the following words: 107 "Having regard, however, to the conditions in India, to the variety of the social upbringing of its inhabitants, to the disparity in the level of morality and education in the coun try, to the vastness of its area, to the diversity of its population and to the para mount need for maintaining law and order in the country at the present juncture India cannot risk the experiment of abolition of capital punishment." Shri Jain urged that the above Report indicates that in 1967 the Law Commission was of the opinion that the country should not take the risk of experimenting abolition of capital punishment.
However, since then much water has flown.
Further, there is no empirical study before the Court to show that the situation which prevailed in 1967 is still continuing.
Hence, the Court should reconsider the matter.
We do not find any merit in this submission.
The death penalty has a deterrent effect and it does serve a social purpose.
The majority opinion in Bachan Singh 's case (supra) held that having regard to the social conditions in our country the stage was not ripe for taking a risk of abolishing it.
No material has been placed before us to show that the view taken in Bachan Singh 's case(supra) requires reconsideration.
Further, a judicial notice can be taken of the fact that the law and order situation in the country has not only not improved since 1967 but has deteriorated over the years and is fast worsening today.
The present is, therefore, the most in opportune time to reconsider the law on the subject.
Hence the request for referring the matter to a larger Bench is rejected.
As regards the method of execution of the capital pun ishment by hanging, this Court considered the same in detail in Deena alias Deen Dayal & Ors.
etc., vs Union of India & Ors. etc.
, [1983] 4 SCC 645 and held that hanging by neck was a scientific and one of the least pain ful methods of execution of the death sentence.
We find no justification for taking a different view.
Shri Jain, howev er, brought to our notice that a learned Judge of this Court while sitting during vacation had issued notice to the State on the question as to whether the execution by hanging is a cruel and unusual procedure.
Hence, he urged that we should entertain this petition and reconsider the question.
Since the question of the mode of execution of capital punishment has already been considered in detail by this Court m Deen Dayal 's case (supra), we do not find any good reason to take a different view.
The question of reasonableness in the award of the capital punishment to Raj Gopal Nayar has been considered by the High Court and this 108 A Court at various stages and consistently it has been answered against the prisoner.
Hence the petition fails and is accordingly dismissed.
Interim relief order dated 25.10.
1991 is vacated.
V.P.R. Petition dismissed.
| The petitioner 's husband was tried under Section 302, IPC for having killed his father and step brother.
The Sessions Judge convicted awarding sentence of death.
On appeal, the High Court confirmed the death penalty against which a special leave petition before this Court was filed and same was also dismissed.
The Review Petition filed by him was also dismissed.
His mercy petitions filed before the Governor of Jammu & Kashmir and the President of India, were rejected.
He chal lenged the order of the President of india rejecting the mercy petition before this Court in a writ petition under Article 32 of the Constitution, which was also dismissed.
Another writ petition under Article 226 of the Constitu tion was filed before the Jammu & Kashmir High Court for quashing the sentence imposed on him.
The High Court dis missed the same.
The husband of this petitioner, the condemned prisoner, was to be hanged on 26.10.1991.
The petitioner, filed the present petition under Article 32 of the Constitution challenging the validity of the capital punishment 104 with a prayer for the quashing of the sentence awarded to her husband.
The petition was entertained by a Division Bench on 25.10.91 and the matter was referred to the Constitution Bench for consideration staying the execution of the condem ned prisoner.
Petitioner contended that capital punishment was violative of Article 21 of the Constitution of India as the Article absolutely prohibits deprivation of a person 's life; that capital punishment did not serve any social purpose and the barbaric penalty of death should not be awarded to any person as it had no deterrent effect; that the penalty of death sentence had a dehumanising effect on the close rela tions of the victims and it deprived them of their fundamen tal rights under Article 21 of the Constitution, to a mean ingful life; that the execution of capital punishment by hanging was barbaric and dehumanising and it should be substituted by some other decent and less painful method in executing the sentence.
Dismissing the petition, this Court, HELD: 1.
The capital punishment as provided by the law is to be awarded in rarest of the rare cases.
The procedure established by law for awarding the death penalty is reason able and it does not in any way violate the mandate of Article 21 of the Constitution.
Hanging by neck was a scien tific and one of the least painful methods of execution of the death sentence.
[106 G, 107 F] 2.
The death penalty has a deterrent effect and it does serve a social purpose, having regard to the social condi tions in our country the stage was not ripe for taking a risk of abolishing it.
[107 C D] 3.
A judicial notice can be taken of the fact that the law and order situation in the country has not only not improvided since 1967 but has deteriorated over the years and is fast worsening today.
The present is, therefore, the most inopportune time to reconsider the law on the subject.
[107 E] Jagmohan Singh vs State of U.P.,[1973] 1 SCC 20; Bachan Singh vs State of Punjab, ; Deena alias Deen Dayal & Ors.
vs Union of India & Ors. etc.
, [1983] 4 SCC 645, referred to. 105
|
N: Criminal Appeal No. 664 of 1990.
From the Judgement and Order dated 13.3.1990 of the Andhra Pradesh High Court in Criminal Revision Case No. 532 of 1989.
K. Ramkumar for the Appellant.
B. Kanta Rao for the Respondent.
The Judgment of the Court was delivered by FATIMA BEEVI, J.
The appellant and the respondent got 906 married according to Hindu rites and customs on June 30, 1983.
They lived together until the appellant started complaining of desertion and ill treatment.
She moved the court for maintenance by an application under Section 125 of the Code of Criminal Procedure.
Though the claim was resisted on the ground that the appellant is not the legally wedded wife of the respondent who had earlier married one Veeramma, the learned magistrate awarded a monthly maintenance of Rs.400 holding that the first marriage has not been proved.
The order was, however, set aside by the High Court in revision accepting the plea that the first marriage was subsisting when the respondent married the appellant.
We have granted special leave to appeal against the order of the High Court.
We have been taken through the pleadings and the evidence by the learned counsel for the appellant for the purpose of satisfying that the High Court had no material before it for arriving at the finding that there was a valid marriage between Veeramma and the respondent on the day the respondent married the appellant.
It is pointed out that the appellant had nowhere admitted the subsistence of a valid marriage which would render her marriage illegal.
The appellant stated in her petition that one year after her marriage, she came to know that respondent married Veeramma and lived with her in Hyderabad and soon thereafter Veeramma started living along with the appellant and the respondent and, thus extra marital relationship of the respondent with Veeramma has disrupted her family life.
In fact, the respondent had in his counter flatly denied all the averments made by the appellant in the petition and maintained that a marriage ceremony was performed between Veeramma and the respondent when both were children and the appellant is only his kept mistress.
The respondent has, however, clearly admitted that he married the appellant according to Hindu rites.
When that marriage is repudiated as void on account of the subsistence of an earlier marriage, the respondent was bound to prove that he married Veeramma in the customary form and the marriage was subsisting in the year 1983 when the appellant was married to him.
As rightly pointed out by the learned counsel for the appellant, there is no clear admission of an earlier marriage between the respondent and Veeramma to dispense with the proof of subsisting valid first marriage when the second marriage was solemnised.
In the absence of such an admission, the statement that the respondent is living with another woman as husband and wife cannot persuade the court to hold that the marriage duly solemnised between the appellant and the respondent suffers from any legal infirmity.
The High Court has referred to exhibit R 12 and R 13 relied on 907 by the respondent to prove that he was already married.
exhibit R 12 is the insurance policy issued On 5. 12. 1975 where the name of the nominee is shown as Veeramma indicating that she is the wife of the respondent.
exhibit R 13 is the family identity card issued by the Road Transport Corporation where the respondent was working in 1977.
These documents are issued on the basis of what the respondent himself had stated.
The entries are not conclusive of the subsistence a valid marriage between the respondent and Veeramma.
If they had been living together as husband and wife even without performing a ceremonial marriage, and the respondent represented that Veeramma was his wife, it is possible that such entries would come into existence.
Therefore, these documents by themselves cannot prove any marriage or the subsistence of a valid marriage when the admitted marriage with the appellant was solemnised.
Section 125 of the Code of Criminal Procedure is meant to achieve a social purpose.
The object is to prevent vagrancy and destitution.
It provides a speedy remedy for the supply of food, clothing and shelter to the deserted wife.
When an attempt is made by the husband to negative the claim of the neglected wife depicting her as a kept mistress on the specious plea that he was already married, the court would insist on strict proof of the earlier marriage.
The term wife ' in Section 15 of the Code of Criminal Procedure includes a woman who has been divorced by a husband or who has obtained a divorce from her husband and has not remarried.
The woman not having the legal status of a wife is thus brought within the inclusive definition of the term 'wife ' consistent with the objective.
However, under the law a second wife whose marriage is void an account of the survival of the first marriage is not a legally wedded wife and is, therefore, not entitled to maintenance under this provision.
Therefore, the law which disentitles the second wife from receiving maintenance from her husband under Section 125, Cr.
P.C., for the sole reason that the marriage ceremony though performed in the customary form lacks legal sanctity can be applied only when the husband satisfactorily proves the subsistence of a legal and valid marriage particularly when the provision in the Code is a measure of social justice intended to protect women and children.
We are unable to find that the respondent herein has discharged the heavy burden by tendering strict proof of the fact in issue.
The High Court failed to consider the standard of proof required and has proceeded on no evidence whatsoever in determining the question against the appellant.
We are, therefore, unable to agree that the appellant is not entitled to maintenance.
908 We find that there is no dispute that the appellant was married to the respondent in the customary form.
They lived together as husband and wife and of late the respondent had neglected to maintain her.
The respondent has no case that the appellant has means to maintain herself or that the amount she has claimed is not commensurate with the means of the respondent.
The learned magistrate was, therefore, justified in awarding an amount of Rs.400 per mensem towards the maintenance of the appellant.
That order of the magistrate has to be restored.
In the result, we allow the appeal, set aside the order of the High Court and restore that of the trial court.
T. N. A. Appeal allowed.
| The appellant wife filed an application for maintenance against respondent husband under section 125 of the Code of Criminal procedure, 1973.
The respondent contested the application on the ground that appellant was not his legally wedded wife since their marriage was void on account of subsistence of respondent 's earlier marriage.
The Magistrate awarded a monthly maintenance of Rs. 400 to the wife by holding that the respondent has not proved his first marrige.
The order of the magistrate was set aside by the High Court in revision accepting the respodent 's plea that his first marriage was subsisting when the respodent married the appellant.
In appeal to this court it was contented on behalf of the respodent that the High Court had no material before it for arriving at the finding that there was an earlier valid marriage on the date respondent married the appellant.
Allowing the appeal, this Court.
HELD:1 Section 125 of the code of Criminal Procedure is meant to achieve a social purpose.
The object is to prevent vagrancy and destitution.
it provides a speedy remedy for the supply of food,clothing and shelter to the deserted wife.
The term "wife" includes a woman who has been divorced by a husband or who has obtained a divorce from her husband and has not remarried.
The woman not having the legal status of a wife is thus brought within the inclusive definition of the term "Wife" consistent with the objective.
However,under the law a second wife whose marriage is void on account of the survival of the first marriage is 905 not a legally wedded wife and is,therefore,not entitled to maintenance under this provision.
Therefore, the law which disentitles the second wife from receiving maintenance from her husband for the sole reason that the marriage ceremony though performed in the customary from lacks legal sanctity can be applied only when the husband satisfactorily proves the subsistence of a legal and valid marriage particularly when the provision in the Code is ameasure of social justice intended to protect women and children.
Accordingly, when an attempt is made by the husband to negative the claim of the neglected wife depicting her as a kept mistress on the specious plea that he was already married, the court should insist on strict proof of the earlier marriage.
[907D H] 2.
The respondent has not discharged the heavy burden by tendering strict proof of the fact in issue.
He clearly admitted his marriage with the appellant acording to Hindu rites.
But there is no clear admission of his earlier marriage to dispense with the proof of subsisting valid first marriage when the second marriage was solemnised.
In the absence of such an admission, the statement that the respondent was living with another woman as husband and wife cannot persuade was court to hold that the marriage duly solemnised between the appellant and the respondent suffers from any legal infirmity.
[906C H] 3.
The nomination in the Insurance Policy and Entry in the Identity Card, referred to by the High Court are not conclusive of the subsistence of a valid marriage between the respondent and his earlier wife.
The High Court has failed to consider the standard of proof required and has proceeded on no evidence whatsoever in determining the question against the appeallant.
Accordingly the order of the High Court is set aside and the order of the Magistrate is restored.
[907B C]
|
CTION: C.M.P. No.8076 of 1988 and I.A. Nos.
3,5,6 and 7 of 1990 In Civil Appeal No. 3519 of 1984.
From the Judgment and Order dated 3.4.1984 of the Delhi High Court in W.P. No. 1144 of 1983.
WITH Writ Petition (C) Nos.
2620 59 of 1985.
Under Article 32 of the Constitution of India).
C.S. Vaidyanathan, Ms. Smitha Singh, K.A.Raja, A.K. Srivastava, Sushma Suri, C.V.S. Rao, Ms. C.K. Sucharita and Vimal Dave for the appearing parties.
The following Order of the court was delivered: CMP No. 8076/1988: This is an application by certain doctors of the Central Health Service for clarification of the earlier orders passed by this Court in C.A. 3519/1984.
Actually, the appellants ' grievance is that even though the appeal was disposed of by the order of this court dated 9.4.
1987 and the directions given therein have been reiterated in the subsequent orders of this Court, the Union of India has not given proper effect to the directions given by this Court.
Briefly, the appellants were originally appointed after interview by selection committees but only as adhoc appoint ees in the above service.
They were appointed on various dates between 1968 and 1977.
Their grievance is that dispite their long service in the Department they were not regula rised with reference to their original dates of appointment.
The Union of India pointed out certain difficulties in giving effect to the order of this Court of April, 1987 by filing a review petition and then a clarification applica tion but these have been dismissed.
The resultant position is that all the appellants have to be regularised in Group A of the Central 112 Health Service w.e.f.
1.1.1973 or the date of their respec tive original appointments whichever is later.
We may men tion here that this date 1.1.1973 is mentioned here because the appellants have now expressed their willingness to be considered for regular appointment only from this date and not from any earlier date, this being the date on which the group B and Group A services were merged together by the Government of India on the recommendations of the Third Pay Commission.
The only difficulty experienced by the Union of India in giving effect to the directions of this Court which now subsists is that if regularisation is granted to all the appellants, doctors who have been regularly appointed in Group A after an interview by the Union Public Service Commission may get relegated to secondary positions in view of the fact that the appellants were appointed much earlier though on an adhoc basis.
These regularly recruited doctors had not been heard earlier and they have now come up with intervention applications praying that any order of regular isation of the appellants should ensure that their interests are not prejudiced.
This was also the anxiety of the Union of India as expressed in the counter affidavit filed in this Court.
After heating all the counsel, we were inclined to think that while the appellants should get their rights which were declared by this Court in its earlier orders, there should at the same time be no prejudice to the doctors appointed through regular recruitment by the Union Public Service Commission.
After some discussion, counsel for the appel lants agreed to put forward certain proposals which would safeguard their interests and also at the same time not prejudice the regular appointees through the Union Public Service Commission.
The essence of the proposal made by them is that they may be treated to be a separate category with their own seniority list and entitled to promotion in ac cordance with that seniority list, the problem of conflict with the direct regular recruits being avoided by creation of an appropriate number of supernumerary posts.
The Union of India is not agreeable to accept these proposals which were set down by the appellants at our instance, in the form of an affidavit.
The proposals of the appellants have been set down in an annexure to an affidavit filed by Dr. PPC Rawani and dated 16th July, 1991.
However, after considering the matter we are of the opinion that there is no way of rendering justice to all the parties before us except by accepting these proposals in the manner to be set down below particularly because we find that while making the propos als, the appellants have also to some extent expressed the willingness to forgo certain rights that might have accrued to them in consequence of the earlier orders passed by this Court.
We are of the opinion that the proposals made are reasonable in the circumstances of the case and that they do not also in any way prejudice the rights of the regularly recruited doctors.
113 In view of this, we direct that the following proposal be implemented by the Department by way of giving effect to the order of this Court in C.A. 3519/84 dated April, 1987 and the subsequent clarificatory orders passed by this Court: The directions given are as follows: 1.
Each of the appellants will be treated as regularised in Group A of the Central Health Service from 1.1.1973 or the date of his first initial appointment in the service (though as adhoc Group B doctor), whichever is later.
In order to ensure that there is no disturbance of the seniority and the promo tional prospects of the regularly recruited doctors there will be a separate seniority list in respect of the appellants and their promotions ( 'about which directions are given below) shall be regulated by such separate 'seniority list and such promotions will only be in supernumerary posts to be created as mentioned below.
(a) Each of the appellants will be eligi ble for promotion to the post of Senior Medi cal Officer or Chief Medical Officer or fur ther promotional posts therefrom taking into account his seniority in the separate seniori ty list which is to be drawn up as indicated above.
(b) The promotion of any of the appellants to the post of Senior Medical Officer, Chief Medical Officer and further promotional post therefrom will be on par with the promotion of the regularly recruited doctor who is immedi ately junior to the concerned appellant on the basis of their respective dates of appoint ment.
In other words, if a regularly recruited doctor, on the basis of the seniority list maintained by the Department, gets a promotion as Senior Medical Officer or Chief Medical Officer or further promotion thereafter, then the appellant who was appointed immediately earlier to him will also be promoted as a Senior Medical Officer or Chief Medical Offi cer or further promotion therefrom (as the case may be) with effect from the same date.
In order that there may be no conflict or any possibilities of reversion, the post to which an appellant will be promoted (whether as Senior Medical Officer or Chief Medical Officer or on further promotion therefrom) should only be to a supernumerary post.
Such number of supernumerary posts should be creat ed by the Government as may be necessary to give effect to the above directions.
No promo tion will be given to any of the appellants in the existing vacancies which will go only to the regularly 114 appointed doctors.
The appellants hereby agree to give up all monetary claims on account of revision of scales, regularisation or promotion to which they would be entitled till 31.10.
199 1. 6.
Apart from the appellants there are certain doctors who fall in the same category but who had not filed writ petitions before the High Court.
They have filed directly writ petitions before this Court beating Nos.
2620 2659/1985 and intervention applications.
The intervention applications are allowed and rule nisi is issued in the writ petitions of which the other parties take notice.
These interveners and writ petitioner have to be granted the same relief as the appellants.
It is made clear that all these applicants and petitioners will be entitled to the same reliefs as the appellants for all purposes of seniority and promotion.
All monetary claims on account of revision of scales, regularisa tion or promotion till 31.10.1991 are given up by These applicants and petitioners as well.
We direct that, in view of the long pendency of litiga tion before this Court, the Union of India should take immediate steps to implement the above directions.
The directions should be given effect to latest by 31st March, 1992.
All the interim applications in the matter stand dis posed of in view of the fact that the main CMP itself has been disposed of.
R.P. Matters dis posed of.
| In Civil Appeal No.3519 of 1984, filed by the appel lants, who were appointed as doctors on adhoc basis in the Central Health Service on various dates between 1968 and 1977, praying for regularisation of their services with reference to their original dates of appointments, this Court, by its judgment dated 9.4.1987 and subsequent orders, gave certain directions.
Since the Union of India could not implement the directions, the appellants filed the civil miscellaneous petition for clarification of the earlier orders passed by this Court in the Civil Appeal.
Certain other doctors who fall in the category of the appellants (adhoc appointees) and who had not earlier filed writ peti tion before the High Court, filed writ petitions and inter vention applications before this Court praying for the benefits as granted to the appellants.
It was contended by the Union of India that if regulari sation was granted to all the appellants and the like cate gories of doctors, the doctors regularly appointed in Group A may get relegated to secondary position in view of the fact that the appellants were appointed much earlier on adhoc basis.
The regularly recruited doctors, not heard earlier, also filed intervention applications praying that any order of regularisation of the appellants and the similarly situated doctors should ensure that their interests were not preju diced.
The appellants and the other similarly situated doctors expressed their willingness to be considered for regular appointments 110 only from 1.1.1973, this being the date on which the Group B and Group A services were merged together by the Government of India.
They also agreed to give up monetary claims on account of revision of scales, regularisation or promotion to which they would be entitled till 31.10.1991.
Disposing of the matters, this court, HELD: 1.
Each of the appellants will be treated as regularised in Group A of the Central Health Service from 1.1.1973 or the date of his first initial appointment in the service (though as an adhoc Group B doctor) whichever is later.
[p. 113 B] 2.
In order to ensure that there is no disturbance in the seniority and the promotional prospects of the regularly recruited doctors there will be a separate seniority list in respect of the appellants and their promotions shall be regulated by such separate seniority list and such promo tions will only be in supernumerary posts to be created by the Government.
[p. 113 B C] 3(a).
Each of the appellants will be eligible for promo tion to the post of Senior Medical Officer or Chief Medical Officer or further promotional posts therefrom taking into account his seniority in the separate seniority list.
[p. 113 D] (b).The promotion of any of the appellants to the post of Senior Medical officer, Chief Medical Officer and further promotional post therefrom will be on par with the promotion of the regularly recruited doctor who is immediately junior to the concerned appellant on the basis of their respective dates of appointment, e.g. if a regularly recruited doctor, on the basis of the seniority list maintained by the Depart ment, gets a promotion as Senior Medical Officer or Chief Medical Officer or further promotion thereafter, then the appellant who was appointed immediately earlier to him will also be promoted as a Senior Medical officer or Chief Medi cal Officer or further promotion therefrom (as the case may be) with effect from the same date.
[p. 113 D F] 4.
In order to avoid any conflict or any possibilities of reversion, the post to which an appellant will be promot ed (whether as Senior Medical Officer or Chief Medical Officer or on further promotion therefrom) should only be to a supernumerary post.
Such number of supernumerary posts should be created by the Govern 111 ment as may be necessary to give effect to the above direc tions.
No promotion will be given to any of the appellants in the existing vacancies which will go only to the regular ly appointed doctors.
[pp. 113 F H, 114 A] All the writ petitioners and interveners, falling in the category of the appellants, would also be entitled to the same reliefs as the appellants for all purposes of seniority and promotion.
[p. 114 A C]
|
Appeal No. 3850 of 1991.
From the Judgment and Order dated 21.4.1978 of the Andhra Pradesh High Court in Civil Revision Petition No. 3974 of 1977.
A. Subba Rao, G. Narasimhulu and A.D.N. Rao for the Appel lants.
T.V.S.N. Chari and Ms. Manjula Gupta for the Respondent.
The Judgment of the Court was delivered by KANIA, J.
Leave granted.
Counsel heard.
As we are in agreement with the conclusions arrived at by the High Court of Andhra Pradesh, we propose to set out the few facts necessary for the appreciation of the argu ments before us very briefly.
517 The parties belong to the Reddi caste in an area of Andhra Pradesh which originally formed part of the Madras Presidency.
Appellant No. 1 is the illatom son in law of Appellant No. 2.
The appellants filed their respective declarations under Section 8 of the Andhra Pradesh Land Reforms (Ceiling on Agricultural Holdings) Act, 1973, (hereinafter referred to as "the Ceiling Act").
In his declaration, appellant No. 2 claimed an increase in the ceiling unit permitted to be held by him on the ground that appellant No. 1 as his illatom son in law who had attained the age of majority had a share in the properties of his father in law, appellant No. 2.
Appellant No. 2 deposed in the inquiry held that appellant No. 1 was entitled to a half share in his properties as his illatom son in law.
Both of them claimed that appellant No. 1 was entitled to the afore said share under an agreement (Exhibit A I).
The Land Re forms Tribunal, Anantapur by its judgment dated May 31, 1977, rejected the claim of the appellants and held that the declarant, appellant No. 2 held surplus holding to an extent of 0.4109 standard acres and directed him to surrender the excess land.
Appellant No. 1 was declared as not holding any land in excess of ceiling limit.
The appellants preferred an appeal to the Land Reforms Appellate Tribunal, Anantapur which was dismissed on November 4, 1977.
Aggrieved by the order of dismissal made by the said Tribunal, the appellants filed a Civil Revision Petition No. 3974 of 1977 in the High Court of Andhra Pradesh which was dismissed by a learned Single Judge of the High Court by a common judgment along with other connected matters on April 21, 1978.
This appeal by special leave is one of the appeals directed against the common judgment of the said High Court.
An illatom son in law is in a sense, a creature of custom.
It is well settled by a series of decisions that a custom of illatom adoption prevails among the Reddi and Kamma castes in territories which earlier formed part of the then Madras Presidency.
It is stated in Mayne 's Hindu Law and Usages, 13th Edition, Paragraph 242 in Chapter VII, as follows: "A custom known as that of illatom adoption prevails among the Reddi and Kamma castes in the Madras Presidency.
It consists in the affiliation of a son in law, in consideration of assistance in the management of the family property.
No religious significance appears to attach to the act.
Neither the execution of any document nor the performance of any cere mony is necessary.
The incidents of an illatom adoption have now become crystallized into fixed rules of law by a long course of deci sions.
To constitute a person an illatom, a specific agreement is necessary . .
After the death of the adop 518 ter he is entitled to the full rights of a son even as against natural sons subse quently born or a son subsequently adopted in the usual manner." It has also been stated by Mayne that an illatom son in law has no right to claim partition with his father in law unless there is an express agreement or custom to that effect.
An illatom son in law is not an adopted son in any sense.
In N.R. Raghavachariar 's Hindu LaW, 8th Edition, in paragraph 176, it is stated that an illatom son in law loses no rights of inheritance in his natural family and the property he takes in the adoptive family is taken by his own relations to the exclusion of those of his adoptive father.
The position, as set out in Mulla 's Hindu law, 16th Edition is no different.
Regarding the position of an illatom son in law it has been inter alia observed by Mulla at para 515 (page 534) as follows: "He does not lose his right of inheritance in his natural family.
Neither he nor his de scendants become coparceners in the family of adoption though on the death of the adopter he is entitled to the same rights and the same share as against any subsequently born natural son or a son subsequently adopted in accord ance with the ordinary law.
He cannot claim a partition with the father in law and the incidence of a joint family, such for instance as right to take by.
survivorship, do not apply.
In respect of the property or share that he may get he takes it as if it were his separate and self acquired property.
" To cite just a few decisions, the custom of having an illatom son in law in the Kamma Castes and the Reddis in Madras Presidency has been recognised in Nalluri Kristnamma and another vs Kamepalli Venkatasubbayya and others.
(1918 19) L.R. 46 I.A. 168.
The same custom has also been recog nised by the decision of a Division Bench of the Madras High Court in Hanumantamma vs Rami Reddi.
(1882) L.R. 4 I.A. Madras Series, 272.
In Narasayya and others vs Rammachan drayya and others A.I.R. [1956] 43 A.P. 209 it has been held that the institution of illatom adoption, that is, affiliat ing a son in law and giving him a share, is purely a crea ture of custom and judicial recognition has been given to it.
Learned Counsel for the appellants contends that appel lant No. 1 as an illatom son in law of appellant No. 2, was entitled to a half share in the property of appellant No. 2.
He submitted that an illatom son in law who had attained the age of majority was in the same position as a major son and hence, the ceiling area permitted to appellant No. 2 was liable to be increased by one ceiling unit as appellant No. 1 did not hold any land independently nor in any manner specified under Section 4 A of the Ceiling Act.
519 Before examining the correctness of these submissions, we may refer to the relevant provisions of the Ceiling Act.
The Ceiling Act which provided for a ceiling on agricultural holding in Andhra Pradesh was enacted in 1973 and amended by Act No. 10 of 1977 which was reserved tot the assent of the President and received the same on April 29, 1977.
The said amending Act was made effective from January 1, 1975.
Section 3 of the said Act is the definition section.
Sub section (c) of Section 3 defines the term 'ceiling area ' after the amendment as meaning the extent of land specified in Section 4 or 4A to be the ceiling area.
Sub section (5) of Section 3 defines the term "family unit" and clause (i) thereof provides that in case of an individual who has a spouse or spouses such individual, the spouses and their minor sons and their unmarried minor daughters, if any, constitute his family unit.
Section 4 provides for the ceiling area.
After Section 4 of the said Act, the following Section 4A was inserted in the Act.
"4A. Increase of ceiling area in certain cases : Notwithstanding anything in section 4, where an individual or an individual who is a member of a family unit, has one or more major sons and any such major son either by himself or together with other members of the family unit of which he is a member, holds no land or holds an extent of land less than the ceiling area, then, the ceiling area, in the case of said individual or the family unit of which the said individual is a member computed in accordance with section 4, shall be increased in respect of each such major son by an extent of land equal to the ceiling area applicable to such major son or the family unit of which he is a member, or as the case may be, by the extent of land by which the land held by such major.
son or the family unit of which he is a member falls short of the ceiling area.
" Section 5 prescribes how the standard holding for dif ferent categories of land is to be computed.
Section 8 provides for declaration of holding by persons whose holding on the notified date together with the other lands mentioned therein exceeds the specified limit.
Section 9 provides for the determination of the ceiling area by the Tribunal.
Section 10 inter alia provides that if the extent of the holding of a person is in excess of the ceiling area, the person shall be liable to surrender the land held in excess.
The question which arises is whether, for the purposes of Section 4A 520 of the Ceiling Act, an illatom son in law can be regarded as a major son, that is, whether an illatom son in law is covered in the definition of the term 'major son ' as em ployed in Section 4A of the Ceiling Act.
It has been ob served in the impugned judgment that an illatom son in law is a creature of custom and hence, his rights are such as recognised by the custom or under an agreement duly proved.
It has been pointed out in the impugned judgment that the Land Reforms Tribunal held, on consideration of the evidence, that half share in property of appellant No. 2 was bequeathed to him and hence, he would be entitled to half share only after the demise of appellant No. 2.
It was further pointed out that all the lands stood registered in the name of appellant No. 2 and hence, appellant No. 1 was not entitled to any share in the properties of appellant No. 2 during the life time of appellant No. 2.
It has been held in the impugned judgment that appellant No. 1 who is the illatom son in law could not be regarded as a son of appellant No. 2, although he had some rights which were similar to the rights of a natural born son or an adopted son.
The agreement (Exhibit A) which was set up by the appellants and under which appellant No. 1 given a share the land belonging to appellant No. 2 in presenti has not been accepted by the courts below on consideration of the evi dence.
It has been held that the said agreement was a document brought into existence merely with a view to avoid the ceiling law.
In this appeal, we are not inclined to interfere with these findings of the appeal.
It was also held in the impugned judgment that in the aforestated cir cumstances, the ceiling limit of appellant No. 2 was not liable to be increased on the ground that appellant No. 1 was his illatom son in law who had attained majority on the relevant date.
Coming to the position in law, the discussion in the text books, which we have referred to in some detail earli er, makes it clear that although an illatom son in law has some rights similar to those of a natural son born F after the adoption of the iliatom son in law, his rights are not identical to those of conferred by law on a son or an adopt ed son.
To cite two main differences, he does not succeed to the properties of his father in law by survivorship, but only on account of custom or an agreement giving him a share in the property of his father in law.
His position is not identical to that of an adopted son because he does not lose his rights in his natural G family on being taken as an iliatom son in law and continues to be entitled to a share in the property of his natural father.
It is, therefore, difficult to regard an iliatom son in law who has attained majority as a major son for the purposes of Section 4A of the Ceiling Act.
Learned Counsel for the appellants placed reliance on the decision of a learned Single Judge of the Andhra Pradesh High Court in Peechu 521 Ramaiah vs Government of Andhra Pradesh [1976] 2 (H.C.) Andhra Pradesh Law Journal 278, where it has been held that after the death of the father in law an iliatom son in law is entitled to the rights of his son.
If there is an agree ment to that effect, the illatom son in law is also entitled to half share in the property of the adoptive father in law even during his lifetime.
The Division Bench in the impugned judgment has not accepted the correctness of the aforesaid judgment.
In our opinion, the view taken by the Division Bench in the impugned judgment appears to be correct.
From the texts which we have cited earlier it is clear that the general recognised position is that an illatom son in law becomes entitled to a share in the property of his father in law as his heir; that is, on his death, it being well settled in law that there can be no heir to a living person.
Moreover, in Peechu Ramaiah vs Government of Andhra Pradesh the conclusion arrived at by the learned Single Judge that the illatom son in law was entitled to a half share in presenti, that is, even during the lifetime of his father in law, was based on an agreement to that effect which was duly proved.
In the present case, the agreement (Exhibit A) has been disbelieved by the authorities below as well as the High Court.
It has been pointed out by the Land Reforms Tribunal that the half share to which appellant No. 1 would be entitled was bequeathed to him in the Will of appellant No. 2 and he would be entitled to that share only on the death of appellant No. 2.
In fact, it was fairly conceded by learned Counsel for the appellants that he was not in a position to show any evidence on the basis of which it could be said that there was a custom applicable to the parties by which appellant No. 1 as an illatom son in law of appellant No. 2 was entitled to a share in the property of appellant No. 2 during the latter 's lifetime.
In our opinion, it is not possible to equate an iliatom son in law who has attained majority with a major son for the purposes of Section 4A of the Ceiling Act.
As pointed out in Penumatsa Koti Ramachandra Raju vs State of A.P., (1980) 1 (H.C.) Andhra Pradesh Law Journal, 307, it is quite apparent from the language of the Statement of Objects and Reasons of the Act 10 of 1977, whereby Section 4A was in serted in the Ceiling Act, that Section 4A was inserted in order to obviate the hardship caused to the Muslims and Christians among whom the concept of a joint family did not obtain and even major sons did not have any share in the ancestral property during the lifetime of the father unlike in the case of Joint Hindu Families.
It appears that the intention which lay behind the amendment was to put Muslims and Christians at par with Hindus in respect of the ceiling law.
It was with this point of view that it was provided in Section 4A of the Ceiling Act that, although the limit of the father 's holding would be increased on the ground of his having a major son that increase would 522 be limited to the extent by which the land holding of the major son and his family unit fell short of the ceiling unit.
In our opinion, the Statement of Objects and Reasons of the said amending Act whereby Section 4A was inserted into the said Act lends support to the view that we are taking, that an illatom son in law, who does not lose his rights in his own family, cannot be regarded as a major son of his father in law for the purposes of the Ceiling Act.
If he was so regarded, there would be a double benefit, in the sense that because of his presence the ceiling area of his father in law would be increased as well as the ceiling area of his natural father and that certianly could not have been the intention behind the amendment inserting Section 4A.
Since there is no custom of having an illatom among Muslims and Christians such a construction would lead to disparity between the position of Muslims and Christians on the one hand and Hindus on the other.
That would be contrary to the very purpose for which the amendment was made.
In the result, we are of the view that there is no merit in the appeal and it must fail.
Appeal dismissed.
However, looking to the facts and circumstances of the case there will be no order as to costs.
V.P.R Appeal dismissed.
| The appellants, who belonged to the Reddi caste in an area of Andhra Pradesh, which originally formed part of the Madras Presidency filed their respective declarations under Section 8 of the Andhra Pradesh Land Reforms (Ceiling on Agricultural Holdings) Act, 1973.
Appellant No. 2 in his declaration claimed an increase in the ceiling unit permitted to be held by him on the ground that appellant No. 1, as his illatom son in law who had attained the age of majority, had a share in the proper ties.
In the inquiry held Appellant No. 2 deposed that appel lant No. 1 was entitled to a half share in his properties as his illatom son in law.
Both the appellants claimed that appellant No. 1 was entitled to a share under an agreement.
The Land Reforms Tribunal rejected the claim of the appellants and held that the declarant, appellant No. 2 held surplus holding and directed him to surrender the excess land.
Appellant No. 1 was declared as not holding any land in excess of ceiling limit.
The appellants preferred an .appeal to the Land Reforms Appellate 514 515 Tribunal, which was dismissed.
The appellants filed a Civil Revision Petition in the High Court, which was also dismissed.
This appeal by special leave is one of the appeals directed against the common judgment of the High Court.
The appellants contended that appellant No. 1 as an illatom sonin law of appellant No. 2, was entitled to a half share in the property of appellant No. 2; that an illatom son in law who had attained the age of majority was in the same position as a major son and hence, the ceiling area permitted to appellant No. 2 was liable to be increased by one ceiling unit as appellant No. 1 did not hold any land independently nor in any manner specified under Section 4A of the Ceiling Act.
Dismissing the appeal, this Court, HELD: 1.
The institution of illatom adoption, that is, affiliating a son in law and giving him a share, is purely a creature of custom and judicial recognition has been given to it.
It prevails among the Reddi and Kamma castes in territories which earlier formed part of the then Madras Presidency.
[518 G, 517 F] 2.
An illatom son in law becomes entitled to a share in the property of his father in law as his heir, that is, on his death.
[521 C] 3.
Although an illatom son in law has some rights simi lar to those of a natural son born after the adoption of the illatom son in law, his rights are not identical to those of conferred by law on a son or an adopted son.
The illatom son in law does not succeed to the properties of his father in law by survivorship, but only on account of custom or an agreement giving him a share in the property of his father in law.
His position is not identical to that of an adopted son because he does not lose his rights in his ' natural family on being taken as an illatom son in law and continues to be entitled to a share in the property of his natural father.
It is not possible to equate an illatom son in law who has attained majority with a major son for the purposes of Section 4A of the Ceiling Act.
[520 F G, 521 E] 516 4.
The Statement of Objects and Reasons of the Amending Act whereby Section 4A was inserted into the Ceiling Act indicate that an illatom son in law, who does not lose his fights in his own family, cannot be regarded as a major son of his father in law for the purposes of the Ceiling Act.
If he was so regarded, there would be a double benefit, because of his presence as the ceiling area of his father in law would be increased as well as the ceiling area of his natu ral father.
That Certainly could not have been the intention behind the amendment.
Since there is no custom of having an illatom among Muslims and Christians such a construction would lead to disparity between the position of Muslims and Christians on the one hand and Hindus on the other.
That would be contrary to the very purpose for which the amend ment was made.
[522A C] Nallun Kristnamma and another vs Kamepalli Venkatasub bayya and others, (1918 19) L.R. 46 I.A. 168; Hanumantamma vs Rami Reddi, (1882) L.R.4 I.A. Madras Series 272; Nara sayya and others vs Ramachandrayya and others, AIR [1956] 43 A.P. 209; Penumatsa Koti Ramachandra Raju vs State of A.P. (1980) 1 (H.C.) Andhra Pradesh Law Journal 307, referred to.
Peech Ramaiah vs Government of Andhra Pradesh, (1976) 2 (H.C.) Andhra Pradesh Law Journal 278, distinguished.
Mayne: Hindu Law and Usages, 13th Edition, Chapter VII, Paragraph 242, N.R. Raghavachariar; Hindu Law 8th Edition, Paragraph 176; Mulla: Hindu Law, 16th Edition, Para , referred to.
|
Appeal No.4375 OF 1991.
From the Judgment and Order dated 3.9.1990 of the Karna taka Administrative Tribunal, Bangalore in Application No. 2564 of 1989.
M.K. Ramamurthy, section Ravindra, K.V. Mohan and S.R. Bhat for the Appellant.
Raju Ramachandran, M. Veerappa and Kh.
Nobin Singh (N.P.) for the Respondents.
The Judgment of the Court was delivered AHMADI, J.
Special leave granted.
The controversy which we are required to resolve in this appeal by special leave is regarding the appellant 's senior ity vis a vis respondents Nos.3 to 7.
The factual background which has given rise to this controversy, briefly stated, is as under: In the year 1966 posts of Junior Engineer (Mechanical) were created in the Department of Mines and Geology (Ground Water Surveys and Drilling Unit) of the State of Karnataka.
The appellant who was then working as a Rigman in the Drill ing Unit of the Department was appointed Junior Engineer (Mechanical) in the scale of Rs. 200 375 on one of the said posts by an order dated 14th August, 1967 issued by the Director of the department.
Subsequently, he was regularly recruited through the State Public Service Commission in the said post w.e.f. 4th May, 1970.
However, even though the Director had requested the State Government to frame Re cruitment Rules for the newly created post immediately after its creation, the Recruitment Rules were not finalised till the issuance of a Notification dated 26th June, 1973.
Before the appellant was regularly recruited through the State Public Service Commission in the year 1970 the Director had apprised the Government of the action which he proposed to 602 take to fill up the post.
The appointment order was issued after the Public Service Commission had advertised the post and had selected persons for appointment to the said posts.
The appellant was initially appointed on probation for one year and on his satisfactorily completing the probation period he was continued in service and was later confirmed in the said post by an order dated 13th June, 1974 w.e.f. 29th September, 1972.
Respondents Nos. 3 to 7 entered service as Drillers in 1964 65.
The appellant and the respondents Nos.
3 to 7 were promoted as Assistant Drilling Engineers by the Director 's order dated 16th December, 1974.
The Office Order No.676/74 75 shows that the appellant and one another were working as Junior Engineers at the relevant time whereas respondents Nos.
3 to 7 were working as Drillers before their promotions as Assistant Drilling Engineers.
The State Government did not approve of the Director 's action in promoting the appellant since he was a local candidate and directed that he be reverted.
However, no such reversion took place.
The State Government also did not take any further action.
The appellant was shown senior to respond ents Nos. 3 to 7 in the said cadre of Assistant Drilling Engineers.
The appellant was subsequently promoted by the State Government to the next higher post of Drilling Engi neer in 1980 and further as Chief Drilling Engineer in 1984 which post he was holding at the date when his seniority came to be disturbed.
The appellant was throughout shown senior to respondents Nos.
3 to 7 till the revised provi sional seniority list in regard to the cadre of Assistant Drilling Engineers was published on 31st December, 1987.
Since objections were invited the appellant objected to his being shown junior to respondents Nos.3 to 7 but to no avail.
Even in the final seniority list dated 4th May, 1989 he was shown junior to respondents Nos. 3 to 7.
Respondents Nos.3 to 7 were shown in both the provisional and final seniority list at Serial Nos.1 to 5 whereas the appellant was shown at Serial No.6.
Thus, for the first time, since his regular appointment in the year 1970, he was shown junior to respondents Nos. 3 to 7 under the provisional seniority list issued in 1987 and the final seniority sen iority list issued in 1989.
The appellant, therefore, chal lenged the provisional seniority list as well as the final seniority list by an Application No. 2564 of 1989 preferred to the Karnataka Administrative Tribunal.
The Tribunal by its order dated 3rd September, 1990 rejected his application holding that his initial entry into service as a Junior Engineer was itself irregular and since he did not have the requisite experience of three years as a regular incumbent he was not qualified to be promoted to the next higher post of Assistant Drilling Engineer because his regular employ ment could only be related from the date of framing of the Recruitment Rules for the adre which came to be notified on 23rd August, 1973.
In this view of 603 the matter, the Tribunal held that the service of the appel lant from 4th May, 1970 to 23rd August, 1973 could not be taken into consideration for the purpose of determining his inter se seniority vis a vis respondents Nos. 3 to 7.
The appellant feeling aggrieved by the dismissal of his applica tion, has approached this Court under Article 136 of the Constitution.
The appellant contends that the order of the Tribunal suffers from a number of fallacies, namely, firstly, the Tribunal has failed to realise that the appellant was re cruited as a regular employee on selection by the State Public Service Commission pursuant to an advertisement issued in this behalf and, therefore, the appellant 's em ployment was regular in nature and not that of a mere local candidate; secondly, the post to which he was appointed was a regularly created post and was a higher than that of respondents Nos. 3 to 7 even during the period there existed no recruitment rules and in any case after his confirmation w.e.f.
29th September, 1972 it was not open to the Tribunal to hold that his appointment was irregular and thirdly, the Tribunal had erred in overlooking the guideline issued by the state Government on 5th July, 1976 which specifically provided that 'all appointments made by the Government or under specific authority of Government either by direct recruitment or by promotion or on or after 1st November, 1956 but prior to the commencement of the Rules regarding recruitment to such cadres may be treated as regular '.
The appellant contends that in pursuance of this guideline issued by the State Government even if it is assumed that his initial appointment was irregular it had to be treated as regular throughout.
The appellant, therefore, contends that the Tribunal 's order suffers from certain patent in firmities and deserves to be set aside.
It appears that before the Tribunal respondents Nos.1, 2, 4, 6 and 7 did not file any counter challenging the appellant 's claim to sen iority but respondents Nos. 3 and 5 contested the appel lant 's claim while the State Government avoided entering into the arena by filing a counter but instead presented the relevant files to the Tribunal.
So far as respondents Nos. 3 and 5 are concerned, they supported the action taken by the state Government in preparing both the impugued provisional as well as the final seniority lists.
They contended that since they were regular employees and had entered service before the appellant and were promoted to the post of As sistant Drilling Engineers along with the appellant they were clearly senior to 'the appellant and the State Govern ment was, therefore, justified in showing them at Serial Nos.1 to 5 and the appellant at Serial No. 6 in the seniori ty list.
They, therefore, contend that this 604 appeal is without substance and needs to be dismissed.
We have heard counsel for the rival contestants.
Counsel of the State Government submitted that they had prepared the seniority list for reasons already stated but they would not like to take sides and would abide by the decision of this court.
In order to appreciate the controversy, it is necessary to refer to the Karnataka Civil Services (Classification, Control and Appeal) Rules, 1957.
According to Rule 5, the Civil Services of the State of Karnataka are classified into Class I, Class II, Class II and Class IV posts.
Class I and Class II are gazetted Posts whereas Class III and Class IV consist of non gazetted Posts.
So far as Class III posts are concerned the initial appointments have to be made by the authorities mentioned in Column 2 of Schedule II appended to the Rules.
In regard to the posts of Junior Engineers the lind Schedule makes the Director the Appointing Authority.
There can, therefore, be no doubt that the initial appoint ment of the appellant was by an authority competent to appoint.
It is indeed true that at the time when the appel lant was selected by the State Public Service Commission and appointed as Junior Engineer w.e.f.
4th May, 1970 there were no specific Recruitment Rules in existence for the post in question.
As stated earlier, the posts were created for the first time in 1966 and since then the Director had been in correspondence with the State Government for framing of the Recruitment Rules for the said posts.
Since the Recruitment rules were not framed for one reason or the other, in 1969 the Director wrote a letter to the State Public Service Commission to advertise the vacancies and select candidates for appointment.
Simultaneously, he wrote a letter informing the State Government of the action taken by him in request ing the State Public Service Commission to advertise the posts and select candidates for appointment.
Pursuant to the requisition sent by him the Commission selected candidates and forwarded the list to the Director who was the Appoint ing Authority under the Karnataka Civil Service (Classifica tion, Control and Appeal) Rules, 1957.
The Director who was competent to make the appointment by virtue of Rule 7 issued a letter of appointment dated 24th April, 1970 whereapon the appellant took charge w.e.f. 4th May, 1970.
It, therefore, becomes apparent that the posts were regularly created sometime in 1966 and the appellant was duly selected by the State Public Service Commission and appointed to the post in question in 1970.
The appellant being an engineering gradu ate was qualified for appointment to post in question.
The state Government 's approach while sliding down the appellant in seniority vis a vis the respondents Nos.
3 to 7 may be briefly noticed.
605 After the recruitment rules for Junior Engineers (Mechani cal) were framed and brought into effect w.e.f.
23rd August, 1973, it was felt that the two posts of Junior Engineers were filled by direct recruitment contrary to the said rules which provided a ratio of 50% by promotion from the cadre of Drillers and 50% by direct recruitment.
Since both the posts were filled by direct recruitment, it was felt that this ratio was violated.
The date of the appellant 's seniority was, therefore, reckoned from 23rd August, 1973 and since the appellant had not acquired experience of three years he was held ineligible for promotion to the next higher post of Assistant Drilling Engineer.
His entry into the promo tional post was, therefore, pushed down to 23rd August, 1976 and accordingly respondents Nos. 3 to 7 were placed above him in the seniority list.
The Tribunal concurred with this approach.
The Tribunal held that the initial appointment of the appellant as Junior Engineer (Mechanical) by the Direc tor was not supported by any rules and the Director not being the appointing authority for the said posts in 1970, the appellant 's appointment was not regular.
Secondly, the Tribunal concurred with the Government that the appellant 's entry into the cadre of Assistant Drilling Engineer must be assumed to be w.e.f.
23rd August, 1976 and hence respondents nos.
3 to 7 were clearly senior to him.
In short the Tribu nal approved of the Government 's approach in With respect we find it difficult to approve of the said approach.
As pointed out earlier, the posts were sanc tioned in 1966.
Initially the appellant was appointed as a local candidate but later the Director requested the State Public Service Commission to advertise the said two posts and select candidates for appointment to the said posts.
Pursuant to the advertisement so issued the appellant ap plied, was found qualified and was selected for appointment.
The Director, therefore, made the appointment as he was the appointing authority for Class III posts under the Karnataka Civil Services (Classification, Control & Appeal) Rules, 1957, vide Rule 7(2) read with Column 2 of Schedule II thereto.
That rule clearly shows that the Director is the appointing authority for Junior Engineers, a Class III post.
The Tribunal was, therefore, not right in holding that the appointment made was irregular as it was not by the appoint ing authority.
The Tribunal was wrong in holding that the Director was not the appointing authority for Junior Engi neers.
Strictly speaking, that was not the approach of the Government.
The Government held the appointment irregular as in its opinion it had exceeded the quota of 50% for direct recruits.
This view is based on the premise that the serv ices must be regularised applying the 1973 Rules retrospec tively.
Here there are two fallacies, firstly the appellant being senior of the two direct recruits appointed as Junior Engineers, he would fill the slot for the one post which 606 went to direct recruits on the 50% quota and secondly it was not permissible to question the appointment made in 1970 in 1987 when in the intervening period none had challenged the appellant 's appointment.
The objection which the Government had raised on his promotion to the next higher post was that he was a local candidate and not a regular appointee, an objection which was not pursued presumably on realising that he was selected by the State Public Service Commission before appointment.
Not only that the Government acquiesced in his appointment by promoting him to the next higher posts in 1980 and 1984.
Since the posts existed on the establish ment and selection for appointment was made by the State Public Service Commission and the Director was competent to make the appointment, it cannot be said that the absence of recruitment rules makes the appointment illegal or irregular when it is found that the appellant, a degree holder, was eligible for appointment to the post.
This is so also be cause irregular appointments were regularised by the Govern ment Memorandum dated 5th July, 1976, the relevant part whereof reads as under: "3(a).
All appointments made by Government or under specific authority of Government either by direct recruitment or by promotion on or after 1st November, 1956, but prior to the commencement of rules regulating recruitment to such cadres may be treated as regular".
This was clarified by the subsequent letter dated 17th September, 1977 as under: "Para 3(a) states that all the appointments made by Govern ment or under specific authority of Government either by direct recruitment or by promotion on or after 1.11.1956 and prior to the commencement of the Cadre and Recruitment Rules of the concerned cadre may be treated as regular, that is to say, the action taken by Government on other Appointing authorities in resorting either of the modes of recruitment is regular.
This para does not say that the appointment of local candidates as a stop gap arrangement is regular".
The Tribunal refused to place reliance on the above on the erroneous ground that the Director was not the appoint ing authority and the appellant was a local candidate.
Once both these are found to be erroneous there is no reason to brush aside the said guidelines.
It may also be appreciated that the services of local candidates in Class III cadre were regularised by Office Order No.177/71 72 dated 31s1 August, 1971 and had the 607 appellant not have been appointed as a regular candidate w.e.f. 4th May, 1970 his service would also have been regu larised as a local candidate.
From what we have discussed above it is obvious that the entire approach of the State Government and the Tribunal was erroneous.
Besides, the appellant was shown senior to re spondents Nos.
3 to 7 right from 1970 to 1987 when his seniority came to be disturbed.
During the said period of 17 years all attempts to disturb his seniority had 'failed.
No one successfully challenged it in Court.
The appellant 's seniority which had stabilised over a period of time and on the basis whereof he was granted promotions by the Govern ment could not be disturbed by doubting the.
regularity of the initial appointment after so many years.
It was not as if he had gained experience as an ad hoc employee in a stop gap arrangement that his experience as a Junior Engi neer could be overlooked.
We are, therefore, of the opinion that his seniority in the promotion post could not be upset on the ground that he did not possess the requisite experi ence till 23rd August, 1976.
In Direct Recruit Class H Engineering Officer 's Associa tion vs State of Maharashtra & Ors, ; , this Court held in paragraph 13 as under: "The principle for deciding inter se seniority has to conform to the principles of equality spelt out by Articles 14 and 16.
If an appointment is made by way of stop gap arrangement, without considering the claims of all the eligible available persons and without following the rules of appointment, the experience on such appointment cannot be equated with the experience of a regular appointee, because of the qualitative difference in the appointment.
To equate the two would be to treat two unequals as equal which would violate the equality clause.
But if the appointment is made after considering the claims of all eligible candidates and the appointee continues in the post uninterruptedly till the regularisation of his service in accordance with the rules made for regular substantive appointments, there is no reason to exclude the officiating service for purpose of seniority.
Same will be the position if the initial appoint ment itself is made in accordance with the rules applicable to substantive appointments as in the present case.
To hold otherwise will be discriminatory and arbitrary".
In the present case also the appellant 's appointment was made in 1970 after all eligible candidates were interviewed by the State Public Service Commission.
As pointed out earlier, the posts were borne on the establishment and the Director was the appointing authority who made the appoint ment pursuant to the selection made by the State Public Service Commission.
The appellant worked on that post unit erruptedly till he was 608 promoted to the next higher post along with respondents Nos. 3 to 7.
In these circumstances, his experience in the post of Junior Engineer (Mechanical) from 1970 till his promotion to the next higher post could not be ignored.
We are, there fore, of the opinion that the ratio laid down by the Consti tution Bench in the aforequoted paragraph applies with all force in the present case also.
In the result, we allow this appeal and set aside the order of the Tribunal.
We hold that the appellant 's seniori ty over respondents Nos.
3 to 7 as was obtaining before 31st December, 1987 when the provisional seniority list was published shall be restored and he shall be shown to be senior to respondents Nos.
3 to 7 by correcting the impugned final seniority list.
The appeal is allowed accordingly with no order as to costs.
T.N.A. Appeal allowed.
| The appellant, a Rigman in the Department of Mines and Geology, State of Karnataka, was initially appointed as a local candidate on the newly created post of Junior Engineer (Mechanical).
Later he was regularly selected by the State Public Service Commission and appointed on the said post on 4.5.1970 by the Director and was confirmed on the said post on 29.9.1972.
On 16.12.1974, he, alongwith respondents No. 3 to 7, who were drillers in the Department was promoted as Assistant Drilling Engineer and was shown senior to them.
However, in the revised provisional seniority list as well as in the final seniority list, he was shown junior to respondents No. 3 to 7 in the cadre of Assistant Drilling Engineer.
The appellant filed an application before the State Administrative Tribunal challenging the seniority lists which was rejected holding (i) the appellant 's appointment as Junior Engineer was irregular because it was not support ed by Recruitment Rules and the Director was not the ap pointing authority; (ii) since the appellant had not ac quired three years experience as regular incumbent he was not qualified to be promoted as Assistant Drilling Engineer;, his regular employment could only be related from the date of framing of the Recruitment Rules.
Accordingly, the Tribunal held that appellant 's service from 4th May, 1970 to 23rd August, 1973 could not be taken into considera tion for reckoning his seniority and hence he was junior to Respondents No3 to 7.
599 600 The appellant filed an appeal in this Court challeng ing the Tribunal 's order contending that (i) in view of his recruitment as a regular employe on selection by the Service Commission his employment was regular in nature; (ii) the post to which he was appointed was regularly created post and was higher than that of respondents even during the period there existed recruitment rules; in any case after his confirmation it was not open to the Tribunal to hold his appointment irregular;, and (iii) in view of the guidelines issued by the State Government, under which irregular ap pointments were regularised, even if it is assumed his initial appointment was irregular it has to be treated regular throughout.
Allowing the appeal and setting aside the order of the Tribunal this Court: HELD :1.
Rule 7(2) of the Karnataka Civil Services (Classification, Control & Appeal ) Rules, 1957 read with column 2 of Schedule 11 thereto clearly shows that the Director is the appointing authority for Junior Engineers.
The appellant was found qualified and was duly selected by the Public Service Commission and appointed as Junior Engi neer in 1970.
He worked on the post uninterruptedly till he was promoted to the next higher post of Assistant Drilling Engineer alongwith the respondents No. 3 to 7.
The Tribunal was, therefore, not right in holding that the appointment made was irregular and that the Director was not the ap pointing authority for Junior Engineers.
Accordingly his experience in the post of Junior Engineer from 1970 till his promotion to the next higher post could not be ignored.
[605 F, 604 G, 607 H, 608 A] 2.
Since the posts existed on the establishment and selection for appointment was made by the State Public Service Commission and the Director was competent to make the appointment, it cannot be said that the absence of recruitment rules made the appointment illegal or irregular.
Moreover, the irregular appointments were regularised by the Government Memorandum dated 5th July, 1976.
[606 B C] 3.
The appellant 's seniority which had stabilised over a period of time and on the basis whereof he was granted promotions by the Government could not be disturbed by doubting the regularity of the initial appointment after so many years.
It was not as if he had gained experience as an ad hoc employee in a stop gap arrangement that his experi ence as a Junior Engineer could be overlooked.
Therefore, his 601 seniority in the promotion post could not be upset on the ground that he did not possess the requisite experience.
[607 B C] Direct Recruit Class H Engineering Officers ' Associa tion vs State of Maharashtra & Ors.
; , fol lowed.
The appellant 's seniority over respondents No. 3 to 7 shall be restored and he shall be shown to be senior to them.
[608 B]
|
iminal Appeal No.404 of 1979.
From the Judgment and order dated 19.4.79 of the Punjab High Court in Criminal Appeal No.843 of 1976.
A.N. Mulla, N.D. Garg and T.L. Garg for the Appellants.
Ms. Amita Kohli and R.S. Suri for the Respondents.
The Judgment of the Court was delivered by PUNCHHI, J.
This appeal by special leave is directed against the judgment and order of the Punjab and Haryana High Court at Chandigarh dated April 19, 1979 passed in Criminal Appeal No. 843 of 1976.
The appellants herein are five in number.
They along with four others were sent up for trial before the Court of Session, Faridkot on various charges as detailed in the judgment under appeal.
Those four co accused of the appel lants were acquitted by the learned Sessions Judge, and the matter seems to have rested there because apparently the State of Punjab did not rake up the issue against those four accused.
On the basis thereof, the principle plea of the appellants through their counsel herein is that when four accused have been acquitted, the prosecution story itself has lost credence, entitling the appellants to acquittal.
It is this plea which has engaged our attention.
579 The parties belong to village Talwandi Bhagerian, Distt.
Faridkot, Punjab.
Thereat was a vacant plot belonging to Karnek Singh, Jagatjit Singh and Wasakha Singh sons of Partap Singh, who were living abroadAdjoining thereto was the outer house of Balwant Singh P.W.15.
According to the prosecution, Balwant Smgh P.W.15 had put up a boundary wall around it as also a structure thereon storing wheat chaff therein, besides putting cotton sticks and dung manure in the unbuilt space.
Mohinder Singh son of the said Balwant Singh P.W.15 moved the Civil Court through a suit on Decem ber 10, 1975 seeking a decree for permanent injunction restraining his co villager Jiwan Singh, his sons Naib Singh appellaht herein and Mohinder Singh an acquitted co accused, as also the minor sons of the aforesaid two accused from interfering in his possession over the suit land.
The Court on December 10, 1975 granted interim injunction restraining the impleaded defendants from interfering with the posses sion of the plaintiff over the disputed plot.
Later on the request of the defendants, the Civil Court on 29 1 1976 identified the suit property being in Khasra No.345, 346 and 356 and out of the same vide Order exhibit
D 16, vacated the temporary injunction in respect of Khasra No. 345 and 346 confirming the same in respect of Khasra No.356.
Besides there had been security proceedings between Mohinder Singh aforesaid and his brother Ginder Singh (one of the victims) on the one hand and Nirmal Singh and Darshan Singh acquitted co accused and some others, on the other.
However, both parties were ultimately discharged by the Court.
The occurrence took place in that integral on 16 12 1975 when the temporary injunction was in force.
The complainant party except for P.Ws. 18 and 19 are members of one family.
This relationship is disclosed in the judgment of the learned Sessions Judge as also by the High Court.
We would not burden this judgment with details thereof.
The fact remains that on the night intervening 15th and 16th Decem ber, 1975, Jugraj Singh P.W.14, Balwant Singh P.W.15, Ginder Singh, since deceased and Assa Singh had slept in a room in their outer house, and where they were keeping their cattle also.
At about 8.00 a.m. on December 16, 1975, all the inmates of the outer house, and others having joined them having come from their residential house, at that ' time were busy doing their assigned chores.
At that juncture, the five appellants namely, Hoshiar Singh, armed with SBBL gun, Jalaur Singh, armed with a 12 bore DBBL gun, Ex.M.O/5, Sardara Singh, armed with a gandasa, Ex.M.O./2, Ram Singh alias Ram Charan Singh, armed with SBBL gun, exhibit
M.O./6 and Naib Singh son of Jiwan Singh, armed with a DBBL gun, exhibit
M.O./7 entered the house accompanied by five other men.
They were the four acquitted co accused namely, Thamman Singh, unarmed, Darshan Singh, armed with a gandasa, 580 Mohinder Singh, son of Jiwan Singh (brother of Naib Singh, appellant) armed with a spear, Nirmal Singh, armed with a rifle and Major Singh, the fifth man, armed with a DBBL gun, who was lately injured during the occurrence.
Thamman Singh acquitted co accused raised an exhortation challenging Ginder Singh that he would not be spared.
Tham man Singh, then caught hold of the long hair of Ginder Singh and thereupon Nirmal Singh acquitted co accused fired a shot with his rifle hitting Ginder Singh on his left flank.
On Ginder Singh falling down by the side of the manger, Sardara Singh appellant gave two successive gandasa blows on the head of Ginder Singh deceased while he was in the process of failing down.
This was the first casualty.
It was followed by Naib Singh appellant firing at Balwant Singh P.W.15 hitting him in the abdomen reflective of at tempt to murder.
Dhanna Singh alias Shinghara Singh a member of the complainant 's family also happened to reach the scene of the occurrence having come from the residential house and while in the door way was fired at by Jalaur Singh appellant with his gun followed by a gun shot by Ram Singh alias Ram Charan Singh appellant hitting Dhanna Singh.
This was the second casualty.
Sukhminder Singh, P.W.16 also reached there and was fired at by Hoshiar Singh appellant hitting him on the left arm and blank, where upon he fell down.
This was the second case reflecting attempt to murder.
The female folk Bhagwan Kaur P.W.17 and Raj Kaur present at the place of occurrence while raising alarm laid themselves over Ginder Singh and Sukhvinder Singh respectively.
Darshan Singh acquitted co accused gave blows from the reverse side of his gandasa to Bhagwan Kaur P.W.17, and Mohinder Singh co accused to Raj Kaur with the blunt side of his spear.
Apart from the members of the family involved Sukhdev Singh P.W.18, Pritam Singh P.W,19, neighbours, had occasion to see the occurrence while standing in their respective houses.
On the side of the accused party, so claimed the prosecution, a Barchha(spear) blow of Mohinder Singh meant to hit Raj Kaur accidently hit the abdomen of Naib Singh appellant.
Like wise, a shot fired by Jalaur Singh appellant accidently caused injury to Major Singh the co culprit, but that injury later proved fatal.
The accused persons took away not only their weapons but a licensed rifle of Ginder Singh and revolver of Mohinder Singh son of Balwant Singh P.W.15 from inside the room (baithak) while going away.
This is the whole prosecution case with regard to the motive and the actual occurrence.
To complete the picture the deceased persons were taken to the Civil Hospital, Moga wherefrom Dr.
A.C. Gupta P.W.I sent intimation to Police Station, Moga Sadar.
Avtar Singh, ASI.
P.W.20 reached the spot and recorded the statement of Jugraj Singh P.W.14 at 11.00 a.m., within three 581 hours of the occurrence, formal F.I.R. of which was recorded at the Police Station at 11.15 a.m.
In that statement vivid details of the occurrence are given.
The injured persons were examined and given medical aid.
The bodies of the deceased persons were subjected to post mortem.
The accused were arrested and weapons were recovered, either from them, or at their instance, on statements made under Section 27 of the Evidence Act.
The accused at the trial pleaded denial to the occurrence but Naib Singh appellant gave written state ment, exhibit
D 6 as his counter version.
The trial resulted in the acquittal of four persons but so far as the appellants were concerned, all of them were held guilty and convicted under Sections 148, 449 IPC awarding them various terms of sentences.
Substantively, Sardara Singh appellant was con victed under Section 302 IPC for having caused the death of Ginder Singh by giving him two fatal gandasa blows.
The remaining appellants were convicted constructively under Sections 302/149 IPC.
All of them were given life sentence.
Jalaur Singh and Ram Singh appellants were substantively convicted under Section 302/149 IPC for causing the death of Dhanna Singh and the remaining appellants under Sections 302/149 IPC, and all were awarded life sentence.
Naib Singh appellant was substantively convicted under Section 307 IPC for murderously attacking Balwant Singh P.W.15, as also Hoshiar Singh appellant under Section 307 IPC for murderous ly attacking Sukhminder Singh P.W.16.
The remaining four appellants in each case were convicted constructively under both counts under Sections 307/149 IPC and awarded various terms of imprisonment.
All the sentences imposed were or dered to run concurrently.
Appropriate orders of disposal with respect to the weapons recovered were passed by the learned Sessions Judge.
As indicated above, the main plea of the appellants is that four accused having been acquitted, despite the eye witnesses deposing to their participation, no credence should be given to the prosecution witnesses in order to maintain the convictions.
The maxim falsus in uno falsus in omnibus has been pressed into service.
It appears that the argument as such was not raised before the High Court.
Rather it appears that the High Court 's attention was not invited to the reasoning of the learned Sessions Judge in acquitting the four co accused.
It would be apt therefore to scrutinize that reasoning and see whether the prosecution case has lost credibility on such reasoning.
Thamman Singh acquitted accused was empty handed.
The role attributed to him is that he gave an exhortation chal lenging Ginder Singh deceased to be ready and that he would not be spared.
He then caught hold of the long hair of Ginder Singh.
Thereafter Ginder Singh was as 582 saulted.
At the end of the occurrence, he is blamed of having taken away the licensed rifle of Ginder Singh.
The learned Sessions Judge tended to go in generalities in terming that the evidence of exhortation, in the very nature of things, is a weak piece of evidence and there was quite often a tendency to implicate some person besides the actual assailant.
For this he took the cue from a reported decision of this Court in Jainul Haque vs State of Bihar, AIR 1974 SC 45 as well as a decision of the Punjab and Haryana High Court to that effect in support.
Then without coming to the specifics the learned Sessions Judge abruptly came to the conclusion that when Thamman Singh acquitted co accused had come to the spot empty handed, the exhortation appears to have been introduced in the prosecution case and that the witnesses apparently were out to rope him in.
The two roles attributed to him, namely, of catching the long hair of Ginder Singh and to have carried away the rifle of Ginder Singh went in the same sweep to hold that this was part of the over doing.
The fact that the rifle was being carried by Thamman Singh at the time of his arrest was considered by the learned Sessions Judge to be abnormal as otherwise in the normal course of events, it was expected to have been kept concealed somewhere.
His finding thus in his own words is "the fact remains that I have not been satisfied about the criminality of Thamman Singh." The only comment worth making is that exhortation is necessarily not a padding or over doing and has to be viewed in the correct perspective, in the facts and circumstances of each case.
In the instant case, besides the exhortation, there were other factors available enumerated herein, which could lead the learned Sessions Judge to take the view that he has, and that was a possible view which any cautious Judge could have taken.
But that per se does not mean that the witnesses which had deposed to the participation of the accused at the time of occurrence have to be dubbed as liars.
With regard to Darshan Singh acquitted accused, the role assigned to him is that he gave gandasa blows to Bhagwan Kaur P.W.17 from the reverse side and that he took away the licensed revolver of Mohinder Singh from the room (baithak) of the outer house.
The learned Sessions Judge opined that though the eye witnesses account was that Bhagwan Kaur had received injuries from the reverse side of the gandasa from Darshan Singh, still in the First Information Report given by Jugraj Singh P.W.14, the use of the weapon was mentioned but not of the manner in which it was used.
The learned Sessions Judge took the view that it was normally expected of Darshan Singh to have given at least one gandasa blow to someone from the sharp side as well.
Besides his taking away the revolver from Mohinder Singh after the occurrence did not inspire confidence, like the case of Thamman Singh.
Besides if these two weapons namely the rifle and the 583 revolver were available with the complainant party when the occurrence started it was expected of them to have used those, which had not appeared to have been used.
In that light the act of removing the revolver was viewed with suspicion, more so, when its recovery was made as a result of the disclosure statement after a span of eight days from the date of arrest of Darshan Singh.
The learned Sessions Judge then concluded with these words, "The case against Darshan Singh, accused does not again stand beyond reasona ble doubt".
Now such a view of the learned Sessions Judge was a possible view taken on a cautious approach, without telling on the veracity of the prosecution witnesses.
So far as Mohinder Singh acquitted accused is concerned, he is said to have used a spear blunt wise on Raj Kaur.
Raj Kaur was not found to have any stab or punctured wound.
Further the spear was recovered after seven days of the arrest of Mohinder Singh and that recovery was viewed with suspicion due to the time lag.
The version in F.I.R. was pressed into service about the omission of the specific manner in which the weapon had been used.
The learned Ses sions Judge then held, "I would accordingly give the benefit of doubt to Mohinder Singh accused and acquit him." This finding could be given by the learned Sessions Judge without causing the least dent to the prosecution case.
Shifting the grain from the chaff does not mean loss of grain and gain of chaff.
Such a view of the learned Judge cannot caste a reflection on the case as a whole.
Lastly Nirmal Singh acquitted accused was described in the F.I.R. to be armed with a "pakki banduq" which descrip tion the learned Sessions Judge translates as "rifle".
Since Nirmal Singh is accused to have begun the occurrence by firing at Ginder Singh and Ginder Singh had pellets seen in his dead body, such description of the weapon sowed the seeds of suspicion in the mind of the learned Sessions Judge.
It was at best either a case of a mistaken perception or flash impression that Nirmal Singh, undisputably being a licensee of a rifle, had that rifle.
Finding the description of the weapon being in discord with medical evidence, the learned Sessions Judge found the prosecution case not proved against Nirmal Singh acquitted accused.
Here even though the learned Judge did not extend the benefit of doubt to Nirmal Singh in so many words, his approach is an exercise in that direction.
The acquittal of Nirmal Singh too would cause no affectation to the prosecution case as a whole.
For the views afore expressed and the totality of the circumstances, we do not think that in the instant case the maxim falsus in uno falsus in omnibus is attracted.
The large number of participants in the occurrence would, at some place or the other, leave a place for entertaining some 584 doubt.
But here the prosecution case as a whole remains strong supported as it is by the independent evidence of P.Ws 18 and 19, the neighbours, and the occurrence having taken place in the house of the complainant party.
It was next contended that the prosecution has cocealed its own guilty part and has not explained the way the in juries were caused to Major Singh Deceased and to Naib Singh appellant.
The argument ' is barely to be noticed and reject ed.
Significantly Jugraj Singh in the First information Report specifically mentioned that the injuries to Major Singh deceased and Naib Singh appellant were as a result of the doings of accused persons themselves and in the circum stances narrated above all the eye witnesses have cogently and consistently deposed to that effect.
The findings of both the courts below are that the occurrence took place in the courtyard of the outer house of the complainant party.
Blood stained earth was collected from four places therein during investigation.
Time of the occurrence being 8.00 a.m. and the inmates of the house being busy with their daily chores leaves one to pose the question as to why should the complainant party anticipate an assault and be ready with fire arms to put them to use.
It does not stand to reason that the complainant party having licensed weapons, if anticipating an assault, to hhave not kept the same ready for use.
The fact that these licensed weapons of the com plainant party are not shown to have been used by itself goes a long way to establish that the injuries received by Major Singh deceased and Naib Singh appellant were acciden tal and suffered in the manner as suggested by the prosecu tion.
On this score also we remain unconvinced of the argu ment.
Having examined the prosecution case as finally estab lished at the level of the High Court and having seen the reasoning of the Court of Session in acquitting the four accused, and also for the reasons set out above, we go to hold the appeal to be devoid of merit and accordingly dis miss the same.
The appellants are on bail.
They are required to surrender to their bail bonds forthwith .
R.P. Appeal dis missed.
| A litigation regarding possession of a certain plot of land was pending in the civil court between the complainants and the accused persons.
On 16.12.1975 at about 8 a.m. the accused, armed with fire arms and sharp edged weapons, reached the outer house of the complainants and attacked them.
According to the prosecution case, accused No. 4 who was unarmed, raised an exhortation challenging deceased 1l, and caught hold of his long hair while accused 1 fired a rifle shot at him and accused No.7 gave two successive gandasa blows on his head.
Accused No.9 fired a shot at PW 15.
Accused nos.6 and 8 fired one shot each at deceased 2 who also succumbed to his injuries.
PW 16 was fired at by accused No. 2 hitting him at the left arm and flank.
Accused No. 3 and 5 gave blows from the reverse side of gandasa and spear to PW. 17 and another woman respectively.
On the side of the accused, a spear blow of accused No. 5 accidently his accused No. 9 and a shot fired by accused No. 6 accidently hit another man on the side of the accused who later on died.
Besides the members of the complainant 's family, the neighbours, PWs, 18 & 19 also witnessed the occurrence.
The accused were alleged to have run away taking a rifle and revolver belonging to the complainants.
The police investi gation culminated in the trial of the 9 accused.
576 The Trial Court acquitted four accused (nos.1 and 3 to 5 ) but convicted the appellants (accused nos.
2 and 6 to 9) of offences punishable under sections 148, 149, 302, 302/149, 307 and 307/149 and sentenced them to various terms of imprisonment.
The appeal filed by the appellant having been dis missed by the High Court, an appeal by special leave to this Court was filed.
It was contended on behalf of the appellants that the four accused having been acquitted despite the eye witnesses deposing to their participation in the alleged incident, no credence should be given to the prosecution witnesses in order to maintain the convic tion; and that the prosecution failed to explain the way the injuries were caused to the persons on the accused side.
Dismissing the appeal, this Court, HELD :1.
The large number of participants in the occurrence would, at some place or the other leave a place for entertaining some doubt.
But in the instant case the prosecution case as a whole remained strong supparted as it was by the independent evidence of P.Ws.18 and 19, the neighhours.
The occurrence took place in the Courtyard of the outer house of the complainant party.
Blood stained earth was collected from four places therein during investi gation.
In the totality of circumstances it cannot be said that the maximfalsus in uno falsus in omnibus was attracted.
[583 H; 584A,C] 2.
Exhortation is necessarily not a padding or over doing and has to be viewed in the correct perspective, in the facts and circumstances of each case.
[582E] In the instant case, the roles assigned to accused No. 4 who was acquitted, that he gave [an] exhortation, caught hold of the long hair of deceased 1 and carried away his rifle after the incident, were, according to the Sessions Judge, part of the overdoing.
The fact that the rifle was being carried by the accused at the time of his arrest was considered by him to be abnormal as otherwise in the normal course of events it was expected to have been kept con cealed.
The Sessions Judge held that he was not satisfied about the criminality of accused No. 4.
[582 C D] 577 Besides the exhortation, there were other factors avail able which could lead the Sessions Judge to take the view that he had, and that was a possible view which any cautious Judge could have taken.
But that per se does not mean that the witnesses who had deposed to the participation of the accused at the time of occurrence have to be dubbed as liars.
[582 E F] Jainul Haque vs State of Bihar, AIR 1974 SC 45, referred to.
3.1 With respect to acquitted accused No. 3, the SeS sions judge held that though PW 17 had received injuries from the reverse side of the gandasa from the accused still in the FIR the use of weapon was mentioned but not the manner in which it was used; and that it was normally ex pected of the accused to have given at least one gandasa blow to someone from the sharp side.
Besides his taking away the revolver from the victim after the occurrence did not inspire confidence.
In the circumstances, the act of remov ing the revolver was viewed with suspicion, more so, when its recovery was made as a result of the disclosure state ment after a span of eight days of the arrest of the ac cused.
The view of the Sessions Judge that the case against acquitted accused No. 3 did not stand beyond reasonable doubt was a possible view taken on a cautious approach, without telling on the veracity of the prosecution witness es.
[582 G H; 583 A B] 3.2 Acquitted accused No. 5 was said to have used a spear bluntwise but the concerned victim was not found to have any stab or punctured wound.
The recovery of the spear taking place after seven days of arrest of the accused was viewed with suspicion due to the time lag.
There was omis sion in the FIR of the specific manner in which the weapon had been used.
The finding of benefit of doubt to accused No.5 could be given by the Sessions Judge without causing least dent to the prosecution case.
Shifting the grain from the chaff does not mean loss of grain and gain of chaff.
Such a view of the learned Judge cannot cast a reflection on the case as a whole.
[583 C E] 3.3 As regards acquitted accused No.1, finding the description of the weapon being in discord with the medical evidence the Sessions Judge held the prosecution case not to have been proved against the accused.
Even though the Ses sions Judge did not extend the benefit of doubt to the accused in so many words, his approach was an exercise in that direction.
The acquittal of accused No.1 too would cause no affectation to the prosecution case as a whole.
[589 F G] 578 4.1 The first information report specifically mentioned that the injuries to the persons on the side of the accused were as a result of the doings of accused persons them selves; and all the eye witnesses cogently and consistently deposed to that effect.
[584 B C] 4.2 The time of the occurrence being 8.00 a.m. and the inmates of the 'house being busy with their daily chores, the complainant party would not anticipate an assault and be ready with fire arms to put them to use.
The fact that the licensed weapons of the complainant party were not shown to have been used by itself established that the injuries received by the persons on the side of the accused were accidental and suffered in the man ner as suggested by the prosecution.
[584 D E]
|
Appeal No.1865 of 1975.
From the Judgment and Decree dated 7/10.2.1975 of the Gujarat High Court in First Appeal No. 291 of 1967.
566 A.S. Qureshi, N.K. Sahoo, P.H. Parekh, and Ms. Chetna Anand for he Appellant.
Dushyant Dave, Mrs. Nandini Gore for Mrs. M. Karanjawa la, R. Karanjawala (N.P), Anip Sachthey and Rajesh for the Respondents.
The plaintiffs Nos. 2 to 4 were Dumaldars of village Nalej of erstwhile State of Chhota Udepur (hereinafter referred to as the jagirdars).
The jagirdars vide exhibit 58 dated 9.1.1954 sold all the teak trees in favour of plaintiff no.1 (hereinafter referred to as the contractor) for a sum of Rs.6,001/ and received a sum of Rs. 101/ as earnest money.
By another agreement exhibit 59 dated 29th July, 1954, the jagirdars sold all the Mahuda trees in favour of the con tractor for a sum of Rs. 5001/and received sum of Rs. 600/ as earnest money.
On 1st August, 1954 Bombay Merged Territo ries and Areas (Jagirs Abolition) Act, 1953 (hereinafter referred to as the 'Jagir Abolition Act ') was applied to village Nalej.
The compensation in lieu of trees was not awarded to the Jagirdars as the same had already been sold by the Jagirdars in favour of the contractor.
The contractor made an application to the Collector of Baroda under sou rashtra Felling of Trees Act for permission to cut the trees in question.
The Collector forwarded the application to the Mamlatdar of Chhota Udepur who granted the permission vide order dated 25th September, 1961.
The contractor then start ed cutting the trees in question.
However, the Prant Offi cer, Chhota Udepur prevented the contractor from cutting the trees.
The contractor then made representations to the Divisional Forest Officer and the Government.
In reply the contractor was told that the Jagirdar had no right to the trees standing in the reserved forest area and in the waste land.
Thereupon the contractor 's authorisation to cut the trees and his transit passes to transport the goods were withheld.
The Government invited tenders for the sale of the trees already cut and sold the same on 30th July, 1962 for a sum of Rs.15786/ .
The Government also sold other trees to other persons and realised from them some amounts.
The Jagirdars and the contractor filed a suit against the Gov ernment of Gujarat and the Divisional Forest Officer, Chhota Udepur, District Baroda for rendition of account, for a declaration of the plaintiffs title of the trees in question and for a declaration of the right of the contractor to cut the trees in question and to remove the cut materials.
567 A declaration was also sought that the impugned action of the Government was illegal, ultra rites and unlawful and to give a direction to the Government to issue the necessary authorisation and transit passes for cutting and removing the trees in question in favour of the contractor.
It was also prayed that out of the sale proceeds of the cut materi als on 30th July, 1962 for Rs.15786/ an amount of Rs.1267.82 having paid by the Divisional Forest Officer, a decree for the balance of Rs.14518.18 may be passed against the Government.
The Trial Court by judgment dated 31st March, 1967 partly decreed the suit.
It was declared that the jagirdars were the full owners of the trees and as such the contractor had also become the full owner of the trees.
It was also declared that the contractor was entitled to cut and remove these trees and the State of Gujarat, its officers, servants and agents were ordered to issue necessary permit, authori sation and transit passes to plaintiff no.1 (contractor) for removal of the trees.
The state was also ordered to pay Rs.14518.18 together with proportionate costs and interest at 4% per annum on this amount from the date of decree till realisation.
The State of Gujarat, its officers, servants and agents were also restrained by perpetual injunction not to interfere with the rights of ownership of the plaintiffs except in due course of law.
Prayer for rendition of ac counts was dismissed.
The State of Gujarat, aggrieved by the Judgment and decree of the Trial Court filed an appeal in the High Court.
The Division Bench of the High Court allowed the appeal, set aside the decree passed by the Trial Court and dismissed the suit.
The cross objections filed by the plaintiffs were also dismissed.
It would be necessary to state some events which have a material bearing with the case.
The Jagir Abolition Act came into force on 1.8.54 as already mentioned above.
The Govern ment issued a notification dated 15th February, 1955 under Sec. 4 of the and constituted cer tain survey numbers of the village Nalej into a reserve forest.
Thereafter another notification was issued under section 20 of the constituting survey No.102 alone into a reserve forest.
It may be noted that in the present case we are concerned with the Teak and Mahuda trees standing on survey No.102 of village Nalej.
Learned counsel appearing on behalf of the State of Gujarat had raised the following contentions before the High Court: 1.
Under the Forest Rules of Chhota Udepur State, Chhota Udepur State had exercised rights over three kinds of forest 568 reserved, protected and open.
These rights devolved upon the State of Gujarat.
Therefore, the State of Gujarat can exercise those rights and issue under section 4 of the the impugned notification.
Under the Forest Rules of Chhota Udepur State 21 kinds of trees including teak and mahuda trees were reserved trees and they were prohibited from being cut.
The interest which Chhota Udepur State had in those trees de volved upon the State of Gujarat and, there fore, under Section 4 of the it was within the power and authori ty of the State of Gujarat to issue the im pugned notification.
Under section 5 of the Jagir Abolition Act the soil vested in the Jagirdars and not the trees.
Therefore, the jagirdars could not have sold away to the contractor the trees in question.
Since the trees in question had vested in the State it was within the power and authority of the State to issue the im pugned notification.
The agreement executed by the Jagirdars in favour of the contractor were not valid and, therefore, not enforceable at law.
They did not confer any title upon the contractor.
Alternatively, if the contractor had acquired any rights under the said agreements, his remedy lay in claiming compensation in respect of his rights which were hit by the impugned notification.
The High Court dealt with the above four contentions in seriatim.
While dealing with the first contention the High Court considered that the decision of the appeal largely turned upon the forest Rules of Chhota Udepur State.
The High Court after considering the matter in detail held that survey No.102 of village Nalej was a reserved forest during the days of Chhota Udepur State.
The High Court referred to the forest Rules of Chhota Udepur State in order to find out the position in relation to survey no.102 of Nalej.
Schedule 'A ' of the Rules contained the detailed discription of areas which was declared as reserved forest.
At serial No.11 Village Nalej has been mentioned amongst other villages.
Columns 7 and 8 showed that an area of 250 acres and 14 gunthas of village Nalej was declared as reserved forest.
No survey number of that area had been mentioned therein.
According to the High Court this Entry in Schedule 'A ' lends support to the fact that there was one reserved forest admeasur 569 ing 290 acres and 14 gunthas in village Nalej of Chhota Udepur State.
Survey No.102 of Village Nalej as a reserved forest was not mentioned but this was on account of the reason that Chhota Udepur State made its forest Rules in 1934 which were published in 1938 when the reserved forest area of village Nalejj did not bear any survey number.
However, it was mentioned in the Rules that there was one reserved forest in village Nalej to the extent of 290 acres and 1.4 Gunthas.
The plaintiffs themselves admitted in agreement exhibit 59 that survey No.102 was a reserved forest.
It was then held that in respect of a reserved forest Jagirdars did not have the right to cultivate any land nor to cut any trees.
The only right he had was a right to graze cattle and to remove some forest produce in accord ance with Regulations made by Chhota Udepur State in that behalf.
The Jagirdar did not have any right to any trees situated in reserved forest.
With the merger of Chhota Udepur State with the then State of Bombay the property belonging to Chhota Udepur State in the reserved forest devolved upon the State of Bombay and subsequently upon the State of Gujarat.
The High Court thus accepted the first contention raised on behalf of the State of Gujarat.
The High Court then considered the second contention and in this regard observed that Rule 4 of the Forest Rules of Chhota Udepur State contained the list of reserved trees.
21 kinds of trees had been listed as reserved trees which included the teak and Mahuda trees which formed the subject matter of the two transactions between the Jagirdars and the contractor.
The High Court then held that the right to forest produce which Chhota Udepur State had in respect of such trees in the "open forest" devolved upon the State of Bombay, on merger of Chhota Udepur State with it and there after upon the State of Gujarat.
It was thus held that the second contention raised on behalf of the State was right and the same was upheld.
The High Court found no substance in the third conten tion and rejected the same.
However, the High Court observed that in the light of the finding recorded on the second contention it was quite clear that the trees which vested in the Jagirdars vested in them subject to such right or inter est in them which the State had under the Forest Rules of Chhota Udepur State.
In the 4th and last contention challenging the validi ty of the two agreements exhibits 58 and 59, the High Court observed that there are two aspects of this contention.
The first aspect is that agreements exhibits 58 and 59 were compulsorily registerable and that since they were not registered, they did not convey any title to the contractor in respect of the 570 subject matter of the agreements.
The High Court in this regard held that what was transferred was the standing timber and not any interest in soil.
Therefore, the two agreements were not compulsorily registerable.
The High Court then considered the second aspect of the 4th conten tion.
It was argued on behalf of the State that all the survey numbers to which agreements exhibits 58 and 59 relat ed were waste lands and as such under section 8 of the Jagir Abolition Act they vested in the State.
The High Court in this regard held that forest lands are not waste lands.
Therefore, if they have not vested by virtue of the provi sions of section 8 of the Jagir Abolition Act in the State of Gujarat.
The High Court in view of the findings recorded above on the first and second contentions in favour of the state, allowed the appeal and dismissed the suit filed by the plaintiffs.
Learned counsel for the plaintiffs appellants raised altogether new line of argument before us.
It was submitted that the appellants did not challenge the existence or the legality of the Chhota Udepur Forest Rules but their submis sion was that the said Rules did not apply to the facts and circumstances of this case.
It has been contended that the aforesaid forest Rules, together with all other laws of Chhota Udepur State, stood repealed on 28.7.48 when the Indian States (Application of Laws) Order 1948 came into force.
On and from 28.7.1948 the , and the Rules made thereunder became applicable.
The two agreements were made on 9.1.1954 and 29.7.1954 long after the Chhota Udepur Forest Rules were repealed and before the issuance of the notification by the Government dated 12.5.55 declaring its intention to make a part of survey No. 102 of Nalej as reserved forest under Sec.4 of the .
It has thus been submitted that so far as the impugned contracts are concerned the same are not adversely affected either by the Forest Rules of Chhota Udepur State or by the Notifica tion issued under section 4 of the .
It has been contented that the High Court was wrong in holding that the impugued contracts dated 9.1.1954 and 29.7.1954 could not pass any right on the contractor as the same were hit by the provisions of Chhota Udepur State Forest Rules, when in fact those forests Rules had already been repealed.
It was also argued that the High Court 's decision about reserved forests is based on surmises and so called admis sion in the contract exhibit 59.
The words used in the plaint are "alleged jungle bhag" which does not amount to an admission that it is a reserved forest.
In the agreement exhibit 59 the words used are "So called reserved forest" and subsequently in the same agreement the words used are "reserved Padtar (vacant)".
It has thus been submitted that the earlier use of words 'so called ' is not repeated subse quently and as such it means that the plaintiffs had denied 571 the same to be reserved forest.
As regards Entry No.11 in the Schedule to the Forest Rules of Chhota Udepur State, the High Court itself has observed that no survey number is mentioned.
This itself goes to prove that survey No.102 was not intended to be covered by the said Entry No.11.
Thus it was not proved that survey No.102 was a reserved forest.
It was further argued that assuming that survey No.102 in village Nalej was a reserved forest under the Forest Rules of Chhota Udepur State, it ceased to be so from 28.7.48.
It is an admitted position that the Notification under Section 4 of the was published on 12.5.55 and in case survey No.102 of village Nalej was already continuing as reserved forest under the Forest Rules of Chhota Udepur State, then there was no necessity at all of issuing a fresh Notification under Section 4 of the .
The fact that such Notification was issued on 12th May, 1955 clearly goes to show that survey No.102 did not constitute reserved forest in between the period 28.7.48 to 12.5.55.
We do not find any force in the above submission made on behalf of the appellants.
So far as the legality of the Chhota Udepur State 's Forest Rules is concerned, it was nowhere challenged by the plaintiffs.
In the written submis sions filed before us on behalf of the appellants the point made at 1.1 itself reads as under: "The appellants do not challenge the existence or the legality of the Chhota Udepur Forest Rules (hereinafter the Forest Rules).
The appellants merely submit that those Rules do not apply to the facts and circumstances of this case".
Apart from the above stand taken by the appellants themselves, Judgment of the High Court of Gujarat in Special Civil Application No. 404/61 State of Gujarat vs Kumar Shri Ranjit Singhji Bhavani Singhji, Shn C.M. 7halair Jagir Abolition Officer, Baroda and others decided on 22nd April, 1965 has been placed on record by the Learned counsel for the appellants.
In the aforesaid judgment Shelat, C.J., and Bhagwati, J. (as he then was) have observed that in 1934, the State of Chhota Udepur promulgated amended Forest Rules under Notification of August 1, 1934.
The Notification was issued under the signature of the Ruler himself.
These Rules, therefore,.
became and constituted the law of the State.
The High Court in the impugned order before us has also placed reliance on such Rules.
The High Court has rightly held that at serial No.11 an area of 290 acres and 14 gun thas of village Nalej was declared as reserved forest.
No survey number on that area could have been mentioned because the reserved forest area of village Nalej did not bear any survey number at that time.
However, it cannot disputed be that there 572 was one reserved forest in village Nalej admeasuring 290 acres and 14 gunthas and the plaintiffs themselves have admitted in the plaint that the trees in question were in the alleged jungle bhag.
In the agreement exhibit 59 also the words used are "so called reserved forest".
Thus apart from the above admissions, the entire case has been contest ed in the trial court as well as in the High Court on the assumption that the trees in question were standing on the area of reserved forest declared by the Chhota Udepur State.
In case the plaintiffs wanted to show that the trees in question were not inside the reserved forest area they should have taken such stand in a clear manner and it .would have been very easy for them to succeed in the suit without going through all the various legal submissions made by the parties.
Thus we see no reason to take a different view from the High Court and we affirm the finding of the High Court in this regard that the trees in question stood on the area which was declared as reserved forest under the Forest Rules framed by the Chhota Udepur State.
In order to appreciate the other submission made by the learned counsel for the appellants we would refer to the Indian States (Application of Laws) order, 1948 (hereinafter referred to as 'Application of Laws order ' 1948).It would be necessary to reproduce Section 5 which repeals the enact ments in force in Indian States.
Section 5: Repeal of enactments in force in Indian States: All enactments in force in the Province of Bombay and extended to any such State under paragraph 3 shall stand repealed: Provided that the appeal by this Order of any such enactments shall not affect the validity, invalidity, effect or consequence of any 'thing already done or suffered or any right, title, obligation or liability already acquired, accrued or incurred, or any remedy or proceed ing in respect thereof, of any release or discharge of or from any debt, penalty, obli gation, liability, claim or demand or any indemnity already granted, or the proof of any past act or thing; Nor shall the repeal by this order of any enactment affect any principle or rule of law, or established jurisdiction, form or course of pleading, practice or procedure, or existing usage, custom, privilege, restriction, exemp tion, office or appointment, in so far as the same respectively is not in any way inconsist ent with any of the enactments extended under paragraph 3 of this order, notwithstanding that the same respectively may have been in any manner affirmed, recognised or derived by, in or from any enactment hereby repealed; 573 Nor shall the repeal by this order of any enactment revive or restore any jurisdiction, office, custom, liability, right, title, privilege, restriction, exemption, usage, practice, procedure or other matter or thing not now existing or in force immediately before the date on which this order comes into force.
There is no doubt that Chhota Udepur State, has been mentioned in Schedule 1 of the Application of Laws order and all enactments in force in Chhota Udepur stood repealed and the mentioned in Schedule 11 became applicable, but the proviso to section 5 clearly provides that the repeal by this order shall not affect any right, title, obligation or liability acquired, accrued or in curred.
Thus the Jagirdars had already acquired accrued or incurred a liability in respect of the trees in question which were part of the reserved forest as declared under the Forest Rules of Chhota Udepur State.
There is nothing on the record to show that the Jagirdars were cutting trees from the part of village Nalei which was declared reserved forest during the time of erstwhile Chhota Udepur State.
Jagirdars could not have given a better title to the contractot in respect of the trees, which the jagirdars themselves did not possess.
The repealing of the Forest Rules of Chhota Udepur State on 28th July, 1948 did not furnish any additional or increased rights to the Jagirdars which they did not have before the merger of Chhota Udepur State.
It has been vehemently contended on behalf of the appel lants that it was a case of full proprietorship right in the Jagir and the Jagirdars had full and complete rights of ownership in the soil, as well as the trees.
Reliance is placed on the definition of proprietary jagir under Clause XVIII as conternplated in section 2 of the Jagir Abolition Act which reads as under: "Proprietary Jagir" means a Jagir in respect of which the Jagirdar under the terms of a grant or agreement or by custom or usage is entitled to any rights or interest in the soil".
It has been contended that the Jagirdars in the present case had not only a right over the trees but also interest in the soil and as such they had full right to sell the trees to the contractor.
It was submitted that even if there were any restrictions on cutting of trees so long as forest rules of Chhota Udepur State remained in force that restric tion was removed on 28.7.48 when such rules were repealed by the Application of Laws order.
After the forest rules of Chhota Udepur State were repealed, the Jagirdars got full right to alienate the trees as such right was inherent in the right of proprietary Jagir.
It was also submitted that the Government of Bombay had itself taken policy decision that all contracts made by the Jagirdars prior to the aboli tion of jagits on 1.8.54 shall be honoured.
It cannot be considered the intention of the Government to take away such vested rights 574 in the jagirdar having come into force on 28.7.48, after a lapse of seven years by issuing a Notification on 12.5.55 under Section 4 of the .
It has also been contended that the Government has recognized that right of full ownership in the trees in favour of other jagirdars similarly situated and there was no justification for taking such arbitrary and discriminatory action against the plain tiffs alone.
The above submissions are based on a total misconcep tion.
As already mentioned above, there is no question of taking away any rights.
It is no doubt correct that it is a case of proprietary jagir, but it does not confer any right in respect of trees standing in a reserved forest.
Once it is established that during the time of existence of erst while State of Chhota Udepur an area admcasuring 290 acres and 14 gunthas in village Nalej was declared as reserved forest and Jagirdars had no right at all in the trees stand ing in such area of reserved forest, the Jagirdars cannot be considered to have acquired a greater right on 28.7.48 when the Forest Rules of Chhota Udepur State were repealed by the Application of Laws order.
There is another insurmountable difficulty for the plaintiffs in as much as the trees had not been cut and removed prior to 12.5.55 when admittedly a notification has been issued under Sec. 4 of the also.
That being so no relief can be sought for cutting and removing the trees in question after 12.5.55 as the survey No.102 has been constituted as reserved forest under the provisions of The tree in question are teak and Mahuda trees which were out of 21 kinds of trees declared as reserved trees which were prohibited from being cut under the extent of forest rules of Chhota Udepur State.
Such trees even if standing in forest were not allowed to be cut.
Thus examining the matter from any angle, we are already of the opinion that the plaintiffs are not entitled to any relief as claimed in the suit.
So far as the ground of discrimination is concerned, it is well settled that in order to establish the same it is necessary to make out such case in the pleadings.
In the present case no such ground was taken in the plaint nor any facts or material were placed on record during the trial of the suit or before the High Court and the same cannot be considered for the first time before this Court, specially when the defendants were not given any opportunity to meet the same.
In our view the High Courts was right in dismissing the suit.
In the result we find no force in this appeal and the same is dismissed.
In the facts and circumstances of the case we direct no order as to costs.
Y.L. Appeal dismissed.
| This appeal by the plaintiffs is against an order of rever sal dtd.7/10th February, 1975 passed by the Gujarat High Court.
Plaintiff No.1 first appellant is the contractor and Plaintiffs Nos.
2 to 4, the other appellants.
are the jagir dars of the farmer State of chhota Udepur.
The Jagirdars sold some teak trees to plaintiff No.1, contractor.
With effect from 1.8.1954, the Bombay Merged Territories and Areas (Jagirs Abolition) Act, 1953 was made applicable to village Nalej,and no compensation was awarded to the Jagir dars in lieu of the trees, as they had sold them to appel lant No.1 (since dead) and now represented by his legal representatives.
The contractor made an application to the Collector of Baroda under Sourashtra Felling of Trees Act for permission to cut the trees in question, which was forwarded to Mamlatdar of Chhota Udepur who granted the same on 25.9.1961 as a consequence whereof the contractor started cutting the trees.
The Prant Officer, Chhota Udepur however, prevented the contractor from cutting the trees whereupon the contractor represented the matter before the Divisional Forest Officer and the State Government but was told that the Jagirdars had no right to the trees standing in the reserved forest area and in the waste land.
The Government sold the trees already cut for Rs. 15786 and also sold the other trees to some other persons.
The Jagirdars and the contractor filed a suit against the State of Gujarat and the Divisional Forest Officer.
Chhota Udepur, District, Baroda for rendition of accounts, for declaratio of the plaintiffs ' title to the trees, for a declaration of the right of the contractor to cut the trees and to remove the same, and for direction to the State to issue the necessary authorisation and transit passes for cutting and removing the trees in question in favour of the contractor.
Decree for the balance of the amount of Rs. 14518.18 after adjusting Rs. 1267.82 already received was also sought.
The trial court partly decreed the suit holding that the jagir dars were the full owners of the trees and as such the 564 565 contractor had also become the full owner thereof.
The State was also ordered to pay Rs. 14518.18 with proportionate costs and interest at 4 per centum per annum on this amount from the date of decree till realisation.
The State of Gujarat appealed against that order to the High Court of Gujarat contending (i) that under Forest Rules of Chhota Udepur State, Chotta Udepur State had exercised rights over three kinds of forest reserved, protected and open, the State of Gujarat was thus competent to issue notification under sec.
4 of the Indian Forest Act, 1947.
(ii) under the rules, Mahuda and teak trees were reserved trees and they are prohibited from being cut; (iii) under the Jagir Abolition Act, Section 5, the solid vested in the jagirdar and not the trees; hence Jagirdars could not have sold the trees and (iv) the agreement executed between the contractor and the Jagirdars was not enforceable at law; the contractor could not claim any right/interest under the same.
The High Court negatived all the contentions and the rights accruable to the contractor under the agreement and allowed the appeal of the State and dismissed the suit filed by the appellants.
Hence this appeal by the appellants.
Dismissing the appeal, this Court HELD: The trees in question stood on the area which was declared as reserved forest under the forest rules framed by the Chhota Udepur State.
[512 B] Once it is established that during the time of existence of erstwhile State of Chhota Udepur an area admeasuring 290 acres and 14 gunthas in village Nalej was declared as re serve forest and jagirdars had no right at all in the trees standing in such area of reserved forest, the Jagirdars cannot be considered to have acquired a greater right on 28.7.48 when the Forest Rules of Chhota Udepur State were repealed by the Application of Laws Order.
[514 C D]
|
Appeal No. 4488 of 1991.
From the Judgment and Order dated 8.4.91 of the Delhi High Court in C.W.P. No. 749 of 1990.
R. Mohan for the Appellant.
F.S.Nanman, Kailash Vasudev, Ms. Alpana Kitpal and M.J.Paul for the Respondents.
The following order of the Court was delivered: K. JAGANNATHA SHETTY, J. Leave granted.
When we are moving forward to achieve the constitutional guarantee of equal rights for women the life Insurance Corporation of India seems to be not moving beyond the status quo.
The case on hand illustrates this typical atti tude of the Corporation.
The petitioner applied for the post of Assistant in the Life Insurance Corporation of India ("the Corporation").
She was called for written test and also for interview.
She was successful in both the tests.
She was asked to fill a decla ration form which she did and submitted to the Corporation on 25 May 1989.
On the same day, she was also examined by a lady doctor and found medically fit for the job.
The Doctor who examined the petitioner was in the approved panel of the Corporation.
The petitioner was directed to undergo a short term training programme.
After successful completion of the training she was given an appointment letter dated 25, Sep tember 1989.
She was appointed as Assistant in the Corpora tion.
She was put on probation for a period of 6 months.
She was entitled to be confirmed in the service subject to satisfactory work report.
The petitioner took leave from 9 December 1989 till 8 March 1990.
In fact, she applied for maternity leave on 27 December 1989 followed by medical certificate dated 6 Janu ary.
She was admitted to the Nursing Home of Dr. Hira Lal on 10 January 1990.
She delivered a full term baby on 11 January 1990.
She was discharged from Nursing Home on 19 January 1990.
On 13 February 1990, the petitioner was discharged from the serv 149 ice.
It was during the period of her probation.
It would appear from the order of discharge that no ground was as signed in it and it seems to be a discharge simplicitor.
The petitioner moved the High Court under Article 226 of the Constitution challenging that order on the ground that it was not a discharge simplicitor but based on some discrepan cy in the declaration made by her before joining the serv ice.
The Corporation in the counter resisted the case stat ing that the petitioner 's work was not satisfactory and as such under the terms of the appointment she was discharged without notice and without assigning any reason.
The High Court refused to interfere with the termination.
The High Court observed that the Petitioner 's work during the period of probation was found to be not satisfactory.
The petitioner has now appealed to this Court.
When the appeal was listed for preliminary hearing this Court issued notice for final disposal and made an order as follows: "The facts of the case compel us to issue an interim mandamus directing the respondents to put the petitioner back to service and we accordingly issue a direction to the respond ent to reinstate the petitioner within 15 days from the date of receipt of this order.
" The Corporation upon service has filed the counter seeking to justify the termination of the petitioner 's services.
It has been stated that the Corporation discharged the service of the petitioner while she was still a proba tioner.
At the time of discontinuing her services as a probationer, no reasons were given and it was an order of discharge simplicitor.
No stigma was imputed to the peti tioner.
The petitioner was on leave from 9 December 1989 till 8 March 1990.
The petitioner had deliberately withheld to mention the fact of being in the family way at the time of filling up the declaration form before medical examina tion for fitness.
The petitioner concealed the fact of her being in the family way.
this was revealed later when she informed the Corporation that she had given birth to a daughter.
The Corporation also made reference to the terms of the declaration as filled in by the petitioner on 25 May 1989: "6.
To be filled in by female candidates only in the presence of the Medical examiner: a) Are you married Yes.
b) If so, please state: 150 i) Your Husband 's Name in full & occupation Mr. PRADEEP MATHUR, Law Officer, Central Pollution Control Board, Nehru Place, New Delhi.
ii) State the number of children, if any, and their present ages: One daughter: 1 year and 6 months.
iii) Have the menstrual periods always been regular and painless, and are they so now? . Yes.
iv) How many conceptions have taken place? How many have gone full term? One.
v) State the date of last menstruation: . 29th April, 1989.
vi) Are you pregnant now? .
No. vii) State the date of last delivery: 14th November, 1987.
viii) Have you had any abortion or miscarriage? .
No." It was further alleged in the counter affidavit that the declaration given by the petitioner was false to the knowl edge of the petitioner inasmuch as, as per her own averment she had delivered a full term baby on 11 January 1990.
The petitioner to her own knowledge, could not have had a men struation cycle on 29 April 1989 as stated by her in the declaration on 25 May 1989.
Dr. S.K. Gupta, MD, of Dr. Hira Lal Child & Maternity Home, where the petitioner was admit ted for delivery has certified that the petitioner had LMP on 3 April 1989.
A copy of the certificate of Dr. Hira Lal has also been produced as Annexure to the Counter Affidavit.
It was asserted that the petitioner had deliberately given in her declaration to the Corporation wrong date of menstru ation as 29 April 1989 and she had given her correct date of LMP as 3 April 1989 to Dr. S.K. Gupta.
If she had mentioned the correct date of her menstruation in her declaration her appointment would have been deferred as per rules.
It was also contended that the decision to discharge the petitioner from the service of the Corporation was on 2 grounds: (1) because of a false declaration given by her at the very initial stage of her service; and (2) her work during the period of probation was not satisfactory.
Reference was also made to the Instruction 16 issued by the Corporation as to the Medical examination for recruit ment of Class 1II and Class IV staff.
Clause 16 of the Instructions reads as trader: "16.
MEDICAL EXAMINATION. ' No person shall be appointed to the services of the Corporation unless he/she has been certified to be of sound constitu 151 tion and medically fit for discharging his/her duties.
The certificates in the form given in Annexure IX should be from a doctor, duly authorized for the purpose by the Appointing Authority.
If at the time of medical examina tion, any lady applicant is found to be preg nant, her appointment to the Corporation shall be considered three months after the delivery.
This would be subject to a further medical examination at the candidate 's cost and sub ject to the ranking list continuing to be valid.
" We have examined the matter carefully.
We have nothing on record to indicate that the petitioner 's work during the period of probation was not satisfactory.
Indeed, the reason for termination seems to be different.
It was the declara tion given by her at the stage of entering the service.
It is said that she gave a false declaration regarding the last menstruation period with a view to suppress her pregnancy.
It seems to us that the petitioner cannot be blamed in this case.
She was medically examined by the Doctor who was in the panel approved by the Corporation.
She was found medically fit to join the post.
The real mischief though, unintended is about the nature of the declaration required from a lady candidate.
The particulars to be furnished under columns (iii) to (viii) in the declaration are indeed embar rassing if not humilating.
The modesty and self respect may perhaps preclude the disclosure of such personal problems like whether her menstrual period is regular or painless, the number of conceptions taken place; how many have gone full term etc.
The Corporation would do well to delete such columns in the declaration.
If the purpose of the declara tion is to deny the maternity leave and benefits to a lady candidate who is pregnant at the time of entering the serv ice (the legality of which we express no opinion since not challenged), the Corporation could subject her to medical examination including the pregnancy test.
In the circumstances the interim order already issued is made absolute.
We however, direct that the appellant is not entitled to the salary from the date of discharge till her reinstatement.
With this direction the appeal stands dis posed of but no order as to costs.
S.B. Appeal allowed.
| The petitioner applied for the post of assistant in the Life Insurance Corporation of India.
She was called for written test and also for interview and was successful in both the tests.
She had to file a declaration form which she submitted to the corporation on May 25, 1989.
On the same day she was also examined by a lady doctor who was on the panel of the corporation and found medically fit for the job.
Thereafter she underwent a short term training programme and given a letter of appointment dated September 25, 1989.
She was put on probation for a period of six months and was entitled to be confirmed in the service, subject to satis factory work report.
The petitioner took leave from December 9, 1989 till March 8, 1990.
She applied for maternity leave on December 27, 1989 followed by medical certificate dated January 6, 1990.
She delivered a full term baby on January 11, 1990 in Dr. Hira Lal 's Nursing Home and was discharged from there on January 19, 1990.
On February 13, 1990 the petitioner was discharged from the service during her period of probation.
No ground was assigned and the order seemed to be a discharge simplicitor.
The petitioner moved the High Court, and the High Court, refused to interfere with the termination since the peti tioner 's work during the period of probation.
was found to be not satisfactory.
Thereafter the petitioner appealed to this Court.
After preliminary hearing the court issued an interim mandamus directing 147 the respondent to put the petitioner back to service within 15 days from the date of receipt of the court order and also issued notice for final hearing.
The corporation upon service of notice, filed the coun ter seeking to justify the termination of petitioner 's services on two grounds: (1) that the petitioner had delib erately withheld to mention the fact of being in the family way at the time of filling up the declaration form before medical examination for fitness.
The same was revealed only when she informed the corporation that she had given birth to a daughter.
(2) Her work during the probation was not satisfactory.
So it was an order of discharge simplicitor.
The Corporation further made reference to Instruction No.16 as to the medical examination for recruitment of class 1II and IV staff, wherein for the purpose of appointment, if at the time of medical examination any lady applicant is preg nant, her appointment shall be considered three months after the delivery.
Granting the appeal, the Court, HELD: While we arc moving forward to achieve the consti tutional guarantee of equal rights for women, the Life Insurance Corporation of India seems to be not moving beyond the status quo.
In the instant case there is nothing on record to indicate that the petitioner 's work during the probation was not satisfactory.
The reason for termination was only the declaration given by her at the stage of enter ing the service, though the petitioner was medically exam ined by the lady doctor and found her medically fit to join the post.
[148 D, E, 151 C] The real mischief though unintended is the nature of the declaration required from a lady candidate specially the particulars required to be furnished under columns (iii) to (viii) which are indeed embarrassing if not humilating.
The modesty and self respect may perhaps preclude the disclosure of such personal problems.
The corporation would do well to delete such columns in the declaration.
If the purpose of the declaration is to deny the maternity leave and benefits to a lady candidate who is pregnant at the time of entering the service, the Corporation could subject her to medical examination including the pregnancy test.
[151 D F] The interim order already given is made absolute though the appellant is not entitled to the salary from the date of discharge till her reinstatement.
[151 G] 148
|
vil Appeal No. 4336 (NL) of 1991, From the Judgment and Order dated 14.9.1989 of the Madras High Court in Writ Appeal No. 697 of 1989.
M.K. Ramamurthy, Mrs. Chandan Ramamurthy and M.A.Krish namurthy for the Appellants.
F.S.Nariman, R.F.Nariman, T.S.Gopalan, Raian Karanjiwa la, Mrs. Manik Karanjiwala, Mrs. V.S.Rekha and Sajai Singh for the Respondents.
The Judgment of the Court was delivered by KULDIP SINGH, J.
Special leave granted.
The Reptakos Brett & Co. Ltd. (hereinafter called the 'Company ') is engaged in the manufacture of pharmaceutical and dietetic speciality products and is having three units, two at Bombay and one at Madras.
The Madras factory.
with which we are concerned, was set up in the year 1959.
The Company on its own provided slab system of Dearness Allow ance (DA) which means the DA paid to the workmen was linked to cost of living index as well as the basic wage.
The said double linked DA Scheme was included in various settlements between the Company and the workmen and remained operative for about thirty years.
The question for our consideration is whether the Company is entitled to re structure the DA scheme by abolishing the slab system and substituting the same by the Scheme prejudicial to the workmen on the ground that the slab system 134 has resulted in over neutralisation thereby landing the workmen in the high wage island.
The first settlement between the Company and the workmen was entered into on August 11, 1964.
While accepting the double linked DA it further provided variable DA limited to the cost of living index up to 5.41 5.50.
Further relief was given to the workmen in the settlement dated July 18, 1969 when the limit on the variable DA was removed.
The Company revised the rates of DA on August 7, 1971.
Thereafter, two more settlements were entered into on July 4, 1974, and January 4, 1979, respectively.
Slab system with variable DA continued to be the basic constituent of the wage structure in the company from its inception.
The position which emerges is that in the year 1959 the Company on its own introduced slab system of DA.
In 1964 in addition, variable DA to the limited extent was introduced but the said limit was removed in the 1969 settlement.
The said DA scheme was reiterated in the 1979 settlement.
It is thus obvious that the slab system of DA introduced by the Company in the year 1959 and its progressive modifications by various settlements over a period of almost thirty years, has been consciously accepted by the parties and it has become a basic feature of the wage structure in the Company.
The workmen raised several demands in the year 1983 which were referred for adjudication to the Industrial Tribunal, Madras.
The Company in turn made counter demands which were also referred to the said Tribunal.
One of the issues before the Tribunal was as under: "Whether the demand of the Management for re structuring of the dearness allowance scheme is justified, if so, to frame a scheme?" The Tribunal decided the above issue in favour of the Company and by its award dated October 14, 1987 abolished the existing slab system of DA and directed that in future dearness allowance in the Company, be linked only to the cost of living index at 33 paise per point over 100 points of the Madras City Cost of living Index 1936 base.
The Tribunal disposed of the two References by a common award.
The Company as well as the workmen filed separate writ petitions before the Madras High Court challenging the award of the Tribunal.
While the two writ petitions were pending the parties filed a joint memorandum dated June 13, 1988, before the High Court in the following terms: 135 "In view of the settlement dated 13.5.1988 entered into between the parties, a copy of which is enclosed, both the parties are not pressing theft respective writ petitions except with regard to the issue relating to re structuring of dearness allow The learned Single Judge of High Court upheld the find ings of the Tribunal on the sole surviving issue and dis missed the writ petition of the workmen.
The writ appeal filed by the workmen was also dismissed by the High Court by its judgment dated September 14, 1989.
The present appeal by special leave is against the award of the Tribunal as upheld by the High Court.
Mr. M.K. Ramamurthy, learned counsel for the appel lants has raised following points for our cosideration: (i) The Tribunal and the High Court grossly erred in taking Rs. 26 as a per war wage of a worker in Madras region and, on that arith metic, reaching a conclusion that the rate of neutralisation on the basis of cost of living index in December 1984 was 192 per cent.
(ii) Even if it is assumed that there was over neutralisation unless the pay structure of the workmen is within the concept of a 'living wage ' and in addition it is proved that financially the Company is unable to bear the burden the existing pay structure/DA scheme cannot be revised to the prejudice of the work men.
(iii) In any case the DA scheme which was voluntarily introduced by the Company and reiterated in various settlements cannot be altered to the determent of the workmen.
" Before the points are dealt with, we may have a fresh look into various concepts of wage structure in the industry.
Broadly, the wage structure can be divided into three categories the basic "minimum wage" which provides bare subsistence and is at poverty line level, a little above is the "fair wage" and finally the "living wage" which comes at a comfort level.
It is not possible to demarcate these levels of wage structure with any preci sion.
There are, however, well accepted norms which broadly distinguish one category of pay structure from another.
The Fair Wages Commit tee, in its report published by the Government of India, Ministry of Labour, in 1949, defined the "living wage" as under: "the living wage should enable the male earner to provide for himself and his family not merely the bare essentials of food, 136 clothing and shelter but a measure of frugal comfort including education for the the chil dren, protection against illhealth, require ments of essential social needs, and a measure of insurance against the more important mis fortunes including old age." "The Committee 's view regarding "minimum wage was as under: "the minimum wage must provide not merely for the bare sustenance of life but for the preservation of the efficien cy of the worker.
For this purpose the minimum wage must also provide for some measure of education.
medical require ments and amenities.
" The Fair Wages Committee 's Report has been broadly approved by this Court in Express Newspapers (P) Ltd. vs Union of India, and Standard Vacuum Refining Co. of India vs Its Workmen and Anr., ; The Tripartite Committee of the Indian Labour Conference held in New Delhi in 1957 declared the wage policy which was to be followed during the Second Five Year Plan.
The Committee accepted the following five norms for the fixation of 'minimum wage ': "(i) In calculating the minimum wage, the standard working class family should be taken to consist of 3 consumption units for one earner; the earnings of women, children and adolescents should be disregarded.
(ii) Minimum food requirement should be calculated on the basis of a net intake of calories, as recommended by Dr. Aykroyd for an average Indian adult of moderate activity.
(iii) Clothing requirements should be esti mated at per capita consumption of 18 yards per annum which would give for the average workers ' family of four, a total of 72 yards.
(iv) In respect of housing, the rent corre sponding to the minimum area provided for under Government 's Industrial Housing Scheme should be taken into consideration in fixing the minimum wage.
(v) Fuel, lighting and other 'miscellaneous ' items of expenditure should constitute 20% of the total minimum wage.
" This Court in Standard Vacuum Refining Compa ny 's case (supra) has referred to the above norms with approval.
The concept of 'minimum wage ' is no longer the same as it was in 137 1936.
Even 1957 is way behind.
A worker 's wage is no longer a contract between an employer and an employee.
It has the force of collective bargaining under the labour laws.
Each category of the wage structure has to be tested at the anvil of social justice which is the live fibre of our society today.
Keeping in view the socio economic aspect of the wage structure, we are of the view that it is necessary to add the following additional component as a guide for fixing the minimum wage in the industry: "(vi) children education, medical require ment, minimum recreation including festivals/ceremonies and provision for old age, marriages etc.
should further constitute 25% of the total minimum wage.
The wage structure which approximately answers the above six components is nothing more than a minimum wage at subsist ence level.
The employees are entitled to the minimum wage at all times and under all circumstances.
An employer who cannot pay the minimum wage has no right to engage labour and no justification to run the industry.
A living wage has been promised to the workers under the constitution.
A 'socialist ' framework to enable the working people a decent standard of life, has further been promised by the 42nd Amendment.
The workers are hopefully looking forward to achieve the said ideal.
The promises are pilling up but the day of fulfilment is nowhere in sight.
Industrial wage looking as a whole has not yet risen higher than the level of minimum wage.
Adverting to the first point raised by Mr. Ramamurthy it would be convenient to quote from the award the conten tions of the Company and the findings reached by the Tribu nal.
The Company 's case as noticed by the tribunal is as under: "It is stated that the pre war wage of a worker in the Madras Region was Rs.26.
It is evidenced by the decision of the Labour Appel late Tribunal reported in 1951 1I L.L.J. page 314 (Buckingham and Carnatic Mills vs Their workers) and 1951 II L.L.J. page 718 (Good Pastor Press vs Their workers).
It is contend ed that taking the pre war minimum wage of worker at Madr,ks being R:,. 26 per month equivalent to 100 per cent neutralization the rate of Dearness Allowance at 26 paisa for every point above 100 points of cost of living index would work out to 100 per cent neutrali sation.
On the above basis at 138 2780 points of cost of living index in Decem ber 1984, the 100 per cent neutralised wage should be Rs. 722.80 (basic wage of Rs. 26 plus dearness allowance of Rs. 696.80).
As against the above wage a workman of lower grade in the Petitioner 'Company in December 1984 was getting a total wage of Rs. 1,`394/comprising of basic plus dearness allowance plus house rent allowance and the rate of neutralisation of dearness allowance correspondingly works out to 192 per cent.
" The Tribunal accepted the above contentions of the Company.
The evidence produced by the Company, regarding prevailing DA schemes in the comparable industries in the region, was also taken into consideration.
The Tribunal finally decided as under: "Taking an overall view of the rate of dear ness allowance paid by these comparable con cerns in the region and the higher total emoluments received by the workmen in this establishment, the slab system of dearness allowance now in existence shall stand abol ished and in future, dearness allowance in the Petitioner Management would be linked only to the cost of living index at 33 paise per point over 100 points of the Madras City Cost of Living Index 1936 base and it shall be effec tive from the month in which the award is published in the Tamil Nadu Gazette.
" The learned Single Judge of the High Court upheld the above findings of the Tribunal.
The Division Bench of the High Court, in writ appeal, approved the award and the judgment of the learned Single Judge in the following words "The learned judge has observed that the counsel for the Management had taken him through all the relevant materials which were filed in the form of Exhibits before the Tribunal in order to show that the matter of over neutralisation cannot be in dispute.
Thus the learned Judge proceeded on the basis that there is over neutralisation which called for devising a scheme for restructuring the wage scale.
This finding cannot be interfered with as no materials have been placed before us by the learned counsel for the appellant to show that the exhibits which were perused by the learned Judge do not support his conclusion.
Hence, we hold that the contention that there are no compelling circumstances in this case to revise the pattern of dearness allowance is unsustainable.
" 139 According to the Company the only purpose of DA is to enable a worker in the event of a rise in cost of living to purchase the same amount of goods of basic necessity as before.
In other words the DA is to neutralise the rise in prices.
the said purpose can be achieved by providing maxi mum of 100 per cent neutralisation.
Accepting the calcula tions of the Company based on Rs. 26 being the pre war (1936) minimum wage in Madras region the Tribunal came to the finding that there was 192 per cent neutralisation.
The Tribunal accepted Rs. 26 as the pre war minimum wage in Madras region on the basis of the decisions of Labour Appellate Tribunal of India in Buckingham and Carnatic Mills Ltd. vs Their workers, and Good Pastor Press vs Their workers, In Buckingham case the appellate tribunal came to the conclusion that the basic wage of the lowest category of operatives on the living cost of index of the year 1936 was Rs. 28.
The said wage included Rs.16 1/2 as expenses on diet.
The workers relied upon the Textile Enquiry Commit tee 's report to claim 25% addition to the diet expenses.
The Appellate Tribunal rejected the report on the ground that the recommendations in the said report were for the purpose of attaining the standard of "living wage" and not of 'min imum wage '.
The Appellate Tribunal stated as under: "The Union however, contends that Dr. Akroyd revised his opinion when submitting a specially prepared note to assist the Textile Enquiry Committee, Bombay of which Mr. Justice Divatia was the Chairman, where he is said to have stated that 25 per cent more will have to be added for obtaining a balanced diet for a minimum wage earner.
The report of that Enquiry Committee, which was published in 1940, however, shows that Dr. Akroyd added 25 per cent as the costs of the extra items to his standard menu such as sugar etc., for the purpose of attaining the standard menu of 'living wages ' (final report of the Textile Labour Enquiry Committee 1940, Vol.
II, pages 70 to 71).
Therefore, for the purpose of fixing 'minimum wages ' that 25 per cent is not to be added.
" The question as to whether the recommendations of Textile Enquiry Committee were in relation to 'living wage ' or 'minimum wage ' came for consideration before this Court in Standard Vacuum case (supra).
This Court held as under: "It is obvious that the Committee was really thinking of what 140 is today described as the minimum need based wage, and it found that judged by the said standard the current wages were deficient.
In its report the Committee has used the word 'minimum ' in regard to some of the constitu ents of the concept of living wage, and its calculations show that it did not proceed beyond the minimum level in respect of any of the said constituents.
Therefore, though the expression 'living wage standard ' has been used by the Committee in its report we are satisfied that Rs. 50 to Rs. 55 cannot be regarded as anything higher than the need based minimum wage at that time.
If that be the true position the whole basis adopted by the appellant in making its calculations turns out to be illusory." This Court, therefore, in Standard Vacuum case came to the conclusion that the Textile Labour Committee Report in the year 1940 in its calculations did not proceed beyond the minimum level of the wage structure.
It was further held that Rs. 50 to Rs. 55 was the need based minimum wage in the year 1940.
The Appellate Tribunal in Buckingham case, therefore misread the Textile Committee Report and was not justified in rejecting the same on the ground that it related to the category of 'living wage ' We are of the view that it would not be safe to accept the findings of the Appellate Tribunal in Buckingham case as the basis for fixing the wage structure to the prejudice of the workmen.
This court in Standard Vacuum case (supra) has further held that in Bombay the minimum wage in the year 1940 was Rs.50 to Rs.55.
On that finding it is not possible to accept that the minimum wage in the year 1936 in Madras region was Rs.26/28.
So far as the Good Pastor Press case is concerned the question of determining the minimum wage in per war 1936 was not before the Appellate Tribunal.
It only mentioned the fact that Rs.26 was held to be so by some of the subordinate tribunals.
There was no discussion at all on this point.
The Tribunal 's reliance on this case was wholly misplaced.
In any cause we are of the opinion that purchasing power of today 's wage cannot be judged by making calculations which are solely based on 30/40 years old wage structure.
The only reasonable way to determine the category of wage structure is to evaluate each component of the category concerned in the light of the prevailing prices.
There has been sky rocking rise in the prices and the inflation chart is going up so fast that the only way to do justice to the labour is to determine the money value of various components of the minimum wage in the context of today.
141 We may now move on to the second and third point raised by Mr. Ramamurthy.
We take up these points together.
Mr. F.S. Nariman, learned counsel appearing for the Company, contended that the existing DA scheme can be revised even to the prejudice of the workmen and for that proposition he relied upon the judgment of this Court in M/s. Crown Alumin ium works vs Their Workmen; , Mr. Rama murthy has, however, argued that even if the contention of Mr. Nariman is accepted in principle, the Company has not been able to make out a case for such a revision.
In M/s. Crown Aluminium Works case this Court speaking through Gajendragadkar, J.(as he then was) held as under: "The question posed before us by Mr. Sen is: Can the wage structure fixed in a given indus try be never revised to the prejudice of its workmen? Considered as a general question in the abstract it must be answered in favour of Mr. Sen.
We do not think it would be correct to say that in no conceivable circumstances can the wage structure be revised to the prejudice of workmen.
When we make this obser vation, we must add that even theoretically no wage structure can or should be revised to the prejudice of workmen if the structure in question falls in the category of the bare subsistence or the minimum wage.
If the wage structure in question falls in a higher cate gory, then it would be open to the employer to claim its revision even to the prejudice of the workmen provided a case for such revision is made out on the merits to the satisfaction of the tribunal.
In dealing with a claim for such revision, the tribunal may have to con sider, as in the present case whether the employer 's financial difficulties could not be adequately met by retrechment in personnel already effected by the employer and sanc tioned by the tribunal.
The tribunal may also enquire whether the financial difficulties facing the employer are likely to be of a short duration or are going to face the em ployer for a fairly long time.
It is not necessary, and would indeed be very difficult, to state exhaustively all considerations which may be relevant in a given case.
It would, however, be enough to observe that, after considering all the relevant facts, if the tribunal is satisfied that a case for reduc tion in the wage structure has been estab lished then it would be open to the tribunal to accede to the request of the employer to make appropriate reduction in the wage struc ture, subject to such conditions as to time or otherwise that the tribunal may deem fit or expedient to impose.
" 142 The above dicta was reiterated by this Court in Ahmeda bad Mills Owners, Association etc.
vs The Textiles Labour Association, wherein this Court through Gajendragadkar, CJ, laid down as under: "The other aspect of the matter which cannot be ignored is that if a fair wage structure is constructed by industrial adjudication and in course of time, experience shows that the employer cannot bear the burden of such wage structure, industrial adjudication can, and in a proper case should revise the wage struc ture, though such revision may result in the reduction of the wages paid to the employees. . . . if it appears that the employer cannot really bear the burden of the increasing wages bill industrial adjudication, on principle, cannot refuse to examine the employer 's case and should not hesitate to give him relief if it is satisfied that if such relief is not given, the employer may have to close down his business. . .
This principle, however, does not apply to cases where the wages paid to the employees are no better than the basic minimum wage.
If, what the employer pays to his employees is just the basic sub sistence wage, then it would not be open to the employer to contend that even such a wage is beyond his paying capacity.
" The ratio which emerges from the judgments of this Court is that the management can revise the wage structure to the prejudice of the workmen in a case where due to financial stringency it is unable to bear the burden of the existing wage.
But in an industry or employment where the wage struc ture is at the level of minimum wage, no such revision at all, is permissible not even on the ground of financial stringency.
It is, therefore, for the management, which is seeking restructuring of DA scheme to the disadvantage of the workmen to prove to the satisfaction of the tribunal that the wage structure in the industry concerned is well above minimum level and the management is financially not in a position to bear the burden of the existing wage struc ture.
Mr. Ramamurthy further relied upon this Court 's judgment in MonthlyRated workmen at the Wadala factory of the Indian Hume Pipe Co. Ltd. vs Indian Hume Pipe Co. Ltd., Bombay, ; and contended that an employer cannot be permitted to abolish the DA scheme which has worked smoothly for almost thirty years on the plea that the said scheme is more beneficial than the DA schemes adopted by other indus tries in the region.
In the Indian Hume Pipe Co. Ltd case the management pleaded that the dearness allowance enjoyed by the workmen was so high in certain cases that neutralisation was at rates much higher than 100%.
It was further contended that the manage ment did not have the capacity to pay the slab system of DA and in the event of a claim for similar DA by other workmen the management might have to close down the factories.
Khalid, J. spoke for the court as under: "We thought it necessary to refer to the various awards read by Mr.Pai only for the completeness of the judgment.
It has to be borne in mind that in most of these cases, awards were passed at the instance of the employees when demands were made for raising the dearness allowance paid to them.
Here, we have the case of the employer trying to get over a system of dearness allowance which had worked smoothly for 18 years, on the specious plea that at the time the slab system was introduced, it was not in the expectation of anyone that the cost of price index would spiral up so much as to make it impossible for the company to pay according to this scheme.
From the materials available we do not find that this plea can be accepted.
The records produced show that despite this system of dearness allowance the Company has been making profits and has been improving its position year by year. . . we do not think it necessary to deal at length about the evolu tion of the concept of dearness allowance.
Suffice it to say that this Court has, often times, emphasised the need for a living wage to workmen instead of a subsisting wage.
It is indeed a matter of concern and mortification that even today the aspirations of a living wage for workmen remain a mirage and a distant dream.
Nothing short of a living wage can be a fair wage.
It should be the combined effort of all concerned including the Courts to extend to workmen a helping hand so that they get a living wage which would keep them to some extent at least free from want.
It is against this background that a claim by em ployers to change the conditions of service of workmen to their detriment has to be consid ered and it is against this background that we have considered the award review.
We are not satisfied that a case has been made out on the facts available for a change. . . .
The question is often asked as to whether it would be advisa ble for Tribunals and Courts to revise the wage structure of workmen to their prejudice when a dispute arises.
Normally the answer would be in the negative.
Tribunals and Courts can take judicial notice of one fact; and that is that the wages of workmen, except inexcep tionally rare cases, 144 fail within the category of mere "sub sisting wages".
That being so, it would be inadvisable to tinker with the wage structure of workmen except under compelling circum stances.
" We agree with Mr. Ramamurthy that the DA scheme which had stood the test of time for almost thirty years and had been approved by various settlements between the parties has been unjustificably abolished by the Courts below and as such the award of the Tribunal and the High Court Judgments are unsustainable.
Mr. Nariman has also relied on the judgment of this Court in Killick Nixon Ltd. vs Killick & Allied Companies Employees ' Union, to support the findings of the Tribunal and the High Court.
The said case does not lay down that in all cases the slab system of DA should be abolished to the prejudice of the workers.
In the said case this Court on the facts of the case came to the conclusion that the employer had made out a case for putting a ceiling on the dearness allowance.
The ratio of that case cannot be extended to interfere with the existing DA schemes in every case where such schemes are beneficial to the workmen.
Mr. Nariman has invited our attention to para 20 of the Award wherein the tribunal has held as under: "These figures as detailed in exhibit
M 13 would establish that the company is not in a finan cial position to bear the additional burden on account of increased wages.
" From the above finding it was sought to be shown that the Company has proved to the satisfaction of the Tribunal that financially it was not in a position to bear the burden of the existing DA scheme.
We do not agree with the learned counsel.
The Tribunal gave the above finding in the refer ence made on behalf of the workmen asking for bonus increase and various other monetary benefits.
While rejecting the demands of the workmen the Tribunal gave the above finding which related to the additional burden accruing in the event of acceptance of the workers ' demands.
The Tribunal nowhere considered the financial position of the company vis avis the existing DA scheme.
The Company neither pleaded nor argued before the Tribunal that its financial position had so much deteriorated that it was not possible for it to bear the burden of the slab system of DA.
The Tribunal has not dealt with this aspect of the matter while considering the demand of the Company for re structuring the DA scheme.
It has been pleaded by the company that its workmen are in a high wage island and as such the revision of DA scheme was justified.
The 145 Company also produced evidence before the Tribunal to show that comparable concerns in the region were paying lesser DA to its workmen.
On the basis of the material produced before the Tribunal all that the Company has been able to show is that the DA paid by the Company is somewhat higher than what is being paid by the other similar industries in the region.
There is, however, no material on the record to show that what is being paid by the company is higher than what would be required by the concept of need based minimum wage.
In any case there is a very long way between the need based wage and the living wage.
Mr. Nariman reminded us of the limits on our jurisdic tion under Article 136 of the Constitution of India and relying upon Shaw Wallace & Co. Ltd. vs Workmen, and The Statesman Ltd. vs Workmen, ; contended that so long as there is "some basis, some materi al to validate the award" the "jurisdiction under Article 136 stands repelled".
The Tribunal and the High Court, in this case, has acted in total oblivion of the legal position as propounded by this court in various judgments referred to by us.
Manifest injustice has been caused to the workmen by the award under appeal.
We see no force in the contention of the learned counsel.
In view of the above discussion we are of the view that the Tribunal was not justified m abolishing the slab system of DA which was operating in the Company for almost thirty years.
We allow the appeal and set aside the award of the Tribunal and the judgment of the learned Single Judge in the writ petition and of the Division Bench in the Writ Appeal.
The reference of the Company on the issue of re structuring of the dearness allowance is declined and rejected.
The Appellant workmen shall be entitled to their costs through out which we assess at Rs. 25,000.
| The respondent company, in its factory set up at Madras 1959, introduced slab system of dearness allowance (DA) i.e. the DA paid to the workmen was linked to the cost of living index as well as the basic pay.
The double linked DA scheme, being consciously accepted as basic constituent by the company and its workmen in various settlements between them, became basic feature of the wagestructure and remained operative in the company for about 30 years, In the year 1983, a dispute arose between the company and its workmen.
The matter was referred to the industrial Tribunal.
One of the issues before the Tribunal was based on the demand of the Management for restructuring of the dear ness allowance scheme and to frame a new scheme.
The Tribu nal abolished the existing slab system of DA and directed the dearness allowance to be linked only to the cost of living index at 33 paise per point over 100 points at the Madras city cost of living index 1936 base.
Before the High Court, both the parties agreed not to press their respective writ petitions except on the issue of restructuring of 130 DA.
Upholding the findings of the Tribunal on the sole surviving issue, the Single Judge dismissed the workmen 's writ petition.
The intra Court appeal filed by the workmen was also dismissed.
grieved, the workmen filed the appeal by special leave to this Court.
It was contended on behalf of the workmen that the Tribunal and High Court grossly erred in taking Rs. 26 as a pre war wage of a worker in Madras region and holding that the rate of neutralization on the basis of cost of living index in December, 1984 was 192%; that even assuming that there was over neutralization, the existing pay structure/DA scheme could not be revised to the prejudice of the workmen unless their pay structure was within the concept of 'living wage ' and, in addition, it was proved that financially the company was unable to bear the burden; and that the company could not be permitted to abolish the DA scheme to the detriment of the workmen much less on the plea that the said scheme was more beneficial than the DA schemes adopted by other industries in the region.
The respondent, contended that the company had proved to the satisfaction of the Tribunal that financially it was not in a position to bear the burden of existing DA scheme; that its workmen were in a high wage island and as such the revision of DA scheme was justified.
It was also contended that so long as there was some basis and material to vali date the award, the jurisdiction under Article 136 of the Constitution stood repelled.
On the question; whether the Management is entitled to restructure the DA scheme to the prejudice of the workmen on the ground that the existing system had resulted in over neutralization thereby landing the workmen in the high wage island Allowing the appeal of the workmen, this Court, HELD: 1.1.
The management can revise the wage structure to the prejudice of the workmen in a case where due to financial stringency it is unable to bear the burden of the existing wage.
But in an industry or the employment where the wage structure is at the level of minimum wage, no such revision at all, is permissible not even on the ground of financial stringency.
[p. 142 E] Monthly Rated workmen at the Wadala factory of the Indian Hume 131 Pipe Co. Ltd. vs Indian Hume Pipe Co. Ltd., Bombay, ; , relied on.
M/s Crown Aluminium Works vs Their Workmen, ; & Ahmedabad Mills Owners ' Association etc.
vs The Textiles Labour Assosication; , , referred to.
Killick Nixon Ltd. vs Killick & Allied Companies Employ ees Union, , distinguished.
1.2 The employees are entitled to the minimum wage at all times and under all circumstances.
An employer who cannot pay the minimum wage has no right to engage labour and no justification to run the industry.
[p. 137 C] 1.3 It is for the management, seeking to restructure the DA scheme to the disadvantage of the workmen, to prove to the satisfaction of the tribunal that the wage structure in the industry concerned is well above minimum level and the management is financially not in a position to bear the burden of the existing wagestructure.
[p. 142 F] 2.1 'The concept of 'minimum wage ' is no longer the same as it was in 1936.
Even 1957 is way behind.
A worker 's wage is no longer a contract between an employer and an employee.
It has the force of collective bargaining under the labour laws.
Each category of the wage structure has to be tested at the anvil of social justice which is the live fibre of our society today.
[pp. 136 H, 137 A] 2.2 The Tripartite Committee of the Indian Labour Con ference ' 1957 has formulated five norms for the fixation of 'minimum wage ' (i) three consumption units for one earner disregarding earnings of women, children and adolescents; (ii) minimum food requirement based on net intake calories; (iii) clothing requirement at 72 yards per annum for an average working family of four; (iv) house rent correspond ing to minimum area provided for under the Government 's Industrial Housing Scheme; (v) 20% of total minimum wage for fuel, lighting and other miscellaneous items.
[p. 136 D G] Express Newspapers (P) Ltd. vs Union of India, , followed.
Standard Vacuum Refining Co. of India vs Its Workmen & Anr., ; , relied on.
132 Keeping in view the socio economic aspect of the wage structure the following additional component has also to be taken into account: "(vi) children education, medical require ment, minimum recreation including festivals/ceremonies and provision for old age, marriages etc.
should further constitute 25% of the total minimum wage," The wage structure which approximately answers these six components is nothing more than a minimum wage at subsist ence level.
[p. 137 A C] 2.3 In spite of the promise by the Constitution of a living wage and a 'socialist ' framework to enable the work ing people a decent standard of life, industrial wage, looking as a whole, has not yet risen higher than the level of minimum wage.
[p. 137 D E] 3.1 Purchasing power of today 's wage cannot be judged by making calculations which are solely based on 30/40 years old wagestructure.
The only reasonable way to determine the category of wage structure is to evaluate each component of the category concerned in the light of the prevailing prices.
There has been skyrocking rise in the prices and the inflation chart is going up so fast that the only way to do justice to the labour is to determine the money value of various components of the minimum wage in the context of today.
[p. 140 F H] 3.2 In the instant case, the Company neither pleaded nor argued before the Tribunal that its financial position had so much deteriorated that it was not possible for it to bear the burden of the slab system of DA; nor did the Tribunal deal with this aspect of the matter while considering the demand of the Company for re structuring the DA scheme.
[p. 144 F G] 3.3 Although the DA paid by the Company was somewhat higher than what was being paid by the other similar indus tries in the region, yet it could not be shown that what was being paid by the Company was higher than what would be required by the concept of need based minimum wage.
In any case there is a very long way between the need based wage and the living wage.
[p. 145 AB] 4.
The Tribunal and the High Court acted in total oblivion of the legal position.
Consequently, manifest injustice has been caused 133 to the workmen by the award.
It can, therefore, not be said that jurisdiction under article 136 stands repelled.
[p. 145 CD] Shaw Wallace & Co. Ltd. vs Workmen, & The Statesman Ltd. vs Workmen, ; , referred to.
The Tribunal was not justified in abolishing the slab system of DA which had stood the test of time for almost 30 years and had been approved by various settlements between the parties and as such the award of the Tribunal and the High Court judgments were unsustainable.
[pp. 144 AB; 145 DE] Buckingham and Carnatic Mills Ltd. vs Their Workers, [1951] 2 L.L,.
J. 314 & Good Pastor Press vs Their Workers, , referred to.
|
Appeal No. 728 of 1980.
From the Judgment and Order dated 29.11.1978 of the Allahabad High Court in Civil Misc.
Writ No. 2955 of 1977.
Satish Chandra, Ms. Abha jain, Gaurav Jain and Ghayyute Alam for the Appellants Ashok Kumar Srivastava for the Respot, dent.
The Judgment of the Court was delivered by G.N RAY, J.
In this appeal by grant of special leave the appellants, four in number.
being sons of late Shri Wadood Ali Khan, have challenged the legality, validity and propri ety of redetermination of ceiling on lands of the said Wadood All Khan under the Uttar Pradesh Imposition of Ceil ing on Land Holdings Act, 1960 (hereinafter referred to as the Ceiling Act).
The relevant facts of the case of the appellants in appeal are as follows : (a) The appellants are four sons and legal representatives of late Shri Wadood All Khan who had died on 20.8.1974.
It is contended 162 mat in addition to the appellants the said Wadood Ali Khan had left the other heirs and legal representatives, namely, three sons Maskhur Ashud Khan, Mohdud Ali Khan and Mashkoor Ali Khan, widow Smt.
Firdaus Begum and daughters Shabana Begum, Farzana Begum and Qaiser Jahan Begum.
(b) That after the death of Wadood Ali Khan, the Prescribed Authority under the Ceiling Act served a notice under Section 10 of the Ceil ing Act proposing to declare lands to the extent of 178 15 19 bighas of irrigated land as surplus.
Such notice under Section 10 was served on appellant No. 1 although the notice was addressed to the deceased Wadood Ali Khan.
(c) Appellant No. 1 filed objections before the Prescribed Authority and also participated in the proceedings for determination of ceiling.
Such proceeding was decided by the Prescribed Authority by its Judgment dated 29th April, 1975, inter alia partly upholding objections of the appellant and declaring 87 1 19 19 bighas of irrigated lands as sur plus and treating the late Wadood Ali Khan as the tenure holder.
(d) The appellants filed an appeal before the learned Civil Judge against the aforesaid decision of the Prescribed Authority and it is stated in the appeal petition that such appeal was pending.
(e) The Ceiling Act was amended from time to time and in 1976 the Ceiling Act was further amended by the U.P. Act No. 20 of 1976.
Such Amending Act received the assent of the Presi dent on 30th April, 1976 and was published in the U.P. Gazette extraordinary dated 3rd May, 1976.
Various changes in different Sections of the Ceiling Act were introduced by the said U.P. Act 1976.
Section 31 (3) of the said U.P. Act 20 of 1976 provides as follows: 31.(3) Where an order determining surplus land in relation to a tenure holder has been made under the principal Act before the tenth day of October, 1975, the Prescribed Authority (as defined in the principal Act) may, at any time within a period of two years from the said date, re determine the surplus land in accord ance with the principal act as amended by this Act, whether or not any appeal was filed against such order and notwithstanding any appeal (whether pending or decided) against the original order of determination of surplus land.
(f) The Prescribed Authority issued a notice to/he appellant No. 1 on 8th July, 1976 under Section 10(2) of the Act inter alia holding that 199 1 1 bighas of irrigated lands were proposed to be 163 declared surplus.
The appellants filed objec tions to the proposed action of redetermina tion of ceiling by raising various objections.
The Prescribed Authority thereafter disposed of the proceeding of redetermination of ceil ing by order dated 22nd December, 1976 to the effect that 125 3 8 16 bighas of irrigated lands belonging to the said Wadood Ali Khan were surplus which were owned by Wadood Ali Khan as tenure holder on the appointed day.
(g) The appellants preferred an appeal in the Court of District Judge, Saharanpur, against such order dated 22nd December, 1976, but such appeal was dismissed by the learned Additional District Judge by Judgment and Order dated 16th May, 1977.
The appellants thereafter moved a Writ Petition in the Allahabad High Court being Civil Misc.
Writ No. 2955/77 which was disposed of by Order dated 29th November, 1976.
(h) The Writ Petition moved by the appellants were disposed of by the Allahabad High Court inter alia to the effect that previous deter mination of surplus land by the Prescribed Authority did not operate as res judicata and the appellate authority was justified in ignoring the Sale Deed dated October 27,1971.
The High Court of Allahabad, however, held inter alia that the determination about some plots of lands had not been properly made.
Accordingly, the case was remanded to the appellate authority with the direction to the appellate authority to issue notice to the other brothers of the appellants Mr. Satish Chandra, learned senior counsel appearing for the appelants, has strongly contended at the hearing of this appeal that such redetermination could only be made under the provisions of the Act as amended by U.P. Act No. 20 of 1976 in view of the fact that the initiation of the proceed ings for redetermination was made after the said Act 20 of 1976 was enforced.
He has also contended that the notice under Section 10(2) was deliberately issued to the appel lants by ignoring the other heirs of late Wadood Ali Khan although the concerned Prescribed Authority was aware that the said Wadood All Khan had died in 1974.
He had also contended that the notice under Section 10(2) was purported to have been issued under the Amending Act of 1975 although the Amending Act of 1976 had come into force.
Mr. Satish Chandra has also contended that if the Prescribed Authority had prima facie come to the finding that the lands indicated in the notice under Section 10(2) were surplus lands, it was his bounden duty to serve notices on all the heirs of Wadood All Khan and initiation of any proceeding without such notices to all the heirs was void.
In support of this con tention, he has relied upon a Full Bench 164 decision of the Allahabad High Court made in the case of Shantnu Kumar vs State of Uttar Pradesh and Others, 1977 Allahabad Law Report p. 564.
Mr. Satish Chandra has also contended that service of proper notice under Section 9(2) of the Ceiling Act on all the heirs of late Wadood Ali Khan was essential for assuming jurisdiction to redetermine the ceiling lands.
Admittedly, when such notice had not been issued to all the co sharers, no proceeding for redetermina tion could have been lawfully initiated.
Therefore, the adjudication made by the Prescribed Authority and consequen tial adjudication by the appellate authority and the Allaha bad High Court must be held to be illegal, void and without jurisdiction.
He has contended that since two years has elapsed from the enforcement of the said Act 20 of 1976, no fresh redetermination is permissible in law at present.
He has also contended that the purported initiation of the proceedings for redetermination of ceiling on lands and order passed by the Prescribed Authority and the consequen tial orders passed by the appellate authority and by the High Court of Allahabad on the Writ Petitions mentioned hereinbefore must be quashed.
We are, however, not inclined to accept the contention of Mr. Satish Chandra that the proceeding for redetermina tion of ceiling land could not have been initiated by the Prescribed Authority until Notice under Section 9(2) was issued by him to all the heirs and he could only assume jurisdiction for initiation of a proceeding for redetermina tion of ceiling land after serving such notices to all the heirs of late Wadood Ali Khan.
Section 31 (3) of U.P. Act 20 of 1976, in our view, authorises the Prescribed Authority to redetermine the surplus land in relation to the tenure holder if initiated with in two years from October 10, 1975.
Admittedly, the previous determination of ceiling was made before tenth of October, 1975.
Accordingly, under sub Section (3) of Section 31 of the said U.P. Act 20 of 1976, the Prescribed Authority had jurisdiction to initiate the said proceeding and such jurisdiction did not depend on issuance of notice under Section 9(2) of the Ceiling Act to the tenure holder and/or the successors in interest of the tenure holder.
It, however, appears to us that although the Prescribed Authority had jurisdiction to initiate the pro ceeding for redetermination of surplus land and he had in fact initiated such proceeding within two years as referred to in sub section (3) of Section 31 of U.P. Act 20 of 1976, such determination could not have been made without afford ing to the heirs and legal representatives of Wadood Ali Khan an opportunity of being heard and showing cause before the Prescribed Authority.
Admittedly, Wadood Ali Khan had died in 1974 and he said fact was made known to the Pre scribed Authority when the initial determination of surplus lands was made.
It is unfortunate that in spite of said fact, the Prescribed Authority failed and neglected to ascertain the 165 names of all the legal heirs and representatives of Wadood Ali Khan, and did not issue notices to such heirs for rede termination of surplus land.
The High Court of Allahabad has directed to issue notice to other brothers of Wadood Ali Khan.
The High Court has also remanded the case to the appellate authority so that other brothers get opportunity to appear and make submissions.
The High Court has, however, not directed to issue notices to other heirs and legal representatives.
Moreover, in our view, without giving other heirs and legal representatives an opportunity of being heard, adjudication of the case on merits by the concerned authorities or by the High Court was not warranted.
In the aforesaid facts, we dispose of this appeal by setting aside the order passed by the Prescribed Authority on 22nd Decem ber, 1976 and the impugned appellate orders passed by the learned Additional District Judge on 26th May, 1976 and also the impugned decision of Allahabad High Court in Writ Peti tion No. 2955/77.
Mr. Satish Chandra has contended that in view of subsequent changes of the Ceiling Act by the Amend ing Act 20 of 1976, there is no surplus land liable to be vested in the State of Uttar Pradesh.
It is not necessary to express any opinion on such contention of Mr. Satish Chandra in view of the fact that the Prescribed Authority will have to redetermine the case of surplus land on the basis of existing provisions of the Ceiling Act applicable on the relevant date and the parties will get opportunity to make appropriate submissions on fact and law.
The Prescribed Authority is directed to issue notices to all the heirs and legal representatives of late Wadood Ali Khan including the appellants herein and the other heirs and legal representa tives referred to in this judgment.
The Prescribed Authority will decide the question of surplus land in accordance with the provisions of the Ceiling Act after issuing such notices to the heirs and legal representatives of late Wadood Ali Khan and giving such heirs and legal representatives a reasonable opportunity of being heard.
In order to avoid any difficulty and any attempt to delay the disposal of redeter mination of surplus land by the appellants or the other heirs of Wadood Ali Khan, it is directed that if there has been any change in the survivorship of legal representatives of late Wadood Ali Khan or devolution of interest of such heirs by lapse of time, the appellants should inform the Prescribed Authority within a month from today the names and other particulars including the addresses of all such heirs and legal representatives of late Wadood Ali Khan so that appropriate notices may be issued by the Prescribed Authori ty.
If the names and particulars of the legal representa tives are not furnished within a month from today by the appellants to the Prescribed Authority in terms of this direction, liberty is given to the Prescribed Authority to serve the notices to the appellants and to the other heirs mentioned in this judgment by sending such notices under the care of the appellant No. 1, Mansoor Ali Khan, village Kailashpur, Pargana Haraura, 166 Tehsil and P.O. Saharanpur, UP., and it will be deemed that he is representing the interest of other heirs and legal representatives.
The Prescribed Authority is directed to dispose of the proceeding for redetermination of surplus land as early as possible in view of the fact that the matter is pending determination for long.
In the facts of the case, there will be no order as to costs.
R.P. Appeal disposed of.
| The tenure holder of the land in dispute father of the appellants died on 20.8.1974, leaving behind, besides the four appellants, three other sons, three daughters and a widow as his legal heirs and representatives.
After his death a notice under section 10 of the Uttar Pradesh Imposition of Ceiling on Land Holdings Act, 1960, proposing to declare certain lands as surplus, addressed to him, was served on his son appellant No. 1 who filed objections.
The Prescribed Authority partly upheld the objections and by its judgment dated 29.4.1975 determined some land as surplus.
The appel lants filed an appeal before the Civil Judge.
Meanwhile the Ceiling Act was amended by the Uttar Pradesh Act 20 of 1976, section 31 (3) whereof provided for redetermination of surplus lands within two years from 10.10.1975 in cases where orders declaring lands as surplus had been made prior to that date, notwithstanding any appeal against the original order of determination of surplus land.
A fresh notice under section 10 (2) of the Act issued to appellant No. 1 proposing to declare certain lands as surplus.
After considering the appellant 's objection the Prescribed Authority by its order dated 22.12.1976 deter mined some land as surplus, holding that the said lands were surplus which were owned by the deceased as tenure holder on the appointed day.
The appeal against the said order was dismissed by the District Judge.
In the writ petition preferred by the appellants, the High Court held that previous determination of surplus lands by the Prescribed Authority did not operate as res judicata, and that the appellate 160 authority was justified in ignoring the sale deed dated 27.10.1971.
It, however, held that the determination about some plots of lands had not been properly made, and remanded the case to the appellate authority with the direction to it to issue notice to the other brothers of the appellants.
Aggrieved, the appellants filed the appeal by special leave to this Court.
It was contended on behalf of the appellants that the proceeding for re determination of ceiling land could not have been initiated by the Prescribed Authority until notice under section 9 (2) of the Act was issued to all the heirs of the deceased tenure holder; that since the redetermination proceedings were initiated after Act 20 of 1976 was en forced, the redetermination could only be made under the provisions of the Act as amended by Act 20 of 1976 and in view of the changes in the Ceiling Act there was no surplus land liable to be vested in the State; that as two years had elapsed from the enforcement of Act 20 of 1976, no redeter mination was permissible thereafter.
Disposing of the appeal and remanding the case to the Prescribed Authority, this Court, HELD: 1.
Section 31(3) of the Uttar Pradesh Imposition of Ceiling on Land (Amendment) Act, 1976 (Act 20 of 1976) authorised the Prescribed Authority to redetermine the surplus land in relation to the tenure holder if initiated within two years from October 10, 1975.
[p. 164 D E] In the instant case, the previous determination of ceiling was made before 10.10.1975.
Accordingly, under section 31(3) of U.P. Act 20 of 1976, the Prescribed Authority had jurisdiction to initiate the said proceedings and such jurisdiction did not depend on issuance of notice under section 9 (2) of the Act to the tenure holder and/or his successors in interest.
[p. 164 EF] Shantnu Kumar vs State of Uttar Pradesh & Ors, 1977 Allahabad Law Reports p. 564, referred to.
Although the Prescribed Authority had jurisdiction to initiate the proceeding for re determination of surplus land and he had in fact initiated such proceeding within two years as referred to in 31(3) of U.P. Act 20 of 1976, yet, such determination could not have been made without affording to the heirs and legal representatives of the tenure holder an opportunity of being heard and showing cause before the Prescribed Authori ty.
[p. 164 FG] The tenure holder had died in 1974 and the said fact was made known to the Prescribed Authority when the initial determination of surplus lands was made.
It was unfortunate that in spite of the said fact, the Prescribed Authority failed and neglected to ascertain the names of all the legal heirs and representatives of the deceased tenure holder and did not issue notice to them for redetermination of surplus land.
[pp. 164 GH; 165 A] 3.
While the High Court directed to issue notice to other brothers and remanded the case to the appellate au thority, it did not direct to issue notices to other heirs and legal representatives.
Morever, without giving other heirs and legal representatives an opportunity of being heard, adjudication of the case on merits by the concerned authorities or by the High Court was not warranted.
[p. 165 AB] 4.
The Prescribed Authority will decide the question of plus land in accordance with the existing provisions of the Ceiling Act applicable on the relevant date, after issuing notices to the heirs and legal representatives of the tenure holder and giving them a reasonable opportunity of being heard.
[P 165 DE]
|
vil Appeal No. 1204 (NT) of 1979.
From the Judgment and Order dated 3.2.1978 of the Madras High Court in Tax Case Petition No. 271 of 1977.
WITH Civil Appeal No. 4371 (NIT) of 1991.
Ms. A. Subhashini for the Appellant.
Ms. Janaki Ramchandran and A.T.M. Sampath for the Respondents.
The Judgment of the Court was delivered by RANGANATHAN, J.
Both these matters raise the same ques tion viz. whether the act of a member of a joint family by which he impresses his individual property with the charac ter of joint family property or "throws" it into the hotch potch of the joint family or "blends" it with the joint family property is a "disposition" within the meaning of the ( 'the ', for short).
Civil Appeal No. 1204/79 is an appeal from an order of the High Court declining to call upon the Income tax Appel late Tribunal to refer the above question for the decision of the High Court in view of certain earlier decisions of the Court.
The Madras High Court also declined to direct a reference on the above issue in T.C.P. No. 478 of 1977 and that is the subject matter of SLP (C) No. 335 of 1979.
In view of the pendency of Civil Appeal No. 1204/79, we grant special leave in SLP (C) No. 335/79 also.
Before discussing the correctness of the above conclu sion, it may be convenient to set out the background of facts in Civil Appeal No. 1204/79.
170 That appeal arises out of the estate duty assessment conse quent on the death of one Natesan Chetty, who died on 1.3.72.
He was the Karta of a Hindu Undivided Family (HUF) consisting of himself and his four sons.
He was also the owner, in his individual capacity, of five house properties in Madras.
On 18.6.1970 and 16.9.1970 he made declarations by which he impressed the above mentioned properties with the character of joint family properties and declared that they would thereafter belong to HUF of which he was the karta.
Subsequently, a partition was effected in the family in March 1971 in which two of the above mentioned properties came to the share of the deceased.
Sri Natesan Chetty had also borrowed a sum of Rs. 46,800 from the HUF out of the rental income from the above mentioned properties for being invested in the business earned on by him.
These borrowings were made between March 1970 and April 1971 and they were repaid in April 1971.
In completing the assessment to estate duty of the estate passing on the death of Natesan Chetty, the Assistant Controller of Estate Duty held that the declarations made by the deceased on 18.6.1970 and 16.9.1970 were "dispositions" within the meaning of the said expression as defined in the second explanation to section 2(15) of the .
These dispo sitions having been made for no consideration within the meaning of section 27 (1), amounted, according to him, to gifts and since the gift had been made within two years of the date of death, the subject matter of the gift was liable to be assessed as pan of the estate passing on death under section 9 of the .
As already mentioned, two of the properties had been allotted to the share of the deceased in the partition of 1971 and it is common ground that they passed on the death of the deceased as they belonged to him on the date of his death.
The question, however, was whether the other three properties which went to the other members of the family as a result of the declarations and partition were also liable to be included as pan of the estate deemed to pass on the death of the deceased by the application of section 9 read with S.27 (1) and section 2(15) of the .
The Assistant Controller answered this question in the affirmative and included their value, taken at Rs. 1,22,500, in the princi pal value of the estate.
As a consequence of his conclusion that the properties were liable to be included in the es tate, the officer ,,I so took the view that the sum of Rs. 46,800 being the loan taken by the deceased from the HUF and discharged within two years prior to the death should be added hack in computing the principal value of the estate by reason of the provisions of section 46 (2) of the .
It is not in dispute before us that though two points were thus involved in the assessment one regarding the inclusion of the value of 171 three items of property as part of the estate of the de ceased passing on his death and the other regarding the addition or disallowance of the debt of Rs. 46,800 they are inter connected and that, if the first question is answered in favour of the assessees, the second question will also stand answered likewise.
Dissatisfied with the conclusion of the Assistant Con troller, the accountable person preferred an appeal to the Appellate Controller of Estate Duty which was successful.
Thereupon the Department preferred an appeal to the Tribunal which, following a decision of the Madras High Court in Rajamani Ammal vs Controller of Estate Duty.
held that the sum of Rs. 1,22,500 could not be included in the value of the estate passing on the death and, consequentially, that the add back of Rs. 46,800 was also not justified.
Thereupon the Controller of Estate Duty applied, under section 64 (1) of the , for a reference to the Madras High Court, for its decision, of the following two questions: "1 Whether, on the facts and in the circumstances of the case, the Appellate Tribunal was right in holding that the trans action by which a Hindu impressed his separate properties [as] with joint family character could not be considered as a disposition under the second explanation to section 2(15) and section 27 of the ? 2.
Whether, on the facts and in the circumstances of the case, the Tribunal was right in holding that the addition of Rs. 1,22,500 made under section 9 and Rs. 46,800 made under section 46(2) could not be sus tained in the case of the deceased ?" The Madras High Court was of the opinion that the basic question at issue was covered by the earlier decisions of the Court in Rajamani Ammal vs Controller of Estate Duty, as well as a subsequent decision in Con troller of Estate Duty vs Smt.
Mookammal, The Court found no substance in the attempt, on behalf of the Revenue, to distinguish the above decisions on the strength of a decision of the Court in Ranganayaki Ammal vs CED, which had been confirmed by the Supreme Court in CED vs Kantilal Trikamlal, In this view of the matter the High Court de clined to call for a reference on the two questions above mentioned and dismissed the application for reference.
Hence the present Civil Appeal.
It is not necessary to set out the facts in SLP No. 335 of 1979 where the question involved is the same except that there was no subsequent partition after the blending and that no question regarding the deductibili ty of debts also arose in this case.
172 It will be seen that both these appeals are directed against the orders of the High Court declining to call for a reference.
It is fairly clear that the questions whether Rajamani Ammal was rightly decided and whether, if so, it needed reconsideration in the light of Kantilal Trikamlal are questions of law.
But, in view of the long lapse of time, we have considered the issues on merits and since we are satisfied that the High Court 's conclusion was correct, we dispose of the appeals straightaway without going through the formality of asking the Tribunal to make a reference to the High Court and then awaiting the High Court 's decision on the question of law referred.
The has ceased to be enforceable since 16.3.1985.
In the circumstances we need not elaborate ly set out the provisions of the and the principles behind them.
An outline of the provisions necessary for the determination of the issue before us will suffice.
The levies a duty on the aggregate market value of the proper ties passing on the death of any person (statutorily termed the 'principle value of the estate ').
It is manifest that the statute could be easily circumvented if duty were re stricted only to properties which actually pass on a death, for, various of devices could be thought of by which the property of such person could ostensibly be transferred to others sometime before the death, although it continues to be really under the domain and control of the deceased till the time of his death.
The statute therefore contains elabo rate provisions deeming certain properties to pass on death even though their beneficial enjoyment may not actually change hands at the time of his death.
One such item of properties which are deemed to pass on the death of a person are those which formed the subject matter of a gift made by him within a specified period preceding his death.
S.9 of the , which contains this deeming provision reads thus: "9.Gifts within a certain period before death (1) Property taken under a disposition made by the deceased purporting to operate as an immediate gift inter vivos whether by way of transfer, delivery, declaration of trust, settlement upon persons in succession, or otherwise, which shall not have been bona fide made two years or more before the death of the deceased shall be deemed to pass on the death".
In short, the provision enabled the Revenue to ignore any gift of property made by the deceased within two years of his death by creating a statutory fiction that properties so gifted passed on the death of the deceased, 173 although, in fact and in law, they ceased to be his a short time before his death.
This is the first fiction.
The legislature next proceeded to enact a second fic tion.
This was in order to bring into the net of taxation transactions which may not be comprehended within the legal concept of a gift because they are ostensibly made for some consideration.
It provided in section 27 that: "27.
(1) Dispositions in favour of relatives Any disposition made by the de ceased in favour of a relative of his shall be treated for the purposes of this as a gift unless (a) the disposition was made on the part of the deceased for full consideration in money or money 's worth paid to him for his own use or benefit; or (b) . . ; and references to a gift in this shall be construed accordingly: . . " Resort to this provision in the present case is needed for a purpose.
Admittedly, the deceased received no consideration for impressing the property with the character of joint family property.
If this amounted to a transfer, then S.9 alone would be sufficient to bring the properties within the net of taxation.
But it could be argued that a gift involves a 'transfer ' without consideration but the act of blending does not constitute a 'transfer ' [vide: Stremann vs CI.T., and a host of other cases under the Income tax ].
Section 27 helps the Department in the present case only in that it uses a much wider word, 'dispo sition ', and treats dispositions in favour of relatives as gifts.
The statute had to make provision for a third fiction as well as it could still be contended that the word 'disposi tion ' would not be sufficient to comprehend certain types of transactions.
To be on the safe side, therefore, the statute proceeded to enact a special definition of the word 'dispo sition ' in section 2(15) of the wide enough to rope in various kinds of acts in respect of property.
This provi sion, insofar as it is material for our present purposes, reads as follows: "2(15) 'Property ' includes any interest in property, movable or immovable, the proceeds of sale thereof and any money or investment for the time being representing the proceeds of sale and also includes any property con verted from one species into another by any method; Explanation I The creation by a person or with his consent 174 of a debt or other right enforceable against him personally or against property which he was or might become competent to dispose of, or to charge burden for his own benefit, shall be deemed to have been a disposition made by that person, and in rela tion to such a disposition expression 'proper ty ' shall include the debt or right created.
Explanation 2 The extinguishment at the expense of the deceased of a debt or other right shall be deemed to have been a disposi tion made by the deceased in favour of the person for whose benefit the debt or right was extinguished, and in relation to such a dispo sition the expression 'property ' shall include the benefit conferred by the extinguishment of the debt or right; The short case of the department now is this; the de ceased in these cases was the full and exclusive owner of the immovable properties in question.
By the act of blending he has convened them into HUF propertieS.
The properties no longer belong to him as an individual; they belong to the family thereafter with certain rights qua them in the other members of the HUF.
In other words, there 'has been an extinguishment, at the expense of the deceased, of a part, at least, of his rights in the properties with a correspond ing benefit to the others.
There has also been the creation, by the deceased, of a right in the others enforceable against the deceased and the properties e.g. the right to demand a partition.
The deceased, therefore, has made a disposition in favour of his relatives for no consideration within two years of his death.
The value of the properties, in respect of which he made the disposition in favour of the family, are, therefore, liable to be included in the principal value of the estate passing on his death under section 9 read with section 27 read with the Explanations to section 2(15).
This is quite apart from the fact that the value of the two properties, which subse quently fell to the share of the deceased at the partition in March 1971, are liable to be included as his own property actually passing on his death.
The question that we have to consider is, therefore, whether the legal incidence of the act of blending an be brought within the four corners of the two Explanations to section (15) of the .
It was precisely this question which had been considered by the Madras High Court earlier in Rajamani Ammal vs Controller of Estate Duty in deciding the issue, The High Court had the benefit of two earlier decisions of this Court in Goli Eswariah vs C G.T., and CG.T, vs Getti Chettiar., , 175 where this Court had held, in the context of the Gift Tax , that the act of blending and the act of a coparcener receiving, on partition of a HUF, less than the share he was entitled to receive would not constitute gifts.
The details of this decision need to be set out at some length.
Three contentions had been urged in Rajamani: (a) The first was that the act of blending constituted a 'disposi tion ' within the general meaning of that word.
Repelling this contention, the Court observed: "The learned counsel for the revenue placed strong reliance on the word "disposition" in section 27 (1) of the and contended that even an act of throwing of the self acquired property into the common stock of a joint Hindu family is included in that expression.
In a case arising under the Gift tax , the word "disposition" came up for consideration in the decision in Goli Eswariah vs Commis sioner of Gift tax, The Supreme Court held that the word "disposition" refers to a bilateral or a multilateral act and it does not refer to a unilateral act.
This decision of the Supreme Court approves the decision of this court in Commissioner of Gift tax vs
P. RangasamiNaidu, (F.B).
It is true that these decisions are under the Gift tax .
It is also true that the word "disposi tion" was considered in these decisions, with particular reference to the definition of "transfer of property" under that .
We are of the view that the word "disposition" in section 27(1) of the also refers to a bilateral or multilateral act.
The section refers to a disposition by the de ceased in favour of a relative and also speaks of partial failure of consideration.
Section 9 also refers to property "taken under a dispo sition".
Therefore, in our opinion the word "disposition" in section 27(1), however wide its ambit may be, would not include the uni lateral act of a person by which he throws his self acquired property into the common stock of the joint family.
" (b) It had been next contended, on behalf of the Revenue that, by throwing the self acquired properties into the common stock of the joint family, the deceased had created a right enforceable against him in favour of the sons or the other coparceners viz. the right to demand partition of the properties in question which they could not have exercised earlier.
This contention was rejected by the learned judges by applying the principle enunciated in an earlier Full Bench decision of the Court in CIT vs Rangasami Naidu, , where a similar contention had been repelled in the context of the Gift Tax .
The Court had there observed: 176 "With the father having absolute power of disposition inter vivos or testamentary in respect of his self acquisition and with no power in the son to interdict any alienation or disposition or call for partition, the son 's interest is next to nothing.
But the right is real.
It lies dormant.
It is this dormant right which the undivided sons have in their father 's property that entitles them to take the self acquired property of the father as coparceners to the exclusion of a divided son.
Juridically, it must be this dormant birth right that enables the father at his pleasure, without formalities, to deny to himself his independent power or predominant interest and look upon the property as the property of the family.
In our view, it is this birth right imperfect and subordinate to the special power and predominant interest of the father that comes into play and makes the interest of the son real and an interest in praesenti, when the father chooses to waive his rights.
At his pleasure and without reference to his son, if the father abandons or determines once for all not to exercise his independent power over the property, the son 's interest therein becomes a real and full fledged coparcenary right.
There is no vesting of rights here by the father on the son, but what is dormant springs to life but irrevocably at the pleasue of the father.
" (c) A third contention raised on behalf of the Revenue was that throwing the self acquired property into the common stock of the joint family would amount to "extinguishment at the expense of the deceased of a debt or other right" within the meaning of Explanation 2 to section 2 (15).
This conten tion was also repelled by the learned Judges.
They observe: "We are also of the opinion that throwing the self acquired property into the common stock of the joint family will not amount to "extin guishment at the expense of the deceased of a debt or other right" within the meaning of Explanation 2 to section 2 (15).
As seen from the judgments cited above, after the act of throwing into the common stock, it is the joint family or the coparcenary that owns the property.
The person who converted his indi vidual property into joint family property is a member of the Hindu joint family or the coparcenary and contines to be a member of the joint family.
His interest in 177 the erstwhile separate property would extend to the whole of the property even as of the other coparceners, for the interest of every coparceners extends over the whole of the joint family property.
There is community of interest and unity of possession between all the coparceners.
On the death of any one of the coparceners the others take the proper ty by survivorship.
It may be, the ultimate survivor is the person who threw the self acquired property into the common stock.
It, therefore, follows that there was no extinguishment of the right of the deceased and creation of a right in favour of another, in these of throw ing the self acquired properties into the common stock.
The decision in Valliammal Achi vs Controller of Estate Duty, relied on by the learned counsel for the revenue, and the decision in Kantilal Trikamlalv.
Controller of Estate Duty, , relied on by the learned counsel for the accountable person,related to what we may term as "unequal partitions".
They do not deal with cases of throwing the self acquired properties into the common stock.
We are not concerned with the case as to whether an unequal partition would amount to an extinguishment of a right and creation of a benefit within the meaning of Explanation 2 to section 2(15), which was the point that was considered in those cases.
" The above decision is clearly against the Revenue.
The Revenue, however, strongly relies upon a later decision of the same High Court in Ranganayaki Ammal & Ors.
vs Controller of Estate Duty, It is sub mitted that Ranganayaki Ammal has been af firmed by this Court in CED vs Kantilal Tri kamlal, a common judgment reversing Kantilal Trikamlal vs CE.D., and affirming Ranganayaki Ammal (Mad) and, therefore, Rajmani is no longer good law.
It is therefore, necessary to refer to these cases though the question involved there was somewhat different.
In Ranganayaki Ammal, the deceased Bheema Naidu and his widow and children constituted a Hindu undivided family.
A little within the period of two years prior to the death of the deceased, a partition was effected of the joint family properties and in that partition he took a smaller share instead of his legal half benefiting the other to the extent of the difference.
The same thing had happened in the case of Kantilal Trikamlal also.
Trikamlal Vadilal and his son Kantilal constituted a Hindu undivided family.
On 16th November, 1953, and instrument styled a "release deed" was executed between the two persons.
Under this instrument, a sum of rupees one lakh out of the joint family properties was taken by 178 the deceased m lieu of his share in the joint family properties and he relinquished his interest in the remaining properties of the joint family which were declared to belong to Kantilal as his sole and absolute properties and Kantilal also relinquished his interest in the amount of rupees one lakh given to the deceased and declared that the deceased was the sole and absolute owner of the said amount.
Trikamlal Vadilal died on 3rd June, 1955, that is within two years of the release deed.
The Assistant Controller found that, as on November 16, 1953, the deceased was enti tled to a one half share in the joint family properties, the value of which was Rs. 3,44,058, but had relinquished his interest in the joint family properties by receiving only a sum of rupees one lakh.
The officer, there fore, held that the difference between Rs.3,44,058 and Rs, 1,06,724 (being the amount received by the deceased together with inter est) was includible in the principal value of the estate of the deceased, being the value of a disposition by the deceased in favour of a relative for partial consideration.
This assessment was upheld eventually by the Su preme Court.
Both these decisions, thus, raised the question whether there was "gift" within the meaning of S.9 read with S.27 read with the Explanations to S.2(15) of the where a coparcener in a HUF, at the family parti tion, voluntarily agrees to accept properties of a value less than what he is entitled to claim, as a matter of right, at such partition.
This Court as did the Madras High Court in Ranganayaki Ammal, the Andhra Pradesh decision in Cherukuru Eswaramma vs C.ED., and the Punjab & Haryana High Court judgment in C.E.D.v.
Jai Gopal Mehra, answered the question in the affirmative.
This Court distinguished Go[i Eswariah, , S.C. and Getti Chettiar, , S.C. on the ground that the defi nition of 'disposition ' in Explanation 2 Sec tion 2(15) of the is much wider than the scope of that expression used in the Gift Tax Act.
We do not consider it necessary to set out here the full and de tailed reasoning of this Court in Kantilal Trikamlal 's case.
Before proceeding further, we may refer to a few later decisions of High Court relevant to the issue before ns.
The Allahabad High Court, in C.E.D.v.
Laxmi Bai, , a decision rendered after Kantilal Trikamlal, thought that the act of blending would not be a 'disposition ' within fie mean ing of:the .
In C.E.D vs Babub hai T. Panchal, (1982) 133 I.T.R.455, the Gujarat High Court had occasion to consider the question whether a transaction of release by a member of a Hindu Undivided family, within a period of two years of his death, of his interest in the family properties would amount to a 'disposition ' within the ' meaning of Explanation 2 to Section 2(15) of the .
The 179 question was answered in the negative.
In CE.D vs Satyanarayan Babulal Chaurasia, , the Bombay High Court, without touching the issue in detail, merely held, applying Goli Eswarian vs C G.T., (1970)76 I.T.R. 675 S.C, that the act of blending does not involve a transfer.
The question that falls for our considera tion now is whether, despite the extended definition in S.2(15) of the , as explained in Kantilal Trikamlal, the act of blending, unlike the voluntary acceptance of an unequal partition, fails outside the purview of the deeming part of the definition contained in the explanations.
We think the answer to this question has to be in the affirmative, Revert ing once again to the contentions of the Revenue in Rajamani (which are also the con tentions reiterated before us for the Revenue), it will be remembered that Rajamani specifically dealt with the language of the two explanations 10 S.2(15) and that its decision rested on three grounds: (i) a 'disposition ', as held on Goli Eswariah, S.C., has to be a 'bilateral ' or 'multilateral ' act or trans action, not a unilateral act; (ii) the act of blending does not create any right enforceable against the blender or his property but only brings to the surface rights already latent and inherent in the others; and (iii) the act of blending does not result in the extinguishment of any right of the blender with a correlative conferral of benefit on others.
our view.
Kantilal Trikamlal does not affect the validity of any of the three grounds set out above.
So far as the first ground is concerned, it does not touch upon the reasoning of Goli Eswariah, not to say doubt or dissent from it.
It refers to C.E.D. vs Kancherla Kesava Rao, , S.C. hinting at possible distinction and to Getti Chettiar (but without any hint of dis sent) and points out that the conventional construction of disposition ' has to submit to the larger sweep of hypothetical extension by definition" and that, unlike under the Gift Tax , "there is no limitation, environmen tal or by the society of words, warranting the whittling down of the unusually wide range of Explanation 2 to S.2 (15)".
In other words, the cumulative effect of Goli Eswariah, Getti Chettiar and Kantilal Trikamlal is that 'blending ' or 'partition ' will not be a 'disposition ' within the ordinary connotation of the expression but will be one if either of the Explanations to S.2(15) are attracted.
This takes us to the other two contentions dealt with in Rajamani as to the scope of the two explanations.
On this aspect, Rajamani has held that, unlike an 180 equal partition, the act of blending will not amount to a 'disposition ' attracting Ss.9 and 27 of the .
It distinguishes cases of unequal partition dealt 'with in Valliammal Achi, vs
C.E.D., and the High Court 's decision in Kantilal Trikam lal cited before it which have now received the imprimatur of this Court in Kantilal Trikamlal.
We are inclined to think that the distinction has been made on sound lines.
We do not consider it necessary to repeat or elaborate the rea soning in Rajamani on these two points as it succinctly epitomises well settled principles of Hindu Law.
Suffice it to say that we en dorse this reasoning and think that the High Court was right in holding, in the present cases, that the acts of blending did not result in the 'gift ' of immovable properties within the meaning of the statute and that Rajamani required no reconsideration because of Ranganayaki Ammal/Trikamlal.
This disposes of the question sought to be referred in these cases.
We should however like to advert to another aspect which may arise for consideration at some future date.
It may, perhaps, be possible to contend that, though a declaration of blending does not amount to a 'gift ', where the act of blending is followed up by a subsequent partition, the two transactions taken together do result in the extinguishment, at the expense of the deceased, of his rights in the properties which go to the share of other coparceners at the subsequent partition and that, if the two can be treated as parts of the same transac tion, Explanation 2 to S.2(15) may be attract ed.
But this, apart from being a totally new question of law not raised at any stage and not debated before us, would also require not only a closer look from the legal angle but also investigation into facts, particularly as to whether the act of blending and the subse quent partition can be treated, in law and on facts, as parts of a single transaction.
We, therefore, express no opinion on this issue.
For the reasons discussed above, these appeals fail and are dismissed.
But we make no order regarding costs.
Y.L. Appeals dismissed.
| A common question of law that arises for determination in these appeals by special leave is whether the act of a member of a joint family by which he impresses his individu al property with the character of joint family property or "throws" it into the hotch potch of the joint family or "blends" it with the joint family property is a 'disposi tion ' within the meaning of the .
In Civil Appeal No. 1204 of 1979 the facts are: One Natesan Chetty who died on 1.3.1972, was the Karta of a Hindu Undi vided Family, consisting of himself and his four sons.
He owned five house properties in Madras, On 18.6.70 and 16.9.1970, he made declarations by which he impressed the properties with the character of joint family properties and further declared that they would thereafter belong to HUF of which he was the Karta.
Thereafter a partition was effected in the family in March 1971 in which two of the properties came to his share.
Sri Chetty had also borrowed Rs. 46,800 from HUF out of the rental income from the properties for his business purposes.
These borrowings were duly repaid in April, 1971.
In completing the assessment to estate duty of the estate passing on the death of Natesan Chetty, the Assistant Controller of Estate Duty held that the declarations made by the deceased on 18.6.70 and 16.9.70 were "dispositions" within the meaning of the said expression as defined in the second explanation to section 2(15) of the .
He further held that since the declarations were made with out consideration, they amounted to gift which had been made within two years of the date of death and hence liable to be assessed as part of the estate passing on death under sec tion 9 of the Act.
The two properties which had fallen to the share of the deceased passed on the death of the de ceased.
He accordingly included Rs. 1,22,500 the value of the other three properties also in 168 the principal value of the estate.
The Asstt.
Controller further held that a sum of Rs. 46,800 being the loan taken and discharged by the deceased should also be added back in computing the principal value of the estate by virtue of section 46(2) of the Act.
Dissatisfied with the conclusion of the Asstt.
Control ler, the accountable person preferred an appeal to the Appellate Controller of Estate Duty which was successful.
Thereupon the Department preferred an appeal to the Tribunal which, following the decision of the Madras High Court in Rajamani Ammal vs Controller of Estate Duty, held that the sum of Rs. 1,22,500 could not be included in the value of the estate passing on the death and consequently, that the add back of Rs. 46,800 was also not justified.
Thereupon the Controller of Estate Duty applied under Section 64 (1) of the Act for a reference to the Madras High Court for its opinion on the two questions.
The Madras High Court was of the opinion that the basic question at issue was covered by the earlier decisions of the Court in Rajamani Ammal vs Controller of Estate Duty and Control ler of Estate Duty vs Smt.
Mookammal, The High Court declined to call for a reference and dis missed the application for reference.
Hence the appeals by the Department.
Dismissing the appeals, this Court, HELD: "Blending" or "partition" will not be a 'disposi tion ' within the ordinary connotation of the expression but will be one if either of the Explanations to Section 2(15) are attracted.
[179 G] Unlike an unequal partition, the act of blending will not amount to a 'disposition ' attracting Ss. 9 and 27 of the Act.
[179 H 180 A] The High Court was right in holding that the acts of blending did not result in the 'gift ' of immovable proper ties within the meaning of the statute.
[180 C] Though a declaration of blending does not amount to a 'gift ' where the act of blending is followed up by a subse quent partition, the two transactions taken together do result in the extinguishment, at the expense of the de ceased, of his rights in the properties which go to the share of other coparceners at the subsequent partition and, if the two can be treated as parts of the same transaction the Explanation to Section 2 (15) may be attracted.
[180 D E] 169 Rajamani Ammal vs Controller of Estate Duty, ; Controller of Estate Duty vs Smt.
Mookammal, ; Rangabayaki Ammal vs CED, ; CED vs Kantilal Trikamlal, ; Stremann vs CIT, SC; Goli Eswariah vs CGT, ; C.G.T.v.
Getti Chettiar, ; Cherukuru Eswaramma vs
C.E.D, ; CED vs Jai Gopal Mehta, ; C.E.D., vs Laxmi Bai, ; C.E.D.v.
Babubhai T. Panchal, ; and C.E.D.v.
Satyanaravan Babulal Chaurasia, , referred to.
|
Appeal No. 1720 of 1986.
From the Judgment and Order dated 5.7.1985 of the Andhra Pradesh High Court in Writ Appeal No. 577 of 1985.
B. Kanta Rao for the Appellant.
K. Madhava Reddy and G. Prabhakar for the Respondents.
The Judgment of the Court was delivered by KANIA, J.
This is an appeal by Special Leave from the judgment of a Division Bench of the Andhra Pradesh High Court dismissing the Writ Appeal No.577 of 1985 filed in that Court.
Very few facts are necessary for the disposal of this ap peal.
The appellant is the owner of a plot comprising roughly 2 acres of land in Ramavarappadu village, Vijayawada Taluk, in the Krishna District in Andhra Pradesh.
The Government of Andhra Pradesh sought to acquire about 1 acre and 89 cents out of the aforesaid land for a public propose.
A Notifica tion under section 4(1) of the Land Acquisition Act, 1894 (hereinafter referred to as "the said Act") was published in the Government 117 Gazette on February 9, 1976.
The substance of the said notification was published in the locality where the land proposed to be acquired is situated, on April 2, 1978, long after the period of 40 days within which it was required to be published as per the provisions of section 4(1) of the said Act as amended by the Andhra Pradesh (Amendment) Act, 1983, (Act 9 of 1983).
Enquiry under section 5A of the said Act was dispensed with invoking the urgency clause as per section 17(4) of the said Act.
Notification under section 6 was published on the same day as the publication of the notification under section 4(1) of the said Act.
An inquiry was conducted regarding the fixation of compensation to be awarded to the appellant and others whose lands were ac quired under the said notification.
It appears that during the course of the said inquiry the appellant stated to the Land Acquisition Officer concerned that he was willing to agree to the land being acquired provided he was given compensation in a lump sum.
Probably the reason was that if the compensation was awarded in a lump sum without delay, the appellant might have been able to purchase some other land, as his holding was under the ceiling limit.
The aforesaid facts have been found by the Trial Court and accepted by the High Court.
On November 9, 1979, before any award was made, the consent to the acquisi tion of the land given by the appellant, as aforestated, was withdrawn by him and on May 14, 1981, the appellant filed a writ petition in the High Court questioning the validity of the land acquisition proceedings.
The learned Single Judge before whom the said writ petition along with another writ petition came up for hearing held that the appellant had agreed to the acquisition of the said land on compensation being paid as aforestated, and hence it was not open to the appellant to challenge the validity of the said notifica tions issued under section 4(1) and section 6 of the said Act.
It was held by him that the withdrawal of the said representation or consent by the appellant did not in any manner assist him.
The learned Judge dismissed the writ petition filed by the appellant without going into the merits of the aforesaid petition on the aforesaid basis.
This judgment was upheld by the Division Bench of the High Court which dismissed the aforesaid writ appeal.
It is the correctness of these decisions which is impugned before us.
In our view, the learned Single Judge and the Division Bench of the High Court of Andhra Pradesh were, with re spect, clearly in error in dismissing the respective writ petition and the appeal filed by the appellant on the ground that the appellant had stated that he was willing to accept the acquisition provided a lump sum compensation was awarded to him.
The statement of the appellant amounted in law to no more than an offer in terms of the Contract Act.
The said offer was never accepted by the Land Acquisition Officer to whom it was made.
Leave alone, making 118 the award of lump sum compensation, no award at all was made by the said officer awarding compensation to the appellant till November 9, 1979, when the aforesaid offer was with drawn by the appellant or even till the writ petition was filed.
Till the offer was accepted there was no contract between the parties and the appellant was entitled to with draw his offer.
There was nothing inequitable or improper in withdrawing the offer, as the appellant was in no way bound to keep the offer open indefinitely.
The writ petition, therefore, ought not to have been dismissed on the ground of the appellant having made a statement or consented as afore stated before the Land Acquisition Officer.
On the merits, it is clear that the acquisition of the land is bad in law because the substance of the notification under section 40) of the said Act was not published in the locality within forty days of the publication of the notifi cation in the Government Gazette.
The time limit of forty days for such publication in the locality has been made mandatory by section 4(1) of the said Act as amended by the Andhra Pradesh (Amendment) Act.
It is well settled that such non compliance renders acquisition bad in law.
In the result, the appeal succeeds and Rule in the writ petition is made absolute.
It is declared that the acquisi tion of the aforesaid land of the appellant is bad in law.
If the possession has been taken, the same must be returned to the appellant.
The appeal is allowed as aforestated with costs throughout.
T.N.A. Appeal Allowed.
| Proceedings for acquisition of appellant 's land were initiated.
and a Notification under section 4(1) of the Land Acquisition Act, 1894 was published in the Government Ga zette.
The substance of the said Notification was published in the locality long after 40 days within which it was required to be published under Section 4(1) of 1894 Act 'as amended by the Andhra pradesh(Amendment) Act, 1983.
During the course of enquiry regarding the fixation of compensa tion, the appellant consented to his land being acquired provided he was given compensation in a lump sum.
However, before any award was made he withdrew his consent and filed a petition challenging the validity of the acquisition proceedings.
A Single Judge of the High Court dismissed his petition by holding that since he gave his consent to the acquisition of land he could not challenge the acquisition proceedings.
On appeal the decision of the Single Judge was confirmed by the Division Bench of the High Court.
Against the decision of the Division Bench of the High Court, an appeal was filed in this Court.
Allowing the appeal, this Court, HELD: 1.
The Single Judge and the Division Bench of the.
High Court were clearly in error in dismissing the respective writ petition and the appeal filed by the appel lant respectively.
The appellant 's statement that he was willing to accept the acquisition provided a lump sum com pensation was awarded to him amounted 115 116 in law to no more than an offer in terms of the Contract ACt.
The said offer was never accepted by the Land Acquisi tion Officer to whom it was made.
Leave alone, making the award of lump sum compensation, no award at all was made by the said officer awarding compensation to the appellant till the aforesaid offer was withdrawn by the appellant or even till the writ petition was filed.
Till the offer was accept ed there was no contract between the parties and the appel lant was entitled to withdraw his offer.
There was nothing inequitable or improper in withdrawing the offer, as the appellant was in no way bound to keep the offer open indefi nitely.
1117 G H, 118 A] 2.
The acquisition of the appellant 's land is bad in law because the substance of the Notification was not pub lished in the locality within forty days of the publication of the Notification in the Government Gazette.
The time limit of forty days for such publication in the locality has been made mandatory by section 4(1) of the 1894 Act as amended by the Andhra Pradesh (Amendment) Act, 1983.
Such non compliance renders acquisition bad in law.
[118 C]
|
Civil Appeal No. 4380 of 1991.
From the Judgment and Order dated 10.4.1991 of the Madras High Court in Writ Appeal No. 38 of 1991.
K. Parasaran, K.V. Vijaya Kumar and V. Bala Chandran for the Appellants.
C.T. Selvamani and P.P. Tripathi for the Respondents.
The Judgment of the Court was delivered by K. RAMASWAMY, J.
Special Leave is granted.
This appeal is against the judgment dated April 4, 1991 of the Madras High Court.
A sum of Rs. 12,163.50 p. was alleged to have been misappropriated by the appellant (now he was acquitted of the charge of misappropriation) and for the recovery thereof his 13.07 acres of coffee estate situated in Semmanthaputhur village was brought to sale under the Tamil Nadu Revenue Recovery Act, 1894 (for short 'The Act ').
On March 30, 1979 the sale by auction was held by the Tahsildar.
The first respondent purchased for a sum of Rs. 12,225 and deposited a sum of Rs.2,000 being 15 per cent of the sale price.
Under Sec.
36 of the Act, the first respondent should have deposit ed the balance consideration within 30 days from the date of the auction.
On October 23,1981 the sale was confirmed and the balance amount was deposited on November 4, 1981.
The appellant filed an application but by proceed ing dated October 23, 1981, the Revenue Divi sional Officer overruled the objections and dismissed the application.
On appeal the Addl.
Distt.
Collector, Salem set aside the sale on October 13,1982.
The first respondent filed writ petition 184 No. 246 of 1984 in the High Court.
The learned Single Judge by judgment dated August 21, 1990 quashed the order of the Addl.
Collec tor.
On writ appeal, the Division Bench dis missed it.
Thus this appeal.
The formidable objection raised by the appellant is that it is mandatory under Sec.36 that the date and place of sale shall be published in the Gazette and that the publica tion did not mention the place of sale.
There fore, the sale is invalid in law.
It is also his further plea that it is equally mandatory that the balance sale consideration of 85% should be deposited within 30 days from the date of sale which was done only on November 4, 1981 long after one year and eight months of the date of sale.
The sale and Confirmation thereof are, therefore, illegal.
The learned Single Judge and the Division Bench held that Form 7A of the forms prescribed under the Act read with relevant provisions of the Board Standing Order No.41 does not prescribe the place of sale and that, therefore, the omis sion to specify the place of sale does not render the sale invalid nor an irregularity.
Shri Selvamam, the first respondent in person (himself a practising Advocate) contended that it is Form 7 and not Form 7A that would be applicable to the facts of the case.
Form 7 contains the place of sale and that it was complied with.
Therefore, the sale is not illegal.
It is also contended that the deposit was made after protracted correspondence and that, therefore, the non deposit within 30 days from the date of sale is not illegal.
At any rate, having accepted the amount, the authority acquiesced to the deposit/Therefore, the confirmation of the sale is not illegal.
We find no substance in either of the conten tions.
The contention that Form 7 and not Form 7A would be applicable to the facts, is not the case set up or argued either before the authorities or the courts below.
For the first time he cannot raise that plea in this Court.
That apart specifically the High Court (learned Single Judge and the Division Bench) held that it is form 7A that is applicable and that it does not prescribe publication of place of sale and therefore, the omission thereof does not render the sale invalid.
The High Court wholly misconceived of Sec.36.
A reading of Sec.
36 manifests that the word 'shall ' is mandatory in the context.
The publication is an invitation to the intending bidders to prepare and participate at the bid.
Unless there is a due publication of the date and place of sale, the intending purchasers cannot be expected to run after the Sale Officer to find out the date and place of sale and to participate thereat.
The Sale officer has a statutory duty and a responsi bility to have the date and place of sale men tioned in the notice and given due publication in terms of the Act and the Rules.
Public auction is one of the modes of sale intending to get highest competitive price for the property.
Public auction also ensures fairness in actions of the public authorities or the sale 185 officers who should act fairly, objectively and kindly.
Their action should be legitimate.
Their dealing should be free from suspicion.
Nothing should be suggestive of bias, favouri tism, napotism or beset with suspicious fea tures of underbidding detrimental to the legitimate interest of the debtor.
The fair and objective public auction would relieve the public authorities or sale officers from above features and accountability.
Any infraction in this regard would render the sale invalid.
It is settled law that the word 'shall ' be construed in the light of the purpose the Act or Rule that seeks to serve.
It is not an invariable rule that even though the word 'shall ' is ordinarily mandatory but in the context or if the intention is otherwise, it may be construed to be directory.
The construc tion ultimately depends upon the provisions itself, keeping in view the intendment of the enactment or of the context in which the word 'shall ' has been used and the mischief it seeks to avoid.
Where the consequence of failure to comply with any requirement of a provision is provided by the statute itself, the consequence has to be determined with reference to the nature of the provision, the purpose of enactment and the effect of non compliance thereof.
In its absence the conse quence has to be determined with reference to the effect of the non compliance of the provi sion of the legislature.
Mere use of the word 'shall ' need not be given that connotation in each and every case that the provision would be invariably interpreted to be mandatory or directory.
But given due consideration to the object, design, purpose and scope of the legislation the word shall be construed and interpreted in that design and given due emphasis.
See.36 obligates the Sale Officer (Tahsildar) that he shall publish the date and place of sale.
The object thereby is an invita tion to the public at large that the notified property would be brought to sale at that specified time and place and that they are invited to participate, if they so desire.
To reiterate for emphasis and continuity that the object of the sale is to secure the maximum price and to avoid arbitrariness in the proce dure adopted before sale and to prevent under hand dealings in effecting sale and purchase of the debtor 's property.
As a responsibility as sale officer and a duty towards the debtor, the sale officer should conduct the sale strictly in conformity with the prescribed procedure under the statute and the rules as the case may be.
Such due and wide publicity would relieve the debtor from the maximum liability he owes and payable to the creditor.
This responsibility is not only salutory to vouchsafe bonafides in the conduct of the sale officer but also to ensure fairness in the procedure adopted in bringing the property of the debtor to sale.
Considered from this perspective the non compliance of Sec.35 i.e., omission to mention the place of sale world visit with deprivation of the property to the debtor 186 for an inadequate sale consideration due to absence of competing bidders.
Thus, we hold that specification of the date and place of sale shall be mandatory.
The forms either 7 or 7A are only procedural and they should be in conformity with Sec. 36.
The form cannot prevail over the statute.
The omission of specification of the place of sale in the form renders the sale not merely irregulate but also invalid.
Equally the second objection is insur mountable.
It is mandatory that "the balance of the sale amount shall be remitted within 30 days from the date of auction" and if not the earnest money deposited is liable to forfei ture.
Confirmation of the sale should precede the deposit of the sale amount.
36 man dates remittance of the balance of 85% of the sale consideration within 30 days from the date of auction.
It is obligatory on the purchaser to deposit the amount within that period unless he is prevented by an order of the court or tribunal from so making depos it.
The 'non compliance renders the 15% depos it liable to forfeiture.
Therefore, the con firmation of the sale without compliance is illegal.
We hold that the sale is vitiated by manifest error of law and rightly set aside by the Addl.
Collector, Salem (Appellate Authority).
The High Court, both the learned Single Judge and the Division Bench committed menifest error of law in interfering with the order of the appellate authority.
The appeal is accordingly allowed.
The writ petition stands dismissed and that of the order of the Addl.
Distt.
Collector, Salem restored, but in the circumstances parties are directed to bear their own costs throughout.
S.B. Appeal allowed.
| The appellant was alleged to have misap propriated a sum of Rs. 12,163.50 [though acquitted of the charge of misappropriation] and for the recovery thereof his 13.07 acres of coffee estate was brought to sale under the Tamil Nadu Revenue Recovery Act, 1894.
On March 30,1979 the sale by public auc tion was held by the Tehsildar.
The first respondent purchased the said estate for a sum of Rs. 12,225 and deposited a sum of Rupees 2000 being 15% of the sale price.
Under sec tion 36 of the Act, he should have deposited the balance consideration within 30 days from the date of the auction.
This sale was con firmed on October 23,1981 and the balance amount was deposited on November 4, 1981.
So the appellant filed an application to set aside the sale but the Revenue Divisional Officer overruled the objections and dismissed the application.
On appeal to Additional District Collector on October 13, 1982, the sale was set aside.
So the first respondent filed writ petition in the High Court and the single High Court Judge quashed the order of the Additional District Collector.
The writ appeal by the appellant to the Division Bench was also dismissed.
Hence the appellant came to this Court.
The appellant urged that under section 36 of the Act it is mandatory that the date and place of sale 'shall ' be published in the Gazetee and that the publication did not mention the place of sale so the sale is invalid in law.
It was further submitted that it was equally mandatory that the balance sale consideration of 85% should be deposited within 30 days from the date of sale which was done by the first respondent only on November 4, 1981 long after one year 182 and eight months of the date of sale and therefore illegal.
While the first respondent contended that it was Form 7 and not Form 7A that would be applicable to the facts of the instant case and that Form 7 contains the place o[ sale and that it was complied with.
Therefore, the said sale is not illegal.
It was further submitted that the deposit was made after protracted correspondence and that the non deposit within 30 days from the date of sale is not illegal since the deposit was accepted by the authority.
Therefore the confirmation of the sale is not illegal.
Granting the special leave, dismissing the writ Petition, setting aside the Judgment of the High Court, and restoring the order of the Additional District Collector, the Court HELD: That in the instant case, the High Court has wholly misconceived section 36 of the Act.
A reading of the said section mani fests that the word 'shall ' is mandatory in the context.
The publication is an invitation to the intending bidders to prepare an partic ipate at the bid.
Unless there is due publica tion of the date and the place of sale, the intending purchasers cannot be expected to run after the sale officer.
The sale officer has a statutory duty and a responsibility to have the date and place of sale mentioned in the notice giving due, publication in terms of the Act and the Rules.
Public auction is one of the modes of sale intending to get highest competitive price for the property and it also ensures fairness in actions of the public authorities or the sale officers who should act fairly objectively and kindly.
Nothing should be suggestive of bias favouritism nepotism or beset with suspicious features of under bidding detrimental to the legitimate interest of the debtor.
[184 F, G 1 85 A] Further it is settled law that the word 'shall ' be construed in the light of the purpose of the Act or Rule that seeks to serve.
Even though the word 'shall ' be ordi narily mandatory but in the context or if the intention is otherwise it may be construed to be directory.
The construction ultimately depends upon the provision itself.
Considered from this prospective of non compliance of section 35 that is comission to mention the place of sale would visit the deprivation of the property to the debtor for an adequate consideration due to absence of competing bidders.
Hence the specification of the date & place of sale 'shall ' be mandatory.
The forms either 7 or 7A are only procedural and they should be in conformity with section 36.
The form cannot prevail over the statute.
The omission of specification of the place of sale in the form renders the sale not merely irreg ular but also invalid.
[185 C; H 186 B] 183 Equally the second objection is insur mountable.
It is mandatory that the balance of the sale amount shall be remitted within 30 days from the date of auction and if not the earnest money deposited is liable to forfei ture.
Section 36 mandates remittance of the balance of 85% of the sale consideration within 30 days from the date of auction.
It is obligatory on the purchaser to deposit the amount within the period unless prevented by an order of the Court or Tribunal.
So the confirmation of sale without compliance is illegal and the sale is vitiated by manifest error of Law & rightly set aside by the Addi tional District Magistrate.
The High Court has committed error in law in interfering with the order of the appellate authority.
[186 B D]
|
ivil Appeal Nos.4554 to 4556 of 1991.
From the Judgment and Order dated 18.2.91 of the Madhya Pradesh High Court in Misc.
Petition Nos.
1707, 1746 and 1797 of 1986.
D.D. Thakur, C.S.Chazed, V.Gambhir, Surinder Kamail, S.K.Gambhir and N.N.Bhatt for the Appellants.
K.K. Venugopal, P.P.Rao, G.L.Sanghi, K.K. Sharma, Ashok K. Mahajan, L.R. Singh, D.Mehta, A.Vachher, R.N.Mittal and S.K.Mehta for the Respondents.
The Judgment of the Court was delivered by 249 RANGANATH MISRA, CJ.
Special leave granted.
Ujjain Development Authority is in appeal challenging the judgment of the Madhya Predesh High Court, Indore Bench, rendered in an application under Article 226 of the Consti tution annulling the notification issued under section 4 of the Land Acquisition Act of 1894 (hereinafter referred to as 'the Act ') by holding that scheme No.23 flamed under Madhya Pradesh Nagar Tatha Gram Nivesh Adhiniyam, 1973 does not operate against certain specified lands of the respondents.
It would appear that there was a similar notification under section 4(1) of the Act for acquisition of the self same properties along with some 600 hectares for the purpose of development of Ujjain, a historical town of Kalidas fame within Madhya Pradesh.
On 17.9.80 for different reasons the notification had been quashed.
In 1985 the impugned notifi cation was issued afresh under section 4(1) of the Act.
The High Court found that the requirements of the stat ute for completing the scheme for the purpose of which the acquisition had been made had not been complied with and, therefore, no action for acquisition under the scheme could be taken.
We have heard learned counsel for both the sides and must state that the reasoning given by the High Court is difficult to find fault with.
There are, however certain features which lead us not to sustain the decision of the High Court.
Admittedly there has been a notification under section 50(2) of the Adhiniyam.
Gazette Notification in respect of Scheme No. 23 has also been produced.
Though there is a finding that the pre conditions had not been complied with strictly under the statutory provisions, the High Court has not found any mala fides.
The Development Authority in question consisted of only one person.
His own order was perhaps taken by him and the governmental authori ties as the requisite resolution.
The respondents did not take the ground that there was no valid authority behind the scheme.
In the earlier petition also such a ground had not been raised.
The High Court called for the record and dis covered for itself that the statutory pre condition had not been complied with for the said scheme to operate.
If this question had been raised when the earlier writ petition was filed about 12 years back, the defect could have then been rectified.
It is the admitted case before us that the undisputed huge patch of land has been substantially improved upon under the scheme.
Cancellation of the notification does not bring the matter to an end.
Obviously fresh proceedings would be taken after complying with the defect if the judg ment of the High Court is allowed to stand.
If the acquisi tion is not made the respondents should enjoy usual benefits of their land on account of the 250 development of the neighbouring area and if the re acquisi tion is made there would be claim for higher compensation.
Looking at the matter from these different angles, we have thought it appropriate to allow the appeal, vacate the judgment of the High Court and allow the acquisition to remain subject, however, to the condition that the notifica tion under section 4(1) of the Act issued in 1985 shall be deemed to be one dated 1.1.88 and the market value of the land for the acquisition shall be determined with reference to that date.
We would like to point out that the potential value of the land has substantially enhanced on account of the improvements made pursuant to the notification which had been assailed.
We have directed the deemed date of the notification under section 4(1) to be postponed by almost three years and during this period the appellant has brought about the bulk of the improvements in the neighbourhood.
We direct that 25 per cent of the potential value of the land relatable to the improvements made by the appellant would only be available to the respondents, but in fixing market value all other legitimate considerations shall be taken into account.
We make it clear that we have no intention to extend the benefit under section 28A of the Act to the owners of the lands already acquired under the notification of 1980 or 1985 on the basis of our direction that the respondents ' lands shall be deemed to have been notified under section 4(1) of the Act on 1.1.
In fact our order must be deemed to be a separate notification for acquisition and, therefore, it would not be a common notifi cation for the purpose of section 28 A of the Act.
The respondents should, therefore, be entitled to this benefit that instead of the notification under section 4(1) of the Act being of 1985, it shall be treated to be of 1.1.1988.
The appellate authority is now entitled to take position in accordance with law subject to the valuation of the compen sation in the manner indicated.
There will be no order as to costs.
V.P.R. Appeals dis posed of.
| A notification u/s.4(1) of the Land Acquisition Act, 1894 was issued for acquisition of the questioned lands along with some other lands for the purpose of development of the town.
On 17.9.80 the same was quashed.
In 1985 another similar notification was issued u/s 4(1) of the Act, for acquisition of the same lands for the Scheme No.23 framed under Madhya Pradesh Nagar Tatha Gram Nivesh Adhiniyam, 1973.
The respondents challenged the notification before the High Court under Article 226 of the Constitution.
The High Court allowed the writ petitions annulling the notification and holding that the Scheme No.23 did not operate against certain specified lands of the respondents.
It also found that the statutory requirements for completing the scheme were not complied with and therefore, no action for acquisition under the Scheme could be taken.
These appeals were filed by the Development Authority against the High Court judgments by special leave.
Disposing of the appeals, this Court, HELD: 1.
The pre conditions had not been complied with strictly under the statutory provisions.
The High Court has not found any malafides.
The Development Authority in ques tion consisted of only one person.
His own order was perhaps taken by him and the gov 248 ernmental authorities as the requisite resolution.
The respondents did not take the ground that there was no valid authority behind the scheme.
[249 E F] 2.
The huge patch of land has been substantially improved upon under the scheme.
Cancellation of the notifi cation does not bring the matter to an end.
Obviously, fresh proceedings would be taken after complying with the defect if the judgment of the High Court is allowed to stand.
If the acquisition is not made the respondents should enjoy usual benefits of their land on account of the development of the neighbouring area and if the re acquisition is not made there would be claim for higher compensation.
[249 G250 A] 3.
It is directed that the acquisition remain to subject, to the condition that the notification under sec tion 4(1) of the Act issued in 1985 shall be deemed to be one dated 1.1.88 and the market value of the land for the acquisition shall be determined with reference to that date, and that as the deemed date of the notification under sec tion 4(1) to be postponed by almost three years and during this period since the appellant has brought about the bulk of the improvements in the neighbourhood, 25 per cent of the potential value of the land relatable to the improvements made by the appellant would only be available to the re spondents, but in fixing market value all other legitimate considerations shall be taken into account.
There is no intention to extend the benefit under section 28 of the Act to the owners of the lands already acquired under the noti fication of 1980 or 1985 on the basis of court 's direction that the respondents ' lands shall be deemed to have been notified under section 4(1) of the Act on 1.1.1988.
[250 B D]
|
Appeal No. 1345 of 1986.
From the Judgment and Order dated 29.8.1984 of the Madhya Pradesh High Court in Misc.
Petition No.613 of 1983.
Avadh Behari Rohtagi.
S.K. Gambhir, Vivek Gambhir and K.K. Mohan for the Appellants.
U.R. Lalit, S.S. Khanduja, Y.P. Dhingra, B.K Satija and Surinder Karnai for the Respondents.
The Judgment of the Court was delivered by 260 KASLIWAL, J.
In all the above appeals the parties are the same and the controversies raised are intimately con nected and dependent on each other, hence all the cases are disposed of by one single order.
Land measuring 19 bighas was granted by the ruler of the erstwhile State of Ratlam in favour of ancestors of respond ents Shantilal and Poonam Chand Pitaliyas (hereinafter referred to as 'Pitaliyas ') for installation of a Ginning factory.
Ancestors of Kantilal Jhalani and other appellants (hereinafter referred to as 'Jhalanis ') entered into part nership with Pitaliyas and the partnership started a Ginning factory on a portion of the above 19 bighas of land.
The names of Jhalanis and Pitaliyas were recorded in the revenue records in respect of the entire land.
The above 19 bighas of land had some different survey numbers but subsequently at the time of settlement in Ratlam in the year 1956 57, the numbers were changed to survey numbers 120 and 121.
Survey No. 120 comprised of 2 biswas and survey No.121 of 18 bighas and 18 biswas.
According to the Jhalanis in execution of a decree against Pitaliyas the above land was sold and Jhala nis purchased the said land in an auction.
Thereafter, an application was moved by the Jhalanis on 13th April, 1951 for mutation of their names before the Tehsildar in respect of the entire lands bearing survey Nos. 120 and 121 leaving such portion of the land on which the Ginniing factory was standing.
The Tehsildar vide his order dated 20th February, 1953 allowed the application and passed an order mutating the names of Jhalanis on the entire 19 bighas of land.
The said mutation was allowed on the basis of compromise between Pitaliyas and Jhalanis and also on the basis of a sale certificate issued by the Civil Court.
The Town Improvement Trust, Ratlam (hereinafter referred to as 'the Trust ') started acquisition proceedings for a housing scheme under the provisions of the Town Improvement Trust Act, 1960 (hereinafter referred to as 'the Act ') and issued a notification on 28th August, 1964 under Sec.68 of the Act.
Survey Nos. 120 and 121 were shown in the notifica tion leaving out some area of survey No.121.
In the acquisi tion proceedings, the Trust obtained possession of the acquired land on 21st March, 1968.
The Collector started svomotu proceedings under Sec.50 of the Madhya Pradesh Land Revenue Code, 1959 and issued a notice on 17th December, 1970 to the Jhalanis stating that the mutation proceedings did not appear to be legal.
It is not necessary to state the details of other proceedings by which the Jhalanis went to the higher authorities as ulti mately the matter came back to the Collector by remand.
The Jhalanis contested the proceedings before the Collector and prayed for the cancellation of the 261 notice dated 15th February, 1972 which was issued afresh by the Collector after the remand of the case to him.
The Collector ultimately by an order dated 31st March, 1977 set aside the order of mutation passed by the Tehsildar and gave a direction that the Tehsildar, Ratlam will again make the same entry in the revenue records which was done previously in respect of disputed land.
It was further directed that thereafter the Tehsildar will do proper investigation and analyse all the concerned facts and events which had hap pened in the case and take steps for making the record upto date.
Particularly he will see by which lease and on what conditions originally how much land was given for factory purpose by the State and whether that lease is effective or lapsed.
An appeal filed by the Jhalanis to the Additional Commissioner was dismissed by order dated 11th December, 1981.
The Jhalanis then filed an appeal before the Board of Revenue.
This appeal filed by the Jhalanis was allowed in their favour by the Board of Revenue by order dated 26th March, 1983.
The Board inter alia held that pending mutation proceedings, there was compromise between the parties, objections were withdrawn by the Pitaliyas and no appeal or revision was filed against the mutation order nor any suit was filed challenging the order of the Tehsildar.
The Pitaliyas then filed a writ petition before the High Court for setting aside the order of the Board of Revenue.
The High Court by order dated 29th August, 1984 allowed the Writ Petition and set aside the order of the Board of Revenue and restored the orders of the Additional Commissioner and the Collector.
Aggrieved against the aforesaid judgment of the High Court, the Jhalanis have filed Civil Appeal No. 1345 of 1986 by grant of Special leave.
In the acquisition proceedings the question of compensa tion was decided by the Tribunal constituted under Sec.73 of the Act.
The Tribunal by its order dated 30th November, 1973 held that Pitaliyas had no right to claim compensation and the Jhalanis alone were entitled to the entire amount of compensation.
The Order of the Tribunal was challenged by Pitaliyas, for apportionment of the amount of compensation, also by Jhalanis for increasing the amount of compensation and by the trust for reducing the amount of compensation by filing separate appeals in the High Court.
The High Court by its order dated 29th July, 1984 allowed the appeal filed by the Pitaliyas and held that they were entitled to claim compensation in equal proportion with Jhalanis.
The High Court dismissed the appeal filed on behalf of the Trust.
The High Court allowed the appeal filed by Jhalanis in part and increased the rate of compensation from 0.65 paisa per Sq.
10 0.75 paisa per Sq.
Aggrieved against the afore said judgment of the High Court in acquisition proceedings, the Jhalanis have filed Civil Appeal No. 1346 of 1986 and the Trust has flied appeal No.3426 of 1987 by grant of special leave.
262 We have heard learned counsel for the parties and have thoroughly perused the record.
The land in question was given by the Ruler of erstwhile State of Ratlam for establishing a Cotton Ginning factory at Ratlam.
The deed of partnership between the Pitaliyas and Jhalanis has not been produced on the record of this case but the admitted position is that the Janlabandi entries in the revenue records of the year 1921 22 show tllat survey Nos. 1326 to 1336, 1337/2 and 1340 to 1342 (subsequently changed to Survey Nos. 120 and 121), stood in the name of Keshrimal Vardhman Pitaliya and Keshrimalji Dhanrajji Jhala ni in equal shares.
Keshrimal Vardhman Pitaliya proprietor of firm Vardhman Keshrimal died sometime prior to 1932 and he left behind two sons Sagarmal and Vinayakrao Pitaliya who became the proprietors of Hindu Undivided Family firm Vard human Keshrimal.
Sagarmal and Vinayakrao Pitaliyas did not apply for the mutation of their names in the revenue re cords, after the death of their father Keshrimal Pitaliya.
Keshrimal Dhanraj Jhalani had to recover some amount from the firm Vardhman Keshrimal and he filed a civil suit for the recovery of the money against Sagarmal and Vinayakrao Pitaliyas.
A degree was passed in favour of Keshrimal Dhan raj Jhalani and they filed an application for execution of the decree.
In the execution case No. 161/42 the right, title and interest of Pitaliyas in the Ginning Factory were sold in auction for Rs.6541 and which was purchased by Keshrimal Dhanraj Jhalani on 2nd November, 1946.
A sale certificate was also issued in favour of Keshrimal Dhanraj Jhalani by the Civil Court Ratlam on 3rd October, 1950.
On the basis of this sale certificate Keshrimal Dhanraj Jhalani applied for mutation in the revenue records on 3rd April, 1951 before the Tehsildar, Ratlam.
Alongwith the application Keshrimal Jhalani filed a copy of the sale certificate and a certified copy of the Jamabandi of the land of Samwar year 20,35 (1948 49 A.D).
During the pendency of this mutation application Vinayakrao Pitaliya died leaving no heirs.
Sagarmal who was Karta of the Joint Hindu Family filed objections to the mutation application on 17th March.
It is important to note that in these objections Sagannal clearly raised the ground that in the auction proceedings only movable property of the factory was sold and as such Keshrimal Dhanraj Jhalani had no right to clam mutation of the entire agricultural land in his favour.
Thereafter an agreement took place between Sagarmal Pitaliya and Keshrimal Dhanraj Jhalani on 16th October.
This agreement made in writing was filed before the Tehsildar in which Sagarmal Pitaliya agreed to with draw his objections for the mutation of his share in 19 bighas of land.
in favour of Shri Keshri mal Dhanraj Jhalani in lieu of Shri Keshrimal Dhanraj JhaIa ni having agreed not to recover Rs.4941.
being the balance amount of decree passed in suit No.2 of 1932 against Pita liyas.
Apart from the 263 aforesaid compromise application the statement of Sagarmal Pitaliya was also recorded on 16th October, 1952 itself and Sagarmal clearly made a statement that he was withdrawing his objections as regards mutation in respect of his share in the land of 19 bighas and that he had no objection to the mutation of Shri Keshrimal Dhanraj Jahalani 's name in re spect of the land in dispute.
Thereafter, the Teshsildar rejected the objections filed by Sagarmal and passed an order on 20th February, 1953 granting mutations in the name of Shri Keshrimal Dhanraj Jhalani.
After this order of mutation passed by the Tehsildar on 20th February, 1953 Sagaramal or any other member of the family of Pitaliyas did not take any steps for challenging the aforesaid order of the Tehsildar.
It is further proved on record that thereaf ter names of Jhalanis alone was continued in the revenue records in respect of the entire 19 bighas of land.
The land acquisition proceedings then commenced in the year 1964 and possession over the land was taken by the Trust on 21st March, 1968 from Jhalanis.
The Collector took suo motu proceedings in 1970 and passed an order on 31st March, 1977 setting aside the order of the Tehsildar.
In the above set of circumstances Pitaliyas came forward and claimed half share in the compensation amount in land acquicition pro ceedings before the Tribunal.
The Tribunal rejected the claim of the Pitaliyas but High Court by order dated 29th August,1984 granted half share in favour of Pitaliyas taking the view that they were persons interested under the Town Improvement Trust Act.
On the same day by a separate judg ment the High Court set aside the order of Board of Revenue and maintained the order of the Additional Commissioner and the Collector passed in mutation proceedings.
After going through the entire record , 'red hearing the arguments at length, we are clearly of the view that the High Court went wrong in passing the impugned orders.
As already mentioned above from the year 1922 onwards the entries in the Revenue records in respect of 19 bighas of land was made in favour of Jhalanis and Pitaliyas both in equal share.
Jhalanis had a decree against Pitaliyas and in execution of said decree share of Pitaliyas was auctioned and was purchased by Jhalanis for a sum of Rs. 6541.
Sale certificate was also issued in favour of Jhalanis.
According to Jhalanis the half share of Pitaliyas in the land was also sold and on that basis an application was filed before the Tehsildar for ranration of the entire land in their favour.
According to Sagarmal Pitaliya who was also Karta of Joint Hindu Family, no such land was sold in auction.
11 may be noted that the bid in auction was for an amount of Rs.6541 but it did not satisfy the entire decretal amount and the balance of Rs.4941 still remained due against the Pitaliyas Judgment debtors.
In view of these circumstances a compromise took place between the parties according to which Sagarmal agreed to withdraw his objections in consid eration of 264 satisfaction of the aforesaid amount of Rs.4941 outstanding against him.
On 16th October, 1952 the compromise applica tion was filed in writing and statement of Sagarmal.
was also recorded in which he clearly agreed that he will not claim any right in the land and withdraw his objections and the amount of Rs.4941 was taken as satisfied and Jhalanis agreed not to recover the aforesaid amount of Rs.4941.
It is an admitted position that the order passed by the Tehsildar on 20th February, 1953 rejecting the objections of Sagarmal Pitaliya and mutating the name of Jhalanis for the entire land, was not challenged and the same became final.
Mr.U.R.Lalit, learned Sr.
Advocate appearing on behalf of Pitaliyas did not argue, that the compromise application filed on 16th October, 1952 and the statement recorded on the same day were forged or not genuine.
The only submission made by Mr. Lalit was that any order passed in mutation proceedings cannot confer any legal title in favour of Jhalanis nor such order can divest the ownership rights of Pitaliyas in the agricultural land.
We do not find any force in this submission.
Admittedly, there was a decree of a Civil Court and in execution of the same the properties were auctioned.
Even if there was any dispute as to whether any share of Pitaliyas in the land was sold or not in the auc tion proceedings, the same was settled at rest by making a compromise between the parties.
Not only that after the order of the Tehsildar passed as back as 20th February, 1953 the Jhalanis alone were recorded as full owners of the properties and also continued to remain in possession.
It is also proved that the Trust took possession from Jhalanis on 21st March, 1968 in the land acquisition proceedings.
It is no where proved on record that the Pitaliyas ever remained in possession of the land in question after 20th February, 1953 till the time they made a claim of half share in the compensation before the Tribunal.
The Collector in our view had no justification at all to have initiated such proceed ings suo motu in 1970 after 17 years of the order passed by the Tehsildar.
Even under the law of limitation no suit for possession could have been maintained after 12 years by Pitaliyas and they were not entitled to any share in the amount of compensation.
There was also no Justification for entering the names of pitaliyas in the revenue records and to set aside the order of the Tehsildar dated 20th Febru ary,1953 after 17 years, As already mentioned above, Tehsil dar was perfectly justified in passing the order dated 20.2.1953 on the basis of the sale certificate, as well as compromise application and the statement of Sagarmal marie before him on 16.10.52.
Now, we shall deal with Civil Appeal No.3426 of 1987 filed by the Trust.
It was argued on behalf of the appel lant Trust that in the erstwhile State of Ratlam one bigha was equivalent to 21511 Sq.
as per Jantri 265 Milan Bigha Va Ekad prepared in 1911 and the lower courts wrongly calculated the area acquired by treating one bigha equivalent to 22500 Sq.
as now prevalent according to the prescribed standards.
We do not find any force in the abvoe contention.
No such argument was raised before the Tribunal and it was raised for the first time before the High Court.
The High Court rejected the aforesaid argument on the ground that admittedly at present one bigha was equivalent to 22500 Sq.
and no contention was raised before the Tribunal that one bigha was equivalent to 21511 Sq.
prevalent in the erstwhile State of Ratlam.
This being a controvercial question of fact and the other side having given no chance to lead any evidence on this point it was difficult to rely on the Jantri Milan Bigha Va Ekad.
The High Court thus held that the compensation for one Bigha of land would be calculated as equivalent to 22500 Sq.
We do not find any error in the aforesaid view taken by the High Court.
It was next contended on behalf of the Trust that the Tribunal had awarded compensation at the rate of 0.65 paisa per Sq.
and there was no ground or justification for the High Court to have increased the same at the rate of 0.75 paisa per sq.
There is some force in the above conten tion raised on behalf of the Trust.
The High Court in in creasing the rate of compensation to 0.75 paise per Sq.
Ft. has given no reason.
The High Court in this regard observed as under: "Thus, after going through the oral as well as documentary evidence and material placed on record and after beatifing the learned counsel for the Trust as also appellant No. 1 and also after going through the case law cited, the question arises at what rate compensation should be paid for the land which is compulso rily acquired.
It cannot be disputed that either party No. 1 nor party No.2 was making any use of the land at the time of acquisi tion.
On the contrary it was being treated as a waste and fallow land having no importance.
There is no satisfactory evidence placed on record to prove that in fact the land was being used as an agricultural land from which certain income was derived.
It appears this land gained importance only when the trust proposed to acquire the same.
Therefore, though the principles enunciated in the various authorities cited and referred to above are not disputed, we are of opinion that considering the facts and circumstances of the case it would be just, proper and reasonable to award compensation for the land at the rate of 0.75 p. per square feet and not more be cause the price fetched for the developed lands also the price fetched for the small plots of land cannot be taken 266 into consideration for purposes of comparision in respect of such big lands.
After all for a developed plot of land the cost of development has also to be taken into consideration which cannot be said to be quite meagre, Besides, admittedly there is a big nala in the land in question, that there was no direct independent road to approach this land and that even the factory was also not working for several years before the acquisition.
All these facts indi cate that the potential value of the land even as a building site was not so high.
" Learned Distt.
Judge after considering large number of documentary evidence placed on record by both the parties arrived to the conclusion that the fair market price of the acquired land on 22nd August, 1964 was 0.65 p. per Sq.
The finding recorded by the Distt.
Judge in this regard was based on adequate material placed on record and supported by good reasons.
In our view the High Court went wrong in increasing the rate from 0.65p.
to 0.75p.
without any valid reasons whatsoever.
As a result of the findings recorded above, the appeal Nos. 1345 and 1346 of 1986 filed by Kanti lal & Ors. are allowed.
The appellants therein would alone be entitled to claim the entire amount of compensation.
The orders of the High Court, Addl.
Commissioner and Collector in the matter of mutation proceedings are set aside and that of the Board of Revenue is upheld.
The appeal No.3426 of 1987 filed by the Trust is allowed in part.
The market value determined by the High Court at the rate of 0.75p.
per Sq.
is set aside and the rate determined by the District Judge at 0.65p.
per Sq.
Ft. is maintained.
In the facts and circumstances of the case, there would be no order as to costs.
G.N. Appeals allowed.
| The land in question was granted by the Ruler of erst while State of Ratlam in favour of ancestors of respondents (Pitaliyas) for installation of a ginning factory.
Ancestors of appellants (Jhalanis) entered into a partnership with Pitaliyas and started a ginning factory on a portion of the said land.
In the revenue records, in respect of the entire land the names of Jhalanis and Pitaliyas were entered.
According to the Jhalanis in execution of a decree against Pitaliyas the above land was sold and Jhalanis purchased the said land in an auction.
On an application moved by the Jhalanis, the Tehsildar passed an order mutat ing the names of Jhalanis in respect of the entire land.
The said mutation was allowed on the basis of compromise between the parties and on the basis of a sale certificate issued by the Civil Court.
The Town Improvement Trust started acquisition proceed ings for a housing scheme and acquired certain lands includ ing the land in question.
The Collector started suo motu proceedings, issued notice to the Jhalanis and set aside the order of mutation passed by the Tehsildar.
An appeal pre ferred by the Jhalanis before the Addi 258 tional Commissioner was dismissed.
The Board of Revenue allowed the further appeal and held that pending mutation proceedings, there was compromise between the parties, objections were withdrawn by the Pitaliyas and no appeal or revision was filed against the mutation order nor any suit was filed challenging the order of the Tehsildar.
The Pita liyas then filed a writ petition before the High Court, which was allowed and the order of the Board of Revenue was set aside.
Against the said judgment of the High Court, the Jhalanis have preferred an appeal before this Court.
In the acquisition proceedings the Tribunal gave a finding that Pitaliyas had no right to claim compensation and Jhalanis alone were entitled to the entire amount of compensation.
The order of the Tribunal was challenged by the parties by filing separate appeals before the High Court.
The High Court allowed the appeal filed by Pitaliyas and held that they were entitled to claim compensation in equal proportion with Jhalanis; it dismissed the appeal filed on behalf of the Trust for reducing compensation and allowed the appeal filed by Jhalanis in part and increased the rate of compensation from 65 paise per sq.ft to 75 paise per sq.ft.
Aggrieved against the aforesaid judgment of the High Court in acquisition proceedings, the Jhalanis and the Trust have filed the other two appeals before this Court.
Allowing the appeals on the questions of validity of the mutation made and entitlement to receive compensation, and partly allowing the appeal on the question whether enhance ment of compensation was justified, this Court, HELD: 1.1.
There was a decree of a Civil Court and in execution of the same the properties were auctioned.
Even if there was any dispute as to whether any share of Pitaliyas in the land was sold or not in the auction proceedings the same does not survive after the compromise between the parties.
In the order of the Tehsildar passed as back as 20th February, 1953 the Jhalanis alone were recorded as full owners of the properties and they continued to remain in possession.
The Trust took possession from Jhalanis on 21st March, 1968 in the land acquisition proceedings.
There is nothing on record to show that Pitaliyas ever remained in possession of the land in question after 20th February, 1953 till the time they made a claim of half share in the compen sation before the Tribunal.
[264 D, E] 1.2.
The Collector had no justification at all to have initiated the proceedings suo motu in 1970 after 17 years of the order passed 259 by the Tehsildar.
Even under the law of limitation no suit for possession could have been maintained after 12 years by Pitaliyas and they were not entitled to any share in the amount of compensation.
There was also no justification for entering the names of Pitaliyas in the revenue records and to set aside the order of the Tehsildar dated 20th February, 1953, after 17 years.
The Tehsildar was perfectly justified in passing the order dated 20.2.1953 on the basis of the sale certificate, as well as compromise application and the statement made before him on 16.10.1952.
[264 F, G] 2.
One bigha is equivalent to 22500 sq.
and no contention was raised before the Tribunal that one bigha was equivalent to 21511 sq.
ft. prevalent in the erstwhile State of Ratlam.
For the first time, this point was raised before the High Court.
This being a controversial question of fact and the other side did not have the chance to lead any evidence on this point, the High Court rightly negatived it and held that the compensation for one bigha of land would be calculated as equivalent to 22500 sq.
[265 A C] 3.
The District Judge after consideriug large number of documentary evidence placed on record by both the parties arrived at the conclusion based on good and valid reasons that the fair market price of the acquired land on 22nd August, 1964 was 65 paise per sq.
The High Court went wrong in increasing the rate from 65 paise to 75 paise without any valid reasons whatsoever.
In the circumstances, enhancement ordered by the High Court is set aside and the compensation determined by the District Judge at the rate of 65 paise per sq.
ft. is maintained.
[266 C E]
|
on (Civil) No. 1022 of 1989.
(Under Article 32 of the Constitution of India).
Sri Ramulu, A.T.M. Sampath, A.K. Srivastava and Raju Ramchandran for the Petitioners.
Tapas Ray, R.N. Sachthey, P.S. Poti, Yogeshwar Prasad, V.C. Mahajan, U.N. Bachswat, A.S. Nambiar, Kailash Vasudev, Ms. A. Subhashini, Hemantika Wahi, Vasudata Talib, Anip Sachthey, T.T. Kunhikannan, Ms. Rachna Gupta, Mrs. section Dik shit, Ms. section Janani, Ms. Urmila Kapoor, M. Veerappa, K.H. Nobin Singh, Ashok Singh, S.K. Agnihotri, Aruneshwar Gupta, K.C. Bajaj, Ms. Renu George, K. Chaudhary, A.S. Bhasme, H.S. Munjral, G.K. Bansal, R. Mohan, P.K. Manohar, Ms. section Vasude van, B. Parthasarthy, V. Krishnamurthy, A.K. Panda, J.R. Das, D.K. Sinha, D.N. 210 Mukherjee, Gopal Singh, P. Chowdhary, Indra Makwana and K. Swamy for the Respondents.
The Judgment of the Court was delivered by/1 RANGANATH MISHRA, CJ.
This application under Article 32 of the Constitution is by the All India Judges, Association and its working President for reliefs through directions for setting up of an All India Judicial Service and for bringing about uniform conditions of service for members of the subordinate judiciary throughout the country.
Rule having been granted, notice was issued to the Union of India and all the States and Union territories.
Most of them have responded by making returns to the Rule.
A few of the States have taken the stand that they would accept whatever this Court ultimately decides while others have placed their view points and yet some others have objected to the reliefs claimed.
Mr. Sri Ramulu, Chairman of the All India Judges, Asso ciation personally appeared at the hearing.
Mr. Raju Ram chandran on our request appeared to support the petition as amicus curiae.
At the hearing the standing Counsel for the several states and Union Territories have also been heard.
The plea for setting up of an All India Judicial Service was not seriously pressed and reliefs on the following heads were claimed: 1.
Uniformity in the Judicial cadres in the different States and Un ion Territories; 2.
An appropriate enhanced uniform age of retirement for the Judicial Officers throughout the country; 3.
Uniform pay scales as far as possible to be fixed; 4.
Residential accommodation to be provided to every Judicial Officer.
Transport facility to be made available and conveyance allowance provided.
Adequate perks by way of Library Allow ance, Residential Office Allowance and Sump tuary Allowance to be provided.
Provision for inservice training to be made.
Administration of justice and orgamsation of courts was a provincial subject under the Government of India Act, 1935.
The Constitution adopted 211 the same scheme by providing in Entry 3 of List 11 of the Seventh Schedule the subject of administration of justice, constitution and organisation of all courts excepting the Supreme Court and the High Courts as a State subject.
It was only under the 42nd Amendment in 1977 that Entry 3 from List I1 was deleted and the subject as such was taken as Entry 11 A in the Concurrent List.
This had become necessary on account of the recommendation of the Law Commission that an All India Judicial Service should be set up.
Prior to independence, the District Judge used to be invariably a Member of the Indian Civil Service and his position in the district was superior to that of the Dis trict Magistrate.
This position continued until the Indian Civil Service came to be abolished around 1946 47.
This long association of the Civil Service with the judicial manning had led to service conditions of both to be tied up.
Crimi nal justice at that time was handled by Magistrates who belonged to the Executive.
Under the Constitution, the concept of Rule of Law came to be accepted and developed.
Article 50 prescribed the guideline of separating the judiciary from the executive in the public services of the State.
This position is the outcome of recognition of the fact that the judiciary is a class separate from the executive.
The control over the subordinate judiciary has been vested in the High Court and the administrative control has been construed to be complete and exclusive.
Yet, in certain aspects, and particularly in regard to service conditions, the distinction has not been maintained; That is why very often when any specific aspect relating to conditions of service is taken up or benefits for judicial service is considered, comparative basis between the two is adopted for review.
It is high time that this aspect is appreciated and the administrative authorities remain alive to it.
We shall first deal with the plea for setting up of an All India Judicial Service.
The Law Commission of India in its 14th Report in the year 1953 said: "If we are to improve the personnel of the subordinate judiciary, we must first take measures to extend or widen our field of selection so that we can draw from it really capable person.
A radical measure suggested to us was to recruit the judicial service entire ly by a competitive test or examination.
It was 212 suggested that the higher judiciary could be drawn from such competitive tests at the all India level and the lower judiciary can be recruited by similar tests held at State level.
Those eligible for these tests would be graduates who have taken a law degree and the requirement of practice at the Bar should be done away with.
Such a scheme, it was urged, would result in bringing into the subordinate judiciary capa ble young men who now prefer to obtain immedi ate remunerative employment in the executive branch of Government and in private commercial firms.
The scheme, it was pointed out, would bring to the higher subordinate judiciary the best talent available in the country as a whole, whereas the lower subordinate judiciary would be drawn from the best talent available in the Slate".
The Commission proceeded to further state: "Recruitment to the higher judiciary at the all India level in the manner suggested would be a powerful unifying influence and serve to counteract the existing growing regional tendencies.
In this connection, attention may be drawn to the observations made by the States Reorganisation Commission in regard to the creation of the All India Services as a major compelling necessity for the nation.
The Commission observed:. "The raisond"etre of creating All India Services, individually or in groups, is that officers on whom the brunt of responsibility of administration will inevitably fail, may develop a wide and all India outlook .
The present emphasis on regional languages in the Universities will inevitably lead to the growth of parochial attitude, which will only be corrected by a system of training which emphasises the all India point of view . .
It has not been very easy for us to balance these consid erations, but we are definitely of the view that proportion of the higher judiciary should be recruited by competitive examination at the all India level so as to attract the best of our young graduates to the judicial service.
This measure will enlarge the field of selec tion and bring into file higher judicial service a leaven of brilliant young men who will set a higher tone and level to the subor dinate judiciary as a whole.
The personnel so recruited will be subjected to . 'm intensive training.
The rest of the higher judiciary should, in our view, be recruited in part directly from senior members of the Bar, and partly by promotion from the lower subordinate judiciary".
213 Dealing with the same subject from a different angle, the Commission proceeded to say: "The great advantage that the Indian civilian had, was the intensive and varied course of training which he had to undergo.
At the time of his first entry into service, his training was confined to matters pertaining to the revenue and criminal administration alone, but when he was taken over to the judicial side, generally an equally intensive training in civil law was given to him for a period of not less than eighteen months.
There can be no doubt that a similar intensive judicial train ing given to a judicial officer who possesses a law degree can be of the greatest value . .
Indeed, it can be claimed that a planned and systematic training such as is contemplated by us for the judicial officer selected for the Indian Judicial Service may be more effective than the uncertain and spasmodic training which may be received during the course of a few years practice at the Bar.
These and the other considerations referred to earlier have led us to the conclu sion that in the interests of the efficiency of the subordinate judiciary, it is necessary that an All India Service called the Indian Judicial Service should be established.
This will need action being taken in the manner provided by Article 312 of the Constitution".
The Law Commission has reiterated this view in subse quent reports.
It took nearly 20 years for the Government to take follow up action on the basis of the recommendation and that led to the amendment of the legislafive entries as already referred to.
This proposal of the Law Commission and the follow up governmental action led to consultation and dialogue in the Conference of Chief Justices of the High Courts but many of the High Courts were of the view that setting up of an All India Judicial Service would affect the constitutional scheme of control of the High Courts over the subordinate judiciary and in particular Article 235 of the Constitution.
Article 233 makes provision for appointment of District Judges and requires that appointment to such posts has to be made by the Governor of the State in consultation with the appropriate High Court.
Article 234 provides for recruitment of persons other than District Judges to judicial service by prescribing that appointments shall be made by the Governor of the State in accordance with the Rules made by him in that behalf after consulting the State Public Service Com mission and the High Court exercising the jurisdiction in relation to such State.
The post of District Judge has ordinarily been equated with the senior scale status in the All India Services.
It was 214 perhaps not contemplated by the Law Commission that on appointment members of the proposed All India Judicial Service were to hold the post of District Judge.
Like all other All India Services the initial recruitment could be to a lower rank equal to civil judge and after serving in such post for a reasonable time appointment to the post of Dis trict Judge could be made.
Since the Law Commission itself was of the view that a percentage should be filled up by direct recruitment from the Bar, the scheme envisaged by the Law Commission would not require amendment of Article 233.
It is to be examined whether any alterations in Article 234 would be necessary or recruitment to All India Service could be made by appropriate amendment of the State Rules contem plated under that Article.
Control over the subordinate courts under the constitu tional mechanism is vested in the High Court.
Under Article 235, the provision is that the control over District Courts and courts subordinate thereto vests in the High Court.
The main objection against implementation of the recommendation of the Law Commission relating to the setting up of the All India Judicial Service was founded upon the basis that control contemplated under Article 235 of the Constitution would be affected if an All India Judicial Service on the pattern of All India Services Act, 1951, is created.
We are of the view that the Law Commission 's recommendation should not have been dropped lightly.
There is considerable force and merit in the view expressed by the Law Commission.
An All India Judicial Service essentially for manning the higher services in the subordinate judiciary is very much necessary.
The reasons advanced by the Law Commission for recommending the setting up of an All India Judicial Service appeal to us.
Since the setting up of such a service might require amendment of the relevant Articles of the Constitution and might even require alteration of the Service Rules operating in the different States and Union Territories, we do not intend to give any particular direction on this score par ticularly when the point was not seriously pressed but we would commend to the Union of India to undertake appropriate exercise quickly so that the feasibility of implementation of the recommendations of the Law Commission may be examined expeditiously and implemented as early as possible.
It is in the interest of the health of the judiciary.
throughout the country that this should be done.
II The Law Commission in the 14th Report also referred to the various designations provided for judicial officers working in the different States and Union Territories It observed: 215 "In view of the more or less uniform functions performed by the judicial officers so various ly designated, it would, we think, be advisa ble to aim at a uniformity of designation.
There is, however, a fundamental difference in the general scheme of distribution of judicial business between the tower grade of officers (munsifs) on the one hand, and the higher grade of officers (subordinate judges) on the other.
The first has limited pecuniary juris diction while the second, generally speaking, has unlimited pecuniary jurisdiction.
We would, therefore, suggest that the State Judi cial Service Class II should consist of civil judges who should be designated as civil judges of the senior and junior divisions.
Officers corresponding to munsifs would be designated as civil judges (junior division) and those corresponding to subordinate judges would be designated as civil judges (senior division)".
If reference is made to Article 236 of the Constitution, it would be noticed that the expression "District Judge" has been defined to include Judge of a City Civil Court, Addi tional District Judge, Joint District Judge, Assistant District Judge, Chief Judge of a Small Causes Court, Chief Presidency Magistrate, Additional Chief Presidency Magis trate, Sessions Judge, Additional Sessions Judge and Assist ant Sessions Judge.
This definition in Article 236 covers the higher section of the State Judicial Service both in the civil and criminal sides.
The definition is only inclusive and in implementing the recommendations of the Law Commis sion to simplify the designations by saying that the hierarchy of subordinate judicial officers would be District Judge or Additional District Judge, below him Civil Judge (Senior Division) and below him Civil Judge (junior divi sion) does not go against the constitutional scheme nor does it require any amendment of the Constitution.
If there be any laws operating in the States, perhaps the same may have to be appropriately modified or altered if the uniformity recommended by the Law Commission has to work out.
We are inclined to adopt the view of the Law Commission.
On the civil side, the State Judicial Service, therefore, should be classified as District or Additional District Judge, Civil Judge (senior division) and Civil Judge (Junior division).
On the criminal side, there should be a Sessions Judge or Additional Sessions Judge and below him there should be the Chief Judicial Magistrate and Magistrates provided for in the Code of Criminal Procedure.
Appropriate adjustments, if any, may be made of existing posts by indi cating their equivalence with any of these categories.
The process of bringing about such uniformity would require some time 216 and perhaps some monitoring.
We direct that the Ministry of Law and Justice of the Union Government would carry on the monitoring activity and all the States and Union Territories would follow the pattern indicated above by March 31, 1993.
III One of the issues debated at the hearing related to the age of retirement.
The Constitution has fixed the age of retirement of Judges in the High Courts and the Supreme Court at 62 and 65 years respectively.
There is no constitu tional prescription of the age of retirement of the members of the subordinate judiciary and in India that is controlled by the relevant rules obtaining in the different States and Union Territories and it is 58 years at present excepting in the State of Kerala where the age of superannuation is 55 years for all State Government employees including the members of the State Judicial Service.
It is the claim of the petitioners that the age of retirement of the officers of the subordinate judiciary should be fixed at 60 years inasmuch as the basic qualifica tion for recruitment to the service requires every officer to have in the minimum a bachelors degree in law which is acquirable after becoming a graduate.
Thus, while for normal civil service a graduate is eligible, for recruitment to the judicial service a minimum further period of three years becomes necessary to acquire the basic qualification.
In many of the states and the Union Territories, for recruit ment to the post in the judicial service a basic period of experience at the Bar is a pre requisite.
Thus, while for the civil service the age of recruitment varies between 25 and 28 years, for judicial service at the basic level most of the States permit entry upto the age of 32.
In some of the States where direct recruitment of judicial officers for an in between stage is permitted, the age of entry is even upto 35 years.
Article 233(2) of the Constitution provides: "A person not already in service of the Union or of the State shall only be eligible to be appointed a District Judge if he has been for not less than seven years an advocate or a pleader and is recommended by the High Court for appointment".
Keeping this constitutional requirement in view in respect of direct recruitment for District judge, entrance is permitted upto a later age in many States.
Thus at the point of entry into service there is a marked distinction between civil service and the judicial service.
Notwithstanding these special features the history of the service 217 would show that no distinction has been maintained in regard to the age of retirement between officers of the civil service and the officers of the judicial service and over the years the same rule has been applied to both.
This Court in Moti Ram Deka, etc.
vs The General Manager, North East Frontier Railway, Maligaon, Pandu, etc.; , pointed out: "In regard to the age of superannuation, it may be said prima facie that rules of superan nuation which are prescribed in respect of public service in all modern States are based on considerations of life expectation, mental capacity of the civil servants having regard to the climatic conditions under which they work, and the nature of the work they do.
They are not fixed on any ad hoc basis and do not involve the exercise of any discretion.
They apply uniformity to all public servants fail ing under the category in respect of which they are framed . . " Nature of work is thus one of the considerations rele vant to fixing the age of retirement.
There is a marked distinction between the nature of work which executive officers and judicial officers are called upon to discharge.
The work of the judicial officers is usually sedantry while that of the executive officers in volves a lot of physical movement.
This is particularly so in the lower cadres of both the services.
In view of this feature physical fitness is more important for an executive officer than in case of a judicial officer while in case of judicial officers, there is thus necessarily more of a mental activity than physical.
Experience is an indispens able factor and subject to the basic physical fitness with growing age experience grows.
As already indicated, retirement age for High Court Judges is 62 years.
A sizable portion of the manning in the High Court is done by elevating District Judges and those who are elevated continue upto the age of 62 years like directly elevated members of the Bar to the High Court.
There are certain services in the States where retire ment is fixed at the age of 60 years taking into account the special type of work the officers are called upon to per form.
For instance, throughout the country teachers of universities are allowed to serve upto 60 years of age.
Employees under some of the corporations also go upto the age of 60.
Scientific Research Officers are also allowed in many cases the benefit of 60 years age of retirement.
Mr. Poti for the State of Kerala raised serious objection to raising 218 the age of retirement of judicial officers to a common level of 58 years by contending that this would lead to unrest in the other services of the State and everyone would press for the age of retirement being enhanced to 58.
In fact, Kerala had once experimented with the enhanced age for all and has reverted back to the age of 55.
The main ground raised by Mr. Poti to resist the proposal of enhancement is that in the State of Kerala the level of literacy is high and unem ployment is acute.
If the age of retirement is enhanced the scope of the unemployed to get employment would be adversely affected.
We are not impressed by the submission of Mr. Poti on this score.
The total number of judicial officers of every category in the State may not exceed 3,000 or so.
This certainly is not such a big number that might create unem ployment problem in the event of the age of superannuation being brought to the all India level of 58 or even enhanced to a higher limit.
The Law Commission in its 14th Report dealt with this aspect at page 2 13 of the report and said: "There is yet another reason why the question of the age of retirement of the subordinate judiciary should be treated differently from that in other State Services.
As noticed earlier a judicial officer enters service at a comparatively higher age than a recuit to the executive or administrative services.
It would, therefore, be proper that the retire ment age of a judicial officer should be relatively higher than that of an executive officer, so as to enable him to serve for the full number of years if he retains his fitness and capacity of work till he reaches such higher age.
We, therefore, recommend that the retirement age of the subordinate judiciary in all States should be raised to 58 years.
Such a measure will tend to raise the tone and morale of the judicial service as a whole.
It will also be consistent with our recommendation to raise the age of retirement of High Court Judges to 65 years.
" The recommendation that superannuation should be fixed at 58 for judicial officers was made at a time when in public services retirement was prescribed at the age of 55.
Considering the enhancement of the longevity of human life and taking all other relevant considerations into account, all the States and all the Union Territories have now en hanced the age of retirement to 58 years excepting, as already pointed out, in the case of the State of Kerala.
We are of the view that on the logic which was adopted by the Law Commission and for the reasons which we have 219 indicated the age of retirement of judicial officers should be 60 years.
We accordingly direct that appropriate altera tions shall be made in the Rules obtaining in the States and Union Territories in respect of judicial service so as to fix the age of retirement at 60 years with effect from December 31, 1992.
We have given a long period so that appropriate amendments may be made in the meantime.
IV We shall now deal with the claim for appropriate pay scales and on, as nearly as possible, uniform basis.
The 14th Report of the Law Commission dealt with this matter at page 163 of the report and said: "It is the matter of scales of pay and remu neration, the judiciary compares unfavourably with the executive branches of the Government.
It is true that, generally speaking, the scales of pay of the judicial officers and the corresponding executive officers are identical in many of the States.
However, it has to be remembered that the executive officers are, by and large, recruited at a much younger age than the judicial officers.
The entrant to the judicial services is required to be a graduate in law and in most of the States it is also necessary that he should have practised for a certain number of years at the Bar.
On the other hand, for recruitment to the executive branches of Government service, a degree in arts or science is, generally speaking, suffi cient.
In the result, a person entering the judicial service does so when he is about 26 or 27 years of age and at a time when his contemporaries who have entered the executive service of the Government have already ac quired a certain seniority in the service and have come to draw a higher salary.
It will thus be seen that a person joining the judi cial service starts with a lower remuneration than what he would have received if he had entered the executive service for a few years earlier.
It has also to be noted that owing to the lesser proportion of superior posts in the judicial service promotions come less quickly to the judicial officers, and a person who has entered the service as a munsif, assuming that he is fit and fully qualified, takes much longer time to become a district judge than would an equally competent deputy collector to reach the position of a collector.
Again the judicial officer, having started at a later age, has a shorter span of service than the executive officer and this affects his pension and other retirement benefits".
220 We had called for the prevailing pay scales of the different judicial cadres in the States and the Union Terri tories and the same have been made available to us.
We found that there is wide violence in the pay structure prevailing in the various States and Union Territories and for the same nature of work performed by the judicial officers they are remunerated differently.
It is difficult for us on the data now placed to get into the exercise of fixing the appropri ate pay scales.
We suffer a handicap in the absence of full details necessary for fixing the appropriate pay scales on comparative basis.
Again, we are apprehensing that if we enter into the matter and say something in a final way, it is possible that in some States benefits which are now available may be taken away or adversely affect some offi cers.
For these reasons, we do not propose to finally exam ine the propriety of the existing pay scales nor do we direct any pay scales to be fixed.
A Pay Commission for the Central Government employees was appointed about 8 years back and on the basis of its Report the revised benefits have been given effect to from January 1, 1986.
Following that pattern, most of the States have either given the Central scales or appointed their own commissions or committees and given the revised benefits to their officers.
It appears that with an interval of 10 years or so such a commission is being appointed and pay scales are being reviewed.
Such an exercise is likely to be under taken within less than three or four years.
We are of the view that the claim on this score can be better handled when the pay commissions or committees in the States are set up to review the position.
We direct that as and when such commissions or committees are set up in the States and Union Territories hereafter, they separately examine and review the pay structure of judicial officers keeping in view all relevant aspects.
V. Under this head, however, we would like to deal with the claim for various allowances.
Unlike the administrative officer, the judicial officer is obliged to work for long hours at home.
When he reserves a judgment he has usually to prepare the same at his residence.
For that purpose, he has to read the records as also the judicial precedents cited by counsel for the adversaries.
Even otherwise with a view to keeping himself uptodate about the legal position he has to read judgments of his own High Court, other High Courts and of the Supreme Court.
He has also to read legal journals.
The judicial officer very often has no provision of an officer at his residence.
Unless a reasonable allowance is provided for maintaining an office, it became very difficult for him to undertake the various aspects 221 of the exercise referred to above.
We are of the view that a residential office allowance should be admissible to every judicial officer.
The same for the civil judge (junior division) and the civil judge (senior division) be fixed at the rate of Rs. 250 per month and officers of the higher category the monthly allowance should be Rs. 300.
Law books, Law repons and legal journals are indispens able to a judicial officer.
They are in fact his tools and in case a junior officer has to discharge his duties satis factorily he has to get acquainted with these.
His ability to perform his duty to a considerable extent depends upon his reading habit and devoting a sizeable working time to reading all this literature.
Reading habit is indispensable to a judicial officer and possession of a small library of one 's own helps generation of the proper reading habit.
Law books and Law journals have in particular become very costly these days.
One standard Law journal for the decisions of the High Court, another for the decisions of this Court and one or two Standard Law journals on the average would cost about Rs. 200 a month.
There is no existing system of providing Law books and journals to the officers of the lower judiciary.
Many of the judicial officers in the lower ranks have their working places away from the district headquarters where the seat of the district judge is located.
There is perhaps at every district headquarter a small library but the number of books is small and more than one copy of many of the books would not be available.
Therefore, whether it is at the district headquarter or in areas away therefrom, effective library facility is not available.
We are of the view that a uniform pattern of small library should be provided to every judi cial officer.
We accordingly direct that such a library shall be made available by 30.6.2992 to every judicial officer and the District Judge should have provision made in his budget for the said residential library for every judi cial officer under his control.
The High Court should moni tor this aspect effectively so that without loss of time, a handy library may be at the disposal of every judicial officer.
The District Judge is the principal judicial officer of the district.
Ordinarily every revenue district has a dis trict judge and his seat is located at the headquarter.
In heavy stations, the district judge has a team of additional district judges to assist him.
There would also be a number of judicial officers of lower categories working at the headquarters.
It is the obligation of the district judge to operate as the captain of the team both under his direct supervision at the headquaters and in respect of the offi cers located in different areas within his district.
Of late, lower or subordinate courts are being established in the outlying and rural interior.
It is the 222 obligation of the district judge to inspect the outlying courts, maintain the proper judicial tempo and temper of functioning in his district and be responsible for the efficient running of the system.
In many of the States the prevailing practice is that the district judge takes a monthly meeting with the collec tor and district magistrate and the superintendent of po lice.
He also meets the members of the Bar.
Now and then he meets his judicial officers those at the headquarters as also the others who are in the interior.
It is desirable that the district judge devotes some time as frequently as possible and at least once a week to meet the judicial officers beyond the working hours, discusses working prob lems of his officers and forms his own opinion about now the work is being done.
A weekly assessment of such perform ance generates even temper of judicial activity and upholds the tempo being maintained at the appropriate level.
There is not yet any definite system of judicial training in most of the States and Union Territories.
A judicial officer with his first posting or until he acquires adequate experience requires guidance.
It should ultimately be the obligation of the district judge to provide the same, we are of the view that to the post of district judge a monthly allowance of Rs. 300 by way of sumptuary allowance should be available to enable him to extend small courtesies at such meetings.
The chief judicial magistrate does some of these activities in respect of the magistrates handling criminal work.
In our opinion he should be entitled to a sum of Rs. 200 per month by way of sumptuary allowance.
We are aware of the fact that under the conditions of Service Act of High Court Judges, a sumptuary allowance of Rs. 300 is payable to them every month.
Now that we have directed that Rs. 300 should be fixed for the district judges, we command that the sumptuary allowance fixed for the High Court Judges may be enhanced suitably.
These allowances shall be payable from 1.4.1992.
We would like to add that this allowance is intended for utilisation to the full extent for entertaining judicial officers in connection with preformance of duty and would not be considered as a perk for being included in the hands of the recipient as his income.
VI Provision of an official residence for every judicial officer should be made mandatory.
A judicial officer to work in a manner expected of him has to free himself from undue obligations of others, particularly owners of buildings within his jurisdiction who ordinarily may have litigations before him.
This is mostly the case in rural areas where outstation judicial courts are located.
We are aware of cases where a rural court is located in the building belong ing to a lawyer or a client.
Even the residential accom 223 modation of the judicial officer belongs to people of that category.
Such a situation often gives occasion to personal embarrassment to the judicial officer and it has to be avoided.
Expenditure on residential accommodation in a family budget is not ordinarily to exceed 15 per cent of the month ly income, otherwise it becomes difficult for the person concerned to make his two ends meet.
A judicial officer who is not provided residential accommodation is obliged to go in for rented accommodation.
In view of the prevailing rate of rent, the smallest accommodation that can be taken may often cost 75 per cent to 100 per cent of the monthly sal ary, a situation which cannot be contenanced by any logic.
It is absolutely necessary that appropriate conditions should be provided for the judicial officer and he should have reasonable mental peace in order that he may perform his duties satisfactorily.
Rendering justice is a difficult job.
It is actually a divine act.
Unless the judicial offi cer has a reasonable worry free mental condition, it would be difficult to expect unsoiled justice from his hands.
Very often building projects are undertaken for provid ing residential accommodation to public officers but the requirement of the judicial ofricer is not taken into ac count for one reason or the other.
Control of the State purse is in the hands of the executive.
As appropriate share of construction expenses is not being provided towards accommodation of judicial officers, they do not have any quota in the building projects.
As a result of this over the years at several places throughout the country residential accommodation for judicial officers has turned out to be scanty.
Many judicial officers dread postings in Metropoli tan towns as residential accommodation is not available and the rental would be exorbitant in respect of private accom modation.
The cost of living also becomes heavy.
We take judicial notice of the fact that the Planning Commission of the Central Government is considering accept ance of the subordinate judiciary as a plan subject.
Provid ing adequate residential accommodation should be considered as a priority.
Until adequate government accommodation is available, it should be the obligation of the State at the instance of the High Court to provide requisitioned accommo dation for every judicial officer according to his entitle ment and recovery of not more than twelve and a half per cent of salary of the officer towards rent should be made and the balance should be met by the State Exchequer.
We would emphasise the need of provision of a separate and exclusive office room as an indispensable component of every such official residence and the accommodation should take into account this feature.
As a long term measure, Govern ment accommodation should be constructed to meet the 224 need of the judicial officers at their respective stations.
This should be a matter for the Planning Commission to review and the State Governments to cooperate and undertake construction activity.
The Governments of the States and the Union Territories would take some time to implement this pan of the direction.
In case for some reason, the Planning Commission does not come forward to take up the matter before January, 1992, the Chief Justice of every High Court should set up a committee with him as Chairman where two senior Judges of the Court and the Secretaries of Finance, Law and Works should be members and annual planning of construction of residences should be made.
We accordingly fix the outer limit of December 31,1992 when this part of the direction would become fully operative.
VII We shall now deal with the claim for transport.
In most of the States the district judge has been provided a motor car and in some of the States the chief judicial magistrate is also provided with such transport, be it a car or a jeep.
There are still some States like Rajasthan, Haryana and Madhya Pradesh where provision of a car for every district judge has not yet been made.
We direct that every district judge should be provided with a car by March 31, 1992, and it shall be the obligation of the other States where such facility has not open provided to ensure the same within the time limit.
The chief judicial magistrate is a touring officer apart from doing trial work as a magistrate.
Mandate of the Code of Criminal Procedure requires him to undertake some tout ing.
The quality of criminal justice administration would very much depend upon the mobility of the chief judicial magistrate.
We, therefore, direct that in such States and Union Territories where provision of independent transport for the chief judicial magistrate has not been made, the same should be done by September 30, 1992.
We are.
further of the view that in stations with more than four judicial officers a common transport should be provided for the purpose of taking them from the residence to the court and back and meeting their other official purposes and such vehicle should be placed under the control of the seniormost officer in the pool.
The arrangement should be that for every five officers, there should be a vehicle.
Provision for this aspect should be made by March 31, 1993.
This direction has become necessary as judicial officers should not be forced to travel along with litigants and lawyers.
In many sensitive cases, records are carried by them.
Often judgments to be pronounced are also taken by them.
In some disturbed areas, instances of harassment to judicial offi cers taking advantage of their using 225 common transport have come to light.
We direct that every State and Union Territory would file a compliance report in the Registry of this Court in respect of these three aspects within one month from the expiry of the outer limit indicat ed for each of them.
There are several outlying courts where the number of officers would not be more than five.
We do not intend to provide any independent transport for them but such officers who ask for loan for purchase of a two wheeler automobile should immediately be provided the same.
Appropriate funds should be made available for such purpose.
A pool car should have 60 litres of petrol per month and a judicial officer owing a scooter would be entitled to an allowance of Rs. 200 per month.
We are alive to the fact that our directions involve a burden on the State Exchequer.
Perhaps some justification as to why these expenses should not be grudged must now be indicated.
Professor Pannick in his book entitled "Judges" has observed: "Judges do not have an easy job.
They repeat edly do what the rest of us seek to avoid; make decisions".
He further added: "Judges are mere mortals but they are asked to perform a function that is utterly divine".
Professor Harold Laski once wrote to Justice Oliver Holmes that 'he wished that people could be persuaded to realise that judges are human beings; it would be a real help to jurisprudence '.
The Trial Judge ' is the kingpin in the hierachical system of administration of Justice.
He directly comes in contact with the litigant during the proceedings in Court.
On him lies the responsibility of building up of the case appropriately and on his understanding of the matter the cause of justice is first answered.
The personality, knowl edge, judicial restraint, capacity to maintain dignity are the additional aspects which go into making the court 's functioning successful.
Krishna Iyer, J. described the scene very graphically thus: "Law is a means to an end and justice is that end.
But in actuality, Law and Justice are distant neighbours; sometimes even strange hostiles.
If law shoots down justice, the people shoot down law and lawlessness paraly ses development, dis 226 rupts order and retards progress.
This is the current scene".
It calls for serious introspection.
The Law Commission in its 14th Report said: "If the public is to give profound respect to the judges the judges should by their conduct try and observe it; not by word or deed should they give cause for the people that they do not deserve the pedestal on which we expect the public to place them.
It appears to us that not only for the performance of his duties but outside the court as well a Judge has to maintain an aloofness amounting almost to self imposed isolation".
The Commission quoted Sir Winston Churchill who had said: "A form of life and conduct far more severe and restricted than that of ordinary people is required from judges and though unwritten has been most strictly observed.
They are at once privileged and restricted; they have to present a continuous aspect of dignity and conduct".
These prescriptions for a Judicial Officer, therefore, result in a restricted life.
Austerity is a quality to be practised by every Judge personally as also in his public functioning.
This necessarily gives rise to a situation where the Judge must have patience, perseverance and pains taking habits.
In order that a Judge may be able to put in these aspects into his public functioning it is absolutely necessary that the Judge enjoys freedom from personal wor ries.
A reasonable salary, appropriate allowances and man ageable living conditions are, therefore, required to be provided.
For quite a few years the conditions of service of Judges of the superior Courts and those of the public offi cers in the Executive side had been put at par excepting such provisions as were contained in the Government of India Act, 1935 or under the Constitution.
For the first time it was accepted that separate Conditions of Service should be provided and Conditions of Service Acts for the High Court and Supreme Court Judges were separately enacted in 1954.
Those statutes and the Schedules therein even now contain provisions to the effect that matters for which provisions have not been made by the statutes are to continue to be the same as provided for the officers in the Executive wing as named.
In a democratic polity the role of the judiciary is indispensable.
The efficient functioning of the Rule of Law under the aegis of which our democratic society can thrive requires an efficient, strong and enlightened judiciary.
And to have it that way the Nation has to pay to the price.
There was a time when a 227 Judge enjoyed a high status in Society.
Very often a suc cessful Member of the Bar earning a high income favourably responded to the invitation of the Chief Justice to accept Judgeship.
Thai no more is the position.
The sense of pro fessional obligation has died down for reasons more than one; but perhaps the most eloquent one is loss of social status of the judge.
The effect of this position in respect of the higher judiciary has its impact on the subordinate judiciary too.
Half a century back a Judicial officer even of the lowest category enjoyed great social status.
He was looked upon with a sense of reverence.
He led a life in tune with the recommendations of the Law Commission in its 14th Report.
He had the training of limiting his wants and man aged to live a contented life by making his two ends meet with limited resources of small salary.
That philosophy of life has vanished or is fast vanishing.
A great social change has over taken today 's society.
Life has become competitive; demands of life have increased; and aptitudes have changed.
Therefore, today a judicial officer always looks at life in a comparative way with administrative officers of his age.
Professional income at the Bar has tremendoulsy swelled up.
Very often counsel 's fee per day equals to the salary of a judicial officer for a full month or even a longer period.
This great disparity affects peace and equilibrium in the judicial operation.
As early as 1958 the Law Commission said: "As we shall point out, later the problem has since grown in dimension because there is unmistakable testimony that the standards of the judicial officers recruited from the Bar and other sources have during recent years fallen in a substantial degree for various reasons.
This has been almost the unique view expressed by the witnesses .before us.
It is thus obvious that no scheme of review of judicial administration will be effective or worthwhile unless the basic problem of provid ing a trained and capable judicial personnel is satisfactorily solved" This was adequate and timely notice to the Government and its people.
Instead of attending to the problem then, 33 long years have been allowed to roll by and what was then said as a growing dimension has grown to devalue the system.
Its resurrection has, therefore, become more costly.
It is perhaps useful to recall here the prophetic warn ing sounded by Robert Ingersoll: "A government founded on anything except liberty and justice cannot stand.
All the wrecks on either side of the stream of time, all the wrecks of the great cities, and all the nations that 228 have passed away all are a warning that no nation founded upon injustice can stand.
From the sand enshrouded Egypt, from the marble wilderness of Athens, and from every fallen or crumbling stone of the once mighty Rome, comes a wail as it were, the cry that no nation founded on injustice can permanently stand".
Society, therefore, must understand the problem.
Solu tion to the problem would depend upon realisation of the fact that the more capable people at the Bar are not willing to accept offers of judicial appointments.
The plea that the other wings, in the States would demand inprovement in their scales of pay is not a relevant feature at all when the problem is viewed from this angle.
We hope and trust that society would generate the appropriate understanding of the matter and no Government would come forward to take the stand that if the pay scales and perks of the Judicial officers are improved similar demands would come from other wings of Government.
Even in the existing system there are some posts which carry special pay that is on account of the fact that there is more of basic equipment demanded and the nature of work is different and judicial service satisfies both and, there fore, Government can always prescribe a higher pay scale for Judicial Officers.
In 1986 there was a Conference of the Chief Justices of the High Courts, Chief Ministers and the Law Ministers of the States called by the then learned Chief Justice of India and the Ministry of Law and Justice.
The then Chief Justice of India and the Law Minister of the Central Government tried their best to make the State Governments and the Union Territories understand the basic problem.
While some improvements came as a result of the Conference for the higher judiciary, the claim of the subor dinate judiciary remained unattended.
We would like to point out that dispensation of justice is an inevitable feature in any civilised society.
Mainte nance of law and order require the presence of an efficient system of administration of criminal justice.
Under the Civil Code, Court fee is realised under the Court Fee Act.
For some time demand to abolish it has been made but the States have abandoned the idea on account of the demand by the States of compensation from the Centre in case of aboli tion of Court fee.
Court fee is not a tax and is a fee as has been ' held by a Constitution Bench of this Court in Secretary, Government of Madras, Home Department and another vs Zenith Lamps and Electrical Ltd., ; In Paragraph 29 of this 229 Judgment Sikri, CJ speaking for this Court pointed out: "It seems to us that the separate mention of 'fees taken in Court ' in the Entries referred to above has no other significance than that they logically come under Entries dealing with administration of Justice and courts.
The draftsman has followed the scheme designed in the Court Fees Act, 1870 or dealing with fees taken in court at one place.
If it was the intention to distinguish them from fees in List II Entry 66, surely some indication would have been given by the language employed.
If these words had not been separately mentioned in List I, Entry 77 and List II . . .
It seems plain that 'fees taken in court ' are not taxes, for if it were so, the word 'taxes ' would have been used or some other indication given.
It seems to us that this conclusion is strengthened by two considerations.
First, taxes that can be levied by the Union are mentioned in List I from Entry 82; mentioned in List II taxes that can be imposed start from Entry 45.
Secondly, the very use of the words 'not including fees taken in any court ' in Entry 95 List 1, and Entry 66 List II, shows that they would otherwise have fallen within these Entries.
It follows that 'fees taken in court ' cannot be equated to "Taxes".
If this is so, is there any essential differ ence between fees taken in court and other fees ? We are unable to appreciate why the word 'fees, bears a different meaning in Entry 77, List I and Entry 96 List I or Entry 3 List II and Entry 66 List II.
All these relevant cases on the nature of 'fees ' were reviewed in India Mica and Micanite Industries Ltd. vs The State of Bihar.
; at page 1186, by Hegde J. and he observed: "From the above discussion, it is clear that before any levy can be upheld as a fee, it must be shown that the levy has reasonable co relationship with the services rendered by the Government.
In other words, the levy must be proved to be a quid pro quo for the serv ices rendered.
But in these matters it will be impossible to have an exact co relationship.
The correlationship expected is one of a general character and not as of arithmetical exactitude".
It is not our intention to raise a dispute on this aspect.
We adverted to these authorities and the views of this Court to bring support for the view that what is col lected as Court fee at least be spent on the administration of Justice instead of being utilised as a source of general revenue 230 of the States.
Undobutedly the income from court fees is more than the expenditure on the administration of Justice.
This is conspicuously noticeable from the figures available in the publication in the Ministry of Law and Justice.
What we have said above should be adequate justification for making provision with a view to making judicial func tioning viable.
We would like to recall a part of the funeral oration on Mr. Justice Story delivered some 150 years back by Daniel Webster: "Justice, Sir, is the greatest interest of man on earth.
It is the ligament which holds civilised beings and civilised nations togeth er.
Wherever her temple stands, and so long as it is duly honoured, there is a foundation for social security, general happiness and the improvement and progress of our race.
And whoever labours on this edifice with useful ness and distinction.
whoever clears its foundations, strengthens its pillars, adorns its entaplateures, or contributes to raise its august dome still higher in the skies, con nects himself in name and frame and character with that which is and must be as durable as the frame of human society".
To those who control the purse what Webster said should provide the direction.
VIII One of the claims advanced before us was for provision of inservice training for judicial officers.
This we consid er as a must.
In fact, the Law Commision in one of its recent reports has advised that inservice institutes should be immediately set up.
About a year back the Union Govern ment had proposed the setting up of an All India Inservice Institute but nothing more has been done about it.
In some of the States like Uttar Pardesh and Andhra Pradesh, such inservice institutes are functioning.
We are of the view mat in service institutes are indispensable for the upkeep of the efficiency of judicial service.
We direct that an All India institute of Inservice Training for higher officers of the judiciary including the district judges and a State level institute for training of the other member, of the subordinate judiciary within each of the States and Union Territories or one common institute for more than one State or Union Territory should be set up within one year from now and at any rate nor later than December 31, 1992.
This has to be orgainised by respective High Courts.
231 Before we part, we must indicate with all the emphasis at our command that the system has to be saved as for a civilised society an enlightened independent judiciary is totally indispensable.
The High Court must take greater interest in the proper functioning of the subordinate judi ciary.
Inspection should not be a matter of casual atten tion.
The Constitution has vested the control of the subor dinate judiciary under Article 235 in the High Court as a whole and not its Chief Justice alone.
Every Judge should, therefore, take adequate interest in the institution which is placed under the control of the High Court.
We may point out that that in what Lord Aktins said in Devi Prasad Sharma and others vs The King Emperor, 70 IA 216.
And it has been approved by a Constitution Bench in Baradakanta Misra vs The Registrar of Orissa High Court and Another, ; It should be remembered by all Judges of the High Coart viz., that the administrative control of the subordinate courts of the states vest nor in the Chief Justice alone but in the Court over which the Chief Justice presides.
Surger, CJ of the American Supreme Court once said: "A sense of confidence in ,he Courts is essen tial to maintain the fabric of ordered liberty for a free people and it is for the subordi nate Judiciary by its action and the High Court by its appropriate control to ensure it".
It is useful to remember what President Lin coln often said: "If you once forfeit the confidence of your fellow citizens you can never regain their respect and esteem".
It is time we mention about society 's expectation from the Judicial Officers.
A judge ought to be wise enough to know that he is fallible and, therefore, even ready to learn and be courageous enough to acknowledge his errors The conduct of every judicial officer should be above reproach.
He should be conscientious, studious, thorough, courteous, 'patient, punctual, just, impartial, fearless of public clamor, regardless of public praise, and indifferent to private, political or partisan influences; he should administer justice according to law, and deal with his appointment as a public trust; he should not allow other affairs or his private interests to interfere with the prompt and proper performance of his judicial duties, nor should he administer the office for the purpose of advancing his personal ambitions or increasing his popularity.
232 We would like to part with the matter by recalling a statement of Edmund Burke: "All persons possessing a portion of power ought to be strongly and awfully impressed with an idea that they act in trust, and that they are to account for their conduct in that trust to the one great Master, Author and Founder of Society".
We would now briefly indicate the direc tions we have given in the judgment: (i) An All India Judicial Service should be set up and the Union of India should take appropriate steps in this regard.
(ii) Steps should be taken to bring about uniformity in designation officers both in civil and the criminal side by 31.3.1993.
(iii) Retirement age of judicial officers be raised to 60 years and appropriate steps are to be taken by 31.12.
(iv) As and when the Pay Commissions/Commit tees are set up in the States and Union Terri tories; the question of appropriate pay scales of judicial officers be specifically referred and considered.
(v) A working library at the residence of every judicial officer has to be provided by 30.6.1992.
Provision for sumptuary allowance as stated has to be made.
(vi) Residential accommodation to every judicial officer has to be provided and until State accommodation is available, Government should provide requisitioned accommodation for them in the manner indicated by 31.12.1992.
In providing residential accommodation, avail ability of an office room should be kept m view.
(vii) Every District Judge and Chief Judi cial Magistrate should have a State Vehicle, Judicial officers in sets of 5 should have a pool vehicle and others would be entitled to suitable loans to acquire two wheeler automo biles within different time limits as speci fied.
(viii)Inservice Institute should be set up within one year at the Central and State or Union Territory level.
V.P.R. Petition disposed of.
| The petitioners All India Judges ' Association filed an application under Article 32 of the Constitution of India for directions of this Court for setting up of an All India Judicial Service, for bringing about uniform conditions of service for members of the subordinate judiciary, provision of residential accommodation, transport facility; library and in service training for judicial officers.
Disposing of the writ petition, this Court, HELD: 1.
For a civilised society an enlightened inde pendent judiciary is totally indispensable.
1231 A] 2.
Rendering justice is a difficult job.
Unless the judi cial officer 207 has a reasonably worry free mental condition, it would be difficult to expect unsoiled justice from his hands.
[223 C] 3.
A judge ought to be wise enough to know that he is fallible and, therefore, even ready to learn and be coura geous enough to acknowledge his errors.
The conduct of every judicial officer should be above reproach.
He should be coscientious, studious, thorough, courteous, patient, punc tual, just, impartial fearless of public clamour, regardless of public praise and indifferent to private, political or partisan influences; he should administer justice according to law, and deal with his appointment as a public trust; he should not allow other affairs or his private interests to interfere with the prompt and proper performance of his judicial duties, nor should he administer the office for the purpose of advancing his personal ambitions or increasing his popularity.
[231 F H] 4.
Under the Constitution, the concept of Rule of Law came to be accepted and developed.
Article 50 prescribed the guideline of separating "the judiciary from the executive in the public services of the State".
This position is the outcome of recognition of the fact that the judiciary is a class separate from the executive.
[211 D] 5.
The Trial Judge is the kingpin in the hierarchical system of administration of justice.
He directly comes in contact with the litigant during the proceedings in Court.
On him lies the responsibility of building up of the case appropriately and on his understanding of the matter the cause of justice is first answered.
The personality, knowl edge, judicial restraint, capacity to maintain dignity are the additional aspects which go into making the courts ' functioning successful.
[225 F G] 6.
The District Judge is the principal judicial officer of the district.
It is the obligation of the district judge to operate as the captain of the team both under his direct supervision at the headquarters and in respect of the offi cers located in different areas within his district.
Of late, lower or subordinate courts are being established in the outlying and rural interior.
It is the obligation of the district judge to inspect the outlying courts, maintain the proper judicial tempo and temper of functioning in his district and be responsible 1or the efficient running of the system.
[221 G 222 A] 7.
The High Courts must take greater interest in the proper functioning of the subordinate judiciary.
Inspection should not be a matter of casual attention.
The Constitution has vested the control of 208 the subordinate judiciary under Article 235 in the High Court as a whole and not its Chief Justice alone.
Every Judge should, therefore, take adequate interest in the institution which is placed under the control of the High Court.
The administrative control of the subordinate courts of the State vests not in the Chief Justice alone but in the Court over which the Chief Justice presides.
[231 A C] 8.
There is a marked distinction between the nature of work which executive officers and judicial officers are called upon to discharge.
The work of the judicial officers is usually sedantry while that of the executive officer involves a lot of physical movement.
This is particularly so in the lower cadres of both the services.
In view of this feature physical fitness is more important for an executive officer than in case of a judicial officer while in case of judicial officers, there is thus necessarily more of mental activity than physical.
Experience is an indispensable factor and subject to the basic physical fitness with grow ing age experience grows.
[217 D E] 9.
Today a judicial officer always looks at life in a comparative way with administrative officers of his age.
Professional income at the Bar has tremendously swelled up.
Very often counsel 's fee per day equals to the salary of a judicial officer for a full month or even a longer period.
This great disparity affects peace and equilibrium in the judicial operation.
[227 D] 10.
It is absolutely necessary that the Judge enjoys freedom from personal worries.
A reasonable salary appropri ate allowances and manageable living conditions are, there fore, required to be provided.
[226 E] 11.
An All India Judical Service should be set up and the Union of India should take appropriate steps in this regard.
[232 C] 12.
Steps should be taken to bring about uniformity in designation of officers both in civil and the criminal side by 31.3.1993.
[232 C] 13.
Retirement age of judicial officers be raised to 60 years and appropriate steps be taken by 31.12.1992.
[232 C] 14.
As and when the Pay Commissions/Committees are set up in the States and Union Territories; the question of appropriate pay scales of judicial officers be specifically referred and considered.
[232 D] 209 15.
A working library at the residence of every judicial officer has to be provided by 30.6.1992.
Provision for sumptuary allowance has to be made.
[232 D] 16.
Residential accommodation to every judicial officer has to be provided and until State accommodation is avail able.
Government should provide requisitioned accommodation for them by 31.12.1992.
In providing residential accommoda tion, availability of an office room should be kept in view.
[232 E] 17.
Every District Judge and Chief Judicial Magistrate should have a State vehicle, Judicial officers in sets of 5 should have a pool vehicle and others would be entitled to suitable loans to acquire two wheeler automobiles within different time limits.
[232 F] 18.
In service Insititute should be set up within one year at the Central and State or Union Territory level.
[232 G] The Law Commission of India 14th Report, 1958 Judges: by Professor Pannick; Law Commission of India, 1 Ith Report referred to.
Moti Ram Deka, etc.
vs The General Manager, North East Frontier Railway, Maligaon, Pandu, etc.
; , ; Secretary, Government of Madras, Home Department and ,Anoth er vs Zenith Lamps and Electrical Ltd., ; ; Devi Prasad Sharma and Others vs The King Emperor, 70 IA 216; Baradakanta Mishra The Registrar of Orissa, High Court and Another, ; , referred to.
|
Appeal No. 1203 of 1977.
From the Judgment and Order dated 4.12.1973 of the Calcutta High Court in Appeal from Original Order No. 624 of 1968.
A.K.Ganguli, U.R. Lalit, S.KNandy, Chandra Nath Mukher jee, Gaurav Kumar Banerjee, Ajit Chakravorty, Narayan Sinha and B.C. Barua for the appellants.
G. Ramawamy, Dr. Shankar Ghosh, R.F. Nanman, P.H.Parekh, Ms. Sunita Sharma, B.M.Mitra and Dhillon for the Respond ents.
The Judgment of the Court was delivered by PUNCHHI, J.
This appeal by certificate, poses an impor tant question of law, as to whether, a court sale held in execution of a final decree, passed in a suit for recovery of mortgage money, can be upset under the provisions of section 47 of the Code of Civil Procedure, on the displace ment of the preliminary decree upon which such final decree was based.
The question of law emerges on the facts summarized as follows: 239 Raja Abhoy Narain Deb was the owner of premises No. I 17 A, Rash Behari Avenue statedly a fashionable quarter of Calcutta, built on an area approximating 1 Bigha 6 cottahs, with three storied building on it consisting of 32 spacious rooms and two out houses.
On the demise of Raja Abhoy Narain Deb, the appellant herein, and the proforma respondents, succeeded as heirs to the same on September 15, 1949.
The appellant and his co heirs mortgaged their two third inter est in the said property as security for a loan of Rs.27,000 obtained from the mortgagor Smt.
Prokashini Biswas, the predecessor in interest of the plaintiffs respondents.
After her death some of the heirs and legal representatives of Smt.
Biswas, on March 13, 1961, filed a mortgage suit for the recovery of the mortgage money etc.
in the court of the 3rd Subordinate Judge at Alipore, being title Suit No.17 of 1961, seeking enforcement and sale of the mortgaged proper ty.
To this suit the left out heir of Smt.
Biswas, original ly arrayed as a defendant, was transposed as a co plaintiff.
On July 25, 1962, the trial court passed a preliminary decree in the sum of Rs.27000 for the principal sum and a sum of Rs.24570 for interest on the said principal, totall ing Rs.51570, together with costs.
The sum of Rs.51570 was proportioned in as much as two third was ordered as payable to the original plaintiffs and the remaining one third to the transposed co plaintiff.
The decree stipulated that the mortgagors were allowed to pay the decrectal amount in 15 equal annual instalments, to be deposited by the 30th June of each year, in the afore mentioned proportions of two third and one third, to the credit of the respective mortga gee plaintiffs; the first instalment being payable by August 31, 1962.
The mortgagee plaintiffs were also allowed interest on the sums due from the date of institution of the suit till the date of realisation of the entire sum.
It was further stipulated that in default of any one of the instal ments, the mortgagee plaintiffs were at liberty to apply for making the decree final, and in the event of such applica tion being made the mortgaged property, or a sufficient part thereof, shall be directed to be sold, and for such purpose all necessary steps were required to be taken by the plain tiffs mortgagees.
On December 18, 1962, the present proforma respondent no.8, Kumar Sudhendu Narain Deb, filed F.A. No. 902 of 1964 against the aforesaid preliminary decree in the Calcutta High Court praying as well for stay of execution of the decree, which prayer was ultimately declined.
Some deposits, however, were made to feed the preliminary decree but since there was a failure to deposit in the terms there of, a final decree was passed by the Court of the 3rd Subor dinate Judge, Alipore on March 6, 1963, even though F.A. No. 902 of 1964, the appeal against the preliminary decree, was pending in the High Court.
The group of the decree holders representing two third interest filed an execution petition for realisation of their own share under the decree 240 which was followed by another execution petition of the remaining decree holder representing one third interest, seeking realisation of his onethird share of the decreetal amount.
Both the execution petitions contained identical prayers for sale of the mortgaged property.
The execution petitions were consolidated and numbered as Execution Peti tions 11 and 13 of 1963 respectively.
On August 10, 1963, proclamation of sale was drawn, apparently in the presence of parties.
The decree holders suggested the value of the mortgaged property as Rs.75,000.
The appellant herein put its value at Rs.3 lacs.
In these circumstances, the execut ing court ordered that both the valuations be incorporated in the sale proclamation.
The sale, however, did not take place till March 15, 1968 and a period of over 4 % years passed by in the mean time.
By that time, the value of the property, according to the appellant, had risen to Rs.6 lacs for which on March 4, 1968, before the sale, the appellant made a regular objection under section 47 of the Code of Civil Procedure.
Within the intervening period of 4 1/2 years, some more deposits apparently were made by the appel lant.
The property was all the same sold on March 15, 1968, on the proclamation of sale as was drawn on August 10, 1963, for Rs. 1,00,500 in favour of the auction purchasers re spondents 6 & 7 herein.
On April 11, 1968, the appellant yet filed an application under Order 21 Rule 90 C.P.C. for selling aside the sale and prayed for stay of its confirma tion basically on three grounds: (i) the judgment debtors had no saleable interest in the mortgaged property; (ii) legally two execution petitions could not be consoli dated; and (iii) the provisions of section 35 of the Bengal Money Lenders ' Act had been overlooked.
This petition was treated as a part of the original objection under section 47 C.P.C.
On April 11, 1968, the objection under section 47 C.P.C. was dismissed by the executing court against which the appellant preferred an appeal before the Calcutta High Court being F.M.A. No.624 of 1968.
Later the petition under Order 21 Rule 90 C.P.C. was formally dismissed in default in the above backgrround.
On September 14, 1968, the auction sale was confined.
In F.M.A. No.902 of 1964, the appeal against the prelim inary decree, the parties arrived at a settlement on Decem ber 13, 1971 before the Calcutta High Court.
In place of the preliminary decree dated July 25, 1962 a new preliminary decree on settlement between the parties, was passed by a division bench of the High Court, whereunder the decrectal amount was principally agreed not to exceed Rs.54000 being the double 241 of the original debt of Rs.27000.
The sums deposited by the appellant, under interim orders of the court from time to time to the credit of the decree holders, were adjusted and the final amount struck as unpaid was put at Rs.44000 re garding which claim of the morttgagees was conceded by the appellant mortgager as well as to the manner of its payment, and which sum in fact was deposited by him in Court, for not only simultaneous passing of the decree but recording as well it satisfaction.
Having cleared off in this manner the mortgage debt, the appellant in his appeal F.M.A. 624 of 1968, preferred against the rejection of objection raised the additional legal ground that after the displacement of the original preliminary decree by substitution the final decree did not survive, and so did succumb the auction sale, posing amongst others the question set out in the opening paragraph of the judgment.
The High Court rejected all the legal pleas otherwise raised but certified as fit questions as raised to be answered by this Court, without framing any one of them as such.
It was pointed out by Mr. Ganguli, learned counsel for the appellant that the preliminary decree dated July 25, 1962 was a preliminary decree for sale passed in terms of Order 34 Rule 4 of the kind covered under Clause (c) (i) of sub rule (1) of Rule 2 and the final decree dated March 6.
1963 was final decree for sale under Order 34 Rule 5 (3) of the Code of Civil Procedure.
This is evident from the copies of both the decrees which are part of the additional documents submitted to this Court.
The preliminary decrees for sale, details apart, besides striking the amount due payable in instalments, mentions the time for payment, further provides that in default of payment as provided, the plaintiff may apply to the Court for final decree for the sale of the mortgaged property; and on such application being made.
The mortgaged property or sufficient part there of.
shall be directed to be sold; and for the purpose of such sale, the plaintiff shall produce before the court or such officer, as it appoints, all documents in his posses sion or relating to the mgrtgaged property.
It is evident from the terms of the final decree that it was passed on the basis of the preliminary decree dated July 25, 1962 and the plaintiff making an application on September 19, 1962 for a final decree, and it appearing that the payment directed by the said decree and orders had not been made by the defend ant or any person on his behalf or any other person entitled to redeem the mortgage.
the Court then ordered and decreed that the mortgaged property in the preliminary decree afore mentioned, or a sufficient part thereof, be sold and that for the purpose of such sale, the plaintiff shall produce before the Court or such Officer,, as it appoints, all the documents in his possession or power relating to the mortgaged property.
" It is on the strength of terms of both the decrees that Mr. Ganguli urged that the right to apply for the final decree arose from the terms of the 242 preliminary decree and on the failure of the defendant making payments in terms thereof.
And since the preliminary decree of July 25, 1962 was displaced and substituted by the preliminary decree passed by the High Court in appeal, which was instantly satisfied, the foundation under the final decree stood removed.
It was further urged that the plain tiff had lost the right to ask for a final decree, there was no compulsory need for the purpose or tee occasion to pass it, It is also urged that the auction has become non est having no legal foundation or sanction in law.
The well settled principle of the appeal being a continuation of the suit was pressed into service to contend that the final decree had no life of its own and could only be passed on an application moved by the plaintiff on the defendant 's fail ure to comply with the terms of the substituted preliminary decree.
Mr. Nariman, learned counsel appearing for the respondents on the other hand contended that there could not be a reverse process when the final decree had factually been passed and an auction sale in terms thereof had taken place bringing in the rights of the stranger auctionpurchas ers.
In order to appreciate the respective contentions of learned counsel for the parties, the scheme of Order 34 would be essential to be grasped.
It would be seen that Rule 1 thereof enjoins that subject to the provisions of the Code, all persons having an interest either in the mortgage security or in the fight of redemption shall be joined as parties to any suit relating to the mortgage.
Confining to the relevant statutory provisions thereunder, as are applicable to the case, the preliminary decree was passed in the foreclosure suit in accordance with sub clause (c)(i) of Clause (1) of Rule 2.
Further in terms of sub clause (c)(ii) of Clause (1) of Rule 2, the Court held the plaintiffs entitled to apply for a final decree, debarring the defendant from all right to redeem the property.
The Court under sub rule (2) of Rule 2 can, on good cause shown and upon terms to be fixed by the Court from time to time, at any time before any decree is passed, extend the time fixed for the payment of the amount found or declared due under sub rule (1) or of the amount adjudged due in respect of subsequent costs, charges, expenses and interest.
Rule 3 of Order 34 provides that when an application is made by the defendant seeking a final decree, the Court has two courses open depending on the defendant making payment in Court of all amounts due from him under sub rule (1) of Rule 2, and not making payment.
Under sub rule (1) of Rule 3, a final decree of one kind may be passed in terms thereof.
if pay ment is made.
But if no payment is made a final decree of the other kind may be passed in terms of sub rule (2) of Rule 3.
Sub rule (3) of Rule 3 enjoins that on the passing of a final decree under sub rule (2) all liabilities to which the defendant is subject in respect of mortgage or on account of suit shall be deemed to have been 243 discharged.
Under Rule 5, the defendant is given another opportunity to make payment of all amounts due from him under sub rule (1) of Rule 4, if such payment.
is made on or before the day fixed or at any time before the confirmation of sale in pursuance of the final decree.
It is thus notice able that at every conceivable step opportunity is given to the defendant to redeem the property at any time before the confirmation of sale made in pursuance of the final decree, and if such deposit is made the Court bas to accept the payment and make an order in favour of the defendam.
The Court, however, has no power to go on fixing date after date, in postponing confirmation of sale to accommodate the defendant, as was held by this Court in Hukumchand vs Bansi lal & Ors; , No right is given to the mort gagor defendant to ask for postponement of confirmation of sale in order to enable him to deposit the amount.
Reference may also be made to Janak Raj vs Gurdial Singh and Anr, [1967] 2 SCR wherein it has been laid down that when no application for setting aside a sale has been made to the executing court or when one made under Rules 89 to 91 of Order 21 gets dis missed, the court has no choice thereafter but to confirm the sale.
This Court made significant observation by spell ing out the policy of protecting auction purchasers in the following words: "The policy of the Legislature seems to be that unless a stranger auction purchaser is protected against the vicissitudes ,of the fortunes of the suit, sales in execution would not attract customers and it would be to the detriment of the interest of the borrower and the creditor alike if sales were allowed to be impugned merely because the decree was ulti mately set aside or modified.
The Code of Civil Procedure of 1908 makes ample provision.for the protection of the interest of the judgment debator who feels that the decree ought not to have been passed against hint.
_" [Underlining ours] However, this Court in Sardar Govindrao Mahadik & Ant: vs Devi Sahai & Ors, ; , carved out an excep tion in the case of the auction purchaser who was a decree holder himself, denying to him the protection given in Janak Raj 's case (supra) to the stranger auction purchaser.
As is discernible Sardar Govindrao 'case (supra) and Hukumchand 's case (Supra) are cases distinguishable as against Janak Raj 's case (supra).
Whereas Sardar Govindrao 's case (supra) is a case of a mortgagee 'decree holder ' auction purchaser and Hukumchand 's case [supra] relating to a mortgage suit, Janak Raj 's case (supra) is a case of a simple money decree in execution of which the auction purchaser got to buy the judgment debtors immovable property.
Still the underlined words in the extract from Janak Raj 's case (supra) conceiva bly leave to the judgment 244 debtor his rights under the Civil Procedure Code whereby he can have the decree passed against him set aside and to seek appropriate reliefs on the basis thereof.
Now coming to the substituted preliminary decree, even though by consent, there is no denying the fact that the seal of adjudication gets affixed to it.
The Court passing it has formally expressed the terms itself under its own authority, even though at the suggestion of the parties.
It conclusively determines the right of the parties with regard to the matters in controversy valid in the suit till the stage of passing of the preliminary decree.
The Explanation to Section 2(2) of the Code of Civil Procedure defining the word "decree", goes to say that a decree is preliminary when further proceedings had to be taken before a suit can be completely disposed of.
It is final where such adjudication completely disposes of the suit.
It may be partly prelimi nary and partly final.
The preliminary decree in the instant case, whether as originally made or as substituted in ap peal, had not disposed of the suit completely.
It was to be enforceable on the terms it was drawn.
There were obliga tions for the defendants to fulfil and on the violation to observe these obligations rights accrued to the plaintiffs.
If we import this analysis into the understanding of the decree, the defendants could obviously in appeal against the decree have their obligations altered and the scope and role of re defining the obligations definitely vested in the appellate court.
It cannot thus be twistedly said that the obligations of the defendants may substitutedly be that as defined by the appellate preliminary decree, but the right of the plaintiffs kept accrued on the failure of non fulfil ment of the obligations of the defendants under the prelimi nary decree of the Court of first instance.
Is it then conceivable that the appellate preliminary decree was valid for the purposes of defining the obligations of the defend ants, but was not valid since rights had accrued to the plaintiffs on the non fulfilment of obligations under the preliminary decree of the Court of first instance7 Such an interpretation or construction would render the substantive right of appeal redundant and choked defeating the ends of justice and would otherwise be iII fined in the scheme of Order 34 C.P.C. Therefore.
it must be held that in the field the only preliminary decree is the one.which was passed by the Calcutta High Court substituting the original prelimi nary decree of the Trial Court, and the final decree, if at all required, is to be passed in accordance therewith.
The fact that the decree was consensualin in nature, having been passed between the parties to the suit, is of no consequence.
It has the same binding force just as one which could be passed on contest.
An objection was raised that to this settlement, the auction purchasers were 245 not parties and hence not bound by it, though their interest had appeared on the scene due to the auction purchase.
Our attention was invited to Section 47 of the C.P.C. and to Explanation II(a) providing that ' for the purposes of Sec tion 47, a purchaser of a property in execution of the decree shall be deemed to be a party to the suit in which the decree is passed.
It was suggested that the plaintiffs and the defendants could not settle the suit without the consent and participation of the auction purchasers to their detriment.
There is an obvious fallacy in the argument.
Significantly, for the purposes of Section 47, the auction purchaser deemingly is a party to the suit in which the decree is passed if he has purchased the property at the sale and execution of that decree.
Instantly, the auction purchasers had purchased the property in execution of the final decree and not in execution of the preliminary decree and on that basis can at best be deemed to be parties to the suit throughout only on :the strength of the final decree if obtained on the terms of the existing preliminary decree.
But here the property, as said before, was not put to sale in execution of the preliminary decree.
The auction purchas ers cannot claim themselves to be parties to the suit at the time of or at any time prior to the passing of the prelimi nary decree.
It is to be remembered that both the prelimi nary decree and final decree are passed under Order 34 of the Code of Civil Procedure in one and the same suit, in which two decrees may be required to be passed at separate stages.
And both being formal adjudications appropriate to the stage are formal expressions of decision of the Court.
At the stage of the preliminary decree there arises no question of the property under mortgage being put to sale in execution of the decree, and if that is so the ultimate auction purchaser cannot be held deemingly to be a party to the suit upto the stage of the preliminary decree.
In our opinion, the converse interpretation that the auction pur chaser at a sale and execution of the final decree shall be deemed to be party to the suit at and prior to the stage when preliminary decree is passed, unless sustaining, would be contrary to the spirit and scheme of Order 34 of the Code of Civil Procedure.
And since all questions arising between the parties to the suit in which the decree was passed, or their representatives, and relating to the execution, dis charge or satisfaction of the decree are required to be determined by the Court executing the decree and not by a separate suit, the objection of the appellant judgment debtor with regard to the knocking out of the original preliminary decree was to our mind sustainable.
In terms of the preliminary appellate decree and fulfilment of the obligations of the defendants of payment of the sum as struck, there remained no occasion for entertaining, main taining or sustaining the application of the plaintiff mortgagees for sale of the property mortgaged and on that basis the auction sale in favour of the auction purchasers and confirmation of that sale automatically becomes non est.
We are thus of the considered view that the High Court went wrong in rejecting the objection of the appellant judgment debtor.
246 For the view above taken it would not be necessary to go into the other two questions raised by Mr. Ganguli, and for which there is warrant in the order of the High Court grant ing certificate, with regard to violation of section 35 of the Bengal Money Lenders Act, as well as to settle the effect of the executing court not mentioning its own evalua tion of the property in the proclamation of sale and to have illegally incorporated both the evaluations as suggested by the decree holders and the judgmentdebtors, rendering the auction sale void.
But this is not the end of the matter.
The auction purchasers are not on firm footing on the strength of the observations afore quoted in Janak Raj 's case (supra), afore distinguished.
In that case the relief in the suit was unconnected with the property sold in execution of the decree.
Here the relief in the suit is inextricably connect ed with the property sold.
The two cannot be divorced di verting them to different courses.
The substituted prelimi nary decree is the one passed under Rule 4 of Order 34 and involves the property in dispute.
It so happens that the stage of Rule 5 Order 34 stands withdrawn, rendered non est and wiped out.
No compensatory sum is due to the auction purchasers under the strict terms of subrule (2) of Rule 5 of Order 34, whereunder the defendant mortgagor, in addition to the payment of all amount due from him under sub rule (1) of Rule 4.
is required to deposit a sum equal to 5% of the amount of the purchase, money paid into the Court by the auction purchaser, which obviously is meant to compensate the auction purchaser.
That stage in the eye of law has not arrived.
Since in strict sense the provisions would not be applicable to the facts of the instant case, we in exercise of the Court 's inherent powers under the Code and powers otherwise under Article 142 of the Constitution, to further the cause of complete justice, confining it to the facts of this case, and to be fair to the auction purchasers, direct the appellant to burden himself in paying to the auction purchasers, interest on their blocked sum of Rs. 1,05,000, the purchase money, lying in Court since 1963, which we quantify as equivalent to the sum deposited.
We thus allow this appeal on the condition that the appellant shall depos it in the executing Court a sum of Rs.1,05,000, within a period of two months from this date and direct that this sum together with the sum of Rs. 1,05,000, lying in deposit as auction money be paid over by the executing Court to the auction purchasers, singularly or collectively, at the convenience of the auction purchasers.
In the facts and circumstances of the case, however, we leave the parties to bear their own costs in this Court.
V.P.R. Appeal allowed.
| The appellant and his co heirs mortgaged their two third interest in the property as security for a loan of Rs. 27,000 obtained from one Smt.
Biswas, the predecessor in interest of the plaintiffsrespondents.
After the death of the mortgagee, some of her heirs and legal representatives filed a mortgage suit on 13.3.1961 for the recovery of the mortgage money before the Subordinate Judge and seeking enforcement and sale of the mortgaged property.
The left out heir of the mortgagee, originally arrayed as a defendant was transposed.
as a co plaintiff.
On 25.7.1962, the trial court passed a preliminary decree for.
Rs.51,570 totalling the principal sum and inter est, and costs.
The 234 decretal amount was proportioned in as much as two third was ordered as payable to the original plaintiffs and the re maining onethird to the transposed co plaintiff.
The decre tal amount was to be paid by the mortgagors in 15 equal annual instalments and in default of any one of the instal ments, the mortgagee plaintiffs were at liberty to apply for making the decree final and in the event of such application being made the mortgaged property, or a part thereof, shall be directed to be sold.
Interest also was allowed on the sum due from the date of institution of the suit till the date of realisation of the entire sum.
On 18.12.1962, the proforma respondent no.8 filed an appeal against the preliminary decree in the High Court.
Prayer for stay of execution of the decree was rejected.
Though some deposits were made on the basis of the preliminary decree, there was a failure to deposit in terms thereof.
Therefore a final decree was passed by the trial court on 6.3.1963, when the appeal against the preliminary decree was pending in the High Court.
The decree holders representing two third interest and the decree holder representing one third interest filed two separate execution petitions for realisation of their shares under the decree.
Both the execution petitions contained identical prayers for sale of the mortgaged property and the execution petitions were consolidated and numbered.
On 10.8.1963, proclamation of sale was drawn.
The value of the mortgaged property was suggested as Rs. 75,000 and Rs. 3 lacs, by the decree holders and the appellant respectively.
On 4.3.1968, before the sale of the property, the appellant made a regular objection u/s 47, C.P.C.
The appel lant had also made some more deposits within the intervening period of 41/2 years.
The property was sold on 15.3.1968 on the proclamation of sale as was drawn on 10.8.1963 for Rs. 1,00,500 in favour of the auction purchasers [respondents nos.
6 & 7].
On 11.4.1968 the appellant filed an application under Order 21, Rule 90, C.P.C. for setting aside the sale and prayed for stay of its confirmation on the grounds that the judgment debtors had no 235 saleable interest in the mortgaged property; that legally two execution petitions could not be consolidated; and that the provisions of section 35 of the Bengal Money Lenders ' Act had been overlooked.
The application under Order 21 Rule 90 was treated as part of the original objection section 47, C.P.C. The executing Court on 11.4.1968 dismissed the objection u/s 47 C.P.C. against which the appellant preferred an appeal before the High Court.
Later the petition under Order 21 Rule 90, C.P.C. was formally dismissed in default.
On 14.9.1968 the auction sale was confirmed.
In the appeal against the preliminary decree, the par ties arrived at a settlement on 13.12.1971 before the High Court.
In the place of the preliminary decree dated 21.7.1962 a new preliminary decree on settlement between the parties was passed by the High Court, whereunder the secre tal amount was principally agreed not to exceed Rs.54,000.
The sums deposited by the appellant were adjusted and the final amount struck as unpaid was put at Rs.44,000.
Having cleared off the mortgage debt, the appellant in his appeal, preferred against the rejection of objection, raised the additional legal ground that after the displace ment of the original preliminary decree by substitution, the final decree as well as the auction sale did not survive.
The High Court rejected all the legal points otherwise raised, but certified as fit questions as raised to be answered by this Court without framing anyone of them as such.
Hence this appeal by certificate, involving the question of law as to whether a court sale held in execution of a final decree, passed in a suit for recovery of mortgage money can be upset under the provisions of section 47 of C.P.C., on the displacement of the preliminary decree upon which such final decree was based.
The appellant contended that the preliminary decree dated 25.7.1962 was a preliminary decree for sale passed in terms of Order 34 Rule 4 and the final decree dated 6.3.1963 was a final decree for sale under Order 34 Rule 5(3) of the C.P.C., that the 236 right to apply for the final decree arose from the terms of the preliminary decree and on the failure of the defendant making payments in terms thereof.
And since the preliminary decree of 25.7.1962 was displaced and substituted by the preliminary decree passed b) the High Court in appeal, which was instantly satisfied, the foundation under the final decree stood removed; that the plaintiff had lost the right to ask for a final decree, there was no compulsion for the purpose or the occasion to pass it; and that the auction had become non est having no legal foundation or sanction in law.
The respondents on the other hand contended that there could not be a reverse process when the final decree had factually been passed and an auction sale in terms thereof had taken place bringing in the rights of the stranger auction purchasers.
Allowing the appeal of the judgment debtor appellant, this Court, HELD: 1.
On the substitution of the preliminary decree, even though by consent, there is no denying the fact that the seal of adjudication gets affixed to it.
The court passing it has formally expressed the terms itself under its own authority, even though at the suggestion of the parties.
It conclusively determines the right of the parties with regard to the matters in controversy valid in the suit till the stage of passing of the preliminary decree.
In the field, the only preliminary decree is the one, which was passed by the High Court substituting the original prelimi nary decree of the Trial Court, and the final decree, if at all required, is to be passed in accordance therewith.
[244 B, G] 2.
The Explanation to Section 2(2) of the Code of Civil Procedure defining the word "decree", goes to say that a decree is preliminary when further proceedings had to be taken before a suit can be completely disposed of.
It is final where such adjudication completely disposes of the suit.
It may be partly preliminary and partly final.
[244 C] 3.
In the instant case the preliminary decree whether as originally made or as substituted in appeal, had not disposed of the suit completely.
It was to be enforceable on the terms it was drawn.
There were obligations for the defendants to fulfil and on the violation to observe the obligations, rights accrued to the plaintiffs.
It cannot be twistedly said that the obligations of the defendants may substitutedly be that as defined by the appellate prelimi nary decree, but the right of the plaintiffs kept accrued on the failure of non fulfilment of the 237 obligations of the defendants under the preliminary decree of the Court of first instance.
Such an interpretation or construction would render the substantive right of appeal redundant and choked defeating the ends of justice and would otherwise be ill fitted in the scheme of Order 34, C.P.C. [244 D F] 4.
For the purposes of Section 47, the auction purchas er deemingly is a party to the suit in which the decree is passed if he has purchased the property at the sale and execution of that decree.
[245 B] 5.
Instantly, the auction purchasers had purchased the property in execution Of the final decree and not in execu tion of the preliminary decree and on that basis can at best be deemed to be parties to the suit throughout only on the strength the final decree if obtained on the terms of the existing preliminary decree.
But the property was not put to sale in execution of the preliminary decree.
The auction purchasers cannot claim themselves to be parties to the suit at the time of or at any time prior to the passing of the preliminary decree.
The preliminary decree and final decree are passed under Order 34 of the Code of Civil Procedure in one and the same suit, in which two decrees may be required to be passed at separate stages.
And both being formal adjudications to the stage are formal expressions of deci sion of the Court.
At the stage of the preliminary decree there arises no question of the property under mortgage being put to sale in execution of the decree, and if that is so the ultimate auction purchaser cannot be held deemingly to be party to the suit upto the stage of the preliminary decree.
[245 B E] 6.
The converse interpretation that the auction pur chaser at a sale and execution of the final decree shall be deemed to be a party to the suit at and prior to the stage when preliminary decree is passed, unless sustaining, would be contrary to the spirit and scheme of Order 34 of the Code of Civil Procedure.
And since all questions arising between the parties to the suit in which the decree was passed, or their representatives, and relating to the execution dis charge or satisfaction of the decree are required to be determined by the Court executing the decree and not by a separate suit, the objection of the appellant judgment debtor with regard to the knocking out of the original preliminary decree was sustainable.
[245 E G] 7.
In terms of the preliminary appellate decree and fulfilment of the obligations of the defendants on payment of the sum as struck, there remained no occasion for enter taining, maintaining or 238 sustaining the application of the plaintiff mortgagees for sale of the property mortgaged and on that basis the auction sale in favour of the auction purchasers and confirmation of that sale automatically becomes non est.
The High Court went wrong in rejecting the objection of the appellant judgment debtor.
[245 G H] 8.
No compensatory sum is due to the auction purchasers under the strict terms of sub rule (2) of Rule 5 of Order 34.
In exercise of the Court 's inherent powers under the C.P.C. and powers otherwise under Article 142 of the Consti tution, to further the cause of complete justice, confining it to the facts of the case, and to be fair to the auction purchasers, the appellant is directed to burden himself in paying to the auction purchasers, interest on their blocked sum of Rs.1,05,000 the purchase money, lying in Court since 1963, which was quantified as equivalent to the sum deposit ed.
[246 D,E F] Hukumchand vs Bansilal & Ors., ; ; Janak Raj vs Gurdial Singh and Anr., ; and Sardar Govindrao Mahadik & Anr.
vs Devi Sahai & Ors., ; , referred to.
|
Appeal No. 2568 of 1991.
From the Judgment and Order dated 10.5.1991 of the Madhya Pradesh High Court in M.P. No. 2727 of 1990.
S.K. Mehta, R.D. Sharma, Dhruv Mehta, Arvind Verma and Aman Vachher for the Appellants.
Rameshwar Nath and Ravinder Nath (for Rajinder Narain & Co.) for the Respondents.
The Judgment of the Court was delivered by R.M. SAHAI, J.
The only legal question that arises for consideration, in this appeal directed against judgment of the Madhya Pradesh High Court is, if an application filed by an operator for renewal of his permit under Section 58 of , became extinct and was rendered non existent.
in eye of law, after coming into force of or it being a right within meaning of clause (c) of Section (6) of survived and continued despite repeal of 1939 Act.
The appellant, holder of a permit, for operating stage carrier on route Eklera Narsinghgarh in District Rajgarh, applied for its renewal, as required, on 18th October, 1988, 120 days before the date of its expiry on 18th February 1989 under Section 58(2) of the 1939 Act.
The application was published on 23rd June, 1989, under Section 57(3) of the Act.
But before renewal could be granted 1988 Act came into force on 1st July 1989.
The respondent who, too, had applied on 30th December 1988 for a fresh permit on the same route and on the same time schedule, withdrew his application and filed a fresh application on 18th May, 1990.
The Regional Transport Authority after considering both the applications, allowed renewal of the appellant 's permit from 18th Febru ary, 1989 to 18th February, 1994.
The application of re spondent was rejected as that could be considered only if the appellant 's existing permit was cancelled, but since the appellant was operating on the route regularly and paying taxes etc.
there was no reason to refuse renewal.
In an appeal to the State Transport Appellate Tribunal held that no appeal against renewal was maintainable against which the respondent filed writ petition which was 308 allowed and it was held that right to seek renewal of permit under a Motor Vehicle Act was not a vested right.
It was merely an incohate right with ripens into a right only on being granted.
But before this could happen the 1939 Act was repealed.
Effect of it was that the application ceased to exist.
Thus there was nothing pending which could empower the Regional Transport Authority to grant renewal.
Is this correct? Could the application for renewal be dismissed, only, because of enforcement of 1988 Act or the right of the appellant to get his application under the earlier Act decided in accordance with law subsisted and survived under the new Act as well.
The answer shall depend on construction of Section 217, 'the repealing and saving provision, in 1988 Act read with Section 6 of the .
Sub Section (1) of Section 217 of 1988 Act repeals 1939 Act.
But Sub Section (2) saves certain notifi cations, rules, regulations, Acts etc.
Clause (b) of sub section (2) reads as under: 217(1) Notwithstanding the repeal by sub section (1) of the repealed enactments, "(b) any certificate of fitness or registra tion or licence or permit issued or granted under the repealed enactments shall continue to have effect after such commencement under the same conditions and for the same period as if this Act had not been passed;" On strength of this it was urged on behalf of the respond ents that the only saving was in respect of unexpired period of a permit.
However what is relevant is sub section (4) of Section 217 which provides as follows: "S.217(4) The mention of particular matter in this Section shall not be held to prejudice or affect the general application of section 6 of the (10 of 1897), with regard to the effect of repeals.
" How such a provision should be construed was explained by this Court in The Brihan Maharashtra Sugar Syndicate Ltd. vs Janardan Ramchandra Kulkarni & Others, ; It was held that such a provision was not by way of abundant caution and any proceedings pending under repeated Act could be continued in view of Section (6) of .
Section 658 of which was a repealing and saving provision which was considered by the Court read as under: "The mention of particular matters in sections 645 to 657 or in any other provision of this Act shall not prejudice the general ap 309 plication of s(6) of the (X of 1897), with respect to the effect of repeals.
" It should be noticed that phraseology of Section 658 of the and sub section (4) of Section 217 of the is identical.
Therefore the reason ing given in the decision squarely applies for construction of sub section (4) of Section 217.
Consequently it could not be, successfully, argued that sub section (2) of Section 217 is exhaustive and sub section (4) should be read by way of abundant caution and applied only to the field which is already covered by sub section (2).
Section (6) of the may now be extracted: "S.6.
Effect of repeal Where this Act, or any (Central Act) or Regulation made after the commencement of this Act, repeals any enact ment hitherto made or hereafter to be made, then, unless a different intention appears, the repeal shall not: (c) affect any right, privilege, obligation or liability acquired, accrued or incurred under any enactment so repealed; ( e ) . . . . . . . . . . " The objective of the provision is to ensure protection of any right or privilege acquired under the repealed Act.
The only exception to it is legislative intention to the contrary.
That is, the repealing Act may expressly provide or it may impliedly provide against continuance of such right, obligation or liability.
The controversy thus narrows down to if the renewal of a permit under 1939 Act was a right.
In other words whether any right accrued to the appellant under the repealed Act which could be said to continue unaffected by the repeal of the Act.
A permit could be renewed under Section 58(2) of 1939 Act which reads as under: "S.58(2).
A permit may be renewed on an appli cation made and disposed of as if it were an application for a permit: Provided that the application for the renewal of a permit shall be made (a) in the case of a stage carriage permit or a public carrier 's permit, not less than one hundred and twenty days before the date of its expiry, and 310 (b) in any other case, not less than sixty days before the date of its expiry Provided further that, other condi tions being equal, an application for renewal shall be given preference over new applica tions for permits." Although the Section uses the word 'may ' but read with proviso it creates a preference in favour of a permit holder to claim renewal if other conditions were equal.
A holder of a permit thus stands on a better footing.
The preference created by sub section (2) of Section 58 for consideration of the permit and its grant cannot be said to be a mere incohate right, or a right which does not exist in law.
It may not be a vested right or a fundamental right but it certainly is civil right which could be enforced in a court of law and any authority acting in contravention of it can be forced to act in accordance with it.
For instance, if a Regional Transport Authority under the old Act refused renewal even though the person applying for renewal was in all respects similar to other new applicants then it could be corrected either by the tribunal or by way of writ peti tion under Article 226.
Therefore.
It is a right which is enforceable in law.
This right accrued to appellant as he had already applied for renewal and his application had been notified.
The legal machinery was set in motion by him.
He theretore had a right to get his application for renewal processed and considered in accordance with 1939 Act.
It would be too artificial to say that it was not a right or it had not accrued under 1939 Act.
Therefore, in our opinion, by virtue of Section 6(c) of the the right of the appellant to get his application considered and decided in accordance with law was saved by sub section (4) of Section 217 of .
In Cheran Transport Co. Ltd. vs Kanan Lorry Service & Anr, ; at 390 It was held that the setting of a legal process in accordance with law for renewal of permit was itself a right.
This principle was laid down by this Court even when a scheme under Section 68(f) had been pub lished which debarred grant or renewal of any permit yet the court was of the opinion t.b, at since there was undue delay and the applicant had done all that he could do in law he could not be deprived of his right of consideration of his application for renewal so long the scheme was not pub lished.
This was again approved in D. Nataraja Mudaliar vs State Transport Authority Madras, [1979] 1 SCR 552.
The Court pointed out that a permit holder had an ordinary right of renewal.
It is thus obvious that the High Court committed a manifest error of law in throwing out the application of renewal as the new Act had come into force.
311 Does the new Act indicate any intention to the contrary? No express provision debarring renewal of permits, applied for, under old Act could be pointed out.
Reliance was placed on absence of preferential provision under Section 81 of the Act which provides for renewal of permits.
It was urged that there was a definite departure from the old Act therefore any right under the old Act, could not be continued to under the new Act.
The submission does not appear to be sound.
The new Act is a legislation on the same subject.
Section 81 specifically provides for renewal.
It cuts across the argu ment of intention to the contrary.
Rather it is kept alive by Sub section (4) of Section 217.
The scheme of renewal having been continued even under new Act mere absence of preference clause in Section 81 of the new Act could not be construed as destroying the claim for renewal set in motion under the old Act.
In the result this appeal succeeds and is allowed.
The order passed by the High Court is set aside.
Parties shall bear their own costs.
T.N.A. Appeal allowed.
| The appellant, a Stage Carriage Operator, filed an appli cation for renewal of his permit under section 58(2) of the and his application was notified.
However, before the renewal could be granted the came into force.
The respondent had also applied for a fresh permit on the same route on which the appellant was operating his carriage.
The Regional Transport Authority allowed renewal of the appellant 's permit and rejected the respondent 's application.
On respondent 's appeal the State Transport Appellate Tribunal held that no appeal against renewal was maintainable.
The respondent filed a writ petition and the High Court allowed it by holding that right to seek renewal of a permit was not a vested right but was merely an incohate right which ripened into a right only on being granted; with the coming into force of 1988 Act, the 1939 Act was repealed as a result of which the appellant 's application for renewal ceased to exist and consequently the Regional Transport Authority was not empowered to grant a renewal of permit.
Against the decision of the High Court an appeal was filed in this Court.
Allowing the appeal and setting aside the order of the High Court, this Court, 306 HELD: 1.
The High Court committed a manifest error of law in rejecting the appellant 's application of renewal on the ground that the new Act had come into force.
[310 H] 1.1 Although section 58(2) of the uses the word 'may ' but read with proviso it creates a preference in favour of a permit holder to claim renewal if other conditions were equal.
A holder of a permit thus stands on a better footing.
The preference created by sub section (2) of Section 58 for consideration of the permit and its grant cannot be said to be a mere incohate right, or a right which does not exist in law.
It may not be a vested right or a fundamental right but it certainly is civil right which could be enforced in a court of law and any authority acting in contravention of it can be forced to act in ac cordance with it.
[310 B C] 1.2 The right accrued to appellant as he had already applied for renewal and his application had been notified.
The legal machinery was set in motion by him.
He therefore had a right to get his application for renewal processed and considered in accordance with 1939 Act.
It would be too technical to say that no right had accrued to him under 1939 Act.
By virtue of Section 6(c) of the the right of the appellant to get his application considered and decided in accordance with law was saved by subsection (4) of Section 217 of .
[310 D E] The Brihan Maharashtra Sugar Syndicate Ltd. vs Janardan Ramchandra Kulkarni & Ors, [1960] 3 S.C.R.85, followed.
Cheran Transport Co. Ltd. vs Kanan Lorry Service & ,Anr, ; ; D. Nataraja Mudsliar vs State Transport Authority, Madras , referred to. 2.
The objective of Section 6(c) of the is to ensure protection of any right or privilage ac quired under the repealed Act.
The only exception to it is legislative intention to the contrary.
That is, the repeal ing Act may expressly provide or it may impliedly provide against continuance of such right, obligation or liability.
[309 E] 3.
The new Act is a legislation on the same subject and Section 81 of the said Act specifically provides for renewal of permits.
The scheme of renewal having been continued even under new Act mere absence of preference clause in Section 81 of the new Act 307 could not be construed as destroying the claim for renewal set in motion under the old Act.
[311 B C]
|
on (Civil) No. 491 of 1991.
(Under Article 32 of the Constitution of India) WITH TRANSFER PETITION (CIVIL) No, 278 of 1991.
(Under Article 139 A(i) of the Constitution of India) WITH WRIT PETITION (CIVIL) Nos.
541,542 & 560/91 G. Ramaswamy, Attorney General, Altar Ahmad, Addl.
Solicitor General, Shanti Bhushan, Ram Jethmalani, P.P. Rao, Kapil Sibal, P.R.Krishnan, Ms. Indira Jaisingh, Ashok Desai, Hardev Singh, P.S. Poti, Danial Latifi, Rajinder Sachhar, M.K. Ramamurthy, R.K. Garg, S.K. Dholakia, Santosh Hegde, V.N. Ganpule, Tapas Ray, N.B. Shetye, Jayant Bhushan, Mohan Rao, Prashant Bhushan, Ms. Kamini Jaiswal, A.K. Srivastava, Manoj Wad, Ms. Rashmi Kathpalia, Ms. Nina Dikshit, E.M.S. Anam, Rajiv K. Garg, N.D. Garg, G.D. Sharma, Sudhir Walia, A.M. Khanwilkar, Mrs. Anil Katiyar, Ms. A. Subhashini, R.S. Suri, M. Veerappa, K.R. Nambiar, Harish Uppal (appeared in person) and P.H. Parekh for the appearing parties.
The Judgment of the Court was delivered by B.C. RAY, J.
These writ petitions raise certain consti tutional issues of quite some importance bearing on the construction of Articles 121 and 124 of the Constitution of India and of the "The Judges 25 (Inquiry) Act, 1968" even as they in the context in which they are brought, are somewhat unfortunate.
Notice was given by 108 members of the 9th Lok Sabha, the term of which came to an end upon its dissolution, of a Motion for presenting an Address to the President for the removal of Mr. Justice V.Ramaswami of this Court.
On 12th March, 1991, the motion was admitted by the then Speaker of the Lok Sabha who also proceeded to constitute a Committee consisting of Mr. Justice P.B. Sawant, a sitting Judge of this Court, Mr. Justice P.D. Desai, Chief Justice of the High Court of Bombay, and Mr. Justice O. Chinappa Reddy, a distinguished jurist in terms of Section 3(2) of The .
The occasion for such controversy as is raised in these proceedings is the refusal of the Union Government to act in aid of the decision of the Speaker and to decline to notify that the services of the two sitting Judges on the Committee would be treated as "actual service" within the meaning of Para 11(b) (i) of of the II Schedule to the Constitu tion.
It is said that without such a notification the two sitting Judges cannot take time off from theft court work.
The Union Government seeks to justify its stand on its understanding that both the motion given notice of by the 108 Members of the Lok Sabha for presenting an Address to the President for the removal of the Judge concerned as well as the decision of the Speaker of the 9th Lok Sabha to admit the motion and constitute a Committee under the provisions of the have lapsed with the dissolution of the 9th Lok Sabha.
Constitutional issues of some importance, therefore, arise as to the constitutional and the legal position and status of a Motion for the removal of a Judge under a law made pursuant to Article 124(5) of the Constitution and as to whether the Doctrine of Lapse would apply to such a Motion upon the dissolution of the Lok Sabha and whether, in view of the contention that such motions for removal, im peachment etc.
of holders of high constitutional offices are in their very nature politically introduced, debated and decided in the Houses of Parliament and not elsewhere, the matters arising out of or relating to a Motion for removal of a Judge in either House of the Parliament are at all justiciable before courts of law.
It is also urged that even if these issues have some degree of adjudicative disposition and involve some justiciable areas, the Court should decline to exercise jurisdiction as its decision and its writ might become infructous in view of the fact that in the ultimate analysis, the final arbiter whether at all any Address is to be presented rests exclusively with the Houses of Parliament and which, are wholly outside the purview of the Courts.
The foregoing serves to indicate broadly the com plexities of the constitutional issues on which the Court is invited to pronounce and, as in all constitutional litiga tion, the views inevitably tend to reflect a range of policy options in constitutional adjudications and, in some meas ure, value judgments.
Writ Petition No. 491 of 1991 is by a body called the "SubCommittee on Judicial Accountability" represented by its convener, Sri Hardev Singh, a Senior Advocate of this Court.
Petitioner body claims to be a Sub Committee consti tuted by an "All India Convention on Judicial Accountabili ty" "to carry forward the task of implementing the resolu tions of the conventions".
Writ Petition No. 541 of 1991 is by the Supreme Court Bar Association represented by its Honorary Secretary.
The Bar Association seeks to prosecute this petition "in the larger public interest and in particu lar in the interests of litigant public".
The two prayers common to both the petitions are, first, that the Union of India be directed to take immediate steps to enable the Inquiry Committee to discharge its functions under the "The " and, secondly, that during the pendency of the proceedings before the Committee the learned Judge should be restrained from performing judicial func tions and from exercising Judicial powers.
Writ Petition No. 542 is by a certain Harish Uppal.
This writ petition is more in the nature of a counter to the second prayer in the WP No. 541/1991 and WP No. 491/1991.
Petitioner, Sri Harish Uppal says that till the Inquiry Committee actually finds the learned Judge guilty of the charges there should be no interdict of his judicial func tions and that if such a finding is recorded then thereafter till such time as the Motion for the presentation of the Address for the removal of the Judge disposed of by the Houses of Parliament which petitioner says should not be delayed beyond 180 days the President may ask the Judge concerned to recuse from judical functions.
In Writ Petition No. 560/1991 brought by Shyam Ratan Khandelwal, a practising Advocate, the constitutional valid ity of the is challenged as ultra vires Articles 100, 105, 118, 121 and 124(5) of the Consti tution of India.
It also seeks a declaration that the Motion presented by 108 Members of Parliament for the removal of the Judge has lapsed with the dissolution of the 9th Lok Sabha.
It also seeks quashing of the decision of the Speaker admitting the Motion on the ground that an opportunity of being heard had been denied to the Judge before the Speaker admitted the Motion and proceeded to constitute a Committee.
On the question of the validity of The , 27 1968 the petitioner contends that the law properly construed vests the powers of admitting a Motion and of constituting a Committee under Section 3 in the Speaker in his capacity as Speaker of the House and subject to the well known and well settled principles of law.
procedure and conventions of the Houses of Parliament and the statute does not depart from these principles.
On the contrary, the statute admits of a construction which accords with the powers and privileges of the House and that the Motion even at that stage of admis sion would require to be debated by the House.
It is urged that if that be ' the construction, which the language of the statute admits then there should be no vice of unconstitu tionality in it.
But if the statute is construed to vest such power exclusively in the Speaker, to the exclusion of the House, the statute, on such constitution would be uncon stitutional as violative of Articles 100 (1), 105,118 and 121 of the Constitution.
Transfer Petition No. 268/1991 is for the withdrawal by this Court to itself from the High Court of Delhi, the Writ Petition (Civil) No. 1061/1991 in the Delhi High Court where reliefs similar to those prayed for by Sri Khandelwal in WP (Civil) No. 560/1991 are sought.
The prayer for trans fer has not yet been granted; only the further proceedings in the High Court are stayed.
But full dress arguments in all these matters have been heard.
It is appropriate that this writ petition should also be formally withdrawn and finally disposed of along with the present batch of cases.
All that is necessary is to make a formal order withdrawing WP (Civil) No. 1061/1991 from the Delhi High Court, which we hereby do.
Certain allegations of financial improprieties and irregularities were made against Justice V. Ramaswami, when he was the Chief Justice of the High Court of Punjab & Haryana.
There were certain audit reports concerning certain items of purchases and other expenditure.
The then Chief Justice of India, Justice Sabyasachi Mukharji, took note of the reports in this behalf and of representations submitted to him in this behalf and advised Justice Ramaswami to abstain from discharging judicial functions until those allegations were cleared.
Thereafter, a Committee of three Judges was constituted by the then Chief Justice of India, to look into the matter and to advise him whether on the facts Justice Ramaswami might be embarrassed in discharging judicial functions as a Judge of this Court.
The Committee tendered its advice to the Chief Justice.
It noted that Justice Ramaswami had declined to acknowledge the jurisdic tion of any Committee to sit in judgment over his conduct.
The Committee, accordingly, abstained from an inquiry on the charges but.
on an evaluation of the matter before it, expressed the view that as long as the charges of 28 improper conduct involving moral turpitude were not estab lished in the various enquiries then pending the operation of the constitutional warrant appointing him a Judge of the Court could not be interdicted.
Thereafter, in February, 1991, 108 Members of the Lok Sabha presented a Motion to the Speaker of the 9th Lok Sabha for Address to the President for the removal of the learned Judge under Article 124(4) of the Constitution read with the provisions of the .
On 12.3.1991 the Speaker of the Lok Sabha in purported exercise of his powers under Section 3 of the said Act, admitted the Motion and constituted a Committee as aforesaid to investigate the grounds on which the removal was prayed for.
Soon after the decision of the Speaker to admit the Motion and constitute a Committee to investigate the charges was made, the term of the Ninth Lok Sabha came to premature end upon its dissolution.
The petitioners question the legality of the Speaker 's order and assert that, at all events, the Motion had lapsed with the dissolution of the House.
This contention is supported by the Union of India.
They say that the effect of dissolution of the Ninth Lok Sabha is to "pass a sponge across the Parliamentary slate" and all pending motions lapse.
The motion for removal, it is urged, is no exception.
'We have heard Sri Shanti Bhushan, Sri Ram Jethmala ni, Sri P.P. Rao, Sri R.K. Garg and Ms. Indira Jaising learned senior counsel in support of the prayers in writ petitions Nos. 491 and 541 of 1991 filed by the Sub Commit tee on Judicial Accountability and the Supreme Court Bar Association respectively; Sri G. Ramaswamy, learned Attorney General for the Union of India; Sri Kapil Sibal for the petitioners in writ petition No. 560/91 and transfer peti tion No. 278/91.
Sri Harish Uppal, petitioner in person in writ petition No. 542/91 has filed his written submissions.
The arguments of the case covered a wide constitutional scheme relating to the removal of members of the superior judiciary in India and tO the problems of justiciability of disputes arising therefrom.
We shall refer to the arguments when we assess the merits of these contentions.
The contentions urged at the hearing in support of the petitions which seek enforcement of Speaker 's decision as well as those urged in support of the petitions which say that the Motion has lapsed can be summaried thus: 29 Contention A: The motion for removal of the Judge moved by 108 Members of Parliament as well as the purported decision of the Speaker to admit that motion and to constitute a committee to investigate into the grounds on which removal is sought have lapsed upon the dissolution of the 9th Lok Sabha.
The general rule is that no House of Parliament can seek to bind its successor.
All pending business at the time of dissolution of House lapses.
A motion for removal of a judge is just another motion and perishes with the expiry of the term or the earlier dissolution of the House.
The question whether the motion for the remov al of the judge has lapsed or not is a matter pertaining to the conduct of the business of the House of which the House is the sole and exclusive judge.
No aspect of the matter is justiciable before Court.
Contention B: The constitutional process of removal of a Judge, both in its substantive and procedural aspects, is a political process within the exclusive domain of the Houses of Parliament.
The conduct of the Speaker in regulating the procedure and business of the House shall not be subject to the jurisdiction of any Court.
The Speaker of the Lok Sabha in the exercise of his powers under the , 1%8, acts in an area outside the courts ' jurisdiction.
There is nothing in the which detracts from this doctrine of lapse.
On the contrary, the provi sions of the 'Act ' are consistent with this Constitutional position.
Contention C: Article 124(5) pursuant to which the , is a mere enabling provi sion.
Prior 'proof of misconduct is not a condition precedent before the bar under Article 121 against the discussion of the conduct of the Judge is lifted.
Contention D: The action of the Speaker in admitting the notice of motion without reference to the House and constituting a committee for inves tigation without the support of the decision of the 30 House is ultra vires Articles 100(1), 105, 121 and the rules made under Article 118 of the Constitution.
The provisions of the ; 1968 can be read consistently with the Consti tutional Scheme under the aforesaid Articles.
But if the provisions of the Act are so con strued as to enable the Speaker to exercise and perform those powers and functions without reference to and independently of the House, then the provisions of the Act would be uncon stitutional.
Contention E.
The decision of the Speaker to admit the motion and to constitute a committee for investigation is void for failure to comply with the rules of natural justice as no oppor tunity, admittedly, was afforded to the Judge of being heard before the decision was taken.
Contention F. ' The process of removal by means of a motion for address to the President is a political remedy.
But the fundamental right to move the Supreme Court for enforcement of fundamental rights take within its sweep the right to access to a court comprising of Judges of sterling and unsullied reputation and integri ty which is enforceable.
This judicial remedy is independent of the constitutional remedy and that the court has jurisdiction to decide as to its own proper constitution.
In exercise of this jurisdiction it should examine the grounds of the alleged misbehaviour and re strain the Judge from judicial functioning.
Contention G. ' The Speaker 's decision is vitiated by mala fides and oblique and collateral motives.
Contention H. ' The Supreme Court Bar Association and the Sub Committee on Judicial Accountability the petitioners in Writ Petition No. 491 of 1991 and Writ Petition No. 541 of 1991, respective ly, do not have the requisite standing to sue and the writ petitions are, accordingly, not maintainable at their instance.
31 Contention L ' At all events, even if the Speaker is held to be a statutory authority acting under the Statute and not as part of the proceedings or business of the Lok Sabha and is amenable to the jurisdiction of the Court, any judgment rendered and writ issued by this Court have the prospect of being infructuous in view of the undisputed constitutional position that, in the ultimate analysis, the decision to adopt or turn down the motion is exclusively within the power of the House and the Court would have no jurisdiction over that area.
The Court would, therefore, decline to exercise its jurisdiction on grounds of infructuousness.
Before we discuss the merits of the arguments it is necessary to take a conspectus of the constitutional provi sions concerning the judiciary and its.independence.
hi interpreting the constitutional provisions in this area the court should adopt a construction which strengthens the foundational features and the basic structure of the Consti tution.
Rule of law is a basic feature of the Constitution which permeates the whole of the Constitutional fabric and is an integral part of the constitutional structure.
Inde pendence of the judiciary is an essential attribute of Rule of law.
Articles 124(2) and 217(1) require, in the matter of appointments of Judges, consultation with the Chief Jus tices.
These provisions also ensure fixity of tenure of office of the Judge.
The Constitution protects the salaries of Judges.
Article 121 provides that no discussion shall take place in Parliament with respect to the conduct of any Judge of the Supreme Court or of a High Court in the dis charge of his duties except upon a motion for presenting an address to the President praying for the removal of the Judge as hereinafter provided.
Articles 124(4) and 124(5) afford protection against premature determination of the tenure.
Article i 24(4) says "a Judge of the Supreme Court shall not be removed from his office except" etc.
The grounds for removal are again limited to proved misbehaviour and incapacity.
It is upon a purposive and harmonious con struction and exposition of these provisions that the issues raised in these petitions are to be resolved.
In construing the Constitutional provisions the law and procedure for removal of Judges in other countries afford a background and a comparative view.
The solution must, of course, be found within our own Constitutional Scheme.
But a comparative idea affords a proper perspective for the understanding and interpretation of the Constitu tional Scheme.
32 10.
In England a Judge of the superior courts can be removed only on presentation of an address by both the Houses of Parliament to the Crown.
Proceedings may be initi ated by a petition to either House of Parliament for an address to the Crown or by a resolution for an address to the Crown to appoint a committee of inquiry into the conduct of the person designated, though preferably they should be commenced in the House of Commons.
Sometimes [as in Barring tons Case (1830)], a Commission of Inquiry is appointed and the matter is considered in the light of the report of the said Commission.
The motion for removal is considered by the entire House.
In case any enquiry is to be conducted into the allegations, it is either referred to a Select Committee of the House or to the Committee of the whole House Opportu nity is given to the Judge whose conduct is impugned to make defence on public inquiry.
The report of the Committee and its recommendation are placed before the House where the matter is debated.(See: Halsbury 's Laws of England, 4th Ed.
p. 1108).
This process has been subjected to following criticism (i) legislative removal is coloured by political partisanship inasmuch as the initia tion of the process as well as the ultimate result may be dictated by political considera tions and process of fact finding and deliber ations also suffer from party spirit.
(ii) the government has considerable control not only on the ultimate result of the pro ceedings but also on parliamentary time which enables them to prevent motions for an address from being adopted if it suits them.
(iii) the legislative procedure is not adequate for adjudicative fact finding; and (iv) since Parliament is the master of its own procedure, the procedures and rules of evidence appropriate to judicial proceedings which would seem to be required in a case of judicial removal are unlikely to be allowed in Parliament.
(See: Shetreet Judges on Trial (1976) p. 405 407) 12.
The Justice Sub Committee on the Judiciary consid ered the question whether the existing process for removal by address of the Houses should be substituted for or sup plemented by a new mechanism designed to meet changing needs and conditions.
The Sub Committee, in its 1972 Report, answered the said question in the affirmative and has pro posed a new procedure for removal of judges.
The Sub Commit tee has recommended the establishment of an adhoc judicial commission to be ap 33 pointed by the Lord Chancellor, if he decides that the question of removing a judge is to be investigated.
The Commission should include a majority of, and in any event not less than three, persons who hold or have held high judicial office.
Members of Parliament or persons who hold or have held any political appointment would be excluded.
Upon completing its inquiry the ad hoc Commission shall report the facts and recommend whether the question of removal of a judge should be referred to the Judicial Com mittee of the Privy Council.
If the Commission so recommend ed, the Privy Council would consider the matter and if it concluded that the judge should be removed, it would so advise Her Majesty.
[see: Shetreet 'Judges on Trial ', (1976); pp.
404 405].
Dr. Shetreet has suggested a via media and has favoured the establishment of a Judicial Commission for removal (but not for discipline short of removal) along the lines sug gested by the Sub Committee but has expressed the view that the existing process of address should also be preserved.
[See: Shetreet 'Judges an Trial ', (1976); p. 409].
Similar view has been expressed by Margaret Brazier.
(See: Rodney Brazier 'Constitutional Texts ' (1990) pp.606 607).
In Canada, under section 99(1) of the Constitution Act of 1867, the judges of the superior courts hold office during good behaviour, and are removable by the Governor General on address of the Senate and House of Commons.
On petition for removal submitted in 1868 and 1874 the matter was referred to a Select Committee of the House.
In a third case in 1874 the judge died before any action could be taken on motion for appointment of a Select Committee.
Recently in 1966 67, a motion for removal of Mr. Justice Leo Landreville of the Supreme Court of Ontario was moved and in that con nection a Royal Commission consisting of Mr. Justice Ivan C. Rand, a retired judge of the Supreme Court of Canada was appointed under the Inquiries Act R. section C. 1952 C. 154 to conduct an enquiry.
After considering the report of the said Commission, a Joint Committee of the Houses recommended removal but the judge resigned while Parliament was prepar ing for his removal by joint address.
Thereafter, Judges Act was enacted in 1971 whereby Canadian Judicial Council has been created.
The functions of the said Council as set out in section 39(2) include making the enquiries and the investiga tion of complaints or allegations described in section 40.
Sec tion 40 provides that the council may conduct an enquiry to determine whether a judge of superior, district or county court should be removed from office and it may recommend to the Minister of Justice of Canada that a Judge should be removed from office.
The grounds on which such a recommenda tion can be made are set out in section 41(2) of the Act and they are: (a) age or infirmity, Co) having been 34 guilty of misconduct, (c) having failed in the due execution of his office, or (d) having been placed, by his conduct or otherwise, in a position incompatible with the due execution of his office.
(Gall 'The Canadian Legal System ' ( 1983 ); pp. 184 186).
In 1 '982 the matter of Mr. Justice Thomas Berger, a Judge of the Supreme Court of British Columbia, was investi gated by the Canadian Judicial Council prompted by certain remarks made by the judge.
The Council concluded that the public expression of political views in the nature of those made by Mr. Justice Berger constituted an "indiscretion", but that they were not a basis for a recommendation that he be removed from office and on the basis of the said recom mendation, no further action was taken though Mr. Justice Berger tendered his resignation as a judge a few months later.
(See: Gall. ' The Canadian Legal System, (1983) p. 189) 14.
Under section 72(ii) of the Commonwealth of Austra lia Constitution Act, 1900, the justices of the High Court and of the other courts created by the Parliament cannot be removed except by the GovernorGeneral in Council, on an address from both Houses of the Parliament in the same session praying for such removal on the ground of proved misbehavior or incapacity.
Similar provisions are contained in the Constitutions of the States with regard to removal of Judges of State Courts.
Proceedings were initiated for removal of Mr. Justice Murphy of the High Court of Australia in 1984 under section 72(ii) of the Commonwealth of Australia Constitution Act.
In connection with those proceedings at first a select Commit tee of the Senate was appointed to enquire and report into the matter.
It consisted of six senators drawn from three political parties.
The Committee by majority decision (3: 2, one undecided) found no conduct amounting to misbehaviour under section 72(ii).
In view of the split vote a second Committee of four senators from the same three political parties was established and it was assisted by two retired judges one from the Supreme Court of Western Australia and the other from Supreme Court of the Australian Capital Territory and the said Committee recorded its finding but the judge did not appear before either of the committees.
The judge was also prosecuted before the Central Criminal Court of New South Wales and was found guilty of an attempt to pervert the course of justice but the said verdict was set aside by the Court of Criminal Appeal.
Fresh trial was held where under the judge was found not guilty.
Thereafter, an ad hoc legislation, namely, Parliamentary Commission of Inquiry Act, 1986 was enacted by the Commonwealth Parliament and a Commission consisting of three retired judges respec tively of Supreme Court of Victoria, Supreme Court of Aus tralia Capital Territory 35 and the Federal Court and Supreme Court of South Australia was constituted to investigate into the allegations of misbehaviour.
Before the said commission could give its report, the judge became gravely ill and the Act was re pealed [Lane 's Commentary on the Australian Constitution, (1986) p. 373].
In one other case, proceedings for removal were initiated against Mr. Justice Vasta of the Supreme Court of Queensland and for that purpose, the Queensland Legislature enacted the Parliamentary (Judges) Commission of Inquiry Act, 1988 whereby a commission comprised of three retired judges respectively of the High Court of Australia, Supreme Court of Victoria and the Supreme Court of New South Wales was constituted.
In Australia, there has been criticism of the exist ing procedure with regard to removal of judges both by judges as well as by lawyers.
Mr. Justice L.J. King, Chief Justice of the Supreme Court of South Australia, has ob served: "The concept of removal by an address of both Houses of Parliament is itself the subject of a good deal of criticism.
Curiously, common criticism which are made are contradictory.
One criticism is that the necessity for the involvement of the legislature ensures that the procedure will not be used and that the judges therefore have a practical immunity from removal.
Removal by this means is cer tainly extremely tare.
That may be, however, because in the countries in which this proce dure prevails, conditions are such that a judge who commits a serious act of judicial misconduct would certainly resign.
That con sideration, together with the fact that stand ards of judicial conduct are generally very high in those countries, renders removal by the legislature a rarity.
The opposite criti cism, however, is that there is no established procedure for the trial of a judge whose removal by the legislature is sought.
It is assumed that the legislature would itself institute some form of inquiry at which the judge would be able to defend himself against the accusations, but that would be a matter for the legislature in each case.
There are some who fear that a parliamentary majority, encouraged by inflamed public feeling about an unpopular judicial decision, might some day act to remove a judge, without due process.
It is at least questionable whether the system of removal by an address of both Houses of Parliament accords to a judge the 30 degree of security which is required by the concept of judicial independence.
[ 'Minimum Standards of Judicial Independence ' 1984 (58) ALl 340, at p. 345] Similarly, Mr. Justice M.H. Mclelland of the Supreme Court, of New South Wales has expressed the view: "In lieu of measures of the kinds already discussed, some permanent, and preferably Australia wide, machinery should be provided by legislation for the purpose of establishing an effective procedure for the determination by a judicial tribunal of the existence of misbehaviour or incapacity which could warrant a judge 's removal from office.
The design of that ma chinery should be such as to produce as little damage to judicial independence, public confi dence in the judicial system, and the authori ty of the courts, as is consistent with its effective operation.
It should also be such as to ensure to a judge both procedural fairness and protection from public vilification or embarrassment pending the making of the deter mination".
(Disciplining Australian Judges, at p. 401) Mr. Justice Mclelland has also suggested that the tribu nal should be subject to the supervisory jurisdiction of, and an appeal should lie from the tribunal to, the High Court of Australia.
In this context, he has stated: "Furthermore, the protection of judicial tenure and independence which the Act of Settlement provisions were intended to effect, has in the intervening period lost a great deal of its strength.
In 1701, the Crown, the House of Lords and the House of Commons were three powerful but relatively independent entities.
It was necessary for a judge to incur the displeasure of all three concurrent ly to be at risk of removal under the parlia mentary address procedure.
The subsequent development of the party system and cabinet government (especially with modern ideas of strict party discipline) has radically altered the position.
In modern times, the executive government and the lower house (and frequently the upper house, where there is one) are effectively under the control of a single individual or cohesive group, so that now a judge may be at risk of removal under the parliamentary address procedure if 37 he or she were to incur the sole displeasure of that individual or group." (Disciplining Australian Judges, 8 8 at p. 402 3) Sir Maurice Byers, former Solicitor General of the Commonwealth has also spoken in the same vein: "A federal system involves a tension between the High Court and the Parliament and the executive.
Recent years have seen this in crease because interpretations of the Consti tution have become party dogma.
The Court 's constitutional decisions are seen by many of the uninformed and quite a few of the informed as bearing upon party political questions.
When, as in the case of Mr. Justice Murphy and to a much less degree Sir Garfield Barwick, a former political figure, hands down a judgment he attracts the animus and often the abuse of some in Parliament.
Section 72 of the Consti tution leaves him exposed to the attack of his opponents and the often doubtful support of his former friends.
Whether Parliament may itself decide the judicial question of his fitness for office or "proved misbehaviour or incapacity" is at the least doubtful.
But the Court should not be exposed to this hazard, A Commission of Judges whose membership rotates is called for." (From the other side of the Bar Table: An Advocates ' view of the Judici ary; , at p. 185).
A Constitutional Commission was set up in Australia for suggesting reforms in the Commonwealth Constitution.
The said Commission has recommended that provision should be made by amendment to the Commonwealth Constitution for (a) extending the security of tenure provided by section 72 to all judges in Australia, and (b) establishing a national judicial tribunal to determine whether facts found by that tribunal are capable of amounting to misbehaviour or inca pacity warranting removal of a judge from office.
(Mclelland 'Disciplining Australian Judges ', , at p. 403) 17.
In the United States, the removal of a judge of the U.S. Supreme or a Federal judge is governed by the provisions of the U.S. Constitution wherein Article 11(4) provides for the removal from office of the President, Vice President and all civil officers of the United States on impeachment for, and conviction of, treason, bribery or other high crimes 38 and misdemeanours.
Impeachment may be voted by a simple majority of the members of the House of Representatives, there being a quorum on the floor and trial is then held in the Senate, which may convict by a vote of two thirds of the members of the Senate present and voting, there being a quorum.
With regard to state judiciary, the process of removal is governed by the State Constitutions.
Majority of the States follow the federal pattern an4 provide for im peachment as the normal process of removal of appointed judges.
In some States, provision is made for removal by an address of the Governor to both Houses of legislature or by a joint resolution of the legislature.
In some States, the removal power is vested in the State Supreme Courts while in some states, special courts are provided to hear removal charges.
In the State of New York, the Court is known as the Court on the judiciary.
(See Henry J. Abraham: The Judicial Process, 3rd Ed. p.45).
For judicial administration at the national level, there is Judicial Conference of the United States which consists of the Chief Justices of the United States, the chief judges of each of the eleven numbered circuits and of the District of Columbia and federal circuits but also, since 1957, a district judge representative from each circuit with the exception of the federal circuit, which lacks a trial court tier.
By an Act of the Congress passed in 1932 (incorporated in Title 28 of the U.S. Code) the Judicial Conference is charged with the duty to make a comprehensive survey of the condition of business in the courts; to prepare plans for assignment of judge, ' to or from circuits or districts where necessary; and to submit suggestions and recommendations to the various courts to promote uniformity of management procedures and the expeditious conduct of court business.
The work of the Judicial Conference is performed in special committees which include the special committee on judicial ethics.
Another Act of Congress passed in 1939 makes provi sion for a judicial council for each circuit composed of circuit judges of the circuit who is empowered to make all necessary orders for the effective and expeditious adminis tration of the business of the courts within its circuit.
The mandate of the Judicial Councils embraces the business of the judiciary in its institutional sense (administration of justice), such as avoiding of loss of public esteem and confidence in respect to the court system, from the actions of a judge or other person attached to the courts.
The Judicial Councils have exercised the power of review of allegations of misconduct on the part of court personnel, officers and judges.
In view of the increased number of judges, who can be removed only by the process of impeach ment, Congress has enacted the Judicial Councils Reform and Judicial Conduct and Disability Act of 1980 whereby the Judicial Councils have been explicitly empowered to receive complaints about judicial 39 conduct opaquely described as "prejudicial to the effective and expeditious administration of the business of the courts, or alleging that such a Judge or magistrate is unable to discharge all the duties of office by reason of mental or physical disability.
" It prescribes an elaborate judicilised procedure for processing such complaints within the administrative system of the councils and the Judicial Conference.
Should a Council determine that the conduct constitutes grounds for impeachment the case may be certi fied to the Judicial Conference of the United States which may take appropriate action and if impeachment is deemed warranted, the Conference is empowered to transmit the record and its determination to the House of Representa tives.
In so far as the States are concerned, all the fifty States have central Institutions for disciplining their judges and in each a variously constituted commission is organised in either a single tier or in many tiers depending on the perceived desirability of separating fact finding from judgment recommendation tasks.
Commission recommenda tions are transmitted to the State Supreme Court for its authoritative imprimatur, except in states where they are received by legislatures that retain judicial removal power.
(See Robert J.Janosik Encyclopaedia of the American Judicial System, Vol.
II pp.575 to 578).
This study of the practice prevailing in the above mentioned countries reveals that in Canada, Australia and the United States, the process of removal of a judge incor porates an investigation and inquiry into the allegations of misconduct or incapacity against a judge by a judicial agency before the institution of the formal process of removal in the legislature.
England is the only exception where the entire process is in Parliament but there also views are being expressed that it should be replaced by a judicial process of investigation by a judicial tribunal before the matter is taken up by the Houses of Parliament.
This is also the trend of the recommendations in the resolu tions adopted by the United Nations General Assembly and international conferences of organisations of lawyers.
International Bar Association at its 19th Biennial Conference held at New Delhi in October 1982 adopted Minimum Standards of Judicial Independence.
Paras 27 to 32 relating to 'Judicial Removal and Discipline ' are as under: "27.The proceedings for discipline and removal of judges should ensure fairness to the judge, and adequate opportunity for hearing.
40 28.
The procedure for discipline should be held in camera.
The judge may however request that the heating be held in public, subject to final and reasoned disposition of this request by the Disciplinary Tribunal.
Judgments in disciplinary proceedings whether held in camera or in public, may be published.
(a) The grounds for removal of judges should be fixed by law and shall be clearly defined.
(b) All disciplinary action shall be based upon standards of judicial conduct promulgated by law or in established rules of court.
A judge shall not be subject to removal unless, by of a criminal act or through gross or repeated neglect or physical or mental incapacity, he has shown himself manifestly unfit to hold the position of judge.
In systems where the power to discipline and remove judges is vested in an institution other than the Legislature, the tribunal for discipline and removal of judges shall be permanent and be composed predominantly of members of the Judiciary.
The head of the court may legitimately have supervisory powers to control judges on administrative matters.
The First World Conference on the Independence of Justice held at Montreal on June 10, 1983 adopted a UniVer sal Declaration on the Independence of Justice.
It relates to international judges as well as national judges.
The following paragraphs deal with 'Discipline and Removal ' in relation to national judges: "2.32 A complaint against a judge shall be processed expeditiously and fairly under an appropriate practice, and the judge shall have the opportunity to comment on the complaint at its initial stage.
The examination of the complaint at its initial stage shall be kept confidential, unless otherwise requested by the judge.
2.33 (a) The proceedings for judicial removal or discipline, when such are initiated, shall be held before a court or a board predominant ly composed of members of the judiciary and selected by the judiciary.
(b) However, the power of removal may be vested in the Legislature by impeachment or joint address, preferably upon a recommenda tion of a court or board as referred to in 2.33(a).
41 [Explanatory Note: In countries where the legal profession plays an indispensable role in maintaining the rule of law and judicial independence, it is recommended that members of the legal profession participate in the selection of the members of the court or board, and be included as members thereof.
] 2.34 All disciplinary action shall be based upon established standards of judicial con duct.
2.35 The proceedings for discipline of judges shall ensure fairness to the judge and the opportunity of a full hearing.
2.36 With the exception of proceedings before the Legislature, the proceedings for disci pline and removal shall be held in camera.
The judge may, however, request that the hearing be held in public, subject to a final and reasoned disposition of this request by the Disciplinary Tribunal.
Judgments in discipli nary proceedings, whether held in camera or in public, may be published.
2.37 With the exception of proceedings before the Legislature or in connection with them, the decision of a Disciplinary Tribunal shall be subject to appeal to a court.
2.38 A judge shall not be subject to removal except on proved grounds of incapacity or misbehaviour, rendering him unfit to continue in office.
2.39 In the event that a court is abolished judges serving in this court shall not be affected, except for their transfer to another court of the same status.
The Seventh United Nations Congress on the Preven tion of Crime and the Treatment of Offenders held at Milan from August 26 to September 6, 1985 adopted the Basic Prin ciples on the Independence of the Judiciary.
Paragraphs 17 to 20 dealing with 'Discipline, Suspension and Removal ' are as under: "17.A charge or complaint made against a judge in his/her judicial and professional capacity shall be processed expeditiously and fairly under an appropriate procedure, The judge shall have the right to a fair heating.
The examination of the matter at its initial stage shall be kept confidential, unless otherwise requested by the judge.
Judges shall be subject to suspension or removal only for reasons of incapacity or behaviour that renders them unfit to 42 discharge their duties.
All disciplinary, suspension or removal proceedings shall be determined in accordance with established standards of judicial con duct.
Decisions in disciplinary, suspension or removal proceedings should be subject to an independent review.
This principle may not apply to the decisions of the highest court and those of the legislature in impeachment or similar proceedings.
" The Congress Documents were endorsed by the U.N. General Assembly in its Resolution 40/32 on November 9, 1985 and Resolution 40/ 146 on December 13, 1985.
Resolution 40/146 dated December 13, 1985 of the General Assembly specifically welcomed the Basic Principles on the Independence of the Judiciary and invited Government "to respect them and to take them into account within the framework of their nation al legislation and practice" (para 2).
Unlike the judges of the Superior courts in England, the judges in the colonies did not enjoy the security of tenure as guaranteed under the Act of Settlement, 1700 and they held office at the pleasure of the Crown.
(See: Terrell vs Secretary of State for the Colonies and Another, 1953(2), 482).
The position was not different in India till the enactment of Government of India Act, 1935.
In Clause (b) of the proviso to sub Section 2 of Section 200 of the said Act which related to judges of the Federal Court, it was pre scribed that "a judge may be removed from his office by order of the Governor General on the ground of misbehaviour or of infirmity of body or mind, if the Judicial Committee of the Privy Council, on reference being made to them, report that the judge ought on any such ground to be re moved".
Similar provisions were made with regard to judges of the High Court in Section 220.
It would thus appear that prior to the coming into force of the Constitution of India, it was necessary to have a determination by a judicial body about the alleged grounds of misbehaviour or infirmity of mind and body before a judge of the Federal Court or High Court could be removed.
Does the Constitution seek to alter this position in a way, as to exclude investigation and proof of misbehaviour or incapacity by a judicial body and to rest the power of removal including the investigation and proof of misbehaviour or incapacity in Parliament alone.
Basically, the process of removal or impeachment of a judge is a political process.
A learned author in "The Impeachment of the Federal 43 Judiciary: ' [Wrisley Brown Harward Law Review 1912 1913 684 at page 698) says: ".
Thus an impeachment in this country, though judicial in external form and ceremony.
is political in spirit.
It is directed against a political offence.
It culminates in a polit ical judgment.
It imposes a political forfei ture.
In every sense, say that of administra tion, it is a political remedy, for the sup pression of a political evil, with wholly political consequences.
This results in no confusion of the political and the judicial powers.
The line of demarca tion is clearly discernible even through the labyrinth of formal non essentials under which ingenious counsel in various cases have sought to bury it.
The judgment of the High Court of Parliament upon conviction of an impeachment automatically works a forfeiture of political capacity; but this is simply an effect of the judgment, which is to be distinguished from the judgment itself. " Mauro Cappelletti in 'The Judicial Process in Comparative Perspective '[Clarendon Press Oxford 1989 at page 731 says: "Two main features of this accountability type can be identified; first, the fact that ac count has to be given to 'political ' bodies, ultimately to the legislative and/or the executive branches by means of essentially 'po litical ', non judicial processes; second, and perhaps even more characteristically, the fact that account has to be given not, or not primarily, for 'legal ' violations, but rather for behaviour (and this might include private, out of office behaviour) which is evaluated on the basis of 'political ' criteria.
Perhaps the best illustration of political accountability can be found in the systems of the common law tradition.
In England, judges (like any other officials) can be impeached 'before the House of Lords, at the suit of the House of Commons ', although this practice has fallen into desuetude; moreover, higher court judges can be 'removed from office by the Crown on an address presented to Her Majesty by both Houses of Parliament '.
The idea behind this 'address ' procedure is that judges are appointed 'during good behaviour ', hence, they can be removed upon breach of the condition.
Misbehaviour includes such situations as 'the case of conviction upon an indictment for any infamous offence of such a nature as to render the 44 person unfit to exercise the office ', but also 'improper exercise of the functions appertain ing to the office, or non attendance, or neglect of or refusal to perform the duties of the office '.
Of course the decision of the Houses and the Crown can only be an essential ly political one, not a purely juridical decision, even though we are informed that the removal procedure is subject to some extent 'to the rules of natural justice '. " 24.
But the Constitutional scheme in India seeks to achieve a judicious blend of the political and judicial processes for the removal of Judges.
Though it appears at the first sight that the.proceedings of the Constituent Assembly relating to the adoption of.
clauses, (4) and (5) of Article 124 seem to point to the contrary and evince 'an intention to exclude determination by a judicial process of the correctness of the allegations of misbehaviour or inca pacity on a more careful examination this is not the correct conclusion.
In the submissions of the learned counsel who contend against the manifestation of an intention to bring in a judicial element, reliance has been placed on the proceedings of the Constituent Assembly dated July 29, 1947 relating to adoption of Clause 18 of the report of the Union Constitution Committee relating to the Supreme Court.
Shri Alladi Krishnaswami Ayyar had moved the said clause subject to modifications and conditions in the said clause which related to appointment and removal of judges of Supreme Court.
It was provided that "a judge of the Supreme Court of India shall not be removed from his office except by the President on an address from both the Houses of Parliament of the Union in the same session for such removal on the ground of proved misbehaviour or incapacity.
Further provi sion may be made by Federal law for the procedure to be adopted in this behalf '.
Shri K. Santhanam had moved an amendment in the said Clause relating to removal of judges and he wanted the last sentence about further provision being made by Federal law for the procedure to be adopted in that behalf, to be omitted.
Shri M.Ananthasayanam Ayyanagar proposed amendments suggesting two alternative clauses in the place of the Clause with regard to removal of the judges.
In one clause, it was suggested that "a judge may be removed from office on the ground of misbehaviour or infirm ity of mind or body by an address presented in this behalf by both the Houses of the legislature to the President provided that a committee consisting of not less than 7 High Court Chief Justices chosen by the President, investigates and reports that the judge on any such ground be removed".
The other alternative clause suggested by Shri M.Anantha sayanam Ayyangar was that "a judge of the Supreme Court may be removed from office by the President on the ground of misbehaviour or of infirmity of mind or body, if on refer ence being made to it (Supreme Court) by the President, a special 45 tribunal appointed by him for the purpose from amongst judges or exjudges of the High Courts or the Supreme Court, report that the" 'judge ought on any such grounds to be removed.
" The Constituent Assembly adopted clause 18 with the amendments as proposed by Shri Alladi Krishnaswami Ayyar and rejected the amendments suggested by Shri M. Anantha sayanam Ayyangar.
Shri Santhanam did not press his amendment and it was withdrawn.
There is no doubt that in the amend ments which were suggested by Shri M.Ananthasayanam Ayyan gar, it was provided that there should be investigation into the allegations of misbehaviour or infirmity by a committee consisting of Chief Justices of the High Courts or the special tribunal consisting of judges or ex judges of the High Court or the Supreme Court, but the rejection of the said amendments moved by Shri Ayyangar does not mean that the Constituent Assembly was not in favour of determination about the correctness of such allegations by judicial body because Shri Alladi Krishnaswami Ayyar, while moving Clause 18 had emphasised the word 'proved misbehaviour ' and had stated: "While the ultimate power may rest with the two Houses, the Clause provides that the charges must be proved.
How exactly to prove the charges will be provided for in the Feder al law.
We need not be more meticulous or more elaborate, than the people who have tried a similar case in other jurisdictions.
I chal lenge my friend to say whether there is any detailed provision for the removal of judges more than that in any other Constitution in the world.
The general principle is laid down in the Constitution and later on the Federal law will provide for adequate machinery and that is the import of the clause". .
There is sufficient safeguard in the reference "proved misbehaviour" and we might make elabo rate and adequate provision for the way in which ',he guilt could be brought home to a particular judge in any Federal law that may be passed but that is a different matter". "But I do not think that in a Constitution it is necessary to provide de tailed machinery as to the impeachment, the charges to be framed against a particular judge.
To make a detailed machinery for all these could be a novel procedure to be adopted in any Constitution".
(Constituent Assembly Debates, vols.
I to VI at pp.
899 900) 25.
Reference was also made to the debates of the Con stituent Assembly dated May 24, 1949 on Article 103 of the Draft Constitution.
Shri Tajamul Hnsain moved an amendment in Clause (4) of Article 103 which related to the removal of a judge of Supreme Court and suggested an amendment in the said clause so as to provide that "a judge of the Supreme 46 Court shall not be removed from his office except by an order of the President passed, after a Committee consisting of all the judges of the Supreme Court had investigated the charge and reported on it to the President and etc.
" The said amendment was negatived by the Constituent Assembly.
(Constituent Assembly Debates, vol.
VIII at pp.
243 and 262).
The said amendment was similar to those moved by Shri M. Ananthasayanam Ayyangar at the stage of adoption of Clause 18 of the report of the Union Constitution Committee noticed earlier.
The reasons which were given by Shri Alladi Krishnaswami Ayyar for opposing the said amendments would apply to this amendment also.
The proceedings in the Constituent Assembly, there fore, do not give an indication that in adopting Clauses (4) and (5) of Article 124 of the Constitution, the intention of the Costituent Assembly was to exclude_ investigation and proof of misbehavior or incapacity of the judge sought to be removed, by a judicial body.
Having regard to the views expressed by Shri Alladi Krishnaswami Ayyar, who was a member of the Drafting Committee, while opposing the amend ments proposed by Shri M.Ananthasayanam Ayyangar, it is possible to infer that the intention of the Constituent Assembly was that the provision with regard to the machinery for such investigation and proof was a matter which need not be contained in the Constitution and it is a matter for which provision could be made by Parliament by law.
This is some of the historical material and back ground on the topic.
We may now proceed to consider the merits of the contentions.
RE: CONTENTION A: 28.
This contention has two aspects: whether a motion for removal of a Judge lapses upon the dissolution of the House of Parliament and secondly, the question whether it so lapses or not is a matter within the exclusive domain and decision of that House itself.
On the first aspect, the contention of the learned Attorney General and Shri Kapil Sibal, learned Senior Counsel, are similar.
On the second aspect, the learned Attorney General would say that the question whether a motion lapsed or not is to be decided on the basis of the provisions of law guiding the matter and the House itself is not its final arbiter.
Learned Attorney General would say that the Court alone has jurisdiction to examine and pronounce on the law of the matter.
On the question of lapse reliance was placed on the classic treatise of Erskine May 's "The Law, Privileges, Proceedings and Usage 47 of Parliament" [Twenty first Edition, London Butterworths 1989].
A motion is described as a "proposal made for the purpose of illustrating the decision of the House".
Accord ing to Erskine May, certain matters may be raised by only a substantive motion.
He says: "Certain matters cannot be debated, except on a substantive motion which allows a distinct decision of the House.
Amongst these are the conduct of the sovereign, the heir to the throne or other members of the Royal Family, a Governor General of an independent territory, the Lord Chancellor, the Speaker, the Chairman of Ways and Means, Members of either House of Parliament and judges of the superior courts of the United Kingdom, including persons holding the position of a judge, such as a judge in a court of bankruptcy and a county court, or a recorder. " 30. 'Sri Sibal placed strong reliance on the following statements in M.N.Kaul and S.L.Shakdher in "Practice and Procedure of Parliament" as to the effects of the dissolu tion of the House: "Dissolution, as already stated, marks the end of the life of a House and is followed by the constitution of a new House.
Once the House has been dissolved, the dissolution is irrevo cable.
There is no power vested in the Presi dent to cancel his order of dissolution and revive the previous House.
The consequences of a dissolution are absolute and irrevocable.
In Lok Sabha, which alone is subject to dissolu tion under the Constitution, dissolution "passes a sponge over the parliamentary slate".
All business pending before it or any of its committees lapses on dissolution.
No part of the records of the dissolved House can be carried over and transcribed into the records or registers of the new House.
In short, the dissolution draws the final curtain upon the existing House".
Adverting to the effect of dissolution on other business such as motions, resolutions etc.
, the learned authors say: "All other business pending in Lok Sabha, e.g., motions, resolutions, amendments supple mentary demands for grants etc., at whatever stage, lapses upon dissolution, as also the petitions presented to the House which stand referred to the Committee on Petitions." Learned Attorney General urged that a combined reading of Articles 107, 108 and 109 leads irresistibly to the conclusion that upon dissolution 48 of the House, all bills will lapse subject only to the exception stipulated in Article 108.
It is further urged that on first principle also it requires to be accepted that no motion should survive upon the dissolution of the House unless stipulated otherwise under the Rules of Procedure and conduct of business.
The doctrine of lapse, it is urged, is a necessary concomitant of the idea that each newly consti tuted House is a separate entity having a life of its own unless the business of the previous House is carried over by the force of statute or rules of procedure.
Both the learned Attorney General and Shri Kapil Sibal took us through the Rules of Procedure and Conduct of Business in Lok Sabha made under Article 118 of the Constitution to show that invaria bly all pending business come to an end with the expiry of the term of the House or upon its earlier dissolution.
Shri Ram Jethmalani for the petitioner sub committee referred to the conventions of the British Parliament and urged that pending business lapses on prorogation and as a general practice the House is usually prorogued before it is dissolved.
Learned counsel said that impeachment motions are sui generous in their nature and that they do not lapse.
It is.
however, necessary to distinguish the Indian Parliamen tary experience under a written Constitution from the Brit ish conventions.
Indeed, referring to the doctrine of lapse this Court in Purushothaman Nambudiri vs The State of Kerala [1962] Suppl.
1 SCR 753 Gajendragadkar J said: ".
In support of this argument it is urged that wherever the English parliamentary form of Government prevails the words "prorogation" and "dissolution" have acquired the status of terms of art and their significance and conse quence are well settled.
The argument is that if there is no provision to the contrary in our Constitution the English convention with regard to the consequence of dissolution should be held to follow even in India.
There is no doubt that, in English, in addition to bringing a session of Parliament to a close prorogation puts an end to all business which is pending consideration before either House at the time of such prorogation; as a result any proceedings either in the House or in any Committee of the house lapse with the session Dissolution of Parliament is invariably pre ceded by.
prorogation, and what is true about the result of prorogation" is, it is said, a fortiori true about the result of dissolution.
Dissolution of Parliament is sometimes de scribed as "a civil death of Parliament".
Ilbert, in his work on 'Parliament ' has ob served that "prorogation means the end of a session (not of a Parliament)"; and adds that "like dissolution, it kills all bills which have not yet passed".
He also describes disso lution as an "end of a Parliament (not merely of 49 a session) by royal proclamation", and ob serves that "it wipes the slate clean of all uncompleted bills or other proceedings". "[p.759 & 760].
After referring to the position in England that the dissolution of the House of Parliament brought to a close and in that sense killed all business of the House at the time of dissolution, the learned Judge said: " . .
Therefore, it seems to us that the effect of cl.
(5) is to provide for all cases where the principle of lapse on dissolution should apply.
If that be so, a Bill pending assent of the Governor or President is outside cl.
(5) and cannot be said to lapse on the dissolution of the Assembly." [p. 768] " . .
In the absence of cl. (5) it would have followed that all pending business, on the analogy of the English convention, would lapse on the dissolution of the Legisla tive Assembly.
It is true that the question raised before us by the present petition under Pal.
196 is not free from difficulty but, on the whole, we are inclined to take the view that the effect of cl.
(5) is that all cases not falling within its scope are not subject to the doctrine of lapse of pending business on the dissolution of the Legislative Assem bly.
In that sense we read cl.
(5) as dealing exhaustively with Bills which would lapse on the dissolution of the Assembly.
If that be the true position then the argument that the Bill which was pending assent of the President lapsed on the dissolution of the Legislative Assembly cannot be upheld." [P. 769] 31.
It is true that Purushothaman Nambudiri case dealt with a legislative measure and not a pending business in the nature of motion.
But, we are persuaded to the view that neither the doctrine that dissolution of a House "passes a sponge over parliamentary slate" nor the specific provisions contained in any rule or rules flamed under Article 118 of the Constitution determine the effect of dissolution on the motion for removal of a judge under Article 124.
the reason is that Article 124(5) and the law made thereunder exclude the operation of Article 118 in this area.
Section 3 of the Act provides: "3(1) If notice is given of a motion for presenting an address to the President praying for the removal of a Judge signed, (a) in the case of a notice given in the House of the People, by not less than one hundred members of that House; 50 (b) in the case of a notice given in the Council of States, by not less than fifty members of that Council; then, the Speaker or, as the case may be, the Chairman may, after consulting such persons, if any, as he thinks fit and after considering such materials, if any, as may be available to him, either admit the motion or refuse to admit the same.
(2) If the motion referred to in sub section (1) is admitted, the Speaker or, as the case may be, the Chairman shall keep the motion pending and constitute, as soon as may be, for the purpose of making an investigation into the grounds on which the removal of a Judge is prayed for, a Committee consisting of three members of whom (a) One shall be chosen from among the Chief Justices and other Judges of the Supreme Court; Co) one shall be chosen from among the Chief Justices of the High Courts; and (c) one shall be a person who is, in the opinion of the Speaker or, as the case may be, the Chairman, a distinguished jurist; Proviso &) Omitted Sub sections) as (3) to (9)) unnecessary here.
Section 6.(2) provides: "(2) If the report of the Committee contains a finding that the Judge is guilty of any misbe haviour or suffers from any incapacity, then, the motion referred to in sub section (1) of section 3 shall, together with the report of the Committee, be taken up for consideration by the House or the Houses of Parliament in which it is pending.
" The effect of these provisions is that the motion shall be kept pending till the committee submits its report and if the committee finds the Judge guilty, the motion shall be taken up for consideration.
Only one motion is envisaged which will remain pending.
No words of limitation that the motion shall be kept pending subject to usual effect of dissolution of the House can or should be imported.
The reason is that a law made by the Parliament and binding on the House can provide against the doctrine of lapse.
The law envisaged in article 124(5) is Parliamentary law which is of higher quality and efficacy than rules made by the House for itself under Article 118.
Such a law can, and under the present statute does 51 provide against the doctrine of lapse.
Further, article 118 expressly states that each House of Parliament may make rules "for regulating, subject to the provisions of this Constitution".
In State of Punjab vs Sat Pal Dang & Ors. ; this Court held that the law for purposes of Article 209 (analogues to Article 119) could even take the form of an Ordinance promulgated by the Governor of a State under Article 213 and that wherever there is repugnance between the Rules of Procedure framed under Article 208 (Article 118 in the ease of Parliament), the law made under Article 209 shall prevail.
In the constitutional area of removal of a Judge, the law made under Article 124(5) must be held to go a little further and to exclude the operation of the Rules under Article 118.
Indeed, no question of repugnance could arise to the extent the field is covered by the law under Article 124(5).
Such a view would indeed obviate some anomalies which might otherwise arise.
Rajya Sabha is not dissolved and a motion for presentation of address for the removal of the Judge can never lapse there.
Section 3 applies to both the Houses of Parliament.
The words "shall keep the motion pending" cannot have two different meanings in the two different contexts.
It can only mean that the consideration of the motion shall be deferred till the report of the committee implying that till the happening of that event the motion will not lapse.
We are of the view that the argument that such a motion lapses with the dissolution of the House of Parliament is not tenable.
The second limb of Contention A is that the question whether a motion has lapsed or not is a matter pertaining to the conduct of the business of the House of which the House is the sole and exclusive master.
No aspect of the matter, it is contended, is justificiable before a Court.
Houses of Parliament, it is claimed, are privileged to be the exclu sive arbiters of the legality of their proceedings.
Strong reliance has been placed on the decision in oft quoted decision in Bradlaugh vs Gosserr, There the exclusiveness of parliamentary jurisdiction on a matter related to the sphere where Parliament, and not the Court, had exclusive jurisdiction even if the matters were covered by a statute.
But where, as in this country and unlike in England, there is a written constitution which constitutes the funda mental and in that sense a "higher law" and acts as a limi tation upon the Legislature and other organs of the State as grantees under the Constitution, the usual incidents of parliamentary sovereignty do not obtain and the concept is one of 'limited Government '.
Judicial review is, indeed, an incident of and flows 52 from this concept of the fundamental and the higher law being the touchstone of the limits of the powers of the various organs of the State which derive power and, authori ty under Constitution and that the judicial wing is the interpreter of the Constitution and, therefore, of the limits of authority of the different organs of the State.
It is to be noted that the British Parliament with the Crown is Supreme and its powers are unlimited and courts have no power of judicial review of legislation.
This doctrine is in one sense the doctrine of ultra vires in the constitutional law.
In a federal set up the judiciary becomes the guardian of the Constitution.
Indeed, in A.K. Gopalan vs The State of Madras, ; Arti cle 13 itself was held to be ex abundante cautela and that even in its absence if any of the fundamental rights were infringed by any legislative enactment, the court had always power to declare the enactment invalid.
The interpretation of the Constitution as a legal instrument and its obligation is the function of the Courts.
"It is emphatically the province and duty of the judicial department to say what the law is".
In Re: Special Reference Case; , Gajendragadkar, CJ said: ". .though our Legislatures have plenary powers, they function within the limits pre scribed by the material and relevant provi sions of the Constitution.
In a democratic country governed by a written Constitution, it is the Constitution which is supreme and sovereig. . " But it is the duty of this Court to interpret the Con stitution for the meaning of which this Court is final arbiter.
Shri Kapil Sibal referred us to the following obser vations of Stephen J. in Bradlaugh vs Gosserr, supra: ".
It seems to follow that the House of Commons has the exclusive power of interpret ing the statute, so far as the regulation of its own proceedings within its own walls is concerned; and that even if that interpreta tion should be erroneous, this court has no power to interfere with it directly or indi rectly. " [p. 280 & 281] ".
The House of Commons is not a Court of Justice; but the effect of its privilege to regulate its own internal concerns practically invest it with the judicial character when it has to apply to particular cases the provi sions of Acts of Parliament.
53 We must presume that it discharges this func tion properly and with due regard to the laws, in the making of which it has so great a share.
If its determination is not in accord ance with law, this resembles the case of an error by a judge whose decision is not subject to appeal.
There is nothing startling in the recognition of the fact that such an error is possible.
If, for instance, a jury in a crimi nal case gives a perverse verdict, the law has provided no remedy.
The maxim that there is no wrong without a remedy does not mean, as it is sometimes supposed, that there is legal remedy for every moral or political wrong. . " [p. 285] The rule in Bradlaugh vs Gossett, supra, was held not applicable to proceedings of colonial legislature governed by the written constitutions Barton vs Taylor, and Redillusion (Hong Kong) Ltd. vs Attorney General of Hong Kong, ; The principles in Bradlaugh is.
that even a statutory right if it related to the sphere where Parliament and not the courts had exclusive jurisdiction would be a matter of the Parliament 's own concern.
But the principle cannot be extended where the matter is not merely one of procedure but of substantive law concerning matters beyond the Parliamen tary procedure.
Even in matters of procedure the constitu tional provisions are binding as the legislations are en forceable.
Of the interpretation of the Constitution and as to what law is the Courts have the constitutional duty to say what the law is.
The question whether the motion has lapsed is a matter to be pronounced upon the basis of the provisions of the Constitution and the relevant laws.
In deed, the learned Attorney General submitted that the ques tion whether as an interpretation of the constitutional processes and laws, such a motion lapses or not is exclu sively for the courts to decide.
The interpretation of the laws is the domain of the courts and on such interpretation of the constitutional provisions as well as the , it requires to be held that under the law such a motion does not lapse and the Courts retain jurisdiction to so declare.
Contention A is answered accordingly.
RE: CONTENTIONS (B), (C) AND (D): 34.
These contentions have common and over lapping areas and admit of being deal with and disposed of together.
On tile interpretative criteria apposite to the true meaning and scope of Articles 121, 124(4) and 124(5), indeed, three constructional options become avail able: 54 First: The entire power for taking all steps for the removal of a Judge, culminating in the presentation of an address by different Houses of Parliament to the Presi dent, is committed to the two Houses of Par liament alone and no initiation of any investigation is possible without the initiative being taken by the Houses them selves.
No law made by Parliament under Article 124(5) could take away this power.
The bar of Article 121 is lifted the moment any Member of Parliament gives notice of motion for the removal of a Judge and the entire allegations levelled by him would be open for discussion in the House itself.
It will be for the majority of the Members of the House t decide if and how they would like to have the allegations investigated.
Any abridging this power is bad.
Second: Since a motion for presenting an address to the President referred to in Arti cles 121 and 124 (4) has to be on ground of "proved" misbehaviour and incapacity, no such motion can be made until the allegations relating to misbehaviour or incapacity have first been found to be proved in some forum outside either Houses of Parliament Law under Article 124(5) is mandatory and until the Parliament enacts a law and makes provision for an investigation into the alleged misbeha viour or incapacity and regulates the proce dure therefor, no motion for removal of a Judge would be permissible under Article 124(4) and the House of Parliament would not be brought into the picture till some authori ty outside the two Houses of Parliament has recorded a finding of misbehaviour or incapac ity.
The emphasis is on the expression 'proved '.
Third: That Article 124(5) is only an enabling provision and in the absence of any enactment by the Parliament under that provi sion it would be open to either House to entertain a motion for the removal of a Judge.
However, it is open to the Parliament under Article 124(5) to enact a law to regulate the entire procedure starting with the investiga tion of the allegations against the Judge concerned and ending with the presentation of the address by the two Houses of Parliament.
It would be open to the Parliament to desig nate any authority of its choice for investi gating the allegations and also to regulate the 55 procedure for the consideration of the matter in either House.
As soon as a law has been enacted all its provisions would be binding on both Houses of Parliament and would even override any Rules flamed by the two Houses under Article 118 of the Constitution.
It will not be permissible for either House to act contrary to the provi sions of such Act.
The question as to when and in what circumstances motion would be allowed to be moved in either House of Parliament to lift the ban against the discussion of conduct of a Judge under Article 121 would be accord ing to such Act of Parliament.
In regard to the first and the second alternative propo sitions, the deliberations of the Joint Select Committee would indicate a sharp divide amongst the eminent men who gave evidence.
Particularly striking is the sharp contrast between the opinions of Mr. K.K. Shah and Mr. M.C. Setalvad.
The first view would tend to leave the matter entirely with the House, which can adopt any procedure even differing from case to case.
The matter would be entirely beyond judicial review.
Then there is the inevitable ' element of political overtone and of contemporary political exacerbations arising from inconvenient judicial pronouncements thus endangering judicial independence.
The third view would suffer from the same infirmities except that Parliament might itself choose to discipline and limit its own powers by enacting a law on the subject.
The law enacted under Article 124(5) might be a greatly civi lized piece of legislation deferring to values of judicial independence.
But then the Parliament would be free to repeal that law and revert hack to the position reflected in the first view.
The third view can always acquire back the full dimensions of the first position at the choice of the Parliament.
The second view has its own commendable features.
It enables the various provisions to be read harmoniously and, together, consistently with the cherished values of judicial independence.
It also accords due recognition to the word "proved" in Article 124(4).
This view would also ensure uniformity of procedure in both Houses of Parliament and serve to eliminate arbitrariness in the proceedings for removal of a Judge.
It would avoid duplication of the inves tigation and inquiry in the two Houses.
Let us elaborate on this.
56 36.
Article 121 ,and the material parts of Article 124 read as under: "121.
Restriction on discussion in Parlia ment.
No discussion shall take place in Parliament with respect to the conduct of any Judge of the Supreme Court or of a High Court in the discharge of his duties except upon a motion for presenting an address to the Presi dent praying for the removal of the Judge as hereinafter provided.
Establishment and constitution of Supreme Court.
(1). . . . . . (2) Every Judge of the Supreme Court shall be appointed by the President by warrant under his hand and seal after consultation with such of the Judges of the Supreme Court and of the High Courts in the States as the President may deem necessary for the purpose and shall hold office until he attains the age of sixty five years: Provided that in the case of appointment of a Judge other than the Chief Justice of India shall always be consulted: Provided further that (a) a Judge may, by writing under his hand addressed to the President, resign his office; (b) a Judge may be removed from his office in the manner provided in clause (4).
(4) A Judge of the Supreme Court shall not be removed from his office except by an order of the President passed after an address by each House of Parliament supported by a majority of not less than two thirds of the members of that House present and voting has been pre sented to the President in the same session for such removal on the ground of proved misbehaviour or incapacity.
(5) Parliament may by law regulate the proce dure for the presentation of an address and for the investigation and proof of the misbe haviour or incapacity of a Judge under clause (4).
" Article 121 suggests that the bar on discussion in Parliament with respect to the conduct of any Judge is lifted 'upon a motion for presenting an address to the President praying for the removal of a Judge as hereinaf 57 provided '.
The word 'motion ' and 'as hereinafter provid ed ' are obvious references to the motion for the purpose of clause (4) of Article 124 which in turn, imports the concept of "proved" misbehaviour or incapacity.
What lifts the bar under Article 121 is the 'proved ' misbehaviour or incapaci ty.
Then arises the question as to how the investigation and proof of misbehaviour or incapacity preceding the stage of motion for removal on the ground of "proved" misbehaviour or incapacity under Article 124(4) is to be carried on.
Clause (5) of Article 124 provides for enactment of a law for this purpose.
The seminal question is whether clause (5) is merely an enabling provision particularly in view of the use of the word 'may ' therein, or it incorporates a condition precedent on the power of removal of the parliament.
In other words, can the function of removal under Article 124(4) be per formed without the aid of a law enacted under clause (5)?If it can be, then the power for investigation and proof of misbehaviour or incapacity of a Judge must be found in clause (4) itself and the scope of clause (5) limited only to enactment of a law for this limited purpose if the Par liament so desires and not otherwise.
The other view is that clause (5) contains a constitutional limitation on the power of removal contained in clause (4) so that it can be exer cised only on misbehaviour or incapacity "proved" in accord ance with the law enacted under clause (5).
In such situa tion, the power of the Parliament would become available only for enacting the law under clause (5) and if misbeha viour or incapacity is "proved" in accordance with such law.
The motion which lifts the bar contained in Article 121 is really a motion for such removal under clause (4) of Article 124 moved in the House after the alleged misbehavior or incapacity has been proved in accordance with the law enact ed by the Parliament under clause (5) of Article 124.
In this connection, the parliamentary procedure commences only after proof of misbehaviour or incapacity in accordance with the law enacted under clause (5), the machinery for investi gation and finding of proof of the misbehaviour or incapaci ty being statutory.
governed entirely by provisions of the law enacted under clause (5).
This also harmonises Article 121.
The position would be that an allegation of misbeha viour or incapacity of a Judge has to be made, investigated and found proved in accordance with the law enacted by the Parliament under Article 124(5) without the Parliament being involved upto that stage; on the misbehaviour or incapacity of a Judge being found proved in the manner provided by that law, a motion for presenting an address to the President for removal of the Judge on that ground would be moved in each House under Article 124(4); on the motion being so moved after the proof of misbehaviour or incapacity and it being for presenting an address to the President praying for removal of the Judge, the bar.
on 58 discussion contained in Article 121 is lifted and discussion can take place in the Parliament with respect to the conduct of the Judge; and the further consequence would ensue de pending on the outcome of the motion in a House of Parlia ment.
If, however, the finding reached by the machinery provided in the enacted law is that the allegation is not proved, the matter ends and there is no occasion to move the motion in accordance with Article 124(4).
If it be accepted that clause (4) of Article 124 by contains the complete power of removal and the enactment of a law under clause (5) is merely enabling and not a consti tutional limitation on the exercise of the power of removal under clause (4), then some other questions arise for con sideration.
If clause (5) is merely an enabling provision, then it cannot abridge the scope of the power in clause (4) and, therefore, the power of a House of Parliament under clause (4) cannot be curtailed by a mere enabling law enact ed under clause (5) which can be made only for the purpose of aiding or facilitating exercise of the function under clause (4).
In that situation, enactment of the enabling law under clause (5) would not take the sphere covered by the law outside the ambit of Parliament 's power under clause (4).
The argument that without enactment of the law under clause (5), the entire process from the time of initiation till presentation of the address to the President, including investigation and proof of the misbehaviour or incapacity, is within the sphere of Parliament, but on enactment of a law under clause (5) that area is carved out of the Parlia ment 's sphere and assumes statutory character appears tenu ous.
If the argument were correct, then clause (5), would merely contemplate a self abnegation.
The other view is that clause (4) of Article 124 gives power to the Parliament to act for removal of the Judge on the ground of proved misbehaviour or incapacity in the manner prescribed if the matter is brought before it at this stage; and for reaching that stage the Parliament is required to enact a law under clause (5) regulating the procedure for that purpose.
This means that making of the allegation, initiation of the proceedings, investigation and proof of the misbehaviour or incapacity of a Judge are governed entirely by the law enacted by the Parliament under clause (5) and when that stage is reached, the Parliament comes into the picture and the motion for removal of the Judge on the ground of proved misbehaviour or incapacity is moved for presentation of the address to the President in the manner prescribed.
The matter not being before the Parliament prior to this stage is also indicated by Article 121 which lifts the bar on discussion in Parliament only upon a motion for presenting an address to the President as provided later in Article 124(4).
The bar in 59 Article 121 applies to discussion in Parliament but investi gation and proof of misconduct or incapacity cannot exclude such discussion.
This indicates that the machinery for investigation and proof must necessarily be outside Parlia ment and not within it.
In other words, proof which involves a discussion of the conduct of the Judge must be by a body which is outside the limitation of Article 121.
The word 'proved ' also denotes proof in the manner understood in our legal system i.e. as a result of a judicial process.
The policy appears to be that the entire stage upto proof of misbehaviour or incapacity, beginning with the initiation of investigation on the allegation being made, is governed by the law enacted under Article 124(5) and in view of the restriction provided in Article 121, that machinery has to be outside the Parliament and not within it.
If this be so, it is a clear pointer that the Parliament neither has any role to play till misconduct or incapacity is round proved nor has it any control over the machinery provided in the law enacted under Article 124(5).
The Parliament comes in the picture only when a finding is reached by that machinery that the alleged misbehaviour or incapacity has been proved.
The enacted under Article 124(5) itself indicates that the Parliament so understood the integrated scheme of Articles 121, 124(4) and 124(5).
The general scheme of the Act conforms to this view.
Some ex pressions used in the Act, particularly sections 3 and 6 to suggest that the motion is initiated in the House or is kept pending in the House during investigation can be reconciled, if this Constitutional Scheme is accepted.
Those expressions appear to have been used since the authority tO entertain the complaint is 'Speaker/Chairman ', the complaint is de scribed as 'motion ' and the complaint can be made only by the specified number of Members of Parliament.
In substance it only means that the specified number of M.Ps.
alone can make such a complaint; the complaint must be made to the 'Speaker/Chairman '; on receiving such a complaint if the Speaker/Chairman form the opinion that there is a prima facie case for investigation, he will constitute the judi cial committee as prescribed; and if the finding reached is 'guilty ' then the Speaker/Chairman commences the parliamen tary process in accordance with Article 124(4) for removal of the Judge and the bar in Article 121 is lifted.
If this be the correct position, then the validity of law enacted by the Parliament trader clause (5) of Arti cle 124 and the stage upto conclusion of the inquiry in accordance with that law being governed entirely by statute would be open to judicial review as the parliamentary proc ess under Article 124(4) commences only after a finding is recorded that the alleged misbehaviour or incapacity is proved in the inquiry conducted in accordance with the law enacted under clause (5).
For this reason the argument based on exclusivity of Parliament 's jurisdiction over 60 the process and progress of inquiry under the Judges (in quiry) Act, 1968 and consequently exclusion of this Court 's jurisdiction in the matter at this stage does not arise.
For the same reason, the question of applying the doctrine of lapse to the motion made to the Speaker giving rise to the constitution of the Inquiry Committee under the Act, also does not arise and there can be no occasion for the House to say so at any time.
If the House is, therefore, not required to consider this question since the parliamentary process can commence only after a finding of guilt being proved, the further question of a futile writ also does not arise.
The argument that the House can decide even after a finding of guilt that it would not proceed to vote for removal of the Judge is not germane to the issue since that is permissible in the Constitutional Scheme itself under Article 124(4) irrespective of the fact whether Article 124(5) is a mere enabling provision or a constitutional limitation on the exercise of power under Article 124(4).
It is not the law enacted under Article 124(5) which abridges or curtails the parliamentary process or exclusive ly of its jurisdiction but the Constitutional Scheme itself which by enacting clauses (4) and (5) simultaneously indi cated that the stage of clause (4) is reached and the proc ess thereunder commences only when the alleged misbehaviour or incapacity is proved in accordance with the law enacted under clause (5).
It is only then that the need for discussing a Judge 's conduct in the Parliament arises and, therefore, the bar under Article 121 is lifted.
in short, the point of time when the matter comes first before the Parliament in the Constitutional Scheme, Article 121 provides that the bar is lifted.
The other view creates difficulties by restricting discussion in Parliament on a motion which would be before it.
The suggestion to develop a convention to avoid discus sion at that stage or to prevent it by any other device adopted by the Speaker after admitting the motion, does not appear to be a satisfactory solution or explanation.
That this obvious situation could have been left unprovided for and the field left to a convention to be developed later, while enacting these provisions with extreme care and cau tion in a written Constitution, is extremely unlikely.
This indicates that this area is not left uncovered which too is a pointer that the stage at which the bar in Article 121 is lifted, is the starting point of the parliamentary process i.e. when the misbehaviour or incapacity is proved; the stage from the initiation of the process by ' making the allegation, its mode, investigation and proof are covered by the law enacted under clause (5); in case the allegation is not proved, the condition precedent to invoke the Parlia ment 's jurisdiction under clause (4), does not exist, which is the reason for section 6 of 1968 Act saying so; and in case it is proved, the 61 process under clause (4) commences, culminating in the result provided in it.
In Part V of the Constitution relating to 'The Union ', Article 124 is in 'Chapter IV The Union Judiciary ' while Articles 118 and 119 relating to Parliament 's power to make rules or enact a law to regulate its procedure and the conduct of its business are in 'Chapter II Parliament ' under the heading 'Procedure Generally ' wherein Article 121 also finds place.
The context and setting in which clause (5) appears along with clause (4) in Article 124 indicate its nature connected with clause (4) relating to curtailment of a Judge 's tenure, clause (4) providing the manner of removal and clause (5) the pre requisite for removal distin guished from Articles 118, 119 and 121, all of which relate to procedure and conduct of business in Parliament.
Article 124(5) does not, therefore, operate in the same field as Article 118 relating to procedure and conduct of business in Parliament.
Accordingly, the scheme is that the entire process of removal is in two parts the first parts under clause (5) from initiation to investigation and proof of misbehaviour or incapacity is covered by an enacted law, Parliament 's role being only legislative as in all the laws enacted by it; and the second part only after proof under clause (4) is in Parliament, that process commencing only on proof in accordance with the law enacted under clause (5) Thus the first part is entirely statutory while the second part alone is the parliamentary process.
The Constitution intended a clear provision for the first part covered fully by enacted law, the validity of which and the process thereunder being subject to judicial review independent of any political colour and after proof it was intended to be a parliamentary process.
It is this synthesis made in our Constitutional Scheme for removal of a Judge.
If the motion for presenting an address for removal is envisaged by Articles 121 and 124(4) 'on ground of proved misbehaviour or incapacity ' it presupposes that misbehaviour or incapacity has been proved earlier.
This is more so on account of the expression 'investigation and proof used in clause (5) with specific reference to clause (4).
This indicates that 'investigation and proof ' of misbehaviour or incapacity is not within clause (4) but within clause (5).
Use of the expression 'same session ' in clause (4) without any reference to session in clause (5) also indicates that session of House has no significance for clause (5) i.e., 'investigation and proof ' which is to be entirely governed by the enacted law and not the parliamentary practice which may be altered by each Lok Sabha.
62 45.The significance of the word 'proved ' before the expression 'misbehaviour or incapacity ' in clause (4) of Article 124 is also indicated when the provision is compared with Article 317 providing for removal of a member of the Public Service Commission.
The expression in clause (1) of Article 317 used for describing the ground of removal is 'the ground of behaviour ' while in clause (4) of Article 124, it is, 'the ground of proved misbehaviour or incapaci ty '.
The procedure for removal of a member of the Public Service Commission is also prescribed in clause (1) which provides for an inquiry by the Supreme Court on a reference made for this purpose.
In the case of a Judge, the procedure for investigation and proof is to be in accordance with the law enacted by the Parliament under clause (5) of Article 124.
In view of the fact that the adjudication of the ground of misbehaviour under Article 317 (1) is to be by the Su preme Court, in the case of a Judge who is a higher consti tutional functionary, the requirement of judicial determina tion of the ground is re inforced by the addition of the word 'proved ' in Article 124(4) and the requirement of law for this purpose under Article 124(5).
Use of the word 'may ' in clause (5) indicates that for the 'procedure for presentation of address ' it is an enabling provision and in the absence of the law the general procedure or that resolved by the House may apply but the 'investigation and proof ' is to be governed by the enacted law.
The word 'may ' in clause (5) is no impediment to this view.
On the other hand, if the word 'shall ' was used in place of 'may ' in clause (5) it would have indicated that it was incumbent on the Parliament to regulate even the proce dure for presentation of an address by enacting such a law leaving it no option even in the matter of its procedure after the misbehaviour or incapacity had been investigated and found true. 'Sometimes, the legislature uses the word "may" out of deference to the high status of the authority on whom the power and the obligation are intended to be conferred and imposed. ' (See: State of Uttar Pradesh vs Joginder Singh; , at 202.
Indeed, when a provision is intended to effectuate a right here it is to effectuate a constituational protection to the Judges under Article 124 (4) even a provision as in Article 124 (5) which may otherwise seem merely enabling, becomes mandatory.
The exercise of the powers is rendered obligatory.
In Fred eric Guilder julius vs The Right Rev.
The Lord Bishop of Oxford; the Rev. Thomas Tellsson Carter, [1879 80] 5 A.C. 214 at p. 24zt, Lord Blackburn said: ,.The enabling words are construed as compulsory whenever the object of the power is to effectuate a legal right. " 63 In Punjab Sikh Regular Motor Service, Moudhapura vs The Regional Transport ,Authority, Raipur & Anr, ; , this Court referring to the word 'may ' in Rule 63 (a) in Central Provinces and Berar Motor Vehicles Rules, 1940, observed: ".
On behalf of the appellant attention was drawn to the expression 'may ' in Rule 63.
But in the context and the language of the rule the word 'may ' though permissive in form, must be held to be obligatory.
Under Rule 63 the power to grant renewal of the counter signa ture on the permit in the present case is conferred on the Regional Transport Authority, Bilaspur.
The exercise of such power of renew al depends not upon the discretion of the authority but upon the proof of the particular cases out of which such power arises. 'Ena bling words are construed as compulsory when ever the object of the power is to effectuate a legal right '.
(See: Julius vs Bishop of Oxford, 5 A.C. 214, 244). " If the word 'may ' in Article124 (5) is given any other meaning that sub Article would render itself, to be treated by the Parliament, as superfluous, redundant and otiose.
The power to prescribe a procedure for the exercise of power under Article 124 (4) could otherwise also be available to the House.
The law envisaged under Article 124(5) is not such a law; but one which would effectuate the constitution al policy and philosophy of the machinery for removal of Judges.
The use of the word 'may ' does not, therefore, neces sarily indicate that the whole of clause (5) is an enabling provision leaving it to the Parliament to decide whether to enact a law even for the investigation and proof of the misbehaviour or incapacity or not.
The mere fact that clause (5) does not form a part of clause (4) itself, as appears to have been considered at one stage when the constitution was being drafted, does not reduce the significance or content of clause (5).
It is likely that the framers of the Constitution thought of clearly demarcating the boundaries and, therefore, indicated that upto the stage of proof of misbehaviour of incapacity the field is covered by a law enacted by the Parliament, the first pan being covered by clause (5) and the latter by clause (4) with the only difference that the Parliament was given the option to regulate even the procedure for the presentation of an address after the misbehaviour or inca pacity had been proved by enacting a law for the purpose to make it more definite and consistent.
64 48.
Similarly, use of word 'motion ' to indicate the process of investigation and proof in the because the allegations have to be presented to the 'Speaker ' does not make it 'motion in the House ' not withstanding use of that expression in Section 6.
Otherwise, section 6 would not say that no further step is to be taken in case of a finding of 'not guilty '.
It only means that when the allegation is not proved, the Speaker need not commence the process under clause (4) which is started only in case it is proved.
The Speaker is, therefore, a statutory authority under the Act chosen because the further process is parliamentary and the authority to make such a complaint is given to Members of Parliament.
Moreover, to the enact ment under Article 124(5) cannot be a safe guide to deter mine the scope of Article 124(5).
If this construction of the inter connection amongst Articles 118,121, 124 (4) and 124 (5) is the proper one to be placed on them, as indeed we so do, the provisions of the do not foul with the Constitutional Scheme.
On scope of the law under Article 124(5), the idea of regulating procedure for (i) Presentation of the address; (ii) Investigation and proof of misbehaviour or incapacity admit of two possible options of interpretation.
The idea of "Presentation of the address" may be confined to the actual presentation of address by both Houses of the Parliament; or may be held to cover the entire process from initiation by the motion in the House till the final act of delivery of the address.
If the first view is correct the law under Article 124(5) would apply at the stage of investigation and proof of misbehaviour or incapacity and at the final stage of presentation of address after the motion is adopted by both the Houses.
The motion and its consideration and adop tion by the House would be outside the ambit of such law and it would be regulated by the rule of procedure made under Article I 18.
This view is too narrow.
By bringing in the rules of procedure of the House made under Article 118 it introduces an element of uncertainty and might affect inde pendence of the judiciary.
Second view is to be preferred.
It enables the entire process of removal being regulated by a law of Par liament ensures uniformity and reduces chances of arbi trariness.
Article I 18 is a general provision conferring on each House of Parliament the power to make its own rules of procedure.
These rules are not binding on the House and can be altered by the House at any time.
A breach of such rules amounts to an irregularity and is not subject to judicial review in view of Article 122.
Article 124(5) is in the nature of a special provi sion intended to regulate the procedure for removal of a Judge under Article 124(4) which 65 iS not a part of the normal business of the House but is in the nature of special business.
It covers the entire field relating to removal of a Judge.
Rules made under Article 118 have no application in this field.
Article 124(5) has no comparison with Article 119.
Articles 118 and 119 operate in the same field viz. normal business of the House.
It was, therefore, necessary to specifically prescribe that the law made under Article 119 shall prevail over the rules of procedure made under Article 118.
Since Article 118 and 124(5) operate in different fields a provision like that contained in Article 119 was not necessary and even in the absence of such a provision, a law made under Article 124 (5) will override the rules made under Article 118 and shall be binding on both the Houses of Parliament.
A violation of such a law would constitute illegality and could not be immune from judical scrutiny under Article 122(1).
Indeed, the Act reflectS the constitutional philoso phy of both the judicial and political elementS of the process of removal.
The ultimate authority remains with the Parliament in the sense that even if the Committee for investigation records a finding that the Judge is guilty of the charges it is yet open to the Parliament to decide not to present an address to the President for removal.
But if the Committee records a finding that the Judge is not guilty, then the political element in the process of removal has no further option.
The law is, indeed, a civilised piece of legislation reconciling the concept of accountability of Judges and the values of judicial independence.
Indeed, the dissenting note of Dr. L.M. Singhvi, in the Report of the Joint Committee on the Judges (Inquiry) Bill, 1964 brings into sharp focus the thrust of the report of the majority.
It is to be recalled that the 1964 Bill vested the power to initiate the process of removal with the Executive.
That was found objectionable and inconsistent with the idea of judicial independence.
However, as to the nature of the authority which was the repository of the power to investigate, the dissenting opinion, by necessary implication, emphasises the majority view which ultimately became the law.
Dr. Singhvi in his dissent says: "10.
The present Bill seeks to provide only the modality of a tribunal clothed in the nomenclature of a Committee.
The Committee contemplated in the Bill may well be consid ered a tribunal or an "authority" within the meaning of Articles 226 and 227 of the Consti tution, rendering itS work subject to judicial review and supervision.
What is more, the Parliament is not left with any choice in the matter and procedure of parliamen 66 tary committee has been wholly excluded.
With this I am not in agreement.
In both these matters in respect of which I have dissented from my esteemed colleagues in the Joint Select Committee, there appears to be an imprint on the provisions of the Bill of the now defunct Burmese Constitution, which provided that a notice of such resolution should be signed by not less than one fourth of the total membership of either Chamber of Parliament and further that the charge would be investigated by a special tribunal (section 143 of the Burmese Constitution).
In the Burmese case, the special tribunal was to consist of the President or his nominee and the Speakers of the Chamber of Nationalities and the Cham ber of Deputies.
I feel that the Burmese analogue is neither inspiring nor instructive, and that the more highly evolved procedures of other democratic constitutions which have been tried and tested for centuries would have served us better".
Our conclusions, therefore, on contentions B, C and D are as under: The constitutional process for removal of a Judge upto the point of admission of the motion, constitution of the Committee and the recording of findings by the Committee are not, strictly, proceedings in the Houses of Parliament.
The Speaker is a statutory authority under the Act.
Upto that point the matter cannot be said to remain outside the Court 's jurisdiction.
Contention B is answered accordingly.
Prior proof of misconduct in accordance with the law made under Article 124(5) is a condition precedent for the lifting of the bar under Article 121 against discussing the conduct of a Judge in the Parliament.
Article 124 (4) really becomes meaningful only with a law made under Article 124(5).
Without such a law the constitutional scheme and process for removal of a Judge remains inchoate.
Contention C is answered accordingly.
The Speaker while admitting a motion and constituting a Committee to investigate the alleged grounds of misbehaviour or incapacity does not act as part of the House.
The House does not come into the picture at this stage.
The provisions of the are not unconstitutional as abridging the powers and privileges of the House.
The is constitutional and is intra vires.
Contention D is disposed of accordingly.
67 RE: CONTENTION (E) 56.
It is urged by Shri Sibal that having regard to the serious consequences that flow from the admission of a motion by the Speaker and the decision to constitute a Committee for investigation, it is incumbent upon the Speak er to afford an opportunity to the Judge of being heard before such a decision is taken.
It is urged that such decision has momentous conseqences both to the Judge and to the judicial system as a whole and that any politically motivated steps to besmear a Judge will not merely affect the Judge himself but also the entire system of administra tion of justice.
If a motion brought up with collateral and oblique motives, it would greatly advance the objects and purposes of if the Judge con cerned himself is heard before a decision to admit a ,"notion which has shattering consequences so far as the Judge is concerned is taken.
The minimum requirements of natural justice, appropriate in the context, says learned counsel, require that the Judge should have an opportunity of being heard.
Shri Jethmalani, on the contrary, contended that it would be highly inappropriate that the Speaker should issue notice to a Judge and call upon him to appear before the Speaker.
That apart, Shri Jethmalani said at that stage of the proceedings where the Speaker merely decides that the matter might bear investigation no decisions affecting the rights, interests or legitimate expectation can be said to have been taken.
Shri Jethmalam sought to point out that these proceedings could not be equated with disciplinary or penal proceedings.
The Speaker does not decide anything against the Judge at that stage.
Referring to the nature and purpose of such preliminary proceedings Corpus Juris Secundum (Vol.
48A) says: "As a general rule, disciplinary or removal proceedings relating to Judges are sui generis and are not civil or criminal in nature; and their purpose is to inquire into judical conduct and thereby maintain standards of judicial fitness".
[p.614] As to the stage at which there is a need for notice and opportunity to the Judge to be heard the statement of the law is: "The general rule is that before a Judge may be disciplined, as by removal, he is entitled to notice and an opportunity to defend even though there is no statute so requiring.
Ordinarily, 68 the right to defend is exercised in a trial or hearing, as considered infra 51.
More specifi cally the Judge is entitled to notice of the particular charges against him.
In addition, notice of the charge should be given suffi ciently in advance of the time for presenting a defence to permit proper preparation of a showing in opposition".
(pp. 613 614) But negativing the position that the Judge would be entitled to notice even at the preliminary stage it is stated: "Investigations may be conducted into matters relating to judicial conduct as a preliminary to formal disciplinary proceedings.
A judiciary commission may conduct an investi gation into matters relating to judicial conduct as a preliminary to formal discipli nary proceedings, and a court may, under its general powers over inferior courts, appoint a special commissioner to preside over a prelim inary investigation.
A court rule providing that a Judge charged with misconduct should be given a reasonable opportunity in the course of a preliminary investigation to present such matters as he may choose, affords him more protection than is required by constitutional provisions".
[p. 615] 58.
The position is that at the stage of the provisions when the Speaker admits the motion under section 3 of the , a Judge is not, as a matter of right, entitled to such notice.
The scheme of the statute and rules made thereunder by necessary implication, exclude such a right.
But that may not prevent the Speaker, if the facts and circumstances placed before him indicate that hearing the Judge himself might not be inappropriate, might do so.
But a decision to admit the motion and constitute a Commit tee for investigation without affording such an opportunity does not, by itself and for that reason alone, vitiate the decision.
Contention E is disposed of accordingly.
RE:CONTENTION (F) 59.
The substance of this contention as presented by the learned counsel for the petitioner, "Sub Committee" argued with particular emphasis by Shri R.K. Garg is that the constitutional machinery for removal of a Judge is merely a political remedy for judicial misbehaviour 69 and does not exclude the judicial remedy available to the litigants to ensure and enforce judicial integrity.
It is urged that the right to move the Supreme Court to enforce fundamental rights is in itself a fundamental right and that takes within its sweep, as inhering in it, the right to an impartial judiciary with persons of impeccable integrity and character.
Without (his the fundamental right to move court itself becomes barren and hollow.
It is urged that the court itself has the jurisdiction nay a duty to ensure the integrity and impartiality of the members composing it and restrain any member who is found to lack in those essential qualities and attainments at which public confidence is built.
It is true that society is entitled to expect the high est and most exacting standards of propriety in judicial conduct.
Any conduct which tends to impair public confidence in the efficiency integrity and impartiality of the court is indeed forbidden.
In Corpus Juris Secundum (Vol.
48A) refer ring to the standards of conduct, disabilities and privi leges of Judges, it is observed: "The State which creates a judicial office may set appropriate standards of conduct for a Judge who holds that office, and in many jurisdictions, courts acting within express or implied powers have adopted or have followed certain canons or codes of judicial conduct.
The power of a particular court in matters of ethical supervision and the maintenance of standards for the judiciary may be exclusive.
Guidelines for judicial conduct are found both in codes of judicial conduct and in general moral and ethical standards expected of judi cial officers by the community.
Canons or codes are intended as a statement of general principles setting forth a wholesome standard of conduct for judges which will reflect credit and dignity on the profession and illsolar as they prescribe conduct which is malum in so as opposed to malum prohibitum they operate to restate those general prinici ples that have always governed judicial con duct.
Although these canons have been held to be binding on judges and may have the force of law where promulgated by the courts, except as legislatively enacted or judicially adopted they do not of themselves have the force and effect of law".
[pp. 593 594] the nature of prescribed conduct it is stated: 70 "A Judge 's official conduct should be free from impropriety and the appearance of impro priety and generally, he should refrain from participation in activities which may tend to lessen public respect for his judicial office.
It is a basic requirement, under general guidelines and canons of judicial conduct, that a Judge 's official conduct be free from impropriety and the appearance of impropriety and that both his official and personal beha viour be in accordance with the highest standard society can expect.
The standard of conduct is higher than that expected of lay people and also higher than that expected of attorneys.
The ultimate standard must be conducted which constantly reaffirms fitness for the high responsibilities of judicial office and judges must so comfor '.
themselves as to dignify the administration of justice and deserve the confidence and respect of the public.
It is immaterial that the conduct deemed objectionable is probably lawful albeit unjudicial or that it is perceived as lowhu mored horseplay.
In particular, a judge should refrain from participation in activities which may tend to lessen public respect for his judicial office and avoid conduct which may give rise to a reasonable belief that he has so participated.
In fact even in his private life a judge must adhere to standards of probity and propriety higher than those deemed acceptable for oth ers.
While a judge does have the right to entertain his personal views on controversial issues and is not required to surrender his rights or opinions as a citizen his right of free speech and free association are limited from time to time by his official duties and he must be most careful to avoid becoming involved in public controversies".
594~596] In Sampath Kumar & Ors.
vs Union of India & Ors, [1985 ] 4 S.C.C. 458, dealing with the qualifications, accomplish ments and attainments of the members of the Administrative Tribunal, which were intended to substitute for the High Courts, this court emphasised the qualities essential for discharging judicial functions.
But we are afraid the proposition that, apart from the constitutional machinery for removal of a Judge, the judiciary itself has the jurisdiction and in appropriate cases a duty to enquire into the integrity of one of its members and restrain the Judge from exercising judicial functions is beset with grave risks.
The court would then indeed be acting as a tribunal1 for the removal of a Judge.
Learned counsel supporting the proposition 71 stated that the effect of restraining a Judge from exercis ing judicial functions is not equivalent to a removal be cause the conditions of service such as salary etc.
of a Judge would not be impaired.
But we think that the general proposition that the court itself has such a jurisdiction is unacceptable.
It is productive of more problems then it can hope to solve.
The relief of a direction to restrain the Judge from discharging judicial functions cannot be granted.
It is the entire Constitutional Scheme including the provisions relat ing to the process of removal of a Judge which are to be taken into account for the purpose of considering this aspect.
It is difficult to accept that there can be any right in anyone running parallel with the Constitutional Scheme for this purpose contained in clauses (4) and (5) of Article 124 read with Article 121.
No authority can do what the Constitution by necessary implication forbids.
Inciden tally, this also throws light on the question of interim relief in such a matter having the result of restraining the Judge from functioning judicially on initiation of the process under the Judge (Inquiry) Act, 1968.
The Constitu tional Scheme appears to be that unless the alleged misbeha viour or incapacity is 'proved ' in accordance with the provisions of the law enacted under Article 124(5) and a motion for presenting an address for removal of the Judge on the ground of proved misbehaviour or incapacity is made, because of the restriction contained in Article 121, there cannot be a discussion about the Judge 's conduct even in the Parliament which has the substantive power of removal under Article 124(4).
If the Constitutional Scheme therefore is that the Judge 's conduct cannot be discussed even in the Parliament which is given the substantive power of removal, till the alleged misconduct or incapacity is 'proved ' in accordance with the law enacted for this purpose, then it is difficult to accept that any such discussion of the conduct of the Judge or any evaluation or inferences as to its merit is permissible according to law elsewhere except during investigation before the Inquiry Committee constituted under the statute for this purpose.
The indication, therefore, is that interim direction of this kind during the stage of inquiry into the alleged misbehaviour or incapacity is not contemplated it being alien to our Constitutional Scheme.
The question of propriety is, however, different from that of legality.
The absence of a legal provision, like Article 3 17(2) in the case of a Member of Public Service Commission, to interdict the Judge faced with such an inquiry from contining to discharge judicial functions pending the outcome of the inquiry or in the event of a finding of misbehaviour or incapacity being proved till the process of removal under Article 124(4) is complete, does not necessarily indicate that the Judge shall continue to function during that period.
That area is to be covered by the 72 sense of propriety of the learned Judge himself and the judicial tradition symbolised by the views of the Chief Justice of India.
It should be expected that the learned Judge would be guided in such a situation by the advice of the Chief Justice of India, as a matter of convention unless he himself decides as an act of propriety to abstain from discharging judicial functions during the interregnum.
Since the learned Judge would continue to hold the office of a Judge unless he resigns or is removed, an arrangement to meet the situation has to be devised by the Chief Justice.
The Constitution while providing for the suspension of a Member of a Public Service Commission in Article 3 17 (2) in a similar situation has deliberately abstained from making such a provision in case of higher constitutional function aries, namely, the Superior Judges and President and Vice President of India, facing impeachment.
It is reasonable to assume that the framers of Constitution had assumed that a desirable convention would be followed by a Judge in that situation which would not require the exercise of a power of suspension.
Propriety of the desirable course has to be viewed in this perspective.
It would also be reasonable to assume that the Chief Justice of India is expected to find a desirable solution in such a situation to avoid embarrass ment to the learned Judge and to the Institution in a manner which is conducive to the independence of judiciary and should the Chief Justice of India be of the view that the interests of the institution of judiciary it is desirable for the learned Judge to abstain from judicial work till the final outcome under Article 124(4), he would advise the learned Judge accordingly.
It is further reasonable to assume that the concerned learned Judge would ordinarily abide by the advice of the Chief Justice of India.
All this is, however, in the sphere of propriety and not a matter of legal authority to, permit any court to issue any legal directive to the Chief Justice of India for this purpose.
Accordingly Contention F is rejected.
RE:CONTENTION (G) 63.
This relates to the mala fides alleged against the Speaker.
The averments in this behalf are identical in both Raj Birbal 's and Sham Ratan Khandelwal 's peti tions.
We may notice the relevant averments: "It is, therefore, disconcerting to note that the Speaker acted contrary to Constitutional practice.
It is assumed that this high Consti tutional functionary would have known of the well settled and established constitutional practice in regard to the fact that motions lapse with the dissolution of the House.
The action of the Speaker, therefore, in admitting the motion in the manner that he did, smacks of mala fides and, therefore, de 73 serves to be struck down.
The action of the Speaker is mala fide on yet another count.
The Speaker has not resigned from the primary membership of the Janta Dal.
The petitioners verily believe that the first signatory to the motion is the erstwhile Prime Minister of India Shri V.P. Singh who happens also to be the leader of the Janta Dal.
The signatories to the said motion, the petition ers verily believe, belong mostly to the Janta Dal, though the details of this fact are not precisely known to the petitioners.
The Speak er, as has been indicated earlier, ought to have allowed parliament to look into the matter and discuss as to whether or not the motion ought to be admitted.
The Speaker ought to have at least tabled the motion in the House to ascertain the views of the Members of parliament belonging to various Houses.
The Speaker, to say the least, ought to have transmitted all materials to Justice Ramaswami and sought a response from him before attempt ing to admit the motion.
The Speaker ought to have dealt with the motion much earlier and transmitted to Justice Rammaswami all the materials as well as the views that might have been expressed to him in the course of his consultations which enabled him to come to a decision.
The Speaker in the very least ought to have ascertained the wishes of the House in this regard.
The Speaker ought not to have decided to admit the motion in the manner he did on the last evening of the 9th Lok Sabha amidst din and noise, when what he spoke was also not entirely audible in the House.
The Speaker is a high Constitutional functionary and ought to have exercised his functions in the highest traditions of the office of this high constitutional function ary.
The Speaker ought also not to have dealt with the motion, the prime movers of which are members of his own party. 'the Speaker ought to have disqualified himself in this regard and placed the matter for the discussion of the House.
The conduct of the Speaker in this entire episode was unbecoming of a high Con stitutional functionary.
The action of the Speaker is mala fide and deserves to be struck down on this count alone." The averments as to mala fides are intermixed with and inseparable from touching the merits of certain constitu tional issues.
Indeed, mala fides are sought to be impugned to the Speaker on the grounds that he did 74 not hear the Judge, did not have the motion discussed in the House etc.
We have held these were not necessary.
But a point was made that the Speaker not having entered appearance and denied these allegations on oath must be deemed to have admitted them.
It appears to us that even on the allegations made in the petition and plea of mala fides which require to be established on strong grounds, no such case is made out.
A case of mala fides cannot be made out merely on the ground of political affiliation of the Speaker either.
That may not be a sufficient ground in the present context.
At all events, as the only statutory au thority to deal with the matter, doctrine of statutory exceptions or necessity might be invoked.
Contention G cannot therefore be accepted.
RE :CONTENTION (H) 65.
This pertains to the locus standi of "Sub Committee on the Judicial Accountability" and the Supreme Court Bar Association to maintain the proceedings.
If this is true, then the petitioners in Transfer Petition No. 278 of 1991 and other writ petitions challenging the Speaker 's decision would not also have the necessary standing to sue.
The law as to standing to sue in public interest actions had under gone a vast change over the years and liberal standards for determining locus standi are now recognised.
The matter has come to be discussed at considerable care and length in S.P. Gupta & Ors.
vs Union of India & Ors. etc.
, [1982] 2 SCR 365.
The present matter is of such nature and the constitutional issues of such nature and importance that it cannot be said that members of the Bar, and particularly the Supreme Court Bar Association have no locus standi in the matter.
An elaborate re survey of the principles and prece dents over again is unnecessary.
Suffice it to say that from any point of view the petitioners satisfy the legal equip ments of the standing to sue.
We, therefore, reject the Contention H. 66.
We are constrained to say that certain submissions advanced on the prayer seeking to restrain the learned judge from functioning till the proceedings of the committee were concluded lacked as much in propriety as in dignity and courtesy with which the learned judge is entitled.
The arguments seemed to virtually assume that the charges had been established.
Much was sought to be made of the silence of the Judge and his refusal to be drawn into a public debate.
If we may say so with respect, learned judge was entitled to decline the invitation to offer his explanation to his detractors, No adverse inference as to substance and validity of the 75 charges could be drawn from the refusal of the learned judge to recognise these forums for his vindication.
While the members of the bar may claim to act in public interest they have, at the same time, a duty of courtesy and particular care that in the event of the charges being found baseless or insufficient to establish any moral turpitude, the judge does not suffer irreparably in the very process.
The ap proach should not incur the criticism that it was calculated to expose an able and courteous judge to public indignity even before the allegations were examined by the forum constitutionally competent to do so.
We wish the level of the debate both in and outside the Court was more decorous and dignified.
Propriety required that even before the charges are proved in the only way in which it is permitted to be proved, the Judge should not be embarrassed.
The constitutional protection to Judges is not for theft person al benefit; but is one of the means of protecting the judi ciary and its independence and is, / therefore, in the larger public interest.
Recourse to constitutional methods ' must be adhered to, if the system were to survive.
Learned Judge in his letter to the Registrar General which he de sired to be placed the Court had, indeed, expressed deep anguish at the way the petitioners had been permitted them selves to sit in judgment over him and deal with him the way they did.
RE: CONTENTION (I) 67.
This argument suggests that the court should, having regard to the nature of the area the decision of the court and its writ is to operate in, decline to exercise its jurisdiction, granting it has such jurisdiction.
It is urged that any decision rendered or any writ issued might, in the last analysis, become futile and infructuous as indeed the Constitution of and investigation by the committee are not, nor intended to be, an end by themselves culminating in any independent legal consequences but only a proceeding prelim inary to and preceding the deliberations of the House on the motion for the presentation of an address to the President for the removal of a Judge.
The latter, it is urged, is indisputably with in the exclusive province of the Houses of parliament over which courts exercise no control or juris diction.
The constitution of and the proceedings before the committee are, it is urged, necessarily sequential to and integral with the proceedings in the Houses of Parliament.
SinCe the committee and its investigations have neither any independent existence nor separate legal effect otherwise than as confined to, and for the purposes and as part of the possible prospective proceedings in the Houses of Parlia ment, the court should decline to exercise jurisdiction on a matter which is of no independent legal consequence of its own and which, in the last analysis, falls and remains entirely in an area outside the courts ' jurisdiction.
It is urged 76 that both from the point of view of infructuousness, propri ety and futility, the court should decline the invitation to interfere even though that part of the proceedings pertain ing to the constitution of the committee might not strictly be within the exclusive area of Parliament.
Courts, it is urged, would not allow its process to expect in a matter which will eventually merge in something over which it will have no jurisdiction.
The elements of infructuousness, it is suggested, arise in two areas.
The first is, as is posited, what should happen if the Houses of Parliament choose to say that in their view the motion has lapsed? Would the court then go into the legality of the proceedings of the Houses of Par liament and declare the decision of the House void? The second area of the suggested source of infructuous ness is as to the consequences of the position that the Houses of Parliament would, notwithstanding the report of the committee, be entitled to decide not to present an address to the President to remove the Judge.
It is, it is said, for the House of Parliament to discipline the Govern ment if the House is of the view that Government is guilty of an illegal inaction on the Speaker 's decision as ulti mately the House has dealt with the committee 's report.
On the first point there is and should be no diffi culty.
The interpretation of the law declared by this court that a motion under section 3(2) of the , does not lapse upon the dissolution of the House is a binding declaration.
No argument based on an assumption that the House would act in violation of the law need be entertained.
If the law is that the motion does not lapse, it is erroneous to assume that the Houses of Parliament would act in violation of the law.
The interpretation of the law is within the exclusive power of the courts.
So far as the second aspect is concerned, what is now sought by the petitioners who seek the enforcement and implementation of the Speaker 's decision is not a direction to the committee to carry out the investigation.
Such a prayer may raise some issues peculiar to that situation.
But here, the Union.
Government has sought to interpret the legal position for purposes of guiding its own response to the situation and to regulate its actions on the Speaker 's decision.
That understanding of the law is now found to be unsound.
All that is necessary to do is to declare the correct constitutional position.
No specific writ of direction need issue to any authority.
Having regard to the nature of the subject matter and the purpose it is ultimately intended to serve all that is necessary is to declare the legal and constitu 77 tional position and leave the different organs of the State to consider matters falling within the orbit of their re spective jurisdiction and powers.
Contention I is disposed of accordingly.
In the result, for the foregoing reasons, Writ Petition Nos. 491 and 541 of 1991 are disposed of by the appropriate declarations of the law as contained in the judgment.
Writ Petition Nos. 542 and 560 of 1991 are dismissed.
Transfer Petition No. 278 of 1991 is allowed.
Writ Petition No. 1061 of 1991 is withdrawn from the Delhi High Court.
The transferred writ petition is also dismissed.
SHARMA, J. I have gone through the erudite Judgment of my learned Brothers, and I regret that I have not been able to persuade myself to share their views.
In my opinion, all these petitions are fit to be dismissed.
The stand of the petitioners in W.P. (C) Nos. 491 of 1991 and 541 of 1991 is that the inquiry with respect to the alleged misbehaviour of Mr. Justice V. Ramaswami, the third respondent in W.P. (C) No. 491 of 1991, which was referred to a Committee under the provisions of the ought to proceed and accordingly the Union of India must take all necessary steps.
The main arguments on their behalf have been ad dressed by Mr. Shanti Bhushan, Mr. Ram Jethmalani and Mr. R.K.Garg, all appearing for the petitioners in W,P. (C) No. 491 of 1991, which has been treated as the main case.
Al though in substance their stand is similar, they are not consistent on some of the points debated during the heating of the case.
They have been supported in general terms by Ms. Indira Jaising and Mr. P.P. Rao, the learned counsel representing the Supreme Court Bar Association, the peti tioner in W.P. (C) No. 541 of 1991, and for the sake of convenience the petitioners in these two cases shall be hereinafter referred to as the petitioners.
The opposite point of view has been pressed by Mr. Kapil Sibal, on behalf of Mrs. Raj Birbal, the petitioner in T.P. (C) No. 278 of 1991, Mr. V.R.Jayaraman intervenor in W.P. (C) No. 491 of 1991 and Mr. Shyam Ratan Khandelwal, the petitioner in W.P.(C) No. 560 of 1991; and in view of their stand, they shall be referred to as respondents in this judgment.
The Committee for the investigation into the alleged misbehaviour of the third respondent was constituted on 12.3.1991 under the provi 78 sions of the (hereinafter re ferred to as the Act) by Shri Rabi Ray, the then Speaker of the Lok Sabha, not a party in W.P. (C) Nos. 491 of 1991 and 541 of 1991, but impleaded by Mr. Shyam Ratan Khandelwal as respondent No. 1 in W.P. (C) No. 560 of 1991.
The Lok Sabha was dissolved the very next day, i.e. 13.3.1991.
Mr. Attorney General appearing on behalf of the Union of India has contended that this Court should affirm the views expressed by the Union of India in its affidavit that on dissolution of the last Lok Sabha, the Motion against the third respondent lapsed and the matter cannot proceed further.
According to the case of the petitioners, once the Committee was constituted, the entire inquiry must be com pleted in accordance with the provisions of the Act, and the stand of the Union Government that the Motion in this regard lapsed on the dissolution of the House is fit to be reject ed.
The Union Government, in the circumstances, is under a duty to act in such manner by way of providing funds et cetera, that it may be practically possible for the Commit tee to complete its task.
Since the obligation to act ac cordingly, arises under the Act, this Court has full author ity to enforce the performance of the statutory duty; and having regard to the circumstances in the present case it is appropriate to exercise that power.
The petitioners further pray that in the meantime the third respondent should not undertake to dispose of judicial matters, and since he has not himself refrained from so doing, no judicial work should be allotted to him.
The Chief Justice of India has also been impleaded as a party respond ent but this Court while issuing Rule Nisi after hearing learned counsel for the parties, did not consider it expedi ent to issue notice to the Chief Justice.
A prayer for interim direction in this regard was also rejected.
During the hearing of the cases another application to the same effect was filed and was heard at considerable length and ultimately rejected by a reasoned order.
Mr. Sibal, the learned counsel for the respondents has challenged the maintainability of the writ petitions, on the ground that the matter is not justiciable.
It was fur ther argued that since the Speaker proceeded to admit the Notice of Motion initiated by 108 Members of the Lok Sabha without reference to the House, the order of the Speaker was void, and the constitution of the Committee is ultra vires.
The Speaker 's order has been challenged also on the grounds of violation of principles of natural justice and mala fides.
So far as the effect of the dissolution of the 79 last Lok Sabha is concerned the respondents have supported the stand of the Union Government that the Motion has lapsed, but consistent with their plea.
of non justiciabili ty, Mr. Sibal has indicated that it is for the House to decide this issue.
Long arguments were addressed by the learned counsel for the parties on the correct interpretation of Article 124(4) and (5) and the Act, and Mr. Sibal has contended that if the construction suggested by him of the provisions of the Act are not accepted, the Act has to be struck down either in its entirety or in part as ultra vires the Constitution.
In W.P. (C) No. 560 of 1991 Mr. Shyam Ratan Khandelwal has, inter alia, prayed for declaring the and the Rules framed thereunder as ultra vires Article 121 and 124(5) of the Constitution; for quashing the decision of the Speaker; and, for issuing a Writ of Mandamus to the Committee not to embark upon or proceed with the inquiry.
He also wants a declaration that the Chief Justice of India cannot withhold allocation of work to the third respondent for discharging his judicial functions, and seeks for consequential directions in this regard.
During the course of his argument, Mr. Sibal, in reply to a query from the Bench, clarified the position that if his plea of non justiciability is accepted, all the petitions may have to be dismissed.
It is appropriate that the point relating to the jurisdiction of this Court, and for that matter of any court in India, is considered first.
If the stand of the respond ents is correct on this issue, it may not be necessary to deal with the other questions raised by the parties.
In support of his argument, Mr. Sibal has relied upon the provisions of Article 122(2) of the Constitution read with Article 93, and has urged that the present matter relates to the conduct of the business of the Lok Sabha and is included within the functions of regulating its procedure, and as such the Speaker who is a Member and officer of the Parlia ment cannot be subjected to the jurisdiction of any Court in respect of the exercise of those powers.
The questions whether the Motion on the basis of which the present inquiry by the Committee has been ordered has lapsed or not and whether the inquiry should further proceed or not are for the House to determine, and its decision will be final.
Reference was also made to Article 100, but the learned counsel clarified his stand that in the present context a special majority as indicated in Article 124(4) will have to be substituted for a simple majority mentioned in Article 100(1).
It has been contended that the Speaker was not free to take a decision by himself to refer the matter to the Committee for inquiry and that too without hearing the Judge concerned; and in any event his order is subject to any decision 80 to the contrary of the House arrived at, at any stage.
Emphasis was laid on the concept of Separation of State powers amongst its three wings, and it was claimed that all matters within the House including moving of motions, ad journment motions and debates are beyond the purview of judicial scrutiny.
Counsel said that it does not make any difference that in the present case it is the Union Govern ment, which has taken a decision for itself on the disputed issue; and the petitioners cannot use this as an excuse for approaching the Court.
The Court should refuse to entertain the writ petitions on this ground, as it cannot be persuaded to do indirectly what it cannot do directly.
The crux is that the matter is in the exclusive domain of the Parlia ment.
Although in my final conclusion I agree with the respondents that the courts have no jurisdiction in the present matter, I do not agree with Mr. Sibal 's contention based on an assumption of the very wide and exclusive juris diction of the Parliament in the general terms, as indicated during his argument.
His stand that the Speaker could not have taken a decision singly also does not appear to be well founded.
He strenuously argued that since the matter relat ing to the removal of a Judge is from the very beginning within the exclusive control of one of the Houses of the Parliament every decision has to be taken by the entire House and if necessary a debate will have to be permitted.
As a result, the bar on discussion in the House on the Judges ' conduct will disappear from the initial stage it self, but that cannot be helped.
He relied upon the inter pretation of Mr. M.C.Setalvad on clauses 4 & 5 of Article 124 as stated by him before the Joint Committee on the Judges (inquiry) Bill, 1964 (being Bill No. 5 of 1964 which was ultimately dropped) and his view that the desired object of avoiding debate on the conduct of a Judge in the Parlia ment can be achieved only by the Speaker carefully exercis ing his discretion after taking into account the impropriety of such a debate.
Although the powers of State has been distributed by the Constitution amongst the three limbs, that is the Legis lature, the Executive and the Judiciary, the doctrine of Separation of Powers has not been strictly adhered to and there is some overlapping of powers in the gray areas.
A few illustrations will show that the courts ' jurisdiction to examine matters involving adjudication of disputes is sub ject to several exceptions.
Let us consider a case in which an individual citizen approaches the Court alleging serious violation of his fundamental rights resulting in grave and irreparable injury, arising as a consequence of certain acts, and the decision of his claim is dependent on the adjudication of a dispute covered by Article 262 or Article 363.
He does not have a legal remedy before the courts.
Similarly a Member of Parliament or of a State Legislature who 81 may have a just grievance in matters covered by Article 122(2) or 212(2) cannot knock the doors of the courts.
Let us take another example where a group of citizens residing near the border of the country are in imminent danger of a devastating attack from an enemy country in which they are sure to lose large number of lives besides theft property.
This can be averted only by accepting the terms offered by the enemy country, which are in their opinion reasonable and will be highly in the interest of the nation as a whole.
The concerned authorities of the State, however, hold a differ ent view and consider starting a war immediately as an unavoidable strategy, even in the face of imminent danger to the border area.
On an application by the aggrieved citi zens, the Court cannot embark upon an inquiry as to the merits and demerits of the proposed action of the State nor can it direct that the residents of the threatened area must be shifted to some safe place before starting of the war.
The examples can be multiplied.
Generally, questions involv ing adjudication of disputes are amenable to the jurisdic tion of the courts, but there are exceptions, not only those covered by specific provisions of the Constitution in ex press terms, but others enjoying the immunity by necessary implication arising from established jurisprudential princi ples involved in the Constitutional scheme.
It was observed by this Court in Smt.
Indira Gandhi vs Raj Narain, at page 415, that rigid Separation of Powers as under the American Constitution or under the Australian Constitution does not apply to our country and many powers which are strictly judicial have been excluded from the purview of the courts under our Constitution.
Judicial power of the State in the comprehensive sense of the expression as embracing all its wings is dif ferent from the judicial power vested or intended to be vested in the courts by a written Constitution.
The issue which arises in the present case is whether under the Con stitutional scheme a matter relating to the removal of a Judge of the superior courts (Supreme Court or High Courts) is within the jurisdiction of the courts or in any event of this Court.
On a close examination of the Constitution it appears to me that a special pattern has been adopted with respect to the removal of the members of the three organs of the State The Executive, the Legislature and the Judici ary at the highest level, and this plan having been con sciously included in the Constitution, has to be kept in mind in construing its provisions.
The approach appears to be that when a question of removal of a member of any of the three wings at the highest level i.e. the President; the Members of the Parliament and the State Legislatures; and the Judges of the Supreme Court and the High Courts arises, it is left to an organ other than where the problem has arisen, to be decided.
82 11.
The President has to be elected by the members of an electoral college as prescribed by Article 54, in the manner indicated in Article 55.
Since he has to exercise his func tions in accordance with the advice tendered by the Council of Ministers, the matter relating to his impeachment has been entrusted by Article 61 to the Parliament.
In the constitution of the two Houses of the Parliament and the Legislatures of the States, the people of the country are involved more directly, through process of election and any dispute arising therefrom is finally settled judicially.
When it comes to a disqualification of a sitting member, the matter is dealt with by Article 103 or 192 as the case may be and what is significant for the purpose of the present case is that instead of entrusting the matter to the rele vant House itself, the Constitution has provided for a different machinery, not within the control of the Legisla ture.
The decision on such a dispute is left to the Presi dent, and he is not to act on the advice of the Council of Ministers, but in accordance with the opinion of the Elec tion Commission which has been held by this Court to be a Tribunal falling squarely within the ambit of Article 136 of the Constitution in All Party Hill Leaders Conference vs
M. A. Sangma; , at 411.
Thus, the power to decide a dispute is not to be exercised by the Legislature, but lies substantially with the courts.
Consistent with this pattern clause (4) of Article 124 in emphatic terms declares that a Judge of the Supreme Court or the High Court shall not be removed from his office except on a special majority of the Members of each House of Parliament.
Both the Execu tive and the Judiciary are thus excluded in this process.
The provisions of the Constitution and the Act and relevant materials which ,viII be discussed later all unmistakably indicate this Constitutional plan.
The scheme, as mentioned above, which according to my reading of the Constitution has been adopted, cannot be construed as lack of trust in the three organs of the State.
There are other relevant considerations to be taken into account while framing and adopting a written constitution, which include the assurance to the people that the possibil ity of a subjective approach clouding the decision on an issue as sensitive as the one under consideration, has been as far eliminated as found practicable in the situation.
And where this is not possible at all, it cannot be helped, and has to be reconciled by application of the doctrine of necessity, which is not attracted here.
Hamilton, in "The Federalist", while discussing the position in the United States, observed that when questions arise as to whether a person holding very high office either in the Judiciary or the Legislature or the President himself has rendered him self unfit to hold the office, they are of a nature which relates chiefly to the injuries done immediately to the society itself.
Any proceeding for their removal will, 83 for this reason seldom fail to agitate the passions of the whole community and divide it into parties more or less friendly or inimical to the person concerned.
The delicacy and the magnitude of a trust which so deeply concerns the reputation and existence of every man engaged in the admin istration of public affairs speak for themselves.
Mr. Sibal has further relied on Hamilton stating that "the awful discretion which a court of impeachment must necessarily have to doom to honour or to infamy the most confidential and the most distinguished characters of the community, forbids the commitment of the trust, to a small number of persons.
" The counsel added that presumably that is the reason that the question of removal of a Judge of the superior court has been exclusively entrusted to the parlia ment and further in that spirit the Act requires a large number of Members of the parliament to even give the Notice of Motion.
Quoting from 'Harvard Law Review ' (1912 1913 vol.), counsel argued that judicial office is essentially a public trust, and the right of the public to revoke this trust is fundamental.
In a true republic no man can be born with a right to public office, Under such a system of gov ernment, office, whether elective or appointive, is in a sense a political privilege.
The grant of this privilege flows from the political power of 'the people, and so, ulti mately must it be taken away by the exercise of the politi cal power resident in the people.
After referring to the view of many Jurists of international repute Mr. Sibal again came back to "The Federalist", considering the inappropri ateness of the Supreme Court of United States of America to be entrusted with the power of impeachment in the following words: "It is much to be doubted whether the members of that Tribunal at all times be endowed with so eminent a portion of fortitude, as would be called for in the execu tion of so difficult a task, and it is still more to be doubted whether they would possess the degree of credit and authority, which might, on certain occasions be indispens able towards reconciling the people to their decision".
I am not sure whether these are the.precise considerations which appealed to the framers of our Constitution to adopt the Scheme as indicated earlier, but there is no doubt that the subject dealing with the removal of the very high function aries in three vital limbs of the State, received special treatment by the Constitution.
My conclusion is further supported by the materials discussed below.
Learned counsel for the parties referred to the historical background of the relevant provisions of the Constitution and the Act, as also to the constitutional provisions of several other countries, as aid to the inter pretation of the legal position in relation to removal of Judges of the superior courts.
Mr. Sibal laid great emphasis on the evidence of Mr. 84 Setalvad and several other persons before the Joint Commit tee on the Judges (inquiry) Bill, 1964.
His argument is that the Bill was dropped as a result of the opinion expressed before the Joint Committee, and consequently another Bill was drafted which was ultimately adopted by the Parliament as the 1968./Act.
The provisions of the earlier Bill, objec tions raised thereto, and the fact that the Act of 1968 was passed on a subsequent Bill, reconstructed immediately after the decision to drop the original Bill, are all permissible aids to the interpretation of the legal position which has to be ascertained in the present cases before us.
Although the learned counsel for the petitioners challenge their admissiblity, portions of the documents referred to by Mr. Sibal were attempted to be construed on behalf of the peti tioners as supporting their stand.
In my view, it is permis sible to take into consideration the entire background as aid to interpretation.
The rule of construction of statutes dealing with this aspect was stated as far back as in 1584 in Heydon 's case: 76 E.R. 637, and has been followed by our Court in a large number of decisions.
While interpreting Article 286 of our Constitution, reliance was placed by this Court in the Bengal Immunity Company vs The State of Bihar, at 632 & 633, on Lord Coke 's dictum in Heydon s case and the observations.
of the Earl of Halsbury in Eastman Photographic Material Company vs Comptroller General of Patents L R., at p. 576 reaffirm ing the rule in the following words: "My Lords, it appears to me that to construe the statute in question, it is not only legit imate but highly convenient to refer both to the former Act and to the ascertained evils to which the former Act had given rise, and to the later Act which provided the remedy.
These three being compared I cannot doubt the con clusion".
In B. Prabhakar Rao vs State of Andhra Pradesh, [1985] Suppl.
2 SCR 573, the observa tions at p. 591, quoted below, are illuminat ing: "Where internal aids are not forthcoming, we can always have recourse to external aids to discover the object of the legislation.
Exter nal aids are not ruled out.
This is now a well settled principle of modern statutory con struction.
Thus 'Enacting History ' is rele vant: "The enacting history of an Act is the surrounding corpus of public knowledge rela tive to its introduction into Parliament as a Bill, and subsequent progress through, and ultimate passing by, Parliament.
In particular it is the extrinsic material assumed to be within the contemplation of Parliament when it passed the Act." Again "In the period im 85 mediately following its enactment, the history of how an enactment is understood forms part of the contemporanea expositio, and may be held to throw light on the legislative inten tion.
The later history may, under the doc trine that an Act is always speaking, indicate how the enactment is regarded in the light of development from time to time".
"Official statements by the government department admin istering an Act, or by any other authority concerned with the Act, may be taken into account as persuasive authority on the meaning of its provisions".
Justice may be blind but it is not to be deaf.
Judges are not to sit in sound proof rooms.
Committee reports, Parliamentary debates, Policy statements and public utterances of official spokesmen are of relevance in statu tory interpretation.
But 'the comity, the courtsey and respect that ought to prevail between the two prime organs of the State, the legislature and the judiciary ', require the courts to make skilled evaluation of the extra textual material placed before it and exclude the essentially unreliable. "Nevertheless the court, as master of its own procedure, retains a residuary right to admit them where, in rare cases, the need to carry out the legisla tor 's intention appears to the court so to require".
With a view to correctly interpret the Act which was the subject matter of that case, the history and the succession of events including the initial lowering the age of superan nuation, the agitation consequent upon it, and the agreement that followed the agitation were all taken into considera tion.
I, accordingly, propose to briefly state the relevant background of both the Constitutional provisions and of the Act.
At the time of framing of the Constitution of India, the Constitutions of several other countries, which appeared to be helpful were examined, and a Draft was initially prepared.
On the amendment moved by Sir Alladi Krishnaswamy Iyyar the relevant provision was included in the Draft in terms similar to section 72(ii) of the Commonwealth of Australia COnstitution Act (1900) except the last sentence in the following terms: "Further provision may be made by the Federal Law for the procedure to be adopted in this behalf.
" When the matter was finally taken up by the Constituent Assembly the Debates indicate that there was a categorical rejection of the suggestion to entrust the matter to the Supreme Court or a Committee of a 86 number of sitting Judges of the Supreme Court; and while doing so, the law of the other Commonwealth countries were taken into consideration.
So far the last sentence of the draft was concerned, Sir Alladi explained the position by stating "that such a provision does not occur in other Constitutions, but there is a tendency to overelaborate the provisions on our side and that is the only justification for my putting in that clause.
Before further considering the Debates and the other steps in flaming of the Constitution, it may be useful to appreciate the relevance and importance of the point which has an impact on the controversial issue before us.
Accord ing to the petitioners, the question relating to the removal of a Judge comes to the Parliament only on receipt of a report by the Committee under the Act.
The Parliament or any of its Houses, not being in the picture earlier, does not have any control over the Committee, which is to function purely as a statutory body, and, therefore, amenable to the jurisdiction of this Court.
If this stand is correct, what was the position before 1968, when there was no Act? The question is whether the Parliament did not have any power to take any action even if an inquiry in the alleged misbeha viour or incapacity of a Judge was imminently called for.
In other words whether the exercise of the power under clause (4) of Article 124 by the Parliament was dependent on the enactment of a law under clause (5) and until this condition was satisfied no step under clause (4) could be taken.
If on the other hand the Parliament 's power was not subject to the enactment of a law, was it divested of this jurisdiction when it passed an Act? On what principle could the initial jurisdiction of the Parliament disappear in 1968? Since this aspect has a bearing, it was the subject matter of some discussion during the arguments of the learned advocates.
Mr. Sibal was emphatic in claiming that clause (5) was enabling in nature, and clause (4) could not be inter preted as dependent on clause (5).
He relied on Mr. Setal vad 's evidence before the Joint Committee of Bill No. 5 of 1964.
The stand of Mr. Shanti Bhushan, instructed by Mr. Prashant Bhushan, the Advocate on record on behalf of the petitioner in the leading case Writ Petition (C) No. 491 of 1991, has been that clause (5) was merely enabling, but not in the sense as stated by Mr. Setalvad in his evidence.
In the view of the latter, it is open to the Parliament either to follow the procedure laid down by an Act made under clause (5) or to ignore the same in any case and adopt any other procedure.
In other words, even after the passing of the 1968 Act, the Parliament can choose either to proceed according to the said Act or to act independently ignoring the same.
Mr. Shanti Bhushan said that this is not permissi ble.
Once the 1968 Act was enacted, the Parliament is bound to follow it, but earlier 87 it was free to proceed as it liked.
He, however, was quite clear in his submission that the exercise of power under clause (4) could not be said to be conditional on the enact ment of a law under clause (5), and that to interpret the provisions otherwise would lead to the extraordinary result that the Parliament was in a helpless condition for about 18 years till 1968, if a Judge was rendered unfit to continue.
I agree with the learned counsel.
The other learned advocates appearing for the peti tioners did not advert to this aspect pointedly.
The stand of Mr. Garg is that whether or not the third respondent is removed, or whether the inquiry proceeds before the Commit tee or not, he must cease to function as a Judge, as his image being under a cloud, must be cleared so that the people may have trust in the judiciary.
Mr. Ram Jethmalani, the other learned counsel who appeared on behalf of the petitioner in Writ petition (C).No. 491 of 1991, was ini tially of the view as Mr. Shanti Bhushan on the co relation of clause (4) and (5), but after some discussion, he recon sidered the position and took a positive stand that the exercise of power under clause (4) was dependent on a law being enacted under clause (5), and that the Parliament was bound to proceed in accordance with the provisions of the Act.
Now coming back to the Debates, Mr. Santhanam sug gested an amendment for including more details to which the answer of Sir Alladi was as follows: "We need not be more meticulous and more elaborate than people who have tried a similar case in other jurisdictions.
I challenge my friend to say whether there is any detailed provision for the removal of Judges more than that in any other Constitution in the world".
He requested the House to accept the general principle, namely, that the President in consultation with the Supreme Legislature of this country shall have that right, and assured that, "That does not mean that the Supreme Legisla ture will abuse that power".
He rejected the idea of making further additions to the provision relating to the framing of the law by saying, "To make a detailed provision for all these would be a noble procedure to be adopted in any Con stitution.
You will not find it in any Constitution, not even in the German Constitution which is particularly de tailed, not in the Dominion Constitution and not even in the Act of Settlement and the later Acts of British Parliament which refer to the" removal of Judges".
Some members strong ly suggested that the Supreme Court of India or a number of sitting Judges of the Court should be 88 involved in the proceeding, to which Sir Alladi had strong objection.
He called upon the members, "not to provide a machinery consisting of five or four Judges to sit in judg ment over a Chief Justice of the Supreme Court.
Are you really serious about enhancing the dignity of the Chief Justice of India ? You are.
I have no doubt about it".
The clause was ultimately drafted as mentioned above vesting the power in the "Supreme Parliament" as "there must be some power of removal vested somewhere".
He pointed out that the matter was not being left in the discretion of the either House to remove a Judge, but ultimate soverign power will be vested in the two Houses of the Parliament and, "that is the import of my amendment".
In this background, the Article was finally included in the Draft.
Although as was clear from the statements of Sir Alladi as also the language used, the intention of the Sub commit tee preparing the Draft was not to make clause (4) dependent on clause (5), still presumably with a view to allaying any misapprehension which could have arisen by including the entire provisions in one single clause, they were divided and put in two separate clauses and while so doing, the language was slightly changed to emphasise the limited scope of the law.
Clause (4) does not state that the misbehaviour or incapacity of the Judge will have to be proved only in accordance with a law to be passed by the Parliament under clause (5).
Clause (4) would continue to serve the purpose as it does now, without any amendment if clause (5) were to be removed from the Constitution today.
There is no indica tion of any limitation on the power of the Parliament to decide the manner in which it will obtain a finding on misbehaviour or incapacity for further action to be taken by it.
Clause (5) merely enables the Parliament to enact a law for this purpose, if it so chooses.
The word 'may ' has been sometimes understood in the imperative sense as 'shall ', but ordinarily it indicates a choice of action and not a com mand.
In the present context, there does not appear to be any reason to assume that it has been used in its extraordi nary meaning.
It is significant to note that while fixing the tenure of a Judge in clause (2) of Article 124, proviso Co) permits the premature removal in the manner provided in clause (4) without mentioning clause (5) at all.
The signif icance of the omission of clause (5) can be appreciated by referring to the language of clause 2(A) of Article 124 directing that the "age of a Judge of the Supreme Court shall be determined by such authority and in such manner as Parliament may by law provide".
On an examination of all the relevant materials, I am of the view that the exercise of power under clause (4) was not made conditional on the enactment of a law under clause (5), and the reason for inserting 89 clause (5) in Article 124 was, as indicated by Sir Alladi, merely for elaborating the provisions.
The other provisions with reference to which the matter needs further examination are Article 121 of the Constitution and the Act of 1968.
The object of Article 121 is to prevent any discussion in Parliament with respect to the conduct of a Judge of the Superior Courts, except when it cannot be avoided.
The Article, accordingly, prohibits such a discussion except upon a motion for presenting an 'address ' to the President for removal of a Judge.
The point is that if the entire proceeding in regard to the removal of a Judge from the very initial stage is assumed to be in the House, does the bar under Article 121 get lifted at that very stage, thus frustrating the very purpose of the Arti cle.
There is a complete unanimity before us, and rightly so, that the object of Article 121 to prevent a public discussion of the conduct of a Judge is in public interest and its importance cannot be diluted.
Mr. Shanti Bhushan elaborated this aspect by saying that any such discussion in the House is bound to be reported through the media and will thus reach the general public and which by itself, irrespec tive of the final outcome of the discussion, will damage the reputation of the Judge concerned and thereby the image of the entire judiciary; and must not, therefore, be permitted until a report against the Judge after a proper inquiry is available.
Mr. Sibal also agreed on the significance of Article 121 and relied on the views of several eminent international jurists, but we need not detain ourselves on this point, as there is no discordant note expressed by anyone before us.
The question, however, is as to whether the object of Article 121 will be defeated, if clause (4) of Article 124 is construed as complete in itself and independ ent of clause (5), and clause (5) be understood as merely giving an option to the Parliament to enact a law, if it so chooses; and further whether the inquiry before the Commit tee is within the control of the House of the Parliament so as to exclude an outside interference by any other authori ty, including the courts.
It is true that the provisions of an Act control or determine the constitutional provisions, but where the meaning of an Article is not clear it is permissible to take the aid of other relevant materials.
Besides, in the present context, where it is necessary to assess the effect of the construction of the other provisions of the Constitution and of the Act on Article 121, the Act provides useful assist ance; and its importance has been greatly enhanced in view of the points urged in the arguments of the learned counsel for the parties before us.
All the learned advocates for the petitioners as also the Attorney General are positive that the Act is a perfectly valid piece of legislation and no part of it is illegal or ultra vires.
It is on 90 this premise that the writ petitions of the petitioners have been filed and the reliefs are prayed for.
Mr. Sibal repre senting the respondents has halfheartedly challenged the Act, making it clear at the same time that if his interpre tation of the provisions is accepted no fault can be found with the Act.
Besides, the foundation of the reliefs, asked for in the writ petitions, is the Act and the inquiry there under and if the Act itself goes, the reference to the Committee of Inquiry itself will have to be held as nonex istent in the eye of Law and the writ petitions will have to be rejected on that ground alone.
We must, therefore, assume for the purpose of the present cases, that the Act is good and on that basis if the petitioners be found to be entitled to any relief, it may be granted.
I am emphasising this aspect as the Act gives a complete answer to the main ques tion as to whether the Committee is subject to the control of the Lok Sabha, and whether this construction of the provisions defeats the purpose of Article 121.
The is a short enactment containing only seven sections.
Section 1 gives the title and the date of commencement, Section 2 contains definitions and Section 7 deals with power to make rules.
The expression "motion" which has not been defined in the Act is signifi cant in the scheme and naturally, therefore, has been sub ject of considerable discussion during the hearing of these cases.
The Lok Sabha Rules flamed under Article 118 of the Constitution deal with "motions" in Chapter XIV.
There are separate rules of procedures for conduct of business adopted by the Rajya Sabha.
In view of the facts of this case, I propose to refer only to the Lok Sabha Rules.
Section 3(1) of the states that if a notice of"motion" is given for presenting an address to the Presi dent for the removal of a Judge, signed, in the case of a notice given in the Lok Sabha, by not less than 100 members, and in the case of a notice given in the Rajya Sabha, by not less than 50 members of the House, the Speaker or the Chair man, as the case may be, after consulting such persons as he deems fit, as also such relevant materials which may be available to him, either admit the "motion" or refuse to admit the same.
The manner in which this section refers to "motion" in the Act for the first time without a definition or introduction clearly indicates that it is referring to that "motion" which is ordinarily understood in the context of the two Houses of Parliament attracting their respective rules.
Section 3 does not specify as to how and to whom this notice of "motion" is to be addressed or handed over and it is not quite clear how the Speaker suddenly comes in the picture unless the Lok Sabha Rules are taken into account.
Rule 185 states that notice of "motion" shall be given in writing addressed to the Secretary General and its ' admissi bility should satisfy the conditions detailed in Rule 186.
Rule 187 directs the 91 Speaker to examine and decide the admissibility of a "mo tion" or a part thereof.
Rule 189 says that if the Speaker admits notice of a "motion" and no date is fixed for discus sion of such "motion", it shall be notified in the BUlletin with the heading "No,Day Yet Named Motions".
It is at this stage that 1968 Act by Section 3(1) takes over the matter and asks the Speaker to take a decision for admitting this "motion" or refusing it after consulting such persons and materials as he deems fit.
The conclusion is irresistible that the provisions of the Act have to be read along with some of the Lok Sabha Rules.
Rules 185, 186 and 187 should be treated to be supplementary to the Act.
Then comes sub section (2) of Section 3 which is of vital importance in the present context.
It says that if the "motions" referred to in sub section (1) is admitted, the Speaker "shall keep the motion pending" and constitute a Committee for investigation into the allegations consisting of three members of whom one shall be chosen among Chief Justice and other Judges of the Supreme Court and another from among the Chief Justices of the High Court.
The situs where the "motion" is pending is almost conclusive on the issue whether the House is seised of it or not.
Unless the "motion" which has to remain pending, as directed by Section 3(2) is outside the House and the Speak er while admitting it acts as a statutory authority and not qua Speaker of the Lok Sabha, as is the case of the peti tioners before us, the petitioners will not have any base to build their case on.
If the Speaker has admitted the "mo tion" in the capacity as the Speaker and consequently, therefore, representing the House, and has constituted a Committee, it will be entirely for him and through him the House, to pass any further order if necessary about the future conduct of the Committee, and not for this Court, for, the Committee cannot be subjected to a dual control.
So the question to ask is where is the "motion" pending, which is promptly answered by the provisions in the Act, by de claring that it remains pending in the House.
Section 6 deals with the matter from the stage when the report of the Committee is ready and sub section (1) says that if the report records a finding in favour of the Judge, "the motion pending in the House" shall not be proceeded with.
If the report goes against the Judge, then "the motion referred to in sub section (1) of Section 2 shall, together with a report of the Committee, be taken for consideration by the House or the Houses of Parliament in which it is pending".
The Act, therefore, does not leave any room for doubt that the "motion" remains pending in the House and not outside it.
This is again corroborated by the language used in Proviso to Section 3 (2) which deals with cases where no tices of"motion" under Section 3(1) are given on the same date in both Houses of Parliament.
It says that in such a situation, no Committee shall be constituted unless the "motion" has been "admitted in 92 both Houses" and where such "motion"has been admitted "in both Houses", the Committe shall be constituted jointly by the Speaker and the Chairman.
The rule making power dealt with in Section 7 is in the usual terms enumerating some of the subject matters without prejudice to the generality of the power, and permits the Joint Committee of both Houses of Parliament to frame the rules, and accordingly, the Judges (Inquiry) Rules, 1969 were made.
Rule 2(e) of these Rules describes "motion" as motion admitted under Section 3(1) of the Act.
Supplementing the provisions of Section 6(2), Rule 16(2) provides that "a copy of the motion admitted under sub section (1) of section 3 shall be reproduced as an Annexure to such an address".
Sub rule (4) states that "the address prepared under subrule (1) and the motion shall be put to vote together in each House of Parliament".
It is clear that it is not an inadvertent reference in the Act of the "motion" being pending in the House; the provisions unmistakably indicate that the Act and the Rules envisage and deal with a "motion" which is admitted in the House and remains pending there to be taken up again when the date is fixed by the Speaker on receipt of the report from the Committee.
The language throughout the Act has been consist ently used on this premise and is not capable of being ingored or explained away.
Nowhere in the Act or the Rules, there is any provision which can lend any support to the stand of the petitioners before us.
The scope of the Act and the Rules is limited to the investigation in pursuance of a "Motion" admitted by the Speaker.
At the Conclusion of the investigation the Commit tee has to send the report to the Speaker (or the Chairman as the case may be) along with a copy of the original Mo tion.
If the finding goes against the Judge, section 6(2) of the Act directs that the Motion, the same original Motion, shall together with the report be taken up for consideration by the House where the Motion is pending.
The relevant part of section 6(2) mentions: "the Motion referred to in sub section (1) of section 3 shall together with the report of the Committee, be taken up for consideration by the House. in which it is pending".
Rule 16(4) states that the address and the Motion shall be put to vote together in each House of Parliament.
What the Act and the Rules contemplate is the original Motion to be taken up for consideration by the House, and if this Motion is held to have exhausted itself on admission by the Speaker, as has been urged on behalf of the petitioners, nothing remains on which the Act would operate.
The concept of the original Motion being pending in the House, to be taken up for debate and vote on the receipt of the report of the Committee, is the life and soul of the Act, and if that Motion disappears nothing remains behind to attract the Act.
This 93 idea runs through the entire Act and the Rules, and cannot be allowed to be replaced by a substitute.
The existence of a Motion pending in the House is a necessary condition for the application of the Act.
Bereft of the same, the Act does not survive.
It is, therefore, not permissible to read the Act consistent with the stand of the petitioners that the House is not seised of the Motion and does not have anything to do with the inquiry pending before the Committee, until the report is received.
If clauses (4) and (5) of Article 124 are construed as suggested on behalf of the petitioners, the Act will have to be struck down as ultra vires, or in any event inoperative and infructuous and on this ground alone the Writ Petitions are liable to be dismissed.
It has been contended that if the Motion is held to be pending in the House on its admission, the object of Article 121 shall be defeated.
The apprehension appears to be misconceived.
The mandate of the Constitution against discussion on the conduct of a Judge in the House is for everybody to respect, and it is the bounden duty of the Speaker to enforce it.
He has to ensure that Article 121 is obeyed in terms and spirit, and as a matter of fact there is no complaint of any misuse during the last more than 41 years.
The question, however, is whether it will not be feasible for the Speaker to maintain the discipline, if the Motion on admission becomes pending in the House.
Before 1968 Act was passed, the motion, like any other motion, was governed by the Lok Sabha Rules, and Rule 189 enabled the Speaker to notify it as a No Day Yet Named Motion without fixing a date, and to permit the matter to be discussed only at the appropriate stage.
After the Act, what was left within the discretion of the Speaker, has been replaced by mandatory statutory provision, directing that the motion shall remain pending in the House, to be taken up only on receipt of a finding of the Committee against the Judge.
The pendency of the motion in the House, therefore, cannot be a ground to violate Article 121.
Mr Sibal, however, claimed that the members of the House are entitled to express their opinion on the proposed endictment from the very initial stage and as a part of his argument relied upon the statement of Mr. Setalvad before the Joint Committee.
Mr. Shanti Bhushan challenged the views of Mr. Setalvad on the ground that they would foul with Article 121.
I am afraid, the statements of Mr. Setalvad, referred to above, have not been properly appeciated by either side.
The modified Bill, on the basis of which the 1968 Act was passed, had not been drafted by then and Mr. Setalvad was expressing his opinion on the earlier Bill, which substantially vested the power of removal of a Judge in the Executive, and kept the Parliament out of the picture until the receipt of a report on the 94 alleged misbehaviour or incapacity.
If that Bill had been passed, the effect would have been that the entire proceed ing beginning with the initiation of the inquiry and con cluding with the report would have remained completely outside the House, an interpretation which is being attempt ed by the present petitioners before us, on the present Act too.
The objection to the entrustment of the power to the Executive was mainly on the ground that the intention of the Article 124 to leave the removal of a Judge in the hands of the Parliament would be frustrated.
In answer to a query of the Chairman of the Committee, Mr. Setalvad said that as a result of the provisions of the Bill (then under considera tion) the Parliament would be completely kept out until a finding of another body was received by the House and this would militate against the constitutional scheme.
In this background when his attention was drawn to the bar of Arti cle 121 he replied that it was possible to prevent a prema ture discussion in the Parliament, by the Speaker exercising his authority with discretion.
He referred to the Lok Sabha Rules in this context and furher recommended for the Speaker to be vested with larger powers.
He was emphatic that the President should not be entrusted with the matter, even at the initial stage, and that it should be left in the hands of the Speaker to take appropriate steps.
The suggested substitution of the Speaker (and the Chairman) in place of the President was in accordance with the view that the matter is within the exclusive domain of the two Houses of the Parliament which could exercise its powers through the respective representatives Speaker and the Chairman.
About Mr. Setalvad 's evidence I would like to clarify the position that I am not treating his opinion as an authority, and I have taken into account the same as one step in the history of the present legislation starting from the original Bill of 1964.
The report of the JointCommittee (presented on 17th May, 1966) sets out the observations of the Committee with regard to the principal changes proposed in the Bill.
Para graph 17 of the Report dealing with clause (2) states that the expression "Special Tribunal" has been substituted by "Committee" and "Speaker" and "Chairman" have been brought in "with a view to ensuring that the Committee may not be subject to writ jurisdiction of the Supreme Court & the High Courts".
With respect to clause (3), the following observa tions of the Committee are relevant: "The Committee are of the view that to ensure and maintain the independence of the judici ary, the Executive should be excluded from every stage of the procedure for investigation of the alleged misbehaviour or incapacity of a Judge and that the initiation of any proceed ing against a Judge should be made in Parlia ment by a notice of a motion.
The Committee 95 also feel that no motion for presenting an address to the President praying for the removal of a Judge should be admitted unless the notice of such motion is signed in the case of a motion in the Lok Sabha, by not less than one hundred members of that House and in the case of a motion in Rajya Sabha, by not less than fifty members of that House.
Fur ther, the Committee are of the opinion that the Speaker or the Chairman or both, as the case may be, may after consulting such persons as they think fit and after considering such materials, as may be available, either admit or reject the motion and that if they admit the motion, then they should keep the motion pending and constitute a Committee consisting of three members, one each to be chosen from amongst the Chief Justice and other Judges of the Supreme Court, Chief Justice of the High Courts and distinguished Jurists, respective ly".
Paragraph 20 of the Report deals with clause (6) and the proposed changes, that were more consistent with the motion being pending in the House or Houses.
Ultimately, another Bill on the lines suggested by the aforesaid Joint Committee was drafted and adopted.
Mr. Setalvad 's opinion is relevant as an important step in this history of legislation and can be referred to as such.
The wider proposition put forward by Mr. Sibal that the House was seised of the matter so effectively as to entitle every member to demand a discussion in the House at any stage is, however, not fit to be accepted.
This will not only violate Article 121, but also offend the provisions of the 1968 Act.
It is not correct to assume that if the right of the individual member to insist on immediate discussion is denied, the consequence will be to deprive the Parliament of the control of the motion.
When the Speaker exercises authority either under the Lok Sabha Rules or under the.1968 Act, he acts on behalf of the House.
As soon as he ceases to be the Speaker, he is divested of all these powers.
When he acts the House acts.
It is another matter that he may con sult other persons before admitting the motion, and while so doing, he may consult the members of the House also, but without permitting a discussion in the House.
The consulta tion, which the Act permits, is private in nature, not amounting to a public discussion while the object of Article 121 is to prevent a public debate.
It may also be open to the Speaker to consult the House on a legal issue which can be answered without reference to the conduct of Judge in question, as for example, the issue (involved in the present case) whether on account of dissolution of the old House the Motion has lapsed and the Committee of Inquiry is defunct.
What is prohibited is not every matter 96 relating to the removal of a Judge; the bar is confined to a discussion with respect to the conduct of a Judge in the discharge of his duties.
28: Mr. Shanti Bhushan strenuously contended that such portion of the 1968 Act which direct or declare the initial motion admitted by the Speaker to remain pending in the House, should be interpreted as creating a legal fiction limited for the purpose of ensuring that the bar under Article 121 is not lifted prematurely.
I do not see any justification for placing this construction on the Act.
This issue could not arise with reference to the original Bill which was ultimately dropped, as under its scheme the matter could not have reached the Parliament before the report the Special Tribunal was laid before the Houses under the Presi dent 's direction.
The petitioners are trying to put an interpretation on the present Act that may lead to the same conclusion, that is, that the Parliament does not come in the picture until the receipt of the report from the Commit tee.
This is wholly inconsistent with the original Bill not Finding favour with the Parliament.
But apart from this consideration, let us assume that the petitioners are right, and the matter does not reach the Parliament at all before it is ready for consideration on the basis of the Inquiry Report.
It cannot be suggested that even at that stage a discussion on the conduct of a Judge is banned; and before this stage is reached there is no occasion for relying upon Article 121 to prevent a discussion.
The situation, there fore, does not require the aid of any legal fiction.
The consequence of accepting the argument of Mr. Shanti Bhushan will be to render the aforesaid provisions of the statute wholly superfluous.
Also, had it been a case of a legal fiction as suggested, it would attract the observations of Lord Asquith in East End Dwellings Co. Ltd And Finsbury Borough Council: , (followed in 'this country in numerous cases) to the effect that if you are bidden to treat an imaginary state of affairs as real, you must also imagine as real the consequences and incidents which, if the putative state of affairs had in fact existed, must inevita bly have flowed from or accompanied it; and if the statute says that you must imagine a certain state of affairs, it does not say that having done so, you must cause or permit your imagination to boggle when it comes to the inevitable corollaries of that state of affairs.
The alternative sug gestion of Mr. Shanti Bhushan that the motion, on its admis sion, having served its purpose, is completely exhausted, and a new motion is to be moved again by a member on the receipt of the Report from the Committee, has also no merit, for if the motion completely exhausts itself and there.
fore does not remain in existence any further, no problem about the lifting of the bar under Article 121 arises for being solved with the help of a legal fiction.
An attempt was made by mr. Shanti Bhushan to derive some support 97 from that part of clause (4) of Article 124 which requires the voting in the two Houses to take place in the same session.
The provision appears to me to be absolutely irrel evant.
The clause does not require that the entire proceed ing with respect to the removal of a Judge commencing with the notice of motion has to be within the same session.
It refers only to the voting part.
A close reading of the entire Act indicates that the language therein, which com pletely demolishes the petitioners ' case, was consciously chosen to make the House seised of the matter, and conse quently it became necessary to include the provisions di recting the motion to remain pending for the purpose of preventing a premature discussion.
The Act has, thus, very successfully respected both Articles 124 and 121 in their true spirit, by neatly harmonising them.
Let us consider another argument of the petitioners that by reason of the expression "on the ground of proved misbehaviour or incapacity" occurring in clause (4) of Article 124 it should be held that until an adverse verdict of misbehaviour or incapacity by some other body is received by the House, the matter does not come within its purview.
The body in contemplation of clause (4) may be an authority, completely unassociated with either House of the Parliament or the Speaker or the Chairman, and the Parliament may not have any control over the same.
Such authority would be purely statutory, not amenable to the discipline of the Parliament, but subject to the Court 's jurisdiction.
Merely for the reason that a statute under clause (5) prescribes the procedure in this regard by entrusting the Speaker to take a decision at the initial stage, he could not cease to be a statutory authority.
In other words, he acts in his individual capacity under the power vested by the law and not in a representative capacity.
1 do not find this con struction of clauses (4) and (5) acceptable.
This would, in substance, deny the Parliament the power to remove a Judge exclusively vested in it by Constitution.
Let us ignore the present Act and consider another statute with provisions in express terms on the lines suggested by the petitioners, that is, entitling the statutory authority to act independ ently of the Parliament, the Speaker and the Chairman.
If that could be permissible it would lead to the Parliament being reduced to a helpless spectator, dependent on the statutory authority, to act on or to ignore a complaint.
This would be in complete violation of the intention of the Constitution to vest the power to remove a Judge exclusively in the Parliament.
It must, therefore, be held that the Parliament is in control of the matter from the very begin ning till the end, and it acted correctly in accepting the objections of the Joint Committee to the original Bill, aforementioned, and in passing the Act of 1968, iii the form we find it.
By the introduction of the Speaker and the requirement of a large number of members of either House to initiate the matter, the 98 House is brought in control of the proceeding through its representative the Speaker or the Chairman.
It has to be noted that "the ground of proved misbehaviour or incapacity" is necessary only for putting the matter to vote in the House under clause (4), and is not a condition precedent for initiating a proceeding and taking further steps in this regard.
Mr Sibal projected another extreme point of view by contending that a finding of the Committee in favour of the Judge cannot be held to be binding on the Parliament on account of the limited scope of a statute passed under clause (5).
There is no merit in this argument either.
Clause (4) authorises the Parliament to act on the ground of proved misbehaviour or incapacity and clause (5) permits it to pass a law to lay down the manner in which it may become possible to do so.
It is true that the Parliament can exer cise its power without formally framing a law.
The House in question could in the absence of a law, decide on the proce dure to be followed in a given case but it was perfectly open to it to pass an Act laying down a general code to be followed until the Act is repealed or amended.
It is a well established practice for a large body to entrust investiga tions to a smaller body for obvious practical reasons, and such an exercise cannot be characterised as indulging in abnegation of authority.
It could have asked a Parliamentary Committee to enquire into the allegations or employed any other machinery for the purpose.
The ratio in State of Uttar Pradesh vs Batuk Deo Pati Tripathi and Anr., , is attracted here.
In that case the Administrative Committee of the High Court, constituted under the Rules of the Court resolved that the District Judge should be retired compulsorily from the service, and the Registrar of the High Court communicated the decision to the State Government and thereafter circulated to all the Judges of the High Court for their information.
The State Government passed orders retiring the District Judge, whereupon he filed a writ petition in the High Court.
The matter was heard by a Full Bench and the majority of the Judges held that the writ petitioner could not have been compulsorily retired on the opinion recorded by the Administrative Committee, as the Full Court was not consulted.
The application was allowed and a writ was accordingly issued.
On appeal by the State Government this Court reversed the decision holding that Article 235 of the Constitution authorised the High Court to frame the rules for prescribing the manner in which the power vested in the High Court had to be exercised, and observed that though the control over the subordinate courts is vested constitutionally in the High Court by the Article, it did not follow that the High Court has no power to pre scribe the manner in which that control may, in practice, be exercised; and in fact, the very circumstance that the power of control, which comprehends matters of a wide ranging authority, vests in the entire body of Judges 99 makes it imperative that the rules are flamed so that the exercise of the control becomes feasible, convenient and effective.
The parliament is a far larger body than the High Court and the observations apply to it with greater force.
So long as the statute enables the House to maintain its control either directly or through the Speaker, the entrust ment of the investigation does not amount to abdication of power.
It is a case where the Parliament has taken a deci sion to respect the verdict of the Committee in favour of the Judge, consistently with clause (4) and no fault can be .found.
It has been stated on behalf of the respondents that the question whether the Motion against the respondent No. 3 has lapsed as a result of the dissolution of the old House is agitating the minds of the members of the Lok Sabha and the issue is under consideration of the new Speaker.
In support, he produced a copy of the proceeding of the House.
If the present Speaker holds that the Motion has lapsed, and the Committee does not have any duty to perform, the pro ceeding cannot be proceeded with any further.
In reply the learned counsel for the petitioners claimed that after the matter is entrusted to the Committee, neither he nor the Parliament at this stage can undo the admission of the Motion by the earlier Speaker, or withdraw the investiga tion.
If the petitioners are right, then what happens if a member of the Committee becomes unavailable by any reason whatsoever or another member renders himself unfit to be on the Committee, say by reason of his apparent and gross bias, against or in favour of the Judge concerned, coming to light after the formation of the Committee ? The answer is that the House which is in control of the proceeding is entitled to take all necessary and relevant steps in the matter, except discussing the conduct of the Judge until the stage is reached and the bar under Article 121 is lifted.
If on the other hand it is held that the Committee is an independ ent statutory body not subject to the control of the House directly or through the Speaker, as the petitioners suggest, the Act may be rendered unworkable.
Besides, this would impute to the Parliament to have done exactly what the Constituent Assembly refused to do by accepting Sir Alla di 's impassioned appeal, referred to above in para graph 19, not to lower the dignity of the Chief Justice of India by providing a machinery consisting of 5 or 4 Judges to sit in appeal over him.
It may be noted here that the Constitution has considered it fit to entrust the inquiry in the alleged misbehaviour of a member of a Public Service Commission, a constitutional functionary but lower in rank than the Supreme Court, to the Supreme Court without associ ating a Chief Justice of the High Court or any other person lower in rank.
If the Committee is held to be functioning under the supervision and control of the parliament, with a view to aid it for the purpose of a proceeding pending in the House, it will be the parliament which will be in con trol of the proceeding and not the Committee.
100 32.
Mr Jethmalani was fervent in his exhortation to construe the Constitution and the Act in a manner which will protect the independence of the judiciary from the politi cians, and this, according to him, is possible only if this Court comes to an affirmative conclusion on the question of justiciability.
There cannot be two opinions on the necessi ty of an independent and fearless judiciary in a democratic country like ours, but it does not lead to the further conclusion that the independence of judiciary will be under a threat, unless the matter of removal of Judges, even at the highest level, is not subjected to the ultimate control of Courts.
The available materials unmistakably show that great care was taken by the framers the Constitution to this aspect and the matter was examined from every possible angle, before adopting the scheme as indicated earlier.
So far as the district courts and subordinate courts are concerned, the control has been vested in the High Court, but when it came to the High Court and Supreme Court Judges, it was considered adequate for the maintenance of their independence to adopt and enact the Constitution as we find it.
I do got see any reason to doubt the wisdom of the Constituent Assembly in entrusting the matter exclusively in the hands of the Parliament and I do not have any ground for suspicion that the Members of Par liament or their representatives, the Speaker and the Chair man, shall not be acting in the rue spirit of the Constitu tional provisions.
Similarly, the task of enacting a law under clause (5) was taken up seriously by consid ering every relevant aspect, and the process took several years before the Act was passed.
do not propose to deal with this point any further beyond saying that the mandate of the Constitution is binding on all of us, and I would close by quoting the following words from Hamilton: "If mankind were to resolve to agree in no institution of government, until every part of it had been adjusted to the most exact stand ard of perfection, society would soon become a general scene of anarchy, and the world a desert.
Where is the standard of perfection to be found ? Who will undertake to unite the discordant opinions of a whole community, in the same judgment of it; and to prevail upon one conceited projector to renounce his infal lible criterion for the fallible criterion of his more conceited neighbour? To answer the purpose of the adversaries of the Constitu tion, they ought to prove, not merely that particular provisions in it are not the best which might have been imagined, but that the plan upon the whole is bad and pernicious".
It has not been suggested on behalf of the petition ers or by anybody else that it is open to the Court to examine the legality of a final decision taken by the Par liament under clause (4).
Even after a verdict against the Judge is returned by the Committee, the Parlia ment or for that matter any of the two Houses can refuse to vote in favour of the Motion for removal of a Judge, and the Court shall not have any jurisdiction to interfere in the matter.
Is it conceivable, in the circumstances, that at the intermediate stage of investigation the Court has got the power to intervene ? The answer is in the negative for more than one reason.
If the control of the House continues on the proceeding throughout, which can he exercised through the Speaker, it cannot be presumed that the Court has a parallel jurisdiction, which may result in issuance of contradictory directions.
Besides, the Court cannot he expected to pass orders in the nature of step in aid, where the final result is beyond its jurisdiction.
Any order passed or direction issued by this Court may result in merely an exercise in futility, and may cause a situation, embarassing both for the highest judicial and legislative authorities of the country.
The Constitution cannot he attributed with such an intention.
I, therefore, hold that the courts including the Supreme Court do not have any jurisdiction to pass any order in relation to a proceeding for removal of a Judge of the superior courts.
Reference was made by the learned counsel for the parties to the Constitutions of several other countries, but I do not consider it necessary to discuss them excepting the Australian Constitution as they do not appear to be helpful at all.
As has been mentioned earlier the language of Arti cle 124 (4) is similar to section 72(ii) of the Common wealth of Australia Constitution Act (1900), except with this difference that the Australian Constitution Act.does not specifically provide for any law to he made for regulat ing the procedure and investigation.
However, the constitu tional and the legal position in Austraila is not helpful to resolve the present dispute before us, as the Commonwealth of Australia Constitution Act (1900) has adopted rigid Separation of Powers between the Executive, Legislature and Judiciary (as has been observed by this Court on many occa sions including at page 415 in Smt.
Indira Gandhi vs Raj Narain, , relented to above in paragraph 9.
Reference has been made by P.H. Lane in his commentary on the Australian Constitution to the proceedings which were initiated for removal of Mr. Justice Murphy under section 72 (ii) of the Constitution Act.
On account of sharp difference amongst the members of the Select Committee of the Senate appointed to inquire into the matter and a further failure to resolve the situation by establishing a second Committee and in view of certain other facts an adhoc legislation was passed under the name of Parliamentary Commission of Inquiry Act, 1986.
Under this Act further steps were being taken when Mr. Justice Murphy moved the High Court of Austraila for an order of injunction challenging the validity of the Act and alleging that one of the members of the Commission constituted under the Act (a 102 retired Judge) was disqualified on account of bias.
The application was dismissed on merits without adverting to the question of justiciability.
This decision, to my mind, is of no help to the petitioners before us, mainly on account of the difference in the Constitutional scheme of the two countries with respect to the Separation of Powers.
The judicial powers there have been exclusively vested in the courts by section 71 of the Constitution Act of 1900.
Lane has at page 372 of his book opined that sec tion 72 (ii) may be non justiciable, since it seems to place the exercise under the section in Parliament itself.
He, however, further proceeds to say that the Parliament could seek the High Court 's help, for example, in the peripheral matter of the meaning of misbehaviour or incapacity in section 72(ii).
He has also referred to certain other provi sions of the Constitution Act, and analysed the roles of Parliament and Court with his comments.
I do not consider it necessary to proceed further beyond saying that Mr. Justice Murphy 's case does not provide any aid in deciding the issue in the cases before us.
Although our Constitution was made after examining the Constitutions of many other countries, it has adopted a pattern of its own.
The learned counsel also placed a large number of decisions; both Indian and foreign and since I have not found them relevant, I have refrained from discussing them.
None of the cases in which this Court has either interfered with the decision of the House or has refused to do so, related to a proceeding for removal of a Judge, and are clearly distinguishable in view of my opinion expressed above.
I am also not dealing with the other points urged by Mr. Sibal, as I agree with him on the main issue of justiciability.
I am avoiding to express any opinion on the controversy whether the Motion lapsed or not on the dissolution of the earlier House, as the issue is for the Lok Sabha to decide.
In view of the above findings this Court cannot pass any order whether permanent or temporary on the prayer that the respondent No. 3 should not be allowed to exercise his judicial powers.
In the result all the F writ petitions are dismissed.
The prayer for transfer of Writ Petition No. 1061 of 1991 in Transfer Petition No. 278 of 1991 is allowed and that Writ Petition is also dismissed.
There will be no order as to costs.
N.P.V. Petitions dis posed of.
| Upon a notice given by 108 members of the 9th Lok Sabha of a Motion for presenting an Address to the President for the removal of a sitting Judge of the Supreme Court for the alleged misconduct committed by him while he was functioning as Chief Justice of a High Court, the Speaker of the Lok Sabha admitted the Motion and constituted a Committee con sisting of a sitting Judge of this Court, Chief Justice of a High Court and a distinguished jurist in terms of Section 3(2) of the .
Subsequently, the Lok Sabha was dissolved and its term came to an end.
On its understanding that the Motion as well as the decision of the Speaker thereon had lapsed consequent on the dissolution of the Lok Sabha, the Union government did not act in aid of the decision of the Speaker, and notify that the services of the two sitting Judges on the Committee would be treated as "actual service" within the meaning of Para 11(B)(i) of of the II Schedule to the Constitu tion.
Thereupon, a body called the Sub Committee on Judicial Accountability, claiming to be a Sub Committee constituted by an All India Convention on Judicial Accountability to carry forward the task of implementing the resolutions of the conventions, and the Supreme Court Bar Association, seeking to prosecute the matter in the larger public inter est and, in particular, in the interests of litigant public, filed two Writ Petitions before this Court.
Two prayers common to both the petitions were, first, that the Union of India be directed to take immediate steps to enable the Inquiry Committee to discharge its functions under the and, second, that during the pendency of the proceedings before the Committee the con cerned Judge should be restrained from performing judicial functions and from exercising Judicial powers.
It was contended on behalf of the petitioners that pending business lapsed on prorogation, and as a general practice the House was 4 usually prorogued before it was dissolved, but impeachment motions were sui generis in their nature and, therefore, they did not lapse; that the question whether a motion lapsed or not was a matter pertaining to the conduct of the business of the House of which the House was the sole and exclusive master; no aspect of the matter was justiciable before a Court and Houses of Parliament were privileged to be the exclusive arbiters of the legality of their proceed ings, that it would be highly inappropriate that the Speaker should issue notice to a Judge and call upon him to appear before him; that these proceedings could not be equated with disciplinary or penal proceedings and the Speaker would not decide anything against the Judge at that stage and would merely decide whether the matter would bear investigation; that the constitutional machinery for removal of a Judge was merely a political remedy for judicial misbehaviour and did not exclude the judicial remedy available to the litigants to ensure and enforce judicial integrity, that the right to move the Supreme Court to enforce fundamental rights was itself a fundamental right and that took within its sweep, as inhering in it, the right to an impartial judiciary with persons of impeccable integrity and character, without which the fundamental right to move the court itself becomes barren and hollow, that the court itself had the jurisdic tion nay a duty to ensure the integrity and impartiality of the members composing it and restrain any member who was found to lack in those essential qualities and attainments at which public confidence is built.
Another Writ Petition was filed by an individual by way of a counter to the second prayer in the Writ Petitions filed by the SubCommittee on Judicial Accountability and the Supreme Court Bar Association.
It was contended that till the Inquiry Committee actually found the concerned Judge guilty of charges, there should be no interdiction of his judicial functions and that if such a finding was recorded then thereafter till such time as the Motion for the presen tation of the Address for the removal of the Judge was disposed of by the Houses of Parliament which should not be delayed beyond 180 days the President may ask the Judge concerned to recuse from judicial functions.
Another Writ Petition was also filed by a practising Advocate challenging the constitutional validity of the as ultra vires Articles 100, 105, 118, 121 and 124(5) of the Constitution of India and seeking a declaration that the ' Motion presented by 108 Members of Parliament for the removal of the Judges 5 had lapsed with the dissolution of the Lok Sabha.
The peti tioner also sought the quashing of the decision of the Speaker admitting the Motion, on the ground of denial of opportunity of being heard to the concerned Judge before the admission of Motion and constitution of the Committee by Speaker.
A Transfer Petition was filed seeking the withdrawal by the Supreme Court to itself from the Delhi High Court the Writ Petition filed in the High Court, where reliefs were similar to those prayed for in the Writ Petition filed by the practising Advocate.
The Writ Petition was directed to be withdrawn to the Supreme Court and was heard along with other Writ Petitions.
1t was contended on behalf of the petitioners in these Writ Petitions that before taking a decision to admit the motion and constituting a Committee for investigation, it was incumbent upon the Speaker, as a minimum requirement of natural justice, to afford an opportunity to the Judge of being heard since such a decision had momentous consequences both to the Judge and to the judicial system as a whole and that any politically motivated steps to besmear a Judge would not merely affect the Judge himself but also the entire system of administration of justice and therefore it would greatly advance the objects and purposes of if the Judge concerned himself was given such a hearing; that the Speaker had acted contrary to Constitutional practice, that the manner in which he had admitted the motion smacked of malafides and since the Speaker had not entered appearance and denied the allega tions, he must be deemed to have admitted them; that having regard to the nature of the area the decision of the Court and its writ is to operate in, the Court should decline to exercise its jurisdiction, and that any decision rendered or any writ issued might, ultimately become futile and infruc tuous as the constitution of and investigation by the com mittee were not, nor intended to be, an end by themselves culminating in any independent legal consequence, but only a proceeding preliminary to and preceding the deliberations of the House on the motion for the presentation of an address to the President for the removal of a Judge, which was indisputably within the exclusive province of the Houses of Parliament over which courts exercised no control or juris diction.
On behalf of the Union of india it was contended that a combined reading of Articles 107, 108 and 109 would lead irresistibly to the conclusion that upon dissolution of the House, all bills would 6 lapse subject only to the exception stipulated in Article 108, that on first principle also it required to be accepted that no motion should survive upon the dissolution of the House unless stipulated otherwise under the Rules of proce dure and conduct of business; the doctrine of lapse was a necessary concomitant of the idea that each newly constitut ed House was a separate entity having a life of its own unless the business of the previous House was carried over by the force of statute or rules of procedure and that the question whether a motion lapsed or not was to be decided on the basis of the provisions of law guiding the matter and the House itself was not its final arbiter and the Court alone had jurisdiction to examine and pronounce on the law of the matter.
Disposing of the cases, this Court, HELD: By majority Per Ray.
J. (for himself, Venkatacha liah, Verma and Agrawal, J J) 1.1 Where there is a written Constitution which consti tutes the fundamental and in that sense a "higher law" and acts as a limitation upon the Legislature and other organs of the State as grantees under the Constitution, the usual incidents of parliamentary sovereignty do not obtain and the concept is one of 'limited Government '.
Judicial review is an incident of and flows from this concept of the fundamen tal and the higher law being the touchstone of the limits of the powers of the various organs of the State which derive power and authority under Constitution and that the judicial wing is the interpreter of the Constitution and, therefore, of the limits of authority of the different organs of the State.
In a federal set up, the judiciary becomes the guard ian of the Constitution.
The inter pretation of the Consti tution as a legal instrument and its obligation is the function of the Courts.
It is emphatically the province and duty of the judicial department to say what the law is.
[51 G H, 52A, D] 1.2 In interpreting the constitutional provisions con cerning the judiciary and its independence the Court should adopt a construction which strengthens the foundational features and the basic structure of the Constitution.
Rule of law is a basic feature of the Constitutional fabric and is an integral part of the constitutional structure.
Inde pendence of the judiciary is an essential attribute of Rule of law.
[31 D] 1.3 In construing the Constitutional provisions, the law and 7 procedure for removal of Judges in other countries afford a background and a comparative view.
The solution must, of course, be found within our own Constitutional Scheme.
But a comparative idea affords a proper perspective for the under standing and interpretation of the Constitutional Scheme.
[31 G H] Barringtons Case [1830]; Terrell vs Secretary of State for the Colonies and Another, , referred to.
Constituent Assembly Debates Vols.
I to VI @ pp 899,900 Vol.
VIII @ pp.
243 262, referred to.
Halsbury 's Laws of England, 4th Ed.
p 1108; She treet 'Judges on Trial ' (1976); pp.
404 405; Rodney Brazier 'Constitutional Texts ' (1990) pp.
606 607; Gall 'The Canadi an Legal System ' (1983); pp. 184 186, 189; Lane 's Commentary on The Australian Constitution (1986) p. 373; Mclelland 'Disciplining Australian Judges ' , at p. 403; Henry J. Abraham. ' The Judicial Process, 3rd Ed.
p. 45; Robert J. Janosik: Encyclopeadia of the American Judicial System, Vol II pp.
575 to 578; "The Impeachment of the Federal Judiciary" Wrisley Brown Harvard Law Review 1912 1913 684 at page 698; 'The Judicial Process in Comparative Perspective ' (Clarendon Press Oxford 1989 at page 73); (Erskine May 's "The Law, Privileges, Proceeding and Usage of Parliament" (Twenty first Edition London Butterworths 1989); M.N. Kaul and S.L. Shakdher in Practice and Procedure of Parliament", referred to.
2.1 It is not correct to say that the question whether a motion has lapsed or not was a matter pertaining to the conduct of the business of the House, of which the House was the sole and exclusive master, and that no aspect of the matter was justiciable before a Court.
[29 C ,53 G] 2.2 The question whether the motion has lapsed is a matter to be pronounced upon on the basis of the Constitu tion and the relevant rules.
[53 E] 2.3 On such interpretation of the Constitutional provi sions as well as the , the Courts retain jurisdiction to declare that a motion for removal of Judge does not lapse on dissolution of the House.
[53F G] Bradlaugh vs Gossett, [18841 , distinguished.
8 A.K. Gopalan vs The State of Madras, |; Special Reference Case; , , referred to.
Barton vs Taylor, , Rediffuson (Hong Kong) Ltd. vs Attorney General of Hong Kong, ; , referred to.
3.1 The constitutional process for removal of a Judge upto the point of admission of the motion, constitution of the Committee and the recording of findings by the Committee are not, strictly, proceedings in the Houses of Parliament.
The Speaker is a statutory authority under the Act.
Upto that point the matter cannot be said to remain outside the Court 's jurisdiction.
[66 E] 3.2 The scheme of Articles 124(4) and (5) is that the entire process of removal is in two parts the first part, under clause (5) from initiation to investigation and proof of misbehaviour or incapacity is covered by an enacted law, Parliament 's role being only legislative as in all the laws enacted by it, the second part under clause (4) is in Par liament and that process commences only on proof of misbeha viour or incapacity in accordance with the law enacted under clause (5).
Thus, the first part is entirely statutory, while the second part alone is the parliamentary process.
[61 D] 3.3 The context and setting in which clause (5) appears along with clause (4) in Article 124 indicate its nature and distinguish it from Articles 118, 119 and 121, all of which relate to procedure and conduct of business in Parliament.
[61 B C] 3.4 The validity of law enacted by the Parliament under clause (5) of Article 124 and the stage upto conclusion of the inquiry in accordance with that law, being governed entirely by statute, would be open to judicial review as the parliamentary process under Article 124(4) commences only after a finding is recorded that the alleged misbehaviour or incapacity is proved in the inquiry conducted in accordance with the law enacted under clause (5).
For this reason, the argument based on exclusivity of Parliament 's jurisdiction over the process and progress of inquiry under the and, consequently, exclusion of this Court 's jurisdiction in the matter at this stage does not arise.
[59 G H, 60 A] 4.1 Article 121 suggests that the bar on discussion in Parliament with respect to the conduct of any Judge is lifted 'upon a 9 motion for presenting an address to the President praying for the removal of a Judge as hereinafter provided '.
The words 'motion ' and 'as hereinafter provided ' are obvious references to the motion for the purpose of clause (4) of Article 124 which, in turn, imports the concept of "proved" misbehaviour or incapacity.
What lifts the bar under Article 121 is the 'proved ' misbehaviour or incapacity.
Clause (5) of Article 124 provides for an enactment of law for the purpose of investigation and proof of misconduct or incapac ity preceding the stage of motion for removal on the ground of 'proved ' misbehaviour or incapacity under clause (4).
[56 H, 57 A B] 4.2 An allegation of misbehaviour or incapacity of a Judge has to be made, investigated and found proved in accordance with the law enacted by the Parliament under Article 124 (5) without the Parliament being involved upto that stage; on the misbehaviour or incapacity of a Judge being found proved in the manner provided by that law a motion for presenting an address to the President for remov al of the Judge on that ground would be moved in each House under Article 124(4); on the motion being so moved after the proof of misbehaviour or incapacity and it being for pre senting an address to the President praying for removal of the Judge, the bar on discussion contained in Article 121 is lifted and discussion can take place in the Parliament with respect to the conduct of the Judge; and the further conse quences would ensue depending on the outcome of the motion in a House of Parliament.
If, however, the finding reached by the machinery provided in the enacted law is that the allegation is not proved, the matter ends and there is no occasion to move the motion in accordance with Article 124(4).
[57 G H, 58 A B] 4.3 Thus prior proof of misconduct in accordance with the law made under Article 124(5) is a condition precedent for the lifting of the bar under Article 121 against dis cussing the conduct of a Judge in the Parliament.
Article 124(4) really becomes meaningful only with a law made under Article 124(5), without which, the constitutional scheme and process for removal of a Judge remains inchoate.
[66 F] 4.4 The bar in Article 121 applies to discussion in Parliament but investigation and proof of misconduct or incapacity cannot exclude such discussion.
This indicates that the machinery for investigation and proof must neces sarily be outside Parliament and not within it.
In other words, proof which involves a discussion of the conduct of the Judge must be by a body which is outside the limita 10 tion of Article 121.
The policy appears to be that the entire stage upto proof of misbehaviour or incapacity, beginning with the initiation of investigation on the alle gation being made, is governed by the law enacted under Article 124(5) and in view of the restriction provided in Article 121, that machinery has to be outside the Parliament and not within it.
Parliament neither has any role to play till misconduct or incapacity is found proved nor has it any control over the machinery provided in the law enacted under Article 124(5).
Parliament comes in the picture only when a finding is reached by that machinery that the alleged misbe haviour or incapacity has been proved.
The enacted under article 124(5) itself indicates that the Parliament so understood the integrated scheme of Arti cles 121, 124(4) and 124(5).
The general scheme of the Act conforms to this view.
[58 H 59 A D] 4.5 It is not the law enacted under Article 124(5) which abridges or curtails the parliamentary process or exclusivi ty of its jurisdiction, but the Constitutional Scheme itself which by enacting clauses (4) and (5) simultaneously indi cated that the stage of clause (4) is reached and the proc ess thereunder commences only when the alleged misbehaviour or incapacity is proved in accordance with the law enacted under clause (5).
It is only then that the need for discuss ing a Judge 's conduct in the Parliament arises and, there fore, the bar under Article 121 is lifted.
[60 D E] 5.1 If the motion for presenting an address for removal is envisaged by Articles 121 and 124(4) 'on ground of proved misbehaviour or incapacity ', it presupposes that misbeha viour or incapacity has been proved earlier.
This is more so on account of the expression 'investigation and proof ' used in clause (5) with specific reference to clause (4), indi cating that 'investigation and proof ' of misbehaviour or incapacity is not within clause (4) but within clause (5).
Use of the expression 'same session ' in clause (4) without any reference to session in clause (5) also indicates that session of House has no significance for clause (5) i.e., 'investigation and proof ' which is to be entirely governed by the enacted law and not the parliamentary practice which may be altered by each Lok Sabha.
[61 F H] 5.2 The significance of the word 'proved ' before the expression 'misbehaviour or incapacity ' in clause (4) of Article 124 is also indicated when the provision is compared with Article 317 providing for removal of a member of the Public Service Commission.
The expression in clause (1) of Article 317 used for describing the ground 11 of removal is 'the ground of misbehaviour ' while in clause (4) of Article 124, it is, 'the ground of proved misbeha viour or incapacity '.
[62 A] 5.3 Use of the word 'may ' in clause (5) indicates that for the 'procedure for presentation of address ' it is an enabling provision and in the absence of the law, the gener al procedure or that resolved by the House may apply but the 'investigation and proof ' is to be governed by the enacted law.
The word 'may ' in clause (5) is no impediment to this view.
When a provision is intended to effectuate a right here it is to effectuate a constitutional protection to the Judges under Article 124(4) even a provision as in Arti cle 124(5) which may otherwise seem merely enabling becomes mandatory.
The exercise of the power is rendered obligatory.
The use of the word 'may ' does not necessarily indicate that the whole of clause (5) is an enabling provision leaving it to the Parliament to decide whether to enact a law even for the investigation and proof of the misbehaviour or incapaci ty or not.
[62 D, 62 G, 63 E F] State of Uttar Pradesh vs Joginder Singh, ; at 202; Punjab Sikh Regular Motor Service, Moudhapara vs The Regional Transport Authority, Raipur & Anr., ; , referred to.
Erederic Guilder ,Julius vs The Right Rev. The Lord Bishop of Oxford, ' the Rev. Thomas Tellusson Carter, at 244, referred to.
5.4 Similarly, use of word 'motion ' to indicate the process of investigation and proof in the , because the allegations have to be presented to the 'Speaker ' does not make it 'motion in the House ' not withstanding use of that expression in Section 6.
Otherwise, section 6 would not say that no further step is to be taken in case of a finding of 'not guilty '.
It only means that when the allegation is not proved, the Speaker need not commence the process under clause (4) which is started only in case it is proved.
The Speaker is, therefore, a statutory authority under the Act chosen because the further process is parliamentary and the authority to make such a complaint is given to Members of Parliament.
Moreover, the enactment under Article 124(5) cannot be a safe guide to determine the scope of Article 124(5).
[64 A C] 6.1 Article 124(5) does not operate in the same field as Article 118 relating to procedure and conduct of business in Parliament.
[61C] 12 6.2 Article 118 is a general provision conferring on each House of Parliament the power to make its rules of procedure.
These rules are not binding on the House and can be altered by the House at any time.
A breach of the rules amounts to an irregularity and is not subject to judicial review in view of Article 122.
[64 G] 6.3 Article 124(5) is in the nature of a special provi sion intended to regulate the procedure for removal of a Judge under Article 124(4), which is not a part of the normal business of the House but is in the nature of special business.
It covers the entire field relating to removal of a Judge.
Rules made under Article 118 have no application in this field.
[64 H, 65 A] 6.4 Article 124(5) has no comparison with Article 119.
Articles 118 and 119 operate in the same field viz., normal business of the House.
It was, therefore, necessary to specifically prescribe that the law made under Article 119 shall prevail over the rules of procedure made under Article 118.
Since Articles 118 and 124(5) operate in different fields; a provision like that contained in Article 119 was not necessary and even in the absence of such a provision, a law made under Article 124(5) will override the rules made under Article 118 and shall be binding on both the Houses of Parliament.
A violation of such a law would constitute illegality and could not be immune from judicial scrutiny under Article 122(1).
[65 B C] 7.1 Neither the doctrine that dissolution of a House passes a sponge over parliamentary slate nor the specific provisions contained in any rule or rules framed under Article 118 of the Constitution determine the effect of dissolution on the motion for removal of a Judge under Article 124, because Article 124(5) and the law made there under exclude the operation of Article 118 in this area.
[49 F] Purushothaman Nambudiri vs The State of Kerala, [1962] Suppl.
1 SCR 753, referred to.
7.2 The law envisaged in Article 124(5) is parliamentary law which is of higher quality and efficacy than rules made by the House for itself under Article 118.
Such a law can provide against the doctrine of lapse.
[50 H] 7.31n the constitutional area of removal of a Judge, the law made under Article 124(5) must be held to go a little further and to exclude the operation of the Rules under Article 118 and no ques 13 tion of repugnance could arise to the extent the field is covered by the law under Article 124(5).
[51 C] State of Punjab vs Sat Pal Dang & Ors, ; , relied on.
8.1 The reflects the consti tutional philosophy of both the judicial and political elements of the process of removal.
The ultimate authority remains with the Parliament in the sense that even if the Committee for investigation records a finding that the Judge is guilty of the charges, it is yet open to the Parliament to decide not to present an address to the President for removal.
But if the Committee records a finding that the Judge is not guilty then the political element in the proc ess of removal has no further option.
The law is, indeed, a civilised piece of legislation reconciling the concept of accountability of Judges and the values of judicial inde pendence.
The provisions of the do not foul with the constitutional scheme.
[65 B C, 64 C] 8.2 The Speaker, while admitting a motion and constitut ing a Committee to investigate the alleged grounds of misbe haviour or incapacity does not act as part of the House.
The House does not come into the picture at this stage.
The provisions of the are not uncon stitutional as abridging the powers and privileges of the House.
The is constitutional and is intra vires.
[66 G H] 9.1 The is law enacted under Article 124(5) which provides against doctrine of lapse.
9.2 The effect of sections 3(1) and (2) and 6(2) of the , is that the motion should be kept pending till the committee submits its report and if the committee finds the Judge guilty, the motion shall be taken up for consideration.
Only one motion is envisaged which will remain pending.
No words of limitation that the motion shall be kept pending subject to usual effect of dissolution of the House can or should be imported.
[50 G] 9.3 Section 3 of the Act applies to both the Houses of Parliament.
The words "shall keep the motion pending" cannot have two different meanings in the two different contexts.
It can only mean that the consideration of the motion shall be deferred till the report 14 of the Committee implying that till the happening of that event the motion will not lapse.
Therefore, such a motion does not lapse with the dissolution of the House of Parlia ment.
[51 D] 10.
At the stage of the provisions when the Speaker admits the motion under section 3 of the , a Judge is not, as a matter of right, entitled to a notice.
The scheme of the statute and the rules made there under by necessary implication, exclude such a right.
But that may not prevent the Speaker, if the facts and circum stances placed before him indicate that hearing the Judge himself might not be inappropriate, might do so.
But a decision to admit the motion and constitute a Committee for investigation without affording such an opportunity does not, by itself and for that reason alone, vitiate the deci sion.
[68 E G] 11.1 It is true that society is entitled to expect the highest and most exacting standards of propriety in judicial conduct, and any conduct which tends to impair public confi dence in the efficiency, integrity and impartiality of the court is indeed forbidden.
But, the proposition that, apart from the constitutional machinery for removal of a Judge, the judiciary itself has the jurisdiction and in appropriate cases a duty to enquire into the integrity of one of its members and restrain the Judge from exercising judicial functions is beset with grave risks.
The court would then indeed be acting as a tribunal for the removal of a Judge and is productive of more problems than it can hope to solve.
[69 C, 70 H] Sampath Kumar & Ors.
vs Union of India & Ors, , referred to.
Corpus Juris Secundum, (VoI.48A), referred to.
11.2 The relief of a direction to restrain the Judge from discharging judicial functions cannot be granted.
The entire Constitutional Scheme, including the provisions relating to the process of removal of a Judge are to be taken into account for the purpose of considering this aspect.
Since the Constitutional Scheme is that the Judge 's conduct cannot be discussed even in the Parliament which is given the substantive power of removal, till the alleged misconduct or incapacity is 'proved ' in accordance with the law enacted for this purpose, it is difficult to accept that any such discussion on the conduct of the Judge or any evaluation or inference as to its 15 merit is permissible according to law elsewhere except during investigation before the Inquiry Committee constitut ed under the statute for this purpose.
Therefore, it is difficult to accept that there can be any right in anyone running parallel with the Constitutional Scheme for this purpose contained in clauses (4) and (5) of Article 124 read with Article 121.
No authority can do what the Constitution by necessary implication forbids.
[71 B F] 11.3 The question of propriety is, however, different from that of legality.
Whether the Judge should continue to function during the intervening period is to be covered by the sense of propriety of the concerned Judge himself and the judicial tradition symbolised by the views of the Chief Justice of India.
It should be expected that the Judge would be guided in such a situation by the advice of the Chief Justice of India, as a matter of convention, unless he himself decided as an act of propriety to abstain from discharging judicial functions during the interregnum.
It is reasonable to assume that the framers of Constitution had assumed that a desirable convention would be followed by a Judge in that situation which would not require the exercise of a power of suspension.[It would also be reasonable to assume that the Chief Justice of India is expected to find a desirable solution in such a situation to avoid embarrass ment to the concerned Judge and to the Institution in a manner which is conducive to the independence of judiciary and should the Chief Justice of India be of the view that in the interests of the institution of judiciary it is desira ble for the Judge to abstain from judicial work till the final outcome under Article 124(4), he would advise the Judge accordingly, and the concerned Judge would ordinarily abide by the advice of the Chief Justice of India.
All this is, however, in the sphere of propriety and not a matter of legal authority to permit any court to issue any legal directive t? the Chief Justice of India for this purpose.
[71 G, 72 A, C E] 12.
Even on the allegations made in the petition and plea of malafides which require to be established on strong grounds no such case is made out.
A case of malafides cannot be made out merely on the ground of political affiliation of the Speaker either.
That may not be a sufficient ground in the present context.
At nil events, as the only statutory authority to deal with the matter, doctrine of statutory exceptions or necessity might be invoked.
[74 B C] 13.
The law as to standing to sue in public interest actions has 16 undergone a vast change over the years and liberal standards for determining locus standi are now recognised.
The present matter is of such nature and the constitutional issues of such nature and importance that it cannot be said that members of the Bar, and particularly, the Supreme Court Bar Association have no locus standi in the matter.
An elaborate re survey of the principles and precedents over again is unnecessary.
Suffice it to say that from any point view, the petitioners satisfy the legal requirements of the standing to sue.
[74 E F] S.P. Gupta & Ors.
vs Union of India & Ors. etc.
, [1982] 2 SCR 365, relied on.
Certain submissions advanced on the prayer seeking to re.strain the judge from functioning till the proceedings of the committee were concluded lacked as much in propriety as in dignity and courtesy with which the Judge is entitled.
While the members of the bar may claim to act in public interest, they have, at the same time, a duty of courtesy and particular care that in the event of the charges being found baseless or insufficient to establish any moral turpi tude, the Judge does not suffer irreparably in the very process.
The approach should not incur the criticism that it was calculated to expose an able and courteous Judge to public indignity even before the allegations were examined by the forum constitutionally competent to do so.
The level of the debate both in and outside the Court should have been more decorous and dignified.
Propriety required that even before the charges are proved in the only way in which it is permitted to be proved, the Judge should not be embarrassed.
The constitutional protection to Judges is not for their personal benefit; but is one of the means of protecting the judiciary and its independence and is, therefore, in the larger public interest.
Recourse to constitutional methods must be adhered to if the system were to survive.
[74 G, 75 A C] 15.1 The interpretation of the law declared by this Court that a motion under section 3(2) of the Judges (In quiry) Act, 1968, does not lapse upon the dissolution of the House is a binding declaration.
If the law is that the motion does not lapse, there can be no occasion for the House to say so at any time and it is erroneous to assume that the Houses of Parliament would act in violation of the law, since the interpretation of the law is within the exclusive power of the courts.
[76 E] 17 25.2 If the House is not required to ' consider this question since the parliamentary process can commence only after a finding of guilt being proved, the further question of a futile writ also does not arise.
The point that the House can decide even after a finding of guilt that it would not proceed to vote for removal of the Judge is not germane to the issue since that is permissible in the Constitutional Scheme itself under Article 124(4), irrespective of the fact whether Article 124(5) is a mere enabling provision or a constitutional limitation on the exercise of power under Article 124 (4).
[60 B C] 15.3 The Union Government has sought to interpret the legal position for purpose of guiding its own response to the situation and to regulate its actions on the Speaker 's decision.
That understanding of the law is unsound.
[76 G] 15.4 No specific writ of direction need issue to any authority.
Having regard to the nature of the subject matter and the purpose it is ultimately intended to serve, all that is necessary is to declare the legal and correct constitu tional position and leave the different organs of the State to consider matters falling within the orbit of their re spective jurisdiction and powers.
[76 H, 77 A] 15.5 In the circumstances, the question of Court de clining to exercise its jurisdiction on the ground that the Judgment rendered and Writ issued by it would become infruc tuous does not arise.
[31 A C, 77 A] Per Sharma, J. (dissenting); 1.1 On a close examination of the Constitution, it is clear that a special pattern has been adopted with respect to the removal of the members of the three organs of the State.
The Executive, the Legislature and the Judiciary at the highest level, and this plan having been consciously included in the Constitution, has to be kept in mind in construing its provisions.
The approach should be that when a question of removal of a member of any of the three wings at the highest level i.e. the President; the Members of the Parliament and the State Legislatures; and the Judges of the Supreme Court and the High Courts arises, it is left to an organ other than where the problem has arisen, to be decid ed.
Consistent with this pattern, Clause (4) of Article 124 in emphatic terms declares that a Judge of the Supreme Court or the High Court shall not be removed from his office except on a special majority of the Members of each House of Parliament.
Both the Executive and the Judiciary 18 are thus excluded in this process.
The scheme cannot be construed as lack of trust in the three organs of the State.
There are other relevant considerations to be taken into account while framing and adopting a written Constitution, which include the assurance to the people that the possibil ity of a subjective approach clouding the decision on an issue as sensitive as the one under consideration, has been as far eliminated as found practicable in the situation.
And where this is not possible at all, it cannot be helped, and has to be reconciled by application of the doctrine of necessity, which is not attracted in the instant case.
[81 F H, 82 D E,F G] A11 Party Hill Leaders Conference vs M.A. Sangma, ; at 411, referred to.
The Federalist: Hamilton, referred to.
1.2 There cannot be two opinions on the necessity of an independent and fearless judiciary in a democratic country like ours, but it does not lead to the further conclusion that the independence of judiciary will be under a threat, unless the matter of removal of Judges, even at the highest level, is not subjected to the ultimate control of Courts.
Great care was taken by the framers of the Constitution to this aspect and the matter was examined from every possible angle, before adopting the scheme as laid down.
So far as the district courts and subordinate courts are concerned, the control has been vested in the High Court, but when it came to the High Court and Supreme Court Judges, it was considered adequate for the maintenance of their independ ence to adopt and enact the Constitution as it is found now.
There is no reason to doubt the wisdom of the Constituent Assembly in entrusting the matter exclusively in the hands of the Parliament and there is no ground for suspicion that the Members of Parliament or their representatives, the Speaker and the Chairman, shall not be acting in the true spirit of the Constitutional provisions.
The mandate of the Constitution is binding on all.
[100 B E] 2.1 The exercise of power under clause (4) was not made conditional on the enactment of a law under clause (5), and the reason for inserting clause (5) in Article 124 was merely for elaborating the provisions.
Clause (4) does not state that the misbehaviour or the incapacity of the Judge will have to be proved only in accordance with a law to be passed by the Parliament under clause (5) Clause (4) would continue to serve the purpose as it does now, without any 19 amendment if clause (5) were to be removed from the Consti tution today.
There is no indication of any limitation on the power of the Parliament to decide the manner in which it will obtain a finding on misbehaviour or incapacity for further action to be taken by it.
Clause (5) merely enables the parliament to enact a law for this purpose, if it so chooses.
[88 E, 88 A, 89 A] 2.2 The word 'may ' has been sometimes understood in the imperative sense as 'shall ', but ordinarily it indicates a choice of action and not a command.
In the present context, there is no reason to assume that it has been used in its extraordinary meaning.
[88 F] 3.
The object of Article 121 is to prevent any discus sion in Parliament with respect to the conduct of a Judge of the Superior Courts, except when it cannot be avoided.
The Article, accordingly, prohibits such a discussion except upon a motion for presenting an address to the President for removal of a Judge.
[89 B] 4.1 The expression "motion" has not been defined in the .
The Lok Sabha Rules framed under Article 118 of the Constitution deal with "motions".
There are separate rules of procedures for conduct of business adopted by the Rajya Sabha.
Section 3(1) of the Act states that if a notice of "motion" is given for presenting an address to the President for the removal of a Judge, the Speaker or the Chairman, as the case may be, after consult ing such persons as he deems fit, as also such relevant materials which may be available to him either admit the "motion" or refuse to admit the same.
The manner in which this section refers to "motion" in the Act for the first time without a definition or introduction clearly indicates that it is referring to that "motion" which is ordinarily understood in the context of the two Houses of Parliament attracting their respective rules.
Section 3 does not speci fy as to how and to whom the notice of "motion" is to be addressed or handed over and it is not quite clear as to how the Speaker suddenly comes in the picture unless the Lok Sabha Rules are taken into account.
Therefore, the provi sions of the Act have to be read alongwith some of the Lok Sabha Rules.
Rules 185, 186 and 137 which are relevant for the purpose should be treated to be supplementary to the Act.
[90 D G, 91 B] 4.2 Sub section (2) of Section 3, which is of vital importance in the present context, says that if the "motion" referred to in subsection (1) is admitted, the Speaker "shall keep the motion pending" 20 and constitute a Committee for investigation into the alle gations.
191 C] 4.3 The situs where the "motion" is pending is almost conclusive on the issue whether the House is seized of it or not.
The Act does not leave any room for doubt that the "motion" remains pending in the House and not outside it.
This is corroborated by the language used in proviso to Section 3(2) which deals with cases where notices of "mo tion" under Section 3(1) are given on the same date in both Houses of Parliament.
It says that in such a situation, no Committee shall be constituted unless the "motion" has been "admitted in both Houses", and where such "motion" has been admitted "in both Houses", the Committee shall be constitut ed jointly by the Speaker and the Chairman.
It is not an inadvertent reference in the Act of the "motion" being pending in the House: the Act and the Rules made thereunder envisage and deal with a "motion" which is admitted in the House and remains pending there to be taken up again when the date is fixed by the Speaker on receipt of the report from the Committee.
The language throughout the Act has been consistently used on this premise and is not capable of being ignored or explained away.
[91 D, G H, 92 A, C D] 4.4 The scope of the Act and the Rules is limited to the investigation in pursuance of a "motion" admitted by the Speaker.
At the conclusion of the investigation the Commit tee has to send the report to the Speaker (or the Chairman as the case may be) along with a copy of the original Mo tion.
If the finding goes against the Judge, the Motion, the same original Motion, together with the report would be taken up for consideration by the House where the Motion is pending, and the address and the Motion would be put to vote together in each House of Parliament.
What the Act and the Rules contemplate is the original Motion to be taken up for consideration by the House, and if this Motion is held to have exhausted itself on admission by the Speaker nothing remains on which the Act would operate.
[92 E, G] 4.5 Thus, the concept of the original Motion being pending in the House, to be taken up for debate and vote on the receipt of the report of the Committee, is the life and soul of the Act, and if that Motion disappears nothing remains behind to attract the Act.
This idea runs through the entire Act and the Rules, and cannot be allowed to be replaced by a substitute.
The existence of a Motion pending in the House is a necessary condition for the application of 21 the Act.
Bereft of the same, the Act does not survive.
It is, therefore, not permissible to read the Act so as to mean that the House is not seised of the Motion and that it does not have anything to do with the inquiry pending before the Committee, until the report is received.
If clauses (4) and (5) of Article 124 are construed otherwise the Act will have to be struck down as ultra vires, or in any event, inopera tive and infructuous and, on this ground alone, the Writ Petitions are liable to be dismissed.
[92 H, 93 A B] 5.1 The mandate of the Constitution against discussion on the conduct of a Judge in the House is for everybody to respect, and it is the bounden duty of the Speaker to en force it.
He has to ensure that Article 121 is obeyed in terms and spirit.
The pendency of the motion in the House cannot be a ground to violate Article 121, and the apprehen sion that if the motion is held to be pending in the House, on its admission, the object of Article 121 would be defeat ed is misconceived.
[93 C, F] 5.2 The wider proposition that the House was seized of the matter so effectively as to entitle every member to demand a discussion in the House at any stage will not only violate Article 121, but also offend the provisions of the 1968 Act.
It is not correct to assume that if the right of the individual member to insist on immediate discussion is denied, the consequence will be to deprive the Parliament of the control of the motion.
The Speaker may consult other persons before admitting the motion, and while so doing he may consult the members of the House also, but without permitting a discussion in the House.
The consultation, which the Act permits, is private in nature, not amounting to a public discussion, while the object of Article 121 is to prevent a public debate.
It may also be open to the Speaker to consult the House on a legal issue which can be answered without reference to the conduct of Judge in ques tion, as for example, the issue involved in the instant case, whether on account of dissolution of the old House the Motion has lapsed and the Committee of Inquiry is defunct.
What is prohibited is not every matter relating to the removal of a Judge; the bar is confined to a discussion with respect to the conduct of a Judge in the discharge of his duties.
[95 E H, 96A] 5.3 There is no justification for interpreting such portion of the 1968 Act, which directed or declared the initial motion admitted by the Speaker to remain pending in the House, as creating legal fiction limited for the purpose of ensuring that the bar under Article 121 was not lifted prematurely.
[96 B] 22 East End Dwellings Co. Ltd. And Finsbury Borough Coun cil: , referred to.
5.4 A close reading of the entire Act indicates that the language therein was consciously chosen to make the House seized of the matter, and consequently it became necessary to include the provision directing the motion to remain pending for the purpose of preventing a premature discus sion.
The Act has, thus, very successfully respected both Articles 124 and 121 in their true spirit, by neatly harmo nising them.
[97 B] 5.5 Parliament is in control of the matter from the very beginning till the end.
By the introduction of the Speaker and the requirement of a large number of members of either House to initiate the matter, the House is brought in con trol of the proceeding through its representative, the Speaker or the Chairman.
The ground of proved misbehaviour or incapacity is necessary only for putting the matter to vote in the House under clause (4), and is not a condition precedent for initiating a proceeding and taking further steps in this regard. ]97 G H, 98 A] 5.6 It is a well established practice for a larger body to entrust investigations to a smaller body for obvious practical reasons, and such an exercise cannot be characte rised as indulging in abnegation of authority.
It could have asked a Parliamentary Committee to enquire into the allega tions or employed any other machinery for the purpose.
[98 D] 5.7 So long as the statute enables the House to maintain its control either directly or through the Speaker, the entrustment of the investigation does not amount to abdica tion of power.
It is a case where the Parliament has taken a decision to respect the verdict of the Committee in favour of the Judge, consistently with clause (4) and no fault can be found.
199 B] State of Uttar Pradesh vs Batuk Deo Pati Tripathi and Anr., , referred to.
5.8 The House, which is in control of the proceeding is entitled to take all necessary and relevant steps in the matter, except discussing the conduct of the Judge until the stage is reached and the bar under Article 121 is lifted.
If it is held that the Committee is an independent statutory body not subject to the control of the House 23 directly or through the Speaker, then the Act may be ren dered unworkable.
Besides, this would lower the dignity of the Chief Justice of India by providing a machinery consist ing of 5 or 4 Judges to sit in ,appeal over him.
If the Committee is held to be functioning under the supervision and control of the Parliament, with a view to aid it for the purpose of a proceeding pending in the House, it will be the Parliament which will be in control of the proceeding and not the Committee.
[99 E F, H] 6.1 When even after a verdict against the Judge is returned by the Committee, the Parliament, or for that matter any of the two Houses can refuse to vote in favour of the Motion for removal of a Judge, and the Court would not have any jurisdiction to interfere in the matter, it is not conceivable, that at the intermediate stage of investigation the Court has got the power to intervene.
This is because, if the control of the House continues on the proceeding throughout, which can be exercised through the Speaker, it cannot be presumed that the Court has a parallel jurisdic tion, which may result in issuance of contradictory direc tions.
Besides, the Court cannot be expected to pass orders in the nature of step in aid, where the final result is beyond its jurisdiction.
Any order passed or direction issued by this Court may result in merely an exercise in futility, and may cause a situation, embarrassing both for the highest judicial and legislative authorities of the country.
The Constitution cannot be attributed with such an intention.
[101 A C] 6.2 In the circumstances the courts, including this Court, do not have any jurisdiction to pass any order in relation to a proceeding for removal of a Judge of the superior courts.
[101 C] 7.
No opinion is expressed on the controversy whether the Motion lapsed or not on the dissolution of the earlier House, as the issue is for the Lok Sabha to decide.
[102 E] 8.
This Court cannot pass any order whether permanent or temporary on the prayer that the respondent No. 3, the concerned Judge, should not be allowed to exercise his judicial powers.
[102 F] 9.1 Although the powers of State have been distributed by the Constitution amongst the three limbs, i.e. the Legis lature, the Executive and the Judiciary, the doctrine of Separation of Powers has not been strictly adhered to and there is some overlapping of powers in the gray areas.
[80F G] 24 Smt.
Indira Gandhi vs Raj Narain, at p. 415, referred to.
9.2 Generally, questions involving adjudication of disputes are amenable to the jurisdiction of the courts, but there are exceptions, not only those covered by specific provisions of the Constitution in express terms, but others enjoying the immunity by necessary implication arising from established jurisprudential principles involved in the Constitutional scheme.
[81 C] 10.
It is permissible to take into consideration the entire historical background of the provisions of the Con stitution and the Act as aid to interpretation.
[84 C] Bengal Immunity Company vs The State of Bihar, at 632 & 633; B. Prabhakar Rao vs State of Andhra Pradesh, [1985] Suppl 2 SCR 573, referred to.
Heydon 's case: 76 E.R. 637; Eastman Photographic Materi al Company vs Comptroller General of Patents, LR. , referred to.
|
ppeal No. 4447 of 1991 From the Judgment and Order dated 24.4.1991 of the Madras High Court in Civil Revision Petition No. 4769 of 1984.
E.C.Agarwala for the Appellant.
Mrs. Jayashree Ahmed for the Respondent.
The Judgment of the Court was delivered by RANGANATH MISRA, CJ.
Special leave granted.
Appellant is the tenant of a premises located in Sivaka si within the State of Tamil Nadu to which the provisions of the Tamil Nadu Buildings (Lease and Rent Control) Act apply.
The rental of the premises is Rs. 275 per month.
Respondents initiated action for eviction on the plea that there was "wilful default" in the matter of payment of rent and change of user.
It was contended that the lease was residential but it had been used partly for commercial activity.
The appellant took the stand that rent was not being collected every month since the respondents resided away from the place where the property is situated and every two to three months they used to come and collect rent at land lord 's convenience.
Two receipts were produced to support this stand.
Rent was collected in one case for three months and in the other for two months at a time.
Admittedly at the time of filing of the petition for eviction three months ' rent had fallen due.
So far as the 205 change of user was concerned it was denied by pleading that mixed use was the basis of the tenancy.
The original authority dismissed the petition but that has been reversed in appeal and the reversal has been upheld by the High Court.
Two contentions were raised before us: (i) there is no case of wilful default particularly when the two receipts showed acceptance of rent for periods as pleaded by the tenant without demur and (ii) that the premises had been rented out also for business use and at any rate admittedly from 1973 there has been this change.
Counsel for the respondents does not dispute that from 1973 there has been change of use.
The petition for eviction is of 1980.
It follows that for seven years no objection was raised for change of use and for the first time when evic tion was sought, conversion was made the second ground.
In these circumstances, we are prepared to accept the submis sion advanced on behalf of the appellant that the landlords accepted the user to be also other than residential.
Both parties relied upon a decision of this Court in the case of section Sundaram Pillai & Ors. etc.
V.R. Pattabiraman & Ors.
; , , where default and 'wilful ' default were distinctly treated.
In the several statutes operating in the different States regulating the law relat ing to landlord and tenant 'wilful ' default has been made the ground of eviction while default is not.
We may also refer to a short but suggestive Order dated March 27,1991, of this court in Civil Appeal No. 1367 of 1991 [Premchand Banka vs A. Vasanthrai Khatod & Ors.] to support our conclu sion.
A situation where the landlord had consented to col lect rent for two to three months at a time non payment of rent for three months cannot constitute wilful default.
Since in the present case default was of three months at time of filing of the case, we are prepared on the basis of the evidence on record that it was not a case for wilful default.
Accordingly the conclusion reached in appeal and upheld by the High Court would not be sustainable.
We allow the appeal and reverse the Judgment of the High Court and dismiss the petition for eviction.
We would, however.
like to add that judicial notice can be taken of the fact that rental has escalated everywhere and appropri ate rent in the present case should be raised to Rs. 400 per month from 1.1.1992.
The tenant should have a direction to pay the rent in advance from month to month as stated by him in the Court below and it should be by the end of every month.
There will be no order as to COSTS.
V.P.R. Appeal allowed.
| Appellant was a tenant under the respondents.
Action for eviction against the appellant was initiated on the pleas that there was "wilful default" in the matter of payment of rent and that the lease was residential but it had been used partly for commercial activity.
At the time of filing of the petition for eviction three months ' rent had fallen due.
The appellant 's case was that rent was not being collected every month and every two to three months the respondents landlords used to come and collect rent at their convenience, and that mixed use of the premises was the basis of the tenancy.
The original authority dismissed the petition.
In appeal it was reversed.
The High Court upheld the reversal holding that there was no case of wilful default and that the prem ises had been rented out also for business use.
In the appeal by special leave the tenant appellant contended that there was no case of wilful default and that the premises had been rented out also for business use and the change of user was since 1973.
Allowing the appeal of the tenant, this court, HELD: 1.
In the several statutes operating in the different states regulating the law relating to landlord and tenant 'wilful ' default has been made the ground of eviction while default is not.
[205 E] 204 2.
A situation where the landlord had consented to collect rent for two to three months a time, non payment of rent for three months cannot constitute wilful default.
[205 F] 3.
It is not disputed that from 1973 there had been change of use.
The petition for eviction was of 1980.
It follows that for seven years no objection was raised for change of use and for the first time when eviction was sought, conversion was made the second ground.
In these circumstances the landlords accepted the user to be also other than residential.
[205 C D] section Sundaram Pillai & Ors.
V.R. Pattabiraman & Ors.
; , ; Premchand Banka vs
A. Vasanthrai Khatod & Ors., C.A.No. 1367 of 1991, decided on 27.3.1991, referred to.
|
Criminal Appeal No. 323 of 1980.
From the Judgment and Order dated 1.5.1979 of the Orissa High Court in Government Appeal No. 38 of 1977.
Raj Kumar Mehta for the Appellant.
S.G. Sambandhan for the Respondent.
The Judgment of the Court was delivered by RAMASWAMY, J.
The respoudent was found to have sold adulterated cumin (Jira) on March 13, 1976 punishable under s.16(1)(a)(i) read with s.7(1) of the , for short 'the Act '.
Both the courts found as a fact that the adulterated cumin was 254 exposed for sale and PW 1, the Food Inspector, purchased the cumin (Jira) under the provisions of the Act and on analysis by the Public Analyst it was found that it contained 9% foreign seeds as against permissible 7.0%; inorganic (dust, stones, lumps of earth etc.) 0.2% and organic (chaff, sterm, stipules, etc.) at 1.8%.
Accordingly it was found to have been adulterated.
The Magistrate and the High Court acquit ted the respondent on the sole ground that his father Appa Rao was the owner of the shop.
Had that fact been brought to the notice of the sanctioning authority under s.20 of the Act, it would not have permitted to prosecute the respond ent, the son of the owner.
Accordingly placing reliance on Jagan Nath Sahu vs Food Inspector, Jaipur Municipality (1973) 2 Cuttack Weekly Reporter 1556 acquitted the accused and was confirmed by the High Court.
The sole question that emerges for consideration is whether it is necessary that the respondent should be the owner of the shop for being prosecuted for the offences under section 16(1)(a)(i) read with s.7(1) of the Act.
Sub sec tion (1) of s.20 of the Act reads thus: "(1) No prosecution for an offence under this Act shall be instituted except by, or with the written consent of the Central Government or the State Government or a local authority or a person authorised in this behalf, by general or special order, by the Central Government or the State Government or a local authority".
Proviso is not necessary.
Hence omitted.
Section 2 of the Act defines 'adulterated ' that if the articles sold by a vendor is not of the nature, substance or quality demanded by the purchaser, who is to purchase, the article is adulterated.
If the quality or variety of the articles fail below the prescribed standard or its constitu ents are present in quantities not within the prescribed limits of variability, is also adulterated.
It would, there fore, be clear that the word 'adulterated ' was used widely.
If the food or article of food is adulterated, if it is not of the nature, substance or quality demanded by the purchas er and sold by the seller and is to his prejudice , or contains any foreign substance in excess of its prescribed limit, so as to effect injuriously, the nature, substance or quality thereof.
In view of the finding of the courts below that cumin (Jira) was adulterated it is a sale by the vendor to the purchaser in terms of the provisions of the Act.
What s.20 envisages is that no prosecution for an offence under the Act should be instituted except by or by the written consent of the Central Government or the State Government or a local authority or a person otherwise authorised in this behalf by general or special order by the Central Government or the State Government or a 255 local authority.
Therefore, grant of sanction to prosecute for an offence under the Act is a condition precedent.
The relevant criteria under s.20(1) is the competence of the Officer to grant the sanction for the offence.
It does not postulate whether the person sold should be the owner or a servant or a person on behalf of the owner (son of the owner).
Section 7 prohibits manufacture, sale of certain articles of food.
No 'person ' shall himself or any person on his behalf manufacture for sale, or store or sell or dis tribute (i) any adulterated food etc.
The phrase "himself or any person on his behalf ' obviously included any other person like servant, son, father, or agent irrespective of the relationship legal or jural etc.
The person so sold during the course of business either the owner or the person that sold the adulterated food or article of food or both are liable to prosecution.
It is not in dispute that the officer that granted the sanction in this case is the competent officer as a delegate on behalf of the local authority.
Undoubtedly, a valid sanction is a condition precedent.
If no valid sanction was granted by the authority, certainly the accused is entitled to the benefit of statutory infraction, though it is techni cal and be acquitted of the offence.
In Sarjoo Prasad vs The State of U.P., [1961] 3SCR 324, it was contended that a servant who sold food on behalf of his employer was not liable unless it was known that he has done it with knowledge that the food was adulterated.
This court held that s.7 of the Act enjoins everyone whether an employer or a servant not to sell adulterated food and anyone who contravenes this provision is punishable under section 16 without proof of mensrea.
This court repelled the argu ment that the legislature could not have intended, having regard to the fact that large majority of servants in the shops which deal in food are illiterate to penalise servants who are not aware of the true nature of the article sold.
The intention of the legislature must be gathered from the words used in the statute and not by any assumption about the capacity of the offenders to appreciate the gravity of the acts done by them.
There is also no warrant for the assumption that the servants employed in shops dealing in food stuff are generally illiterate.
In the interest of the public health, the Act was enacted prohibiting all persons from selling adulterated food.
In the absence of any provi sion, express or necessarily implied from the context, the courts will not be justified in holding that the prohibition was only to apply to the owner of the shop and not to the agent of the owner who sells adulterated food.
This view was reiterated in Ibrahim Haji Moideen & Anr.
vs Food Inspector ' & Anr., (1976) 2 All India Prevention of Food Adulteration Cases 66.
This court held that for the purpose of conviction under charge on which A 2 was tried.
it was immaterial whether he was an agent or a partner of 256 A 1.
Once it is proved that he sold the adulterated arti cles, he was liable to be convicted under section 16(1) read with s.7 of the Act.
The contention that it is only the owner of the shop that could be convicted was held to be wholly an unsustainable contention.
The Act is a welfare legislation to prevent health hazards by consuming adulterated food.
The mensrea is not an essential ingredient.
It is a social evil and the Act pro hibits commission of the offences under the Act.
The essen tial ingredient is sale to the purchaser by the vendor.
It is not material to establish the capacity of the person vis a vis the owner of the shop to prove his authority to sell the adulterated food exposed for sale in the shop.
It is enough for the prosecution to establish that the person who sold the adulterated article of food had sold it to the purchaser (including the Food Inspector) and that Food Inspector purchased the same in strict compliance with the provisions of the Act.
As stated earlier the sanctioning authority has to consider the material place before it whether the offence of adulteration of food was committed and punishable under the Act.
Once that satisfaction is reached and the authority is competent to grant the sanc tion, the sanction is valid.
It is not necessary for the sanctioning authority to consider that the person sold is the owner, servant, agent or partner or relative of the owner or was duly authorised in this behalf.
We have, therefore, no hesitation to hold that the courts below committed manifest error of law causing miscar riage of justice in holding that the sanctioning authority must be apprised of the status of the person that sold the adulterated food article to the Food Inspector or the pur chaser.
Consequently, the acquittal is set aside and the respondent is held liable to be conviction and accordingly convicted under s.16(1)(a)(i) read with s.7(1) of the Act.
But what is the sentence to be imposed? The offence had occurred on March 13,1976 before the Amending Act has come into force.
Under the unamended Act it was not mandatory to impose the minimum sentence.
For reasons to be recorded the Magistrate may impose the sentence, fine or both for the first offence and it was mandatory to impose minimum sen tence for second or subsequent offences.
As stated, 15 years have passed by from the date of the offence and at this distance of time the ends of justice may not serve to send the respondent to imprisonment.
Suffice that he has undergone, all these years, the agony of the prosecution.
But, however, the sentence of fine of a sum of Rs. 500 is imposed upon the respondent and he shall pay the same.
In default he shall undergo the imprisonment for a period of one month.
The appeal is accordingly allowed.
V.P.R. Appeal allowed.
| On 13.3.1976, it was found that the respondent sold adulterated cumin(Jira).
The Food Inspector purchased the Jira under the provisions of the Act and on analysis the Public Analyst found that it was adulterated.
The respondent was charged u/s.16(1)(a)(i) read with section 7(1) of the .
The Trial Court acquitted the respondent on the ground that his father was the owner of the shop and assuming that if that fact had been brought to the notice of the sanction ing authority section 20 of the Act, it would not have permit ted to prosecute the respondent, the son of the owner of the shop and relying on the Jagannath Sahu 's 252 case (1973)(2) Cuttack Weekly Reporter, 1536.
The High Court on appeal confirmed the acquittal order of the trial court.
On the question, whether it was necessary that the respondent should be the owner of the shop for being prose cuted for the offences section 16(1)(a)(i) read with section 7(1) of the Act, allowing the appeal filed by the State, this Court, HELD: 1.
The Act is a welfare legislation to prevent health hazards by consuming adulterated food.
The mens tea is not an essential ingredient.
It is a social evil and the Act prohibits commission of the offences under the Act.
The essential ingredient is sale to the purchaser by the vendor.
It is not material to establish the capacity of the person vis a vis the owner of the shop to prove his authority to sell the adulterated food exposed for sale in the shop.
It is enough for the prosecution to establish that the person, who sold the adulterated article of food had sold it to the purchaser (including the Food Inspector ) and that Food Inspector purchased the same in strict compliance with the provisions of the Act.
[256 BC] 2.
The sanctioning authority has to consider the mate rial placed before it whether the offence of adulteration of food was committed and punishable under the Act.
Once that satisfaction is reached and the authority is competent to grant the sanction, the sanction is valid.
It is not neces sary for the sanctioning authority to consider that the person sold is the owner, servant, agent or partner or relative of the owner or was duly authorised in this behalf.
[256 C D] 3.
Grant of sanction to prosecute for an offence under the Act is a condition precedent.
If no valid sanction was granted by the authority, certainly the accused is entitled to the benefit of statutory infraction, though it is techni cal and be acquitted of the offence.
The relevant criteria under section 20(1) is the competence of the officer to grant the sanction for the offence.
it does not postulate whether the person sold should be the owner or a servant or a person on behalf of the owner (son of the owner).
[255 A] 4.
No 'person ' shall himself or any person on his behalf manufacture for sale, or store or sell or distribute any adulterated food etc.
The phrase "himself or any person on his behalf" obviously included any other person like servant, son, father or agent irre 253 spective of the relationship legal or jural etc.
The person so sold during the course of business either the owner or the person that sold the adulterated food or article of food or both are liable to prosecution.
[255 B C] 5.
If the article sold by a vendor is not of the na ture, substance or quality demanded by the purchaser, who is to purchase, the article is adulterated.
If the quality or variety of the article fall below the prescribed standard of its constituents are present in quantities not within the prescribed limits of variability, is also adulterated.
The food or article of food is adulterated, if it is not of the nature, substance or quality demanded by the purchaser and sold by the seller and is to his prejudice, or contains any foreign substance in excess of its prescribed limit, so as to effect injuriously, the nature, substance or quality thereof.
The word 'adulterated ' was used widely.
[254 F] 6.
As 15 years have passed by from the date of the offence, the ends of justice may not serve to send the respondent to imprisonment.
Suffice that he bas undergone, all these years, the agony of the prosecution.
In the cir cumstances a sentence of fine of a sum of Rs.500 is imposed, in default the imprisonment for a period of one month.
[256 G] Jagannath Sahu vs Food Inspector, Jaipur Municipality, 1973(2) Cuttack Weekly Reporter 1556, overruled.
Sarjoo Prasad vs The State of U.P., [1961] 3 S.C.R. 324; Ibrahim Haji Moideen & Anr.
vs Food Inspector & Ant., 1976 (2) All India Prevention of Food Adulteration Cases 66, referred to.
|
Criminal Appeal No. 711 of 1991.
From the Judgment and Order dated 28.7.1988 of the Kerala High Court in Crl.
R.P. No. 59 of 1988.
Kapil Sibal and E.M.S. Anam for the Appellant.
A.S.Nambiar and K.R. Nambiar for the Respondent.
The Judgment of the Court was delivered by K. JAGANNATHA SHETTY, J.
We grant special leave and proceed to dispose of the matter.
This appeal against a decision of the Kerala High Court raises an important question concerning the power of the Magistrate to drop proceedings against an accused in a summons case after process is issued.
The facts are simple.
K.M.Mathew appellant is the Chief Editor of Malayala Manorma.
It is a daily newspaper with wide circulation the State of Kerala and seems to be the largest language newspaper in India.
Separate editions of the newspaper are published from different centres,namely, Trivendrum, Kottayam, Cochin and Calicut.
At each of these section there is a separately Editor who is responsible for selection and publication to the items The chief editor is based at Kottayam and he is responsible for the genaral policy of the Daily and various other publicalions of the Manaroma group of publications.
Respondent No. 2 is an case was that the news item published in the Daily.
His case was that the news item was published with the sole object of ridiculing and defaming him.
He lodged a complaint before the court of Addi 367 tional Judicial Magistrate against the Chief Editor, the Printer and Publisher of the newspaper alleging that they have committed an offence punishable under Sections 500 & 34 IPC.
The learned Magistrate examined the complainant on oath and took the complaint on file as CC 496/ 85.
He issued summons to the accused.
The accused upon service entered appearance and pleaded not guilty.
Before the evidence was recorded, the Chief Editor requested the Magistrate to drop the proceedings against him He contended that the complainant has not alleged that the Chief Editor was responsible for selection of the news item and publication thereof.
There was not even an averment in the complaint that the Chief Editor has perused the material or edited before its publication or that it was published with his knowledge or consent.
After hearing the parties the Magistrate accepted the plea of the Chief Editor and dropped the proceedings against him.
To be more precise, the Magis trate directed that the complaint so far as it relates to the Chief Editor could not be proceeded with.
The complainant took up the matter to the High Court in revision.
The High Court allowed the revision and set aside the order of the Magistrate.
The High Court did not examine whether the complainant has or has not made out a case against the Chief Editor.
The High Court rested its conclusion solely on the procedural requirements of the trial of a summons case.
It has been pointed out that in any private complaint triable as a summons case the Magistrate, after taking cognizance of the offence and issuing process, has no jurisdiction to drop proceedings against the accused.
He is bound to proceed under Chapter XX of the Code of Criminal Procedure when the accused enters appearance.
He will have to state the partic ulars of the offence and record the plea of the accused.
When the accused pleads not guilty, he will have to hear the prosecution and take all such evidence produced in support of the prosecution.
Then he will have to hear the accused and take all such evidence produced in support of the de fence.
The High Court went on to state that the question of conviction or acquittal will arise only after recording evidence of the parties.
There is no question of discharging the accused at an intermediate stage.
There is no provision in the Code for dropping the proceedings against any ac cused.
So stating the High Court has directed the Magistrate to proceed with the trial of all the accused.
The High Court seems to be too technical in this regard.
If one reads carefully the provisions relating to trial of summons cases, the power to 368 drop proceedings against the.
accused cannot be.
denied to the Magistrate Section 204 of the Code indicates .
the proceedings before the Magistrate commmences upon taking cognizance of the offence and the issue of summons to the accused.
When the accused enters apperance in response to the summons, the Magistrate has to take proceedings under Chapter .XX of the Code.
But the need to try 'the accused arises ' when they is allegation in the comnplaint that the accused has commited the crime If there is no allegation in the complaint involving the accused.
in the commission of the crime, it i.s implied that the Magistarte has no jurisdlction to proceed against the accused.
It is open, to the accused to plead bfore the Magis tarate that the process against him ought.
no; to have been issued.
The Magistrate may drop the proceedings if he is statisfied on reconsideration of the complaint that there is no offence for which the accuseed could be tried.
It is his judicial desetion .
No specific provision required for the Magistrate t0 drop the proceedings or rescind the proc ess The order issumg the process is an interim order and not a judgment.
It can be varied or recalled.
The fact that the process has already been issued is no bar to drop file proceedings if the complaint on the very face of it does not disclose any offence against the accused In the instant case there is no averment against the Chief Editor except the motive attributed to him.
Even the motive alleged is general and vague.
The complainant seems to rely upon the presumption under Section 7 of the Press and Registration of Books Act, 1867 ( 'the Act '),.
But Sec tion 7 of the Act has no applicability for a person who is simply named as 'Chief Editor '.
The presumption under Sec tion 7 is only against the person whose name is printed as 'editor ' as required under Section 5(1).
There is a mandato ry (though rebuttable) presumption that the person whose name is printed as 'Editor ' is the editor of every portion of that issue of the newspaper of which a copy is produced.
Section 1(1) of the Act defines 'Editor ' to mean 'the person who controls the selection of the matter that is published in a newspaper '.
Section 7 raises the presumption in respect of a person who is named as the editor and printed as such on every copy of the newspaper.
The Act does not recognise any other legal entity for r,rising the presumption.
Even if the name of the Chief Editor is printed in the newspaper.
there is no presumption against him under Section 7 of the Act.
See State of Maharashtra vs Dr. RB.
Chowdhary & Ors., ; U.P. Mishra vs Kamal Narain Sharma & Ors., [1971] 3 SCR 257, Narasingha Charan Mohanty vs Surendra Mohanty, ; and haji C.H. mohamad Koya vs T.K.S.M.A. Muthukoya; , 369 It is important to state that for a Magistrate to take cognizance of the offence as against the Chief Editor, there must be positive averments in the complaint of knowledge of the objectionable character of the matter.
The complaint in the instant case does not contain any such allegation.
In the absence of such allegation, the Magistrate was justified in directing that the complaint so far as it relates to the Chief Editor could not be proceeded with.
To ask the Chief Editor to undergo the trial of the case merely on the ground of the issue of process would be oppressive.
No person should be tried without a prima facie case.
The view taken by the High Court is untenable.
The appeal is accordingly allowed.
The order of the High Court is set aside.
V.P.R. Appeal allowed.
| The appellant the Chief Editor of a leading daily newspaper was arrayed as an accused in the complaint case initated by the respondent no.2, an advocate, who was ag grieved by a news item published in the newspaper before the Additional Judicial Magistrate, sections 500 and 34 I.P.C.
The Magistrate issued summons to the accused appellant, who pleaded not guilty.
The appellant requested the Magis trate to drop the proceedings against him, before the evi dence was recorded, contending that there was no averment in the complaint that he had perused the material or edited before its publications or that it was published with his knowledge or consent.
The Magistrate dropped the proceedings against the appel lant.
The revision, moved by the complainant was allowed by the 365 High Court.
This appeal has been filed by special leave against the order Of the High Court.
Allowing the appeal, this Court, HELD: 1.
The power to drop proceedings against the accused cannot be denied to the Magistrate.
Section 204 of the Code indicates that the proceedings before the Magis trate commences upon taking cognizance of the offence and the issue of summons to the accused.
When the accused enters appearance in response to the summons, the Magistrate has to take proceedings under Chapter XX of the Code.
But the need to try the accused arises when there is allegation in the complaint that the accused has committed the crime.
, If there is no allegation in the complaint involving the ac cused in the commission of the crime, it is implied that the Magistrate has no jurisdiction to proceed against the ac cused.
[368 A C] 2.
It is open to the accused to plead before the Magis trate that the process against him ought not to have been issucd.
Magistrate may drop the proceedings if he is satis fied on reconsideration of the complaint that there is no offence for which the accused could be tried.
It is :his judicial discrction.
[368 C D] 3.
No specific provision required for the Magistrate to drop the proceedings or rescind the process.
The order issuing the process is an interim order: and not a judg ment.
It can be varied or recalled.
The fact that the process has already been issued is no bar to drop the proceedings if the complaint on the very face of its does not disclose any offence against the accused.
[368 D E] 4.
Section 7 of the Press and Registration of Books Act, 1867 has no applicability for a person who is simply named as 'Chief Editor '. 'The presumption under Section7 is only against the person whose name is printed as 'Editor ' as required under Section 5(1).
There is a mandato ry (though rebuttable) presumption that the person whose name is printed as 'editor ' is the editor of every portion of that issue of the newspaper of which a copy is produccd.
The Act does not recognize any: other legal entity for raising the presumption.
Even if the name of the Chief Editor is printed in the newspaper there is no Presumption against him under Section 7 of the Act.
[368 E G] 5.
No person should be tried without a prima ficie case.
For a Magistrate to take congnizance of the offence as against the Chief 366 Editor, there must be positive averments in the complaint of knowledge of the objectionable character of the matter.
The complaint in the instant case does not contain any such allegation.
In the absence of such allegation, the Magis trate was justified in directing that the complaint so far as it relates to the Chief Editor could not be proceeded with.
[369 B, A] State of Maharashtra vs Dr. R.B. Chowdhaty & Ors., ; ; D.P. Mishra vs Kamal Narain Sharma & Ors., [1971] 3 SCR 257; Nara Singh Charan Mohanty vs Suren dra Mohantv; , and Haji C.H.Mohammad Koya vs T.K. S.M.A.Muthukoya, ; , referred to.
|
ICTION: Civil Appeal No. 3197 98 of 1988.
From the Judgment and Order dated 4.4.1988 of the Calcutta High Court in Appeal Nos. 16 and 438 of 1986.
P.P. Rao, M.K. Ramamurthy, S.S. Ray, Raj Kumar Gupta, V.J. Francis, N.M. PopIi, S.K. Nandy, P.K. Dutta and A.D. Sikri for the appearing parties.
The Judgment of the Court was delivered by RANGANATH MISRA, CJ.
I have had the advantage of perus ing the draft judgments prepared by my learned brethren Punchhi and Ramaswamy, JJ.
While Justice Punchhi has gone by the literal construction of the statute, brother Ramaswamy has tried to find out the spirit of the legislation and with a view to conferring the benefit on the workmen, has adopted a construction different from the reported decision of this ) Court.
I agree with Justice Punchhi that the appeals should be dismissed and the judgment of the Division Bench should be sustained.
At the same time, 1 would like to add that the legislative intention should have been brought out more clearly by undertaking appropriate legislation once this Court took a different view in the decision referred to in brother Punchhi 's judgment.
The legislation is beneficial and if by interpretation put by the Court the intention is not properly brought out it becomes a matter for the legi siatture to attend to.
PUNCHHI, J.
The sole question which falls for determi nation in these appeals is, whether on the facts found, the right of the Principal employer to reject or accept work on completion, on scrutinizing compliance with job require ments, as accomplished by a contractor, the immediate em ployer, through his employees.
is in itself an effective and meaningful "supervision" as envisaged under Section 2(9) of the , 19,;8 (,for short the Act)? The said provision, as it stood at the relevant time, is set out below, as is relevant for our purpose: "2(.9 ') 'employee ' means any person em ployed for wages in or in connection with the work of a factory or establishment to which this Act applies and (i) who is directly employed by the principal employer on any work of, or inciden tal or preliminary to or connected 279 with the work of, the factory or establish ment, whether such work is done by the employ ee in the factory or establishment or else where; or (ii) who is employed by or through an immediate employer on the premises of the factory or establishment or under the supervi sion of the principal employer or his agent on work which is ordinarily part of the work of the factory or establishment or which is preliminary to the work carried on in or incidental to the purpose of the factory or establishment; or (iii) whose services are temporarily lent or let on hire to the principal employer by the person with whom the person whose services are so lent or let on hire has entered into a contract of service; The Calcutta Electricity Supply Corporation (India) Ltd., hereinafter referred to as the C.E.S.C. engages var ious contractors to carry out work of excavation, conversion of overhead electric lines and laying of underground cables under public roads, as well as for repair and maintenance of the aforesaid works.
Subhash Chandra Bose & some others, the private respondents herein, were given such contracts, terms and conditions in respect of each were reduced to writing.
They would be adverted to at the appropriate time common as they are to all.
The C.E.S.C. was on notice alerted by the Regional Director of the Employees State Insurance Corpora tion (for short 'E.S.I.C. ') by means of communication dated 26August,1975 that the employees whose wages were being paid through such a contractor would fall within the scope of Section 2(9) of the Act and for reasons and details men tioned in the communication.
Thereupon the C.E.S.C. on its part engaged in correspondence with the Association of Electrical Contractors of Eastern India, a representative body of the contractors who are parties respondents herein, requiring them to comply with the provisions of the said Act immediately or else it will deduct a lumpsum of 7% from their bills.
The Association questioned the move and strong ly refuted such obligation.
After indulging in some corre spondence on the subject, the C.E.S.C. started making deduc tions from their bills on account of contribution to the Employees State Insurance Fund on and from 1984 and contin ued deducting till 1985 at the rate of 10%.
Some more corre spondence ensued, but in vain.
The electrical contractors then moved the High Court of Calcutta on December 6, 1985 by means of a writ petition under Article 226 of the Constitution against the E.S.I.C. and its officers as also the C.E.S.C. as 280 well as the Union of India so as to have the entire basis of the demand and deductions from bills annulled.
It was the categoric stand of the writ petitioners that for carrying out their contracts they were not supervised by the C.E.S.C., the principal employer, and they were carrying out works allotted to them at sites outside the factory estab lishment of the C.E.S.C.
Claiming that there employees did not come within the definition of the; term 'employee ' in Section 2(9) of the Act, they required of the High Court to determine this jurisdictional fact and issue the asked for writ, direction or order appropriate in the case to have it nipped in the bud.
The matter was enter`ained by the High Court and was heard on affidavits.
The dispute necessarily centred round as to whether the C.E.S.C. exercised any supervision while the contracts were being executed, and as to whether the terms thereof, assuming that they were faith fully observed.
amounted to work being carried out under the supervision and gaze of the C.E.S.C.
The respective parties put in supportive affidavits to their respective stands.
A learned Single Judge of the High Court, when seized of the matter, on March 23, 1984, passed an interim order, giving leave to the C.E.S.C. to respond to the notice issued by the E.S.I.C. and avail of the opportunity of being heard.
as required by law, and till then stayed the realisation of the contribution.
The matter was then thrashed by the Regional Director of the E.S.I.C., who on March 30, 1985, passed an order under Section 45 A of the Act holding that the C.E.S.C. was liable to pay Rs. 16,21,564.05 on account of contribution to the Employees State Insurance in respect of employees of its contractors and askedil to pay the same within the time allotted.
This order of the Regional Direc tor of the E.S.I.C. gave legitimacy to the deductions from the bills of the private electrical contractors already made by the C.E.S.C.
But sinceil was otherwise aggrieved of the foisting of the obligation, it moved another writ petition of its own under Article 226 of the Constitution against the E.S.I.C. and others claiming that it was not obliged to demand contributions on account of insurance in: respect of the employees of the electrical contractors.
These two writ petitions were beard together and were dismissed by a learned Single Judge of the High Court on January 11, 1986.
The learned Single Judge construed the contracts between the electrical contractors and ire C.S.E.C., whereunder the contractors were obliged to super vise on their own the work undertaken, so as to held that in the facts and circumstances of the case the ultimate super vision was that of the E.S.I.C.,and hence the Act was ap plicable.
The learned Single Judge also took the view that the Act being a beneficial piece of legislation, enacted for the protection and benefit of workers, required liberal interepretation, as was held by this Court in M.G. Beedi Works vs Union of India, AIR 1974 SC 1952, and then proceed ed to hold that the contractors as supervisors were in the nature of agents of the C.E.S.C., the principal employer.
The learned 281 Single Judge also took the view that since ultimate energis ing of the transmission lines was invariably effected by the C.E.S.C. after proper checks were effected for laying of cables or other maintenance work, that step by itself was "supervision ' so as to attract the provisions of the Act.
Such finding was based on the fact that even though the agreement specified that work was to be done under the supervision of the electrical contractor the C.ES.C. re tained the ultimate power or supervision and in fact did supervise the work executed by the contractors.
It is then that the learned Single Judge abruptly come to the conclu sion that the principal employer could not escape the li ability for the works of his contractors, as the latter was acting as the agent of the principal, , 'red in sense contin ued the view of the Regional Director of the E.S.I.C. Two appeals were filed against the dismissal of the two writ petitions before the Division Bench of the High Court who, after re considering the matter, reversed the learned Single Judge, which has given cause for these appeals by special leave and the poser of the question mentioned at the outset.
Now it is noteworthy that the Regional Director of the E.S.I.C. drew deductions of facts in his impugned order dated March 30,1985 in this manner: "The job which is performed by these employees engaged through the contractors.
was princi pally maintenance and distribution of elec tricity generated by the C.E.S.C. and also consumers ' service.
It was conceded during the course of hearing that after the work entrust ed to such contractors was completed, it was subject to checking by C.E.S.C. for compliance with their job specifications and the work related to main business of the C.E.S.C.
It cannot therefore be argued that merely because such job was performed outside the factory premises as stated, it did not concern the C.E.S.C.
The definition of the term 'premises ' includes such work site where the job of the factory is being done.
1 cannot agree there fore with the argument that such .job was not done for the factory and/or that there was no supervision of the C.E.S.C. over such job.
It could not but be a fact that ( E. ,section C. was executing its own job through lite agency of the coontractors engaged by them.
The C.E.S.C 's contention that they have acted upon the guidelines as provided in the letter dated 26.8.75 does not hold good as the letter dated 26.8.75, Annexure E, issued by the Regional Director of E.S '.I. Corporation.
does not hold good as the said letter only con 282 tained broad guidelines regarding provisions of the E.S.I. Act and the truth has to be ascertained from the realities of the situa tion".
[underlining ours] In place thereof the Division Bench of the High Court taking stock of the admitted facts opined as follows: "There is no dispute that respondent no.4 (ESIC) is the principal employer in respect of the said work and that the appellants (elec trical contractors) are the immediate employ ers of the said employees in connection with the said work.
There is no dispute that the employees of the appellants are not directly employed by the respondent no.4 (ESlC).
There is also no dispute that the employees of the appellants (electrical contractors) do not carry out the aforesaid work either in the premises or the factory or establishment of respondent No. 4 (E.S.I.C.).
It is also not disputed that the work which is carried out by the employees of the appellants (electrical contractors) can be stated to be work ordi narily part of the work of the respondent no.4 (ESIC) or preliminary or incidental to such work.
The only dispute appears to be whether there is any supervision of the employees of the appellants (electrical contractors) by the respondent no.4 (E.S.I.C.) or its agents." [bracketing ours] Commenting on the impugned order of the Regional Director of the E.S.I.C. dated March 30, 1985 afore extract ed, the Division Bench observed as follows: "It has not been found by the respondent no.2 (Regional Director) as a fact that in carrying out the aforesaid work the employees of the appellants are under the supervision of the respondent no.4 or its agents.
All that has been found is that after the works which are entrusted to the appellants axe completed, the same are checked by the respondent no.4.
From the aforesaid it is obvious that it has not been found by the ESI Authorities that there is actual supervision by the respondent no.4 or its agents of the aforesaid works which are performed by the employees of the appellants.
All that has been found is that after the aforesaid work is completed the respondent no.4 checks the same.
In our view, checking of a work after the same is completed and super vision of the same while the same is being performed are entirely different.
Checking of a work after its completion is always done in every case by the person who ordered the same to be done so that the work 283 can be finally accepted and payment made therefor.
After the work is completed, a further checking cannot mean or imply any or any further supervision.
" Vehemently was it urged on behalf of the appellants that the High Court fell in error in giving a restricted meaning to the word 'supervision ' occurring in Section 2(9) of the Act and in taking out the final act of rejection or accept ance of work from the purview of that word.
Strong reliance was placed on a decision of this Court in Royal Talkies vs
E. S.I. C; , , to project that this Court has spelled out that the main aim of the Act was to insure all employees in factories or establishments against sickness and allied disabilities, but the funding.
to implement the policy of insurance was by contribution from the employers and the employees.
In the same breath it was observed that since the benefits belong to the employees and are intended to embrace as extensive a circle as is feasible, the social orientation, protective purpose and human coverage of the Act were important considerations in the statutory construc tion, more weighty than mere logomachy or grammatical nice ty.
Reliance also was placed on Regional Director, E.S.I.C, Trichur vs Ratnanuja Match Industries, in which it was ruled that beneficial legislation such as the Act is to receive a liberal interpretation.
The Court yet ruled that it could not travel beyond the scheme of the statute and extend the scope of it on pretext of extending statutory benefits to those not covered by the scheme of the statute.
The Act being not meant for universal converage, the negatives in the Act, one of them being that the Act did not apply to factories or establishments with less than 20 employees, was taken into account to rule that liberal construction would not go to hold a partner to be an employ ee as he would be a person who would not answer the defini tion.
A judgment of this Court in M/s. P.M. patel & Sons & Others vs Union of India & Ors., [1986] I SCC 32 rendered in the context of the Employees Provident Fund and Miscellane ous Provisions Act, 1952 was pressed into service on behalf of the appellants to contend that when rolled beedis, pre pared by the worker elsewhere, were placed for acceptance or rejection, conforming to the standards envisaged by the manufacturers, that in itself was held constituting an effective decree of supervision and control.
The benefit of the said Act was extended to beedi workers employed through contractors and the question arose whether such workers came within the definition of 'employee ' in Section 2(f) of the said Act.
The definition of the word 'employee ' provided that it shall include any person employed by or through a contractor, in or in connection with work of the establish ment, which words were held wide enough 284 to include work performed elsewhere than the factory itself, including the dwelling house of a home worker, as also that the manufacturing operation, simple as it was, performed by illiterate workers, young and old, subjecting to rejection and acceptance, was by itself an effective degree of super vision and control, establishing the relationship of master and servant.
In whatever manner the word 'employee ' under Section 2(9) be construed, liberally or restrictedly, the construc tion cannot go to the extent of ruling out the function and role of the immediate employer or obliterating the distance between the principal employer and the immediate employer.
In some situations he is the cut off.
He is the one who stumbles in the way of direct nexus being established, unless statutorily fictioned, between the employee and the principal employer.
He is the one who in a given situation is the principal employer to the employee, directly employed under him.
If the work by the employee is conducted under the immediate gaze or overseeing of the principal employer, or his agent, subject to other conditions as envisaged being fulfilled, he would be an employee for the purpose of sec tion 2(9).
Thus besides the question afore posed with regard to supervision of the principal employer the subsidiary question is whether instantly the contractual supervision exercised by the immediate employer (the electrical contrac tors) over his employee was exercised, on the terms of the contract, towards fulfilling a selfobligation or in dis charge of duty as an agent of the principal employer.
P.M Patel 's case can also be no help to interpret the word 'supervision ' herein.
The word as such is not found employed in Section 2(1) of The Employees Provident Fund and Miscellaneous Provisions Act, 1952 but found used in the text of the judgment.
It appears to have been used as a means to establish connection between the employer and the employee having regard to the nature of work performed.
But what has been done in Patel 's case cannot ipso facto be imported in the instant case since the word 'supervision ' in the textual context requires independent construction.
In the ordinary dictional sense "to supervise" means to direct or over see the performance or operation of an activity and to over see it, watch over and direct.
It is work under eye and gaze of someone who can immediately direct a corrective and tender advice.
In the textual sense 'supervision ' of the priucipal employer or his agent is on 'work ' at the places envisaged and the word 'work ' can neither be construed so broadly to be the final act of acceptance or rejection of work, nor so narrowly so as to be supervision at all times and at each and every step of the work.
A harmonious construction alone would help carry out the purpose of the Act.
which would mean moderating the two extremes.
When the 285 employee 'is put to work under the eye and gaze of the prin cipal employer, or his agent, where he can be watched se cretly, accidently, or occasionally, while the work is in progress, so as to scrutinise the quality thereof and to detect faults therein, as also put to timely remedial meas ures by directions given, finally leading to the .satisfac tory completion and acceptance of the work, that would in our view be supervision for the purposes of Section 2(9) of the Act.
It is the consistency of vigil, the proverbial 'a stitch in time saves nine '.
The standards of vigil would of course depend on the facts of each case.
Now this function, the principal employer, no doubt can delegate to his agent who in the eye of law is his second self, i.e., a substitute of the principal employer.
The immediate employer, instant ly, the electrical contractors, can by statutorily compul sion never be the agent of the principal employer.
If such a relationship is permitted to be established it would not only obliterate the distinction between the two, but would violate the provisions of the Act as well as the contractual principle that a contractor and a contractee cannot be the same person.
The E.S.I.C. claims establishment of such agency on the terms of the contract, a relationship express or implied.
But, as is evident, the creation or deduction of such relationship throws one towards the statutory scheme of keeping distinct the concept of the principle and immediate employer, because of diverse and distinct roles.
The defini tion is well drawn in Halsbury 's Laws of England (Hailsham Edition) Vol. 1 at page 193 as follows: "An agent is to be distinguished on the one hand from a servant, and on the other from an independent contractor.
A servant acts under the direct control and supervision of his master and is bound to conform to all reasona ble orders given to him in this course of his work; an independent contractor, on the other hand, is entirely independent of any control or interference and merely undertakes to produce a specified result, employing his own means to produce that result.
An agent, though bound to exercise his authority in accordance with all lawful instructions which may be given to him from time to time by his princi pal, is not subject to its exercise to the direct control and supervision of the princi pal".
AND this statement of law was used with approval by this Court in ; titled as The .Superintendent of post Offices etc.
vs P.K. Rajamma etc.
Now coming to the subsidiary question the High Court took up one particular contract dated January 20,1984 be tween one of the electrical contractors and the C.E.S.C.
The material portion thereof is as follows: 286 "The said contract relates to laying of new undergound cables and conversion of overcad mains and service to underground system at Barrackpore Trunk Road between Paikpare Junc tion to D.F. 1/6 and from Baranagar P/T to D.FI/67.
Please note that you will have to provide competent supervision while carrying out the work in accordance with the provisions of the Indian Electricity Rules, 1956.
You will also have to provide adequate watch and ward ar rangement for the safe custody of the materi als till such time and complete installation is handed over to us.
You will be required to insure against theft and pilferage of all materials while held in your site godown".
The obligation embodied, as is plain, is for the elec trical contractor to provide competent supervision while carrying out the work.
The electrical contractor is other wise a licensee under the Indian Electricity Act and the Rules made thereunder and the conditions of his licence read as follows: "Mr./Messrs.
Eastern Engineers & Constructions is/are hereby authorised to carry out electri cal installation work in the State of West Bengal.
This licence is issued subject to the compliance with the conditions set out on the reverse, and also to the continued compliance with the conditions set out in Regulation 24 of the Regulations under Rule 45(,1) of the Indian Electricity Rules, 1956.
(1) All electrical installation work coming within the purview of Rule 45 (1) of the Indian Electricity Rules, 1956 undertaken by the holder of this licence, shall be car ried out under the direct supervision of a person holding a valid certificate of compe tency. (2) The holder of this licence shall maintain a register of supervision and workmen in the form below and shall produce the regis ter for inspection on demand by an Electrical Inspector or other person authorised in this behalf the Licensing Board.
(3) On the completion of any electrical installation work coming within purview of rule 45(1) of the Indian Electricity Rules, 1956, a test report in the form prescribed by the Board shall be submitted by the holder of this licence to the Secretary.
The report shall be signed by the supervisor under whose supervision the work has been carried out, 287 and countersigned by the holder of this li cence, who shall be wholly responsible for the due execution of the work.
(4) If the holder of this licence ceases to be in possession of a valid supervisor 's certificate of competency, ceases to retain in his said employment at least one supervisor holding valid certificate of competency, this licence shall be invalid.
(5) If the holder of this licence accepts an employment under any other firm or person for the purpose of carrying out or supervising any electrical installation work coming within the purview of rule 45(1) of the Indian Elec tricity Rules, 1956 this licence shall be invalid and the holder shall return the same to the Secretary for cancellation.
The terms and conditions of the licence postulate the licensee to carry out the installation work of the kind mentioned under the direct supervision of a person holding a valid certificate of competency.
For that purpose the licen see shall maintain a register of supervision.
Such register is open to inspection on demand by an electrical inspector or other person authorised in this behalf by the Licensing Board.
On completion of the installation work of the kind mentioned, a test report shall be submitted by the licensee to the Secretary, which report shall first be signed by the supervisor under whose supervision the work had been carried out and then countersigned by the licensee who shall be wholly responsible for the due execution of the work.
The licence further enjoins the licensee either to retain a valid supervisory certificate of competency or keep one such person retained in his employment failing which the licence can be invalidated.
Same is the position if the licensee accepts employment under any other firm or person for the purpose of carrying out or supervision any electrical in stallation work of the kind mentioned.
In that situation, the license is to be returned to the Secretary for cancella tion.
On the conjoint reading of the contract with the C.E.S.C. and the terms and conditions of the licence, assum ing the terms were to be faithfully obeyed, could it other wise be held that the C.E.S.C. could appoint the electrical contractor as its agent to have the work carried out under the latter 's supervision, in place of C.E.S.C.
As is evi dent, the contract relates to laying of new underground cables, conversion of overhead mains and service and mainte nance to the underground system.
The work being highly sophisticated in nature, requiring special skill and exper tise, is given by the C.E.S.C. to the contractor on the condition that the latter will have to provide competent supervision while the work progresses, in ac 288 cordance with the provisions of the Indian Electricity Rules, 1956, which, in the larger interest of the electrical network and community and its safeguards, require an elec trical contractor obtaining a licence to carry out electri cal installation work of the kind mentioned.
Then the Rules obligate him to take in his services a person holding a valid certificate of competency under whose direct supervi sion the work is required to be carried out, and on comple tion its final report being first signed by the supervisor supervising the work and then countersiged by the holder of the licence, who will be responsible for the due execution of the work.
The licence is capable of being rendered in valid or liable for cancellation due to nonemployment of a supervisor given in the terms and conditions.
Even if, the terms of the contract and the terms and conditions of the licence, the first being at the behest of the C.E.S.C and the second being at the behest of the Government of West Bengal, be suggested to be complementing each other, still these cannot be so interplayed to mean that an agency, express or implied, has been created by the C.E.S.C. in favour of the electrical contrator appointing him to super vise work as envisaged under Section 2(9) of the Act, and thus to have established a direct link between the employee and the C.E.S.C. to the exclusion of the electrical contrac tor.
Section 182 of the defines "agent" as a person employed to d3 any act or to represent another in dealing with third person, the person for whom such act is done, or is so represented is called the "prin cipal".
Section 184 of the said Act further provides that as between principal and the third person any person may become an agent so as to be responsible to his principal.
Now it is to be understood that the agent has an identity distinct from his principal in one sense and a fictional identity with his principal in the other.
The agreement nowhere amalgamates the identity of the electrical contractor with that of the principal (C.E.S.C) by undertaking to provide adequate supervision for the purposes of the Act, on behalf of the C.E.S.C.
The agreement no doubt provides that the electrical contractor would provide adequate supervision while carrying on with the work, the purpose dominant is to safeguard obtaining quality work and safety safeguards, and to conform to the provisions of the Electricity Supply Act.
To the Division Bench of the High Court it was obvious that the Regional Director of the E.S.I.C. had nowhere found that there was actual supervision, either by the C.E.S.C or its duly appointed agents, over works which were performed by the employees of the electrical contractors.
All that has been found is that the said works on completion were checked by the C.E.S.C. and then accepted.
Checking of work after the same is completed and supervision of work while in progress is not the same.
These have different perceptions.
Checking 289 of work on its completion is an activity, the purpose of which is to finally accept or reject the work, on the touch stone of job specifications.
Thereafter, if accepted, it has to be paid for.
Undisputably electrical contractors had to be paid on the acceptance of the work.
This step by no means is Supervision exercised.
Neither can it be the terminating point of an agency when the interests of the so called principal and the so called agent become business like.
Besides, the High Court has found that the work done by employees was under the exclusive supervision of the elec trical contractors or competent supervisors engaged by them trader the terms of the contract and the licence.
By neces sary implication supervision by the C.E.S.C. or its agents stood excluded.
Supervision rested with persons holding valid certificates of competency for which a register of supervision was required under the licence to be maintained.
Under the contracts, the electrical contractors cannot in one breath be termed as agents of the C.E.S.C., undertaking supervision of the work of their employees and innately under the licence to have beforehand delegated that function to the holder of the certificate of competency.
Thus we hold that on the terms of the contract read with or without the terms of the licence, no such agency, factually or legally, stood created on behalf of the C.E.S.C. in favour of the electrical contractors, and none could be, as 'hat would violate the statutory scheme of distinction well marked under Section 2(a) of the Act.
The supervision taken was to fulfil a contractual obligation simplicitor and we leave it at the level.
Thus on both counts, the principal question as well as the subsidiary question must be answered against the ESIC holding that the employees of the electrical contractors, on facts and cricumstances, established before the Division Bench of the High Court, do not come in the grip of the Act and thus all demands made towards ESI contribution made against the C.E.S.C. and the electrical contractors were invalid.
We affirm the view of the High Court in that re gard.
The appeals are accordingly dismissed.
In the circum stances, however, we make no order as to costs.
K. RAMASWAMY, J. From the midst of personal warmth 1 am enjoying with my learned brethren, I have to cool off from the discomfortable breeze generated by the draft judgment of brother Punchhi, J., given my anxious reflections of its consequences and with due respect, 1 express my inability to fail in line with.
The 34 of 1948 (for short 'the Act ') seeks to serve the twin objects namely, social security i.e. medical 290 benefits in case of sickness, maternity and employment injury and other matters relating thereto and to augment the efficient performance of the duty.
The respondents (immedi ate employers) had contracts with the Calcutta Electricity Corporation (India) Ltd. (for short 'the Corporation '), the Principal employer, to carry out excavation, erection of overhead electric lines and laying of underground cables beneath public roads as well as their repairs and mainte nance.
The Act enjoins the employer to contribute his 50% share towards medical reimbursement with a proportionate cut from the wages of the employees and to debit it to the Employees ' State Insurance Corporation fund to render medi cal assistance etc.
to the employees.
In consequence there would be cut, to the extent of 10% or as may be specified from time to time, in the "profit packet" of the immediate employers.
For some time, it was complied with but late assailed their liability under article 226 of the Constitution.
The conflagration of the claims between the immediate em ployers and their employees gave rise to the lis.
The imme diate employers arming themselves with independent contrac tor 's clout summon the services of the "gramarian" and tells him that "our contracts with the Corporation are bilateral untramelled by routine supervision or agency with the Corpo ration under section 2(9) of the Act and tell us whether your "golden rule" does not apply to us? Like Shylock, are we not entitled to prevent inroad into our profit pocket not even a farthing from minimal of 10%, though the workman may give us efficient service on receiving medical treatment ?" The employees request the social engineer to sharpen his foren sic skills of his instruments to provide them social secunty from health and occupational hazards fastering a part of the liability on the immediate employers whom they serve.
Wheth er the social engineer would avoid unjust result like Port jo 's judgment ? Whether the words in the contract would be masters by golden rules ? Whether the words "Supervision" or "agent" in s.2(9) of the Act would be so construed or adopt ed by purposive approach as to do what justice and equity required ? The result of the combat between the granmarian and the social engineer would provide the answer to these searching questions.
Before adverting to angle into their perceptions, it is of utility to keep abreast the brass facts that lie in a short compass.
The Corporation had from the State Govt.
Licensor, licence under s.3 of the Indian Electricity Act 9 of 1910 (for short the 'Electricity Act ') to generate, transmit and supply electrical energy to the consumers of the area.
The Corporation is enjoined to erect electric supply lines and also overhead lines, service lines, under ground cables through which energy is to be supplied to the either distributing main or immediately from the suppliers ' premises etc.
It entered into contracts with the respondents to lay undergound cables, to erect overhead lines, their repairs and maintenance and for execution thereof employed their own employees.
291 The Elecricity Act empowers the Corporation as licensee, under section 12 thereof, to open and break Up the soil etc.
and lay down electricity supply lines and other works, repair, alter or remove the same and do all other acts necessary for due supply of energy.
It also empowers under Sec. 13 to execute new works in compliance of that section.
Under Sec.
14 & 15 it is empowered alteration of the pipes or wires.
10 empowers a licensee to place any overhead lines along or across any street etc.
20 empowers the licen see or "any person duly authorised by a licensee" to enter upon any premises, at reasonable time on prior intimation to the occupier of any premises or land etc.
upon which the electricity supply line or other works have been lawfully placed for the purpose of (a) inspecting, testing, repairing or altering the electricity supply, lines meters, fittings, works and apparatus for the supply of energy belonging to the licensee etc.
Thus, the Corporation, as a licensee, is ordinarily and as an integral scheme, to execute the works or duly authorise on its behalf any other person to execute any of the works enumerated herinbefore or inspection, repair, testing or alteration of the works and maintenance thereof.
A conjoint reading of section section 3 (2) (b) of the Electricity Act and Clause (1) (a) of the Schedule shows that the licen see is required to show to the "satisfaction of the State Government that the Corporation is in a position to fully and efficiently discharge the duties and obligations imposed upon him by the licence throughout the area of the supply.
On its failure, the State Govt.
under section 4 (1) (c) (i) is entitled to revoke the licence.
In terms of section 15(1) "the duly authorised persons" of the licensee is to operate under the Act to lay new electric supply lines or other works etc.
Equally Clause V (1) of the Schedule provides to lay down distributing mains for public lighting of any street on a requisition made by two or more owners of occupiers of the premises.
The Indian Electricity Rules, 1956 (for short 'the Rules ') made under section 37 of the Electricity Act provides the procedure in this regard.
Rule 36 adumberates handling of electric supply lines.
apparatus.
only "by authorised per son" who is required to take safety measures "approved by the electrical Inspector", appointed under section 36 of the Electricity Act.
Sub rule (2) of Rule 36 provided thus: "No person shall work on any live electric supply line or apparatus and no person shall assist such person on such work, unless he is authorised in that behalf and takes the safety measures approved by the Inspector".
Rule 45 provides precautions to be taken by electrical workmen, suppliers etc.
Unless electrical contractor, li censed in this behalf by the 292 State Govt., appoints a person holding a certificate of competency and a permit in this behalf issued or recognised by the State Govt.
, the contractor shall not be entitled to undertake any installation work etc.
Rule 51 provides cer tain safety measures to be taken to the satisfaction of the Inspector so as to prevent danger.
Rule 64 requires an authorised person to carry out the acts mentioned therein subject to the supervision provided in Clause (b) thereof by the Electrical Inspector.
Rule 123(4) speaks of examination of flexible cables by authorised persons and Rule 125(8) enjoins that all apparatus to be operated only by those persons who are authorised for the purpose.
It could, thus, be seen that the Corporation as a licen see is empowered and enjoined to lay the works production, transmission and distribution of electrical energy to the consumers within the area of supply.
It is also authorised to entrust, any person authorised by it in this behalf, to perform the duties of the licensee under the Act and the Rules.
The contractor in turn appoint a qualified supervisor to have works executed and maintained or repaired, subject to inspection and supervision by the Electrical Inspector of the State Govt.
The primary duty and responsibility is that of the Corporation as the Principal employer to have the works etc.
executed, repaired and maintained through its employees.
It duty authorises the contractor to have these works done, repaired or maintained, on its behalf, though the media of contract.
The question emerges whether the respondents are not immediate employers executing the works etc.
under the supervision of the Principal empleyer or as its agents ? From the above backdrop of statutory operation, the scope of section 2(9) is to be gauged which reads thus: "2(9) 'employee ' means any person employed for wages in or in connection with the work of a factory or establishment to which this Act applies and (i) who is directly employed by the principal employer on any work of, or inciden tal or preliminary to or connected with the work of, the factory or establishment, whether such work is done by the employee in the factory or establishment or elswhere; or (ii) who is employed by or through an immediate employer on the premises of the factory or establishment or under the supervi sion of the principal employer or his agent on work which is ordinarily part of the work of the factory or establishment or which is preliminary to the work carried 293 on in or incidental to the purpose of the factory or establishment; or (iii) Whose services are temporarily lent or let on hire to the principal employer by the person with whom the person whose services are so lent or let on hire has entered into a contract of service .
" It encompasses employees employed for wages in or in connection with the work of a factory or establishment to which the Act applies (i) who are directly employed by the principal employer or (ii) employed by or through "an imme diate employers"; and whose services are temporarily lent or let on hire to the principal employer by the person with whom the person is entered into a contract of service.
Clause 2(9)(ii) (applicable to the facts on hand) in turn attracts a person employed by or through an immediate em ployer as an employee of the principal employer provided the following conditions are satisfied, namely, (1) the immedi ate employer employs an employee on the premises of the factory or establishment of the principal employer; (2) "or under the supervision of the principal employer"; (3) this agent on work which is ordinarily part of the work of the factory or establishment or which is preliminary to the work carried out in or incidental to the purpose of the factory or establishment.
Clauses (i) and (iii) of section 2(9) are inapplicable to the facts.
Article 25(2) of Universal Declaration of Human Rights, 1948 assures that everyone has the right to a standard of living adequate for the health and well being of himself and of his family . including medical care, sickness, disa bility . . ,article 7(b) of the International Convention on Economic, Social and Cultural Rights, 1966 recognises the right of everyone to the enjoyment of just and favourable conditions of work which ensure, in particular, safe and healthy work ing conditions.
Article 39(e) of the Constitution enjoins the State to direct its policies to secure the health and strength of workers.
The right to social justice is a funda mental right.
Right to livelihood springs from the right to life guaranteed under Art.21.
The health and strength of a worker is an integral fact of right to life.
The aim of fundamental rights is to create an egalitarian society to free all citizens from coercion or restrictions by society and to make liberty available for all.
Right to human digni ty, development of personality, social protection, right to rest and leisure as fundamental human rights to common man mean nothing more than the status without means.
To the tillers to the soil, wage earners, labourers, wood cutters, rickshaw pullers, scavengers and hut dwellers the civil and political right are 'mere cosmetic ' rights.
Socio economic and cultural rights are their means and relevant to them to realise the basic aspirations of meaningful right to life.
The Universal Declaration of Human Rights, International Conventions of Economic, 294 Social and Cultural Rights recognise their needs which include right to food, clothing, housing, education, right to work, leizure, fair wages, decent working conditions, social security, right to physical or mental health, protec tion or their families as integral part of the right to life.
Our Constitution in the Preamble and Part IV reinforce them compendiously as socioeconomic justice, a bed rock to an egalitarian social order.
The right to social and econom ic justice is thus fundamental right.
In World Labour Report 2, at Chapter 9 (Safety and Health) it is stated that "in every three minutes somewhere in the world one worker dies and in every second that passes at least three workers are injured".
In India on an average every day 1100 workers are injured and three are killed "in industrial establishments" vide (Lawyer Oct. 1987 page 5).
In 26th I L.O. Convention held in Philadephia in April 1944, recommendation No. 69 laid down norms for medical care for workers.
In October 1943, the Government of India appointed Health Survey and Development Committee known as Sir Joseph Bhore Committee which laid emphasis on "Preventive Schemes".
I.L.O. Asian Regional Conference held in Delhi in 3947, resolved that in very scheme for medical care in any Asian country the need for the prevention of disease and the improvement of the general standard of health must be con sidered as of almost importance.
The Act had culminated in its birth of these recommendations providing in a limited area social security to the employees from health and occu pational hazards.
The term health implies more than an absence of sick ness.
Medical care and health facilities not only protect against sickness but also ensures stable man power for economic development.
Facilities of health and medical care generate devotion and dedication to give the workers ' best, physically as well as mentally, in productivity.
It enables the worker to enjoy the fruit of his labour, to keep him physically fit and mentally alert for leading a successful economic, social and cultural life.
The medical facilities are, therefore, part of social security and like gilt edged security, it would yield immediate return in the increased production or at any rate reduce absentecism on grounds of sickness, etc.
Health is thus a state of complete physical, mental and social well being and not merely the absence of disease or infirmity.
In the light of articles 22 to 25 of the Universal Declaration of Human Rights, International Conven tion on Economic, Social and Cultural Rights, and in the light of socio economic justice assured in our Constitution, right to health is a fundamental hUman right to workmen.
The maintenance of health is a most imperative constitutional goal whose realisation requires interaction by many social and economic factors.
Just and favourable condition of work implies to ensure 295 safe and healthy working conditions to the workmen.
The periodical medical treatment invigorates the health of the workmen and harnesses their human resources.
Prevention of occupational disabilities generates devotion and dedication to duty and enthuse the workmen to render efficient service which is a valuable asset for greater productivity to the employer and national production to the State.
Yet in the report of the Committee on Labour Welfare, 1969 in paragraph 5.
77of Chapter 5, reveals that, private employers generally feel that this burden shall not be cast upon them.
" The Act aims at relieving the employees from health and occupational hazards.
The interpretation calls for in this case is of the meaning of the meanings 'supervision ' and 'agent ' in s.2(9) (ii) of the Act.
The legal interpretations is not an activity sui generis.
The purpose of the enactment is the touch stone of interpretation and every effort would be to give effect to it.
The judge acts as a vehicle of communication between the authors and the recipients.
The end result is to promote rule of law and to enliven social order and humane relations.
In Senior Electric Inspector & Others vs Laxmi Narayan Chopra & Ors., ; at p. 156, K. Subba Rao, J. (as he then was) for unanimous Court held thus: "In a modern progressive society it would be unreasonable to confine the intention of a Legislature to the meaning attributable to the word used at the time the law was made, for a modern Legislature making laws to govern a society which is fast moving must be presumed to be aware of an enlarged meaning the same concept might attract with the march of time and with the revolutionary changes brought about in social, economic, political and scientific and other fields of human activity.
Indeed, unless a contrary intention appears, an interpretation should be given to the words used to take in new facts and situations, if the words are capable of comprehending them." In M. Pentiah & Ors.
vs Muddala Veermallappa & Ors., ; at p. 313 in a separate but concurrent judgment, Sarkar, J. held "Where the language of a statue, in its ordi nary meaning and grammatical construction, leads to a manifest contradiction of the apparent purpose of the enactment, or to some inconven 296 ience or absurdity, hardship or injustice, presumably not intended, a construction may be but upon it which modifies the meaning of the word, and even the structure of the sentence".
This court approved the ratio in Seaford Court Estates Ltd. vs
Asher, at 164, Denning, L.J. who said, "When a defect appears a judge cannot simply fold his hands and blame the draftsman.
He must set to work on the constructive task of finding the intention of Parliament . and then he must supplement the written word so as to give "force and life" to the inten tions of the legislature . .
A judge should ask himself the question how, if the makers of the Act had themselves come across 'his ruck in the texure of it, they would have straightened it out ? He must then do as they would have done.
A judge must not alter the material of which the Act is woven, but he can and should iron out the creases".
I conceive it my duty, therefore, so read the new Act, unless I am prevented by the intrac tability of the language used, as to make it carry out the obvious intention of the legis lature".
In Massachusetts Bonding & Insurance Co. vs United States of America, ; ed 2d 189; Frankfurther, J., speaking per himself, joined by Reed, Clark, and Brennan, JJ.
held at headnotes 8 & 9 thus: "On more than one occasion, but evidently not frequently enough, Judge Learned Hand has warned against restricting the mean of a statute to the meaning of its "plain" words.
"There is no surer way to misread any document than to read it literally. " Of course one begins with the words of a statute to ascer tain its meaning, but one does not end with them.
The notion that the plain meaning of the words of a statute defines the meaning of the statute reminds one of T.H. Huxley 's gray observation that at times "a theory survives long after its brains are knocked out.
" One would suppose that this particular theory of statutory construction had had its brains knocked out in Boston Sand & Gravel C.v.
United States; , , 48; , , 177; , The words of this legisla tion are as plain as the Court finds them to be only if the 1947 amendment is read in misleading isolation.
An amendment is not a repeal.
An amendment is part of the legisla tion it amends.
The 1947 amendment to the Federal Tort Claims Act of 1946 must be read to harmonise with the central purpose of the original 297 Act.
The central purpose of the original Act was to allow recovery against the United States on the basis and to the extent of recoveries for like torts committed by private tortfeasors in the State in which the act or omission giving rise to the claim against the United States occurred.
The 1947 amendment filled the gap, a very small gap, that was disclosed in the scheme formulated by the 1946 Act".
In Atma Ram Mittal vs Ishwar Singh Punia, ; , this Court held that the purpose of interpretation in a social amelioration legislation is an imperative irrespec tive of anything else.
It was further held that the con tents, subject matter, the effects and consequences or the spirit and reason of the law shall be taken into account.
The words must be construed with the imagination "of purpose behind them".
(emphasis supplied) Therefore, in an attempt to construe the provisions of the statute construction, as a balancing wheel, should be meaningful so as to make the statute workable and not to render it futile or sterile.
Whenever strict interpretation of the statute gives ' rise to unjust situation or results, the Judges can ensure their good sense to remedy it by reading words in, if necessary, so as to do what Parliament would have done had they had the situation in mind.
The meaning of the same words in a statute may be mended in the laborynth of interpretation and may be enlarged or restrict ed in order to harmonise them with the legislative intention of the entire statute.
The spirit of the statute would prevail over the literal meaning.
The jurisprudence and principle, therefore, in such a situation, would be the contextual interpretation to subserve the constitutional scheme and to alongate the legislative purpose, harmonising the individual interest with the community good so as to effectuate social transformation envisioned in the preamble of the Constitution.
Let me, therefore, consider the arebit of the word 'supervision ' under s.2(9) (ii) of the Act.
In Webster Comprehensive Dictionary (International Edition) the word 'supervision ' has been defined at page 1260 in Vol.
II as "authority to direct or supervise", supervise means have a "general oversight of '.
"In Corpus Juris Secundum", Vol 83 at page 900 it is stated that The word "supervision" is not of the precise import and when not limited by the context is broad enough to cover more than one subject.
It implies oversight and direction, and does not necessarily exclude the doing of all manual labour, but may properly include the taking of an active part in the work".
"Supervision" is defined as meaning "the 298 act of overseeing or supervising; having general oversight of, especially as an officer vested with authority; inspec tion; oversight; superintendence.
" The Words and Phrases, Permanent Edition, Vol.
40A defines that the "Supervision" means oversight, an act of occupation of supervision; in spection.
"Supervision" is an act of overseeing or supervi sion; having general oversight of, especially as an officer vested with authority; inspection; oversight; superintend ence, "Control" is the act of superintending; care and foresight for purpose of directing and with authority to direct; power or authority to check or restrain; restraining or directing influence; regulating power.
Contract of em ployment to "supervise" construction of power plant, steam distribution system held to require time and attention to work needed to see that it was properly and promptly done, regardless of number of hours spent there on.
The word "supervision" is not one of precise import and is broad enough to require either supervisor 's constant presence during work supervised or his devotion thereto if only time necessary to see that it complies with contract specifications, advise as to details, prepare necessary sketches and drawings, etc.
In Owen vs Evans & Owen (Buuilders) Ltd., [1962] 1 Weekly Law Reports 933 the Court of Appeal was called upon to consider the meaning of the words "immediate supervision" under Building (Safety, Health and Welfare) Regulations, 1948.
Whether the presence of the supervisor is necessary at all times? It was held No. Ormerod, L.J. held that in each case the question must be decided how much supervision is re quired in the circumstance of the case being considered? If every move was fraught with danger, then clearly supervision of the most constant kind would be demanded, and the super visor must be there all the time.
On the other hand, there may be certain parts of the work, if not the Whole of it, which do not give rise to any foreseeable danger, and in those circumstances it may well be that the intention of the regulation is that supervision need not be so strict.
Up john, L.J., as he then was, while agreeing held that the real question is whether there was a supervision for the purposes of the regulation and was that a proper or adequate supervision? The regulations are formulated for the protec tion of the workman, but, at the same time, they must be given a practical effect.
The degree of supervision must entirely depend upon the task, and it cannot mean that there must always be a constant supervision throughout.
There may be times during a demolition failing within regulation 79(5) where a particular operation is a dangerous one.
That cannot always be avoided, and it may be that the danger is such that the supervisor must give a constant supervision during that time.
But there will be other times where the particu lar operation is a simple one, involving no danger to a building labourer.
Then the supervisor may properly go away and perform other tasks.
He may answer to the telephone or supervise other groups.
All depends on the fact of each case.
299 In Regional Director, E.S.I.C vs South India Flour Mills (P) Ltd. , this Court held that the defintion of the term 'employee ' under s.2(9) of the Employ ees ' State Insurance Act, 1948 is "very wide and includes within it any person employed on any work incidental or preliminary to or connected with the work of a factory or establishment".
Any work that is conducive to the work of the factory or establishment or that is necessary for the augmentation of the work of the factory or establishment will be incidental or preliminary to or connected within the work of the factory or establishment.
The casual employees shall also be brought within it and held that they are entitled to the benefits under the Act.
The casual labour employed to construct additional buildings for expansion of the factory were held to be employees under the Act.
It was also held that the Act is a piece of social security legis lation enacted to provide for certain benefits to the em ployees in case of sickness, etc.
It was further held that the endeavour of the Court should be to interpret the provi sions liberally in favour of the persons for whose benefits the enactment has been made.
This Court upheld the view taken by A.P., Karnataka and Punjab and Haryana High Courts in A. P. State Electricity Board vs Employee 's State Insur ance Corporation, Hyderabad, AP; Regional Director, Bangalore vs Davangere Cotton Mills, and E.S.I.C, Chandigarh vs Oswal Woolien Mills Ltd., & H) (F.B.).
that casual employees are employees within the meaning of the term "employee" defined in s.2(9) of the Act.
In Birohichand Sharma vs First Civil Judge, Nagpur & Ors., ; this Court considered whether the piece rate worker is a worker within the meaning of s.2(1) of the .
The facts found were that there was no fixed hours.
They made payment to the work done at piece rate.
It was open to the workmen to absent from work without leave.
They were not given any specific work, but the management had "the right to reject" (emphasis supplied) the Bidis prepared by them, if the Bidis do not come upto the proper standard.
On those facts, it was held "the right of rejection is a supervision" connecting the work and the employment.
Accordingly it was held them to be workmen.
The same ratio was followed in D.C. Dewan Mohideen Sahib & Sons vs The Industrial Tribunal Madras.
, ; In Nagpur Electric Light & Power Co. Ltd. vs Regional Director, E.S.I.C [1967] 3 SCR Reprint 92 the employees employed outside the factory or establishment as Cable Jointer.
Mistri, Lineman, Coolies and Vanman for inspection of lines, digging the pits, erection, distribution and service . line were held to be employees within the meaning of s.2(9) (i) of the Act, In Kirloskar Pneumatic Co. Ltd. vs Employees ' State Insur ance Cor 300 poration, a division Bench of the Bombay High Court, speaking through my learned brother P.B. Sawant, J., as he then was, also took the same view and held that the employees engaged for repairs, site clearing, construc tion of buildings, etc.
of the principal employer are em ployees within the meaning of s.2.(9) of the Act.
In Royal Talkies, Hvderabad & Ors.
vs Employees State Insurance Corporation, ; interpreting s.2(9) (ii) of the Act, this Court held that the Cycle Stand or Canteen are for better amenities to the customers and improvements of busi ness in Cinema.
The appellant, as the owner, leased out the Cycle Stand and Canteen under instrument of leases to the contractors, who employed their own employees to run the Canteen and the Cycle Stand.
It was held that vis a vis the employees of the Contractors, the cinema owner was held to be the principal employer.
It was further held that it is enough if the employee does some work which is ancilliary, incidental or has relevance or linked with the job of the establishment, amenities or facilities to the cine goers has connection with the work of the establishment.
The employees of the Canteen and the Cycle Stand were held to have been employed in connection with the work of the establishment.
The case M/s P.M. Patel & Sons & Ors.
vs Union of India & Ors.
, ; though arose under the , the principle laid therein applies on all fours to the facts of the case.
The appellants therein were engaged in the manu facture and sale of Bidis.
The work of rolling Bidis was entrusted to the contractors who in turn got the work pre pared at workers homes, after obtaining materials either directly from the manufacturer or through the contractors.
The contractors treated the workers as their own employees and get their work done at the workers ' premises or contrac tors ' premises.
It was contended that the workers engaged by the contractors were not their workmen under that Act.
This Court by a Bench of three Judges negatived their contention and held that in the context of conditions and the circum stances in which the home workers or manufacturer go about their work including receiving of raw materials, rolling of Bidis at home and delivering them to the manufacturer sub ject to the right of rejection, there is sufficient evidence of the requisite "degree of control and supervision" for establishing relationship of master and servant between the manufacturer and the home workers.
This ratio does support the conclusion that a connecting link between the finished product and the work of the establishment is sufficient; neither the manner of actual performance of the duties decisive nor the actual control or the supervision of the work a material ingredient.
Incidental connection with the ultimate business activities of the manufacturers and right to rejection is the con 301 trol and would be the balancing wheel to attract the provi sions therein.
The extended purposive construction was applied to give effect to the social security provided under the Employees Provident Fund , 'red Miscellaneous Provisions Act, 1952.
In Superintendent of post Office vs P.K, Rajamma, [1977] 3SCR 678 the question was whether the extra departmental agents serving in Post and Telegraph Department were agents or held civil post within the meaning of article 31112) of the Constitution.
This Court while holding that they held civil post attracting Art.311(2) of the Constitution approved the passage from Halsbury 's Laws of England (Hailsham edition) of the distinction between agents, servants or independent contractors.
The contractual relation therein inter se does not apply to the tacts of this case.
The Act does not give its own definition of the word "supervision".
Therefore, it must be construed in the con text the ultimate purpose the Act aims to serve and the object behind the Act, i.e. to extend sickness benefits and to relieve the employee from occupational hazards consistent with the constitutional and human rights scheme.
Under the Electricity Act and the Rules, the Corporation, licencee, is enjoined to performthe acts and duties contemplated thereun der to lay overhead lines, underground cables, their repairs and maintenance thereof, etc.
It authorised, under the contract, the immediate employer to perform, on its behalf, those acts and duties.
The immediate employer would get the work done through their employees employed for that purpose.
It is not a sporadic work but a constant and on going proc ess, so long as the licencee generates, transmits and sup plies electrical energy to the consumers of their supply area.
Had the principal employer performed those acts and duties through its employees, indisputably.
their employees would be covered under the Act, though the work was got done at highways or at places other than the factory or the establishment.
When the principal employer authorises the respondents as its contractors under contracts the need for constant supervi sion is obviated relegating that function to its immediate employers.
Otherwise the need for contracts would be redun dant.
The Corporation retained, under the contract, the power of acceptance or rejection of the work done or super vision effected in maintenance of the work got done by the immediate employer, subject to over all supervision by the Electrical Inspector, on behalf of the State Government.
The supervision in the I,act situation is not the day to day supervision but legal control, i.e. right to accept or reject the work done or maintenance effected.
The exercise of right of acceptance or rejection is the supervision as envisaged in the contract between the principal employer and the immediate employer.
It would supply the needed unifying or connecting 302 thread between the constitutional creed of social justice i.e. social security under the Act and supervision of the acts or duties by the principal employer vis a vis the employees of the immediate employer under the contract who ultimately perform them on behalf of the principal employer.
Undoubtedly in a bilateral contract between the corporation and the respondents qua their rights and liabilities under the contracts, strict interpretation of the words engrafted therein, be of paramount relevance and call for attention as per Contract Act.
But in the context of the statutory inter pretation of "supervision" under the Act of the works under taken under the contract, the interest of the workmen or the welfare schemes for the employees under the Act interposed and call attention to and need primacy.
In its construction the courts must adopt contextual approach to effectuate the statutory animation, namely, social security.
The literal interpretation would feed injustice in perpetuity denying to the employees of sickness benefit etc.
under the Act which should be avoided, lest the purpose of the Act would be frustrated.
The contention that the respondents being independent contractors are not agents of the licencee, corporation, is also devoid of force.
It is seen that under sections 15 & 20 etc.
and the relevant rules the authorisation given by the corpo ration through the media of the contracts enabled the re spondents to step into its shoes to do the acts or perform the duties under the Electricity Act and Rules which are ordinarily of the Corporation.
The contract is an authorisa tion to do those acts on behalf of the principal employer.
The application of the golden rule to the word "agency" under the between the respondents and the corporation, perhaps, does not encompass agency in strict sense under the Act.
But public policy of the Act, the constitutional and human right 's philosophy to provide social security to protect the health and strength of the workers must be kept at the back of the mind to construe the word "agent" under s.2(9) (ii) of the Act, in contra dis tinction with the bilateral stipulations under the contract.
In this regard public policy interposes and plays a vital role to read into the contracts the extended meaning of agency to bring about connecting links between the respond ents and the licencee corporation.
Lest the contract, if intended to deny welfare benefits to workmen, would be opposed to public policy and would become void under s.23 of the .
Such an intention would be avoided by reading into the contract the extended meaning of agency but not fiduciary.
Chitty on Contrac; is, 26th Edition, in paragraph 2502 at page 4 stated of the use of the terms agent and agency.
Some persons who describe themselves or are described by others as agents are not really such in any legal sense of 303 the word, but rather independent merchants, dealers, con sultants or intermediaries.
Others may be agents in the sense that they owe the internal duties of the agent to his principal (mainly the fiduciary duties) .
The substance of the matter prevails over the form and the use of the words "agent" or "agency ", or even a denial that they are applicable, is not conclusive that any particular type of relationship exists.
(emphasis supplied).
In A.G. Guest Anson 's Law of Contract.
26th Edition, at page308 it is stated that the application of cannons of 'public policy to particular instances necessarily varies with the progressive development of 'public opinion and morality, but, as Lord Wright has said extra judicially: Public policy like any other branch of the common law ought to be, and I think is, governed by the judicial use of precedents.
If it is said that rules of.
public policy have to be moulded to suit new conditions of a changing world, that is true; but the same is true of the principles of the common law generally. ' In Prenn vs Simmonds, 1971 (1) Weekly Law Reports 1381 (H.L.) Lord Wilberforce laid the rule that in construing a written agreement evidence of negotiations or of the par ties ' intentions ought not to be received by the court, and that evidence should be restricted to evidence of factual background known to the parties at or before the date of the contract, including evidence of the "genesis" and objective ly the "aim" of the transaction.
The contractors, respondents, knew at the date of the agreements that the Corporation, as Principal employer, is under statutory obligation to execute or keep executed the works and keep them repaired and mainrained as an integral activity of generation, transmission and distribution of the electrical energy to the consumers within their area of supply.
On authorisation, the respondents executed and kept executiug the works and repairs or kept them repaired and the maintenance thereof effected through their employees, which in law is on behalf of the Corporation, principal employer.
The genesis and aim of the transaction was to act on behalf of the Corporation.
The agency of the respondent with the Corporation, thus, springs into being.
The prohibi tion of the qualified supervisors, while in service of the respondents, to disengage themselves with third parties in terms of the contract was only to extract unstinted and exclusive devotion to duty and no further.
It stands as no impediment to construe that the respondents are agents to the Corporation as immediate employers.
Accordingly I hold that the employees working under the respondent perform their duties in execution of the works, repairs and maintenance thereof in connection with the generation, transmission and distribution of 304 the electrical energy by the Corporation ficensee.
The Corporation is the Principal employer The respondents imme diate employers execute the work etc.
under the supervision of the Corporation as its agents.
Their employees, in law, work under the supervision of the principal employer, corpo ration.
They are covered under s.2.(9) (ii) of the Act entitling them to the sickness benefits, etc.
envisaged therein.
and the respondents are liable to make their con tribution to the Employees Insurance Fund.
The appeals are accordingly allowed.
The writ appeal Nos. 16 & 438/86 and matter No.1650 of 1985 dated April 4, 1988 in the Calcutta High Court stand dismissed confirming the order of the learned single Judge dated December 11, 1986, but in the circumstances parties are directed to bear their own costs.
V.P.R. Appeals dis missed.
| The appellant Corporation engaged the respondents con tractors to carry out work of excavation, conversion of over head electric lines and laying of underground cables under public roads and for repair and maintenance.
On 26.8.1975, the Regional Director of the Employees ' State Insurance Corporation noticed the appellant that the employees, whose wages were being paid through the respond ents contractors, would come under the provisions of Section 2(9) of the . 268 The appellant directed the representative body of the contractors respondents ' Association to comply with the provisions of the Act immediately, failing which a lumpsum of 7% would be deducted from their bills.
When the respond ents ' Association refused to carry out such obligation, the appellant started to deduct the E.S.I. contribution amount at the rate of 10% from their bills from 1984 and continued deducting till 1985.
The respondents contractors challenged the deductions from bills by filing a writ petition before the High Court, contending thai for carrying out their contracts, the re spondents were not supervised by the appellant, the princi pal employer and they were carrying out the allotted work under the contracts of sites outside the factory establish ment of the appellant and that the employees of the respond ents did not come within the definition of the term, 'em ployee ' under section 2(9) of the Act.
On 23.3.1984, the Single Judge of the High Court passed an interim order permitting the appellant to respond to the notice issued by the E.S.I.C. and staying the realisation of the E.S.I. contribution from the respondent contractors.
On 30.3.1985, under section 45 A of the Act, the Region al Director, E.S.I.C. held that the appellant was liable to pay the E.S.I. contribution in respect of the employees of its contractors and directed to pay the same.
The appellant challenged that order under Article 226 of the Constitution of India by filing another writ petition.
The Single Judge hearing both the writ petitions togeth er, dismissed them, holding that the ultimate supervision was that of the appellant and hence the Act was applicable.
Following the decision of this Court in M.G. Beedi Works case (AIR 1974 SC 1952), the Single Judge further held that the respondents contractors were agents of the appellant the principal employer, and that the appellant the principal employer could not escape the liability for the works of its agents the respondents contractors.
The Division Bench, in appeal, reversed the judgment of the Single Judge, against which the present appeals by special leave were made to this Court posing the question whether on the facts, the right of the principal employer to reject or accept work on 269 completion, on scrutinizing compliance with job require ments, as accomplished by a contractor, the immediate em ployer, through his employees, is in itself an effective and meaningful 'supervision ' as envisaged under section 2(9) of the E.S.I. Act, 1948?" The appellants contended that the High Court fell in error in giving a restricted meaning to the word, 'supervi sion ', occurring in section 2(9) of the Act and in taking out the final act of rejection or acceptance of work from the purview of that word.
Dismissing the appeals, this Court, HELD: Per Ranganath Misra, CJ. 1.
The legislative intention should have been brought out more clearly by undertaking appropriate legislation once this Court took a different view.
The legislation is benefi cial and if by interpretation put by the Court the intention is not properly brought out it becomes a matter for the legislature to attend to.
[278 E] Per M.M. Punchhi.
In whatever manner the word 'employee ' under Section 2(9) be construed, liberally or restrictidly, the construc tion cannot go to the extent of ruling out the function and role of the immediate employer or obliterating the distance between the principal employer and the immediate employer.
In some situations he is the cut off.
He is the one who stumbles in the way of direct nexus being established, unless statutorily fictioned, between the employee and the principal employer.
He is the one who in a given situation is the principal employer to the employee, directly employed under him.
If the work by the employee is conducted under the immediate gaze or overseeing of the principal employer, or his agent, subject to other conditions as envisaged being fulfilled, he would be an employee for the purpose of sec tion 2(9).
[284 B D] 2.
In the ordinary dictional sense "to supervise" means to direct or over see the performance or operation of an activity and to over see it, watch over and direct.
It is work under eye and gaze of someone, who can immediately direct a corrective and tender advice.
In the textual sense 'supervision ' of the principal employer or his agent is on 'work ' at the places envisaged and the word 'work ' can neither be construed so broadly to be the final act of 270 acceptance or rejection of work, nor so narrowly so as to be supervision at all times and at each and every step of the work.
A harmonious construction alone would help carry out the purpose of the Act, which would mean moderating the two extremes.
[284 G H] 3.
When the employee is put to work under the eye and gaze of the principal employer, or his agent, where he can be watched secretly, accidently, or occasionally, while the work is in progress, so as to Scrutinise the quality thereof and to detect faults therein, as also put to timely remedial measures by directions given, finally leading to the satis factory,completion and acceptance of the work, that would be supervision for the purposes of Section 2(9) of the Act.
It is the consistency of vigil, the proverbial 'a stich in time saves nine '.
The standards of vigil would of course depend on the facts of each case.
[284 H 285 B] 4.
Section 182 of the defines "agent" as a person employed to do any act or to represent another in dealing with third persons, the person for whom such act is done, or is so represented is called the "prin cipal".
Section 184 of the said Act further provides that as between Principal and the third person any person may become a, agent so as to be responsible to his principal.
[288 E] 5.
The agent has an identity distinct from his Princi pal in one sense and a fictional identity with his Principal in the other.
The agreement nowhere amalgamates the identity of the electrical contractor with that of the principal (C.E.S.C.) by undertaking to provide adequate supervision for the purposes of the Act, on behalf of the C.E.S.C.
The agreement no doubt provides that the electrical contractor would provide adequate supervision while carrying on with the work, the purpose dominant is to safeguard obtaining quality work and safety safeguards and to conform to the provisions of the Electricity Supply Act.
[288 E G] 6.
The creation or deduction of principal agent rela tionship throws one towards the statutory scheme of keeping distinct the concept of the principal and immediate employ er, because of diverse and distinct roles.
[285 D] 7.
The electrical contractor is obliged to provide competent supervision while carrying out the work.
The electrical contractor 271 is otherwise a licensee under the Indian Electricity Act and the Rules made thereunder.
[286 C] 8.
The principal employer can not delegate the function of supervision to his agent who in the eye of law is his second self, i.e., a substitute of the principal employer.
The immediate employer can by statutory compulsion never be the agent of the principal employer.
If such a relationship is permitted to be established, it would, not only obliter ate the distinction between the two, but would violate the provisions of the Act as well as the contractual principle that a contractor and a contractee cannot be the same per son.
[285 B C] 9.
Checking of work after the same is completed and supervision of work while in progress is not the same.
These have different perceptions.
Checking of work on its comple tion is an activity, the purpose of which is to finally accept or reject the work, on the touchstone of job specifi cations.
Thereafter if accepted, it has to be paid on the acceptance of the work.
This step by no means is supervision exercised.
It cannot be the terminating point of an agency when the interests of the so called principal and the so called agent become business like.
[288 H 289 B] 10.
Supervision rested with persons holding valid cer tificates of competency for which a register of supervision was required under the licence to be maintained.
[289 C] 11.
Under the contracts, the electrical contractors cannot in one breath be termed as agents of the C.E.S.C. undertaking supervision of the work of their employees and innately under the licence to have beforehand delegated that function to the holder of the certificate of competency.
[289 C D] 12.
Even if, the terms of the contract and the terms and conditions of the licence, the first being at the behest of the C.E.S.C. and the second being at the behest of the Government, be suggested to be complementing each other, still these cannot be so interplayed to mean that an agency, express or implied, has been created by the C.E.S.C. in favour of the electrical contractor appointing him to super vise work as envisaged under Section 2(9) of the Act, and thus to have established a direct link between the employee and the C.E.S.C. to the exclusion of the electrical contrac tor.
[288 C D] 13.
On the terms of the contract read with or without the terms of the licence, no such agency, factually or legally, stood ere 272 ated on behalf of the C.E.S.C. in favour of the electrical contractors, and none could be, as that would violate the statutory scheme of distinction well marked under Section 2(9) of the Act.
The supervision taken was to fulfil a contractual obligation simplicitor.
[289 D] 14.
The employees of the electrical contractors, on the facts and circumstances do not come in the grip of the Act and thus all demands made towards ESI contribution made against the C.E.S.C. and the electrical contractors were invalid.
[289 E F] M.G.
Beedi Works vs Union of lndia, AIR 1974 SC 1952; Royal Talkies vs E.S.I.C, ; ; Regional Director E.S.I.C. Trichur vs Ramanuja Match Industries, ; M/s. P.M. Patel & Sons & Others vs Union of India & Ors.
[1986]1 SCC 32; The Superintendent of Post Offices etc.
etc., vs
P.K. Rajamma etc.
; , , referred to.
Halsbury 's Laws of England (Hailsham Edition) Vol 1 at page 193, referred to.
Per K. Ramaswamy, J. (Dissenting) 1.
The seeks to serve the twin objects namely, social security, i.e., medi cal benefits in case of sickness, maternity and employment injury and other matters relating thereto and to augment the efficient performance of the duty.
[289 H 290 A] 2.
Section 2(9) of the Act encompasscs employees em ployed for wages in or in connection with the work of a factory or establishment to which the Act applies (i) who arc directly employed by the principal employer or (ii) employed by or through "an immediate employer"; and whose services are temporarily lent or let on hire to the princi pal employer by the person with whom the person is entered into a contract of service.
[293 B C] 3.
Clause 2(9)(ii) (applicable to the facts on hand) attracts a person employed by or through an immediate em ployer as an employee of the principal employer provided the f. flowing conditions are satisfied, namely, (1) the immedi ate employer employs an employee on the premises of the factory or establishment of the principal employer; (2) or "under the supervision of the principal employer".
(3) "his agent" on work which is ordinarily part of the 273 work of the factory or establishment or which is preliminary to the work carried out in or incidental to the purpose of the factory or establishment.
[293 C D] 4.
Article 39(2) of the Constitution enjoins the State to direct its policies to secure the health and strength of workers.
The right to social justice is a fundamental right.
Right to livelihood springs from the right to life guaran teed under article 21.
The health and strength of a worker is an integral facet of right to life.
The aim of fundamental rights is to create an egalitarian society to free all citizens from coercion or restrictions by society and to make liberty available for all.
Right to human dignity, development of personality, social protection, right to rest and leisure as fundamcntal human rights to common man mean nothing more than the status without means.
To the tillers of the soil, wage earners, labourers, wood cutters, rickshaw pullers, scavengers and hut dwellers, the civil and politi cal rights are 'mere cosmetic" rights.
Socio economic and cultural rights are their means and relevant to them to realise the basic aspirations of meaningful right to life.
[293 F H] 5.
The Universal Declaration of Human Rights, Interna tional Conventions of Economic, Social and Cultural Rights rccognise their needs which include right to food, clothing, housing, education, right to work, leizure, fair wages, decent working conditions, social security, right to physi cal or mental health, protection of their families as inte gral part of the right to life.
Our Constitution in the Preamble and Part IV reinforce them compendiously as social economic justice, a bed rock to an egalitarian social order.
The right to social and economic justice is thus fundamental right.
[293 H 294 B] 6.
The term 'health ' implies more than an absence of sickness.
Medical care and health facilities not only project against sickness but also ensures stable man power for economic development.
Facilities of health and medical care generate devotion and dedication to give the workers ' best, physically as well as mentally in productivity.
It enables the worker to enjoy the fruit of his labour, to keep him physically fit and mentally alert for leading a success ful, economic, social and cultural life.
The medical facili ties, arc thcrefore, part of social security and like gilt edged security, it would yield immediate return in the increased production or at any rate reduce absenteeism on grounds of sickness, etc.
health is thus a state of complete physical, menial and social well being and nut merely the absence of disease or infirmity.
[294 E G] 274 7.
Right to health is a fundamental human right to workmen.
The maintenance of health is a most imperative constitutional goal whose realisation requires interaction by many social and economic factors.
Just and favourable condition of work implies to ensure safe and healthy working conditions to the workmen.
The periodical medical treatment invigorates the health of the workmen and harnesses their human resources.
Prevention of occupational disabilities generates devotion and dedication to duty and enthuse the workmen to render efficient service which is a valuable asset for greater productivity to the employer and national production to the State.
[294 H 29S B] 8.The aims at relieving the employees from health and occupational hazards.
The interpretation calls for in this case is of the meaning of the meanings 'supervision ' and 'agent ' in s.2(9)(ii) of the Act.
The legal interpretation is not an activity sui gener is.
The purpose of the enactment is the touch stone of interpretation and every effort would be to give effect to it.
The judge acts as a vehicle of communication between the authors and the recipients.
The end result is to promote rule of law and to enliven social order and humane rela tions.
[295 C D] 9.
In an attempt to construe the provisions of the statute, construction, as a balancing wheel, should be meaningful so as to make the statute workable and not to render it futile or sterile.
Whenever strict interpretation of the statute gives rise to unjust situation or results, the Judges can ensure their good sense to remedy it by reading words in, if necessary, so as to do what Parliament would have done had they had the situation in mind.
The meaning of the same words in a statute may be mended in the laborynth of interpretation and may be enlarged or restrict ed in order to harmonise them with the legislative intention of the entire statute.
The spirit of the statute would prevail over the literal meaning.
The jurisprudence and principle, therefore, in such a situation, would be the contextual interpretation to subserve the constitutional scheme and to alongate the legislative purpose, harmonising the individual interest with the community good so as to effectuate social transformation envisioned in the preamble of the Constitution.
[297 D F] 10.
The word "supervision" is not one of precise import and is broad enough to require either supervisor 's constant presence during work supervised or his devotion thereto if only time necessary to see that it complies with contract specifications, advise as to details, prepare necessary sketches and drawings, etc.
[298 C] 275 11.
The does not give its own definition of the word "supervision".
Therefore, it must be construed in the context the ultimate purpose the Act aims to serve and the object behind the Act, i.e. to extend sickness benefits and to relieve the employee from occupa tional hazards consistent with the constitutional and human rights scheme.
Under the Electricity Act and the Rules, the Corporation, licencee, is enjoined to perform the acts and duties contemplated thereunder to lay overhead lines, under ground cables, their repairs and maintenance there of, etc.
It authorised, under the contract, the immediate employer to perform, on its behalf, those acts and duties.
The immediate employer would get the work done through their employees employed for that purpose.
It is not a sporadic work but a constant and an ongoing process, so long as the licencee generates, transmits and supplies electrical energy to the consumers of their supply area.
Had the principal employer performed those acts and duties through its employees, indisputably, their employees would be covered under the Act, though the work was got done at highways or at places other than the factory or the establishment.
When the prin cipal employer authorises the respondents as its contractors under contracts the need for constant supervision is obviat ed relegating that function to its immediate employers.
Otherwise the need for contracts would be redundant.
The Corporation retained, under the contract, the power of acceptance or rejection of the work done or supervision effected in maintenance of the work got done by the immedi ate employer, subject to overall supervision by the Electri cal Inspector, on behalf of the State Government.
The super vision in the fact situation is not the day to day supervi sion but legal control, i.e. right to accept or reject the work done or maintenance effected.
The exercise of right of acceptance or rejection is the supervision as envisaged in the contract between the principal employer and the immedi ate employer.
It would supply the needed unifying or con necting thread between the constitutional creed of social justice i.e., social security under the Act and supervision of the acts or duties by the principal employer vis a vis the employees of the immediate employer under the contract who ultimately perform them on behalf of the principal employer.
Undoubtedly in a bilateral contract between the corporation and the respondents qua their rights and liabil ities under the contracts, strict interpretation of the words cngrafted therein, be of paramount relevance and call for attention as per Contract Act.
[301 C 302 B] 12.
In the context of the statutory interpretation of "supervision" under the Act of the works undertaken under the contract, the 276 interest of the workmen or the welfare schemes for the employees under the Act interposed and call attention to and need primacy.
In its construction the courts must adopt contextual approach to effectuate the statutory animation, namely, social security.
The literal interpretation would feed injustice in perpetuity denying to the employees of sickness benefit etc.
under the Act, which would be avoided, lest the purpose of the Act would be frustrated.
[302 B C] 13.
The application of the golden rule to the word "agency" under the between the respond ents and the corporation, perhaps, does not encompass agency in strict sense under the Act.
But public policy of the Act, the constitutional and human right 's philosophy to provide social security to protect the health and strength of the workers must be kept at the back of the mind to construe the word "agent" under section 2 (9) (ii) of the Act, in contradis tinction with the bilateral stipulations under the contract.
In this regard public policy interposes and plays a vital role to read into the contracts the extended meaning of agency to bring about connecting links between the respond ents and the licencee corporation.
Lest the contract, if intended to deny welfare benefits to workmen, would be opposed to public ' policy and would become void under section 23 of the .
Such an intention would be avoided by reading into the contract the extended meaning of agency but not fiduciary.
[302 E G] 14.
The contractors, respondents, knew at the date of the agreements that the Corporation, as principal employer, is under statutory obligation to execute or keep executed the works and keep them repaired and maintained as an inte gral activity of generation, transmission and distribution of the electrical energy to the consumers within their area of supply.
On authorisation, the respondents execute and keep executed the works and repairs or kept them repaired and the maintenance thereof effected through their employ ees, which in law is on behalf of the Corporation, principal employer.
The genesis and aim of the transaction was to act on behalf of the Corporation.
The agency of the respondent with the Corporation, thus, springs into being.
The prohibi tion of the qualified supervisors, while in service of the respondents, to disengage themselves with third parties in terms of the contract was only to extract unstinted and exclusive devotion to duty and no further.
It stands no impediment to construe that/he respondents are agents to the Corporation as immediate employers.
[303 F H] 277 15.
The employees working under the respondents perform their duties in execution of the works, repairs and mainte nance thereof in connection with the generation, transmis sion and distribution of the electrical energy by the Corpo ration licensee.
The Corporation is the principal employer.
The respondents ' immediate employers execute the work etc.
under the supervision of the Corporation as its agents.
Their employees, in law, work under the supervision of the principal employer, corporation.
They are covered under s.2(9) (ii) of the Act entitling to the sickness benefits, etc.
envisaged therein and the respondents are liable to make their contribution to the Employees ' Insurance Fund.
[304 A B] Senior Electric Inspector & Ors.
vs Laxmi Naravan Chopra Muddala Veeramallapa & Ors., ; at p. 313; Massachusetts Bonding & Insurance Co. vs United States of America, ; , ; Atma Ram Mittal vs Ishwar Singh Punia, ; ; Owen vs Evans & Owen (Build ers) Ltd., 1962(1) Weekly Law Reports 933; Regional Direc tor, E.S.I.C vs South India Flour Mills (P) Ltd., ; A.P. State Electricitv Board vs
E.S.I.C, Hydera bad, ; Regional Director.
E.S.I.C, Bangalore vs Davangere Cotton Mills, ; E.S.I.C Chandigarh vs Oswal Woolien Mills Ltd., &H) (F.B.); Birohichand Sharma vs First Civil Judge, Nagpur & Ors., ; ; D.C Dewan Mohideen Sahib & Sons vs The Industrial Tribunal.
Madras, ; ; Nagpur Electric Light & Power Co. Ltd. vs Regional Director E.S.I.C, [1967] 3 SCR Reprint 92; Kirloskar, Pneu matic Co. Ltd. vs
E.S.I.C, ; Royal Talkies, Hyderabad & Ors.
E.S.I.C; , ; M/S. P.M. Patel & Sons & Ors.
vs Union of India & Ors.
, ; , Superintendent of Post Office vs
P.K. Rajamma; , ; Prenn vs Simmonds, 1971 (1) Weekly Law Reports 1381 (H.L.), referred to.
World Labour Report 2, at Chapter 9 (Safety and Health); Lawyer Oct. ; Report of the Committee on Labour Welfare, 1969 in paragraph 5.77 of Chapter 5; Webster Comprehensive Dictionary (International Edition) at page 1260, in Vol, 1I; Corpus Juris Secundum, Vol. 83 at page 900; The Words and Phrases.
Permanent Edition, Vol.
40A; Halsbury 's Laws of England (Hailsham Edition); Chitty on Contracts, 26th Edition, paragraph 2502 at page 4, A.G.Guest:Anson 's Law of Contract, 26th Edition, at page 308 referred to.
|
Appeal Nos.4538 39 of 1991.
From the Judgment and Order dated 23.3.1990 of the Hyderabad High Court in C.C.A. Nos. 54 & 55 of 1987.
Ashok K.Gupta for the Appellant.
Ms. Suruchi Agrawal and T.V.S.N.Chari for the Respondents The Judgment of the Court was delivered by RANGANATH MISRA, CJ.
Special leave granted.
By notifica tion dated 12th January, 1973, under Section 4(1) of the Land Acquisition Act, 1894 as modifiednby Notification of 27th July, 1978, 26 acres and 26 gunthas of land located within the Hyderabad District was notified for acquisition for the Bhagyanagar Urban Development Authority.
A similar notification was published on 14th June, 1979 for acquisi tion of two acres and 29 gunthas.
The Land Acquisition Officer made his award for both the properties on 10 th June, 1982 fixing the market value at Rs. 42,000 per acre with five per cent deduction towards development cost.
Being dissatisfied with the awards passed by Land Acquisition Officer, a reference was sought and made under section 18 of the Act.
The Claimants demanded compensation at the rate of Rs. 200 per square yard.
The Civil Court fixed the market value at Rs.200 per sq.yd.
as demanded but directed deduc tion of 20 per cent towards development charges.
The Land Acquisition Officer carried appeals against the escalation of compensation and the present appellants preferred cross objections.
The High Court reassessed the entire evidence and came to hold.
"Today the position of the acquired lands is altogether different.
It is common knowledge that the prices started soaring high from 1980 onwards and this part of Hyderabad, namely, 377 Gaddiannaram started developing from 1980 and today it is undoubtedly one of the important areas in Hyderabad.
But we must consider the position as it stood in 1978 and 1979.
Taking all the circumstances into account, we think it reasonable to fix the market value at Rs. 3 lakhs per acre.
The Civil Court had given a deduction of 20 per cent towards development charges.
The learned Advocate General contended that deduction should be enhanced to 33 1/3 per cent.
We do not think that any interference is called for in this regard.
The lands are abutting the highway.
Evidence shows that there are roads on three sides.
Hence.
we maintain the deduction of 20 per cent and if so done, the market value comes to Rs.2,40,000 which works out at Rs. 50 per sq.yd.
The Trial Court has awarded Rs.200 per sq.yd with a deduction of 20 per cent which comes to Rs. 160 per sq.yd.
We are unable to sustain the order of the Court below on any justifiable grounds.
We accordingly set aside the judgment and decree and determine the market value at the rate of Rs.50 per sq.yd . " It is against this deduction in compensation that the claimants have come to this court in appeal.
The Collector had adopted a deduction of five per cent.
The referee court adopted the deduction at 20 per cent and the High Court rejecting the claim of the Advocate General that deduction should be one third put it at one fifth.
We find that the High Court did not go by the percentage of deduction.
In fact, according to the High Court and particu larly as the portion we have extracted above would show the appropriate market value per square yard was Rs. 50 and if a 20 per cent deduction from out of Rs. 3 lakhs per acre was accepted, it worked out that way.
The Judgment of the High Court gives us the impression that in fixing the compensa tion.
the High Court did not go by the percentage of deduc tion but kept in view the market value of the land at the time of the notification under section 4(1) of the Act.
There is clear material and the High Court has accepted it that price went up in the area after 1980.
The notifications are within a range of a year or two from that time.
There fore, the valuation after 1980 is not the guideline.
Having looked into the material accepted by the High Court, we are not in a position to disturb the finding recorded by the High Court.
The appeals are accordingly dismissed.
No costs.
R.P. Appeals dismissed.
| Certain plots of land of the appellant were acquired by notifications dated 12.1.1978, 27.7.1978 and 14.6.1979 issued under s.4(1) of the Land Acquisition Act, 1894.
The Land Acquisition Officer by an order dated 10.6.1982 fixed the market value at Rs. 42,000 per acre with 5 per cent deduction towards development cost.
In appellant 's appeal the Civil Court fixed the market value at Rs.200 per sq. yard with a deduction of 5 per cent towards the development charges.
On the appeal by the land acquisition officer, the High Court reassessed the entire evidence and fixed the market value at Rs.3 lakh per acre holding that if a deduction of 20 per cent was allowed, the market value would come to Rs.2,40,000 per acre which worked out at Rs.50 per sq.yard, and accordingly set aside the judgment and decree, and determined the market value at Rs.50 per sq.yard.
Dismissing the appeals of the appellant claimant this Court, HELD: 1.
In fixing the compensation, the High Court did not go by the percentage of deduction but kept in view the market value of the land at the time of the notification under s.4(1) of the Land Acquisition Act, 1894.
[p. 377 F] 2.
There was clear material and the High Court accepted it that price went up in the area after 1980.
The notifica tions were within a range of a year or two from that time.
Therefore, the valuation after 1980 was not the guideline.
[ p. 377 F G] 376 3.
In the instant case, the Collector had adopted a deduction of five per cent.
The referee Court adopted the deduction at 20 per cent and the High Court rejecting the claim of the Advocate General that deduction should be one third put it at one fifth.
The High Court did not go by the percentage of deduction.
The appropriate market value fixed by the High Court per sq.
yard was Rs 50 and if a 20 per cent deduction from out of Rs.3 lakhs per acre was accepted, it worked that way.
The finding of the High Court need not be disturbed.
[p. 377 E G]
|
Special Leave Petition Nos.
16066.
16065 & 16451 of 1991.
From the Judgment and Order dated 28.8.1991,30.8.1991 & 9.10.1991 of the Punjab and Haryana High Court in C.W.P.Nos.
12644, 12485 and 14606 of 1991 respectively.
Kapil Sibal, Ranjit Kumar, J.D. Jain, Mrs. Kawaljit Kocher, Dr. Balram Gupta, Ms. Yasmin Tarapore, J. Lal Kai lash Vasdev, Ms Nandini Sawhney, R.K. Kapoor, A.A. Khan and Anil Verma for the appearing parties.
The following Order of the Court was delivered: In the Union Territory of Chandigarh, 5% of the seats are reserved in favour of sons/daughters/spouses of Mili tary/Para Military personnel.
Orders in this behalf are issued by the Administration in its memo dated 19th May, 1982 which were later modified in memo dated 6.9.1990.
In accordance with the said orders, Punjab Engineering College (a College run by the Chandigarh Administration and affili ated to Punjab University) reserved 15 seats in favour of sons/daughters/spouses of Military/ParaMilitary Personnel.
The College published a prospectus for the session 1991 92.
It contains inter alia the rules governing the admission of stu 326 dents to the said college.
So far as the reservation in favour of children and spouses of Military/Para Military Personnel is concerned, the rule, (printed at pages 23 and 24 of the Prospectus) reads as follows: "Sons/Daughters/Spouses of Military/Para military Personnel etc.
: 3 The Admission of the candidates against the reserved seats under this category will be made on the basis of merit list prepared according to the priorities given below in the descending order: 1.
Sons/Daughters/Spouses of defence personnel who are awardees of gallantry decorations of Paramvir/Mahavir/Vir Chakra in person or posthumously.
OR Sons/daughters/spouses of defence personnel and para military personnel like CRPF, BSF etc.
who are killed or are total incapacitated in action while in service and were wholly dependent on them.
Sons/daughters/spouses of defence person nel and para military personnel like CRPF/BSF etc.
who die while in service and were wholly dependent on them; 3.
Sons/daughters/spouses of defence per sonnel and para military personnel like CRPF/BSF incapacitated while in service and were wholly dependent on them; 4.
Sons/daughters/spouses of exservicemen (military and para military personnel like CRPF/BSF who are wholly dependent on them; 5.
Sons/daughters/spouses of serving de fence personnel and paramilitary personnel like CRPF/BSF who are wholly dependent on them: The candidates claiming admissions under the category 1 above are required to submit the photo copy of citation for the gallantry award, failing which the application will not be considered in this category, The candidates claiming admission under category I are required to submit a certificate from the respective Head quarters regarding death/total incapacitation in action while in service.
The candidates claiming admission under category 2 and 3 are required to submit a certificate from the respective Headquarters regarding death/total incapacitation.while in service.
327 The candidates claiming admission under category 4 are required to submit discharge certificate from sevice and certificate of dependence from the District Magistrate of the district concerned.
The candidates claiming admission under category 5 are required to submit the certificate of dependence from the unit in which parent/spouse is serving.
The candidates who apply for admission against this category will also be considered for admission against the seats allocated for Chandigarh/ General Pool to which they may belong as per their merit.
" A perusal of the rule shows that the five categories are mentioned in the order of priority in the descending order.
There is no allocation of seats as between these five cate gories.
It means that in the first instance, all the quali fied and eligible candidates falling in category 1 will be given admission and if any seats are left unfilled, quali fied candidates failing in category 2 will be admitted.
If there are any seats still left unfilled, qualified candi dates falling in category 3 will be given admission and so on.
In a given year, it may well happen that all the avail able seats reserved for children/spouses of defence person nel are taken away by the candidates in the first or first and second categories.
As a matter of fact, for the year 1990 91, only 6 candidates belonging to sub category 4 out of 90 candidates could be admitted and not the others and category 5 'went unprovided altogether.
It is stated that all candidates obtaining the specified minimum marks in the common entrance test were treated as qualified for being considered for admission.
S.L.P. 16066/91: The first respondent in the S.L.P. applied for admission to Punjab Engineering College under this quota.
He appeared in the common Entrance Test along with other applicants.
The College Authorities considered his case placing him in category 4 since his father was an Ex serviceman.
He could not, however, be given the admission because the 15 seats reserved for children and spouses of Military/ParaMilitary Personnel in this College were allo cated in the following manner: a.
There were three candidates falling in category 1 (i.e., children of Defence Person nel who are awardees of gallantry decoration, Paramvir Chakra/Mahavir Chakra, in person or posthumously).
All the three were given admis sion.
b. There were 5 candidates falling in catego ry 2.
They were admitted.
328 c. Only one candidate falling in category 3 appeared and was given the seat; d. There were 90 candidates failing in category 4.
But only 6 seats were available (nine seats having been taken away by sub categories a to c).
These six seats were allotted on the basis of inter se merit among the candidates failing in this category.
The first respondent being at a fairly lower position in this merit list could not be given the admission.
No seats were left for being allotted to candidates failing in category 5.
Finding that he has not been given admission in this Col lege, the first respondent filed a writ petition in the High Court of Punjab and Haryana being C.W.P. No.12644 of 1991.
His contention was that his father Major Kuldip Singh Malik was awarded Shaurya Chakra for acts of gallantry, that Shaurya Chakra is equivalent to Vir Chakra, in all respects and, therefore, his case ought to have been considered in category 1 and not in category 4.
He submitted that along with his application for admission he had enclosed a copy of the citation awarded by the President of India to his father showing that his father Major Kuldip Singh Malik was awarded Shaurya Chakra for displaying exemplary courage and leader ship in the course of his duties in the Mizo Hills.
He complained that two of the candidates admitted under catego ry 1 have received less marks than he.
The High Court has allowed the Writ Petition on the following reasoning: "According to Regulation 695 of the Defence Services Regulations relating to the Army, issued by the Ministry of Defence, Government of India, Shaurya Chakra is awardable for gallantry and comes after Ashoka Chakra and Kirti Chakra.
Further, according to Regulation 717, in order of precedence, this award of Shaurya Chakra is at number thirteen.
that is immediately below Vir Chakra and Param Vir Chakra is at number two and Maha Vir Chakra is at number seven.
Despite all this, the re spondents, while considering the candidature of the petitioner, did not grant him admission to the Bachelor of Engineering Course in the current session even though he was higher in academic merit as compared to respondent Nos. 3 and 4 who have been granted such admission.
In reply, the respondents have pleaded that no doubt the father of the petitioner was deco rated with Shaurya Chakra award in 329 1969, but it is gallantry award and is not strictly covered by the rules, regulations and the prospectus of the College, though it is admitted that both respondents Nos.3 and 4, who have been granted admission, were lower in merit than the petitioner, so far as the academic record is concerned.
After hearing the learned counsel for the parties, we find that the approach of the respondents in rejecting the candidature of the petitioner is neither legally correct nor just and fair.
However, as respondent Nos.3 and 4 who are lower in academic merit than the petitioner, happen to be the sons of the awardees of Vir Chakra and Maha Vir Chakra respectively, it would be unfair if the admis sion already granted to them by the Chandigarh Administration and the Punjab Engineering College, Chandigarh, is set aside.
Resultantly, we allow this petition and issue a direction to respondent Nos. 1 and 2 to admit the petitioner against the category of sons/daughters of awardees of gallantry deco rations, without disturbing the admission of respondents Nos.3 and 4.
In case no such seat is available for the petitioner, the respond ents shall create a seat for the purpose forthwith.
This shall also be deemed to be a direction to the Punjab University for accord ing necessary approval for the creation of the additional seat.
There shall be no order as to costs.
" The decision of the High Court was rendered on 28th August, 1991.
The present S.L.P. was filed in this court on 7th October, 1991.
In fact, it appears that having waited for one month and not having been admitted in the college in pursuance of the Judgment, the first respondent took pro ceedings for Contempt against the College Authorities.
The first respondent, was admitted in the college on 28th Octo ber, 1991.
It is now stated by his counsel that the first respondent has given up his seat in another college (Jamia Millia), on being admitted to this College.
The writ peti tion came up for final hearing before us on 15.11.1991.
We disposed of the SLPs on that day stating that reasons for our orders will be given today.
S.L.P. No. 16065/91 Respondents 1 and 2 in this S.L.P. also applied for admission to Punjab Engineering College as children of serving Defence Personnel.
They too appeared for the common Entrance Test along with other applicants.
Since the parents of the two respondents were serving Defence Personnel, their case was considered under category 5, As stated herein 330 before, no seats were left for being allocated to candidates falling in category 5.
Respondents I and 2 were, therefore, not given admission in this College whereupon they ap proached the Punjab and Haryana High Court by way of a writ petition being C.W.P. No. 12485 of 1991.
Their case was that the categorisation of Defence Personnel was unjust and unreasonable in as much as while the children and spouses of serving Defence Personnel are placed in category 5, children and spouses of Exserviceman are placed above them in catego ry 4.
According to the respondents.
children of serving Defence Personnel must be preferred over the children of Exservicemen.
In a short order, the High Court allowed the writ petition and directed 'that category 5 should be treated as category 4 and category 4 should be treated as category 5.
The Court directed that admissions for the current year (1991 1992) shall be made accordingly.
The order of High court is a short one and may be set out in its entirity: "After hearing the learned counsel for the parties and having gone through their plead ings, we are of the considered view that sub categories No. 1, 2 and 3 deserve to be re tained at their appropriate present places.
So far as sub categories No.4 and 5 i.e. relating to the sons, daughters and spouses of the exservice personnel ,as well as the sons, daughters and spouses of service Defence personnel are concerned, we find that the ends of justice would be adequately met and the object for which the reservation has been provided would be achieved if the sons, daugh ters and spouses of serving Defence personnel are placed at sub category No.4 i.e. above the category of Exservicemen.
This conclusion has been arrived at by us after considering the circumstances that the wards and spouses of serving Defence personnel are at a disadvan tage in the absence of their guardians serving at far off/distant places defending the coun try vis a vis who have retired from the mili tary and are now living with their wards.
Keeping these considerations in view, we dispose of this writ petition by issuing a direction to the respondent Union Territory Chandigarh and Principal, Punjab Engineering College, to go ahead with the admission of this reserved category.
Therefore, so far as such categories 1,2 and 3 are concerned, there shall not be any change.
However, we direct that so far as sub category No.4 is concerned, persons covered in this shall be considered at No. 5 and those covered in sub category 5 are concerned, shall be considered at No. 4.
The admission, which are going to be finalised tomorrow, shall not be made in accordance with these directions.
A copy of the order be supplied Dasti also to the learned counsel for the parties.
" 331 This order was made on 30th August, 1991 whereas the present SLP was filed in this Court on 7th October, 1991.
These respondents too took proceedings for contempt against the college for not implementing the direction of the High Court.
They were admitted on 28th October, 1991.
These respondents also say that on being admitted to this college they have given up their admission in other colleges.
This SLP was heard alongwith SLP.
No.16066 of 1991 on 15.11.91.
S.L.P. No. 16451 of 1991 This petition for Special Leave is directed against the order dated 9th October, 1991 passed by a Division Bench of the Punjab ,and Haryana High Court dismissing the writ petition filed by the petitioner.
The petitioner (writ petitioner) applied for admission to the Punjab Engineering College for the year 1991 92 under category 4 being the son of an Exserviceman.
By virtue of the directions given by the High Court in its order dated 30.8.1991 in C .W.P.
No. 12485 of 1991, category 4 became category 5 and category 5 became category 4 and admissions were being made on that basis.
The petitioner who fell in category 4 (,as per the prospectus of the College) and which was now converted to category 5 by virtue of the decision of the High Court aforesaid applied to the High Court to consider his case in category 4 itself and grant him admission.
His writ petition was dismissed by the High Court on 9th October, 1991 under a short order which reads thus: "Admissions are being done as per the direc tions issued in Civil Writ Petition No.12485 of 1991, decided by the Division Bench on August 30. 1991.
In view of the said decision, we do not find any merit in the contentions raised by the learned counsel for the peti tioner.
The Writ petitions dismissed.
A copy of this order be given dasti.
" The petitioner is in fact questioning the correctness of the directions given by the High Court in C.W.P.No.12485 of 1991 disposed of on August 30, 91.
Counsel for Chandigarh Administration and the College (petitioners in SLP 's 16066 and 16065 of 1991) contended that the High Court has exceeded its jurisdiction in grant ing the impugned directions.
He submitted that High Court, while exercising the writ jurisdiction conferred upon by Article 226 of the Constitution of India, does not sit as an Appellate Authority over the rule making authority nor can it re write the rules.
If the rule or any portion of it was found to be bad, the High Court could have struck it down and directed the rule making authority to re frame the 332 rule and make admissions on that basis but the High Court could not have either switched the categories or directed that Shaurya Chakra should be treated as equivalent to Vir Chakra By its directions, the High Court has completely upset the course of admissions under this reserved quota and has gravely affected the chances of candidates failing in category 4 by down grading them as category 5 without even hearing them.
These are good reasons for the categorisation done by the Administration which was adopted by the College.
He submitted that while Paramvir Chakra, Mahavir Chakra and Vir Chakra are awarded for gallantry in war, Ashok Chakra, Kirti Chakra and Shaurya Chakra are awarded for gallantry otherwise than in war.
Shaurya Chakra was awarded to the father of the first respondent in SLP.No.
16066 of 1991 for his gallant conduct in counter insurgency operations in Mizo Hills.
It was not a war.
He placed, before us, the true extract of order of precedence of awardees.
It reads thus: "TRUE EXTRACT OF ORDER OF PRECEDENCE OF AWARDS.
Order of Precedence of Awards The order of precedence of various awards is as follows: Bharat Ratna Param Vir Chakra Ashoka Chakra Padma Vibhushan Padma Bhushan Param Vishisht Seva Medal Maha Vir Chakra Kirti Chakra Padma Shri Sarvottam Jeevan Raksha Padak Ati Vishisht Seva Medal Vir Chakra Shaurya Chakra The President 's police and Fire Service Medal for gallantry.
Sena/Nao Sena/Vayu Sena Medal Vishisht Seva Medal The Police Medal for gallantry Uttam Jeevan Raksha Padak Wound Medal The General Service Medal 1947.
Samar Seva Star 1965 Poorvi Star Paschimi Star Raksha Medal 2965." 333 Counsel says that by its directions contained in the two orders impugned herein, the High Court has exercised a jurisdiction, which really did not belong to it.
We are inclined to agree with him.
Counsel for the petitioner in S.L.P.No.
16451 of 1991 supported the aforesaid arguments.
On the other hand, the counsel for respondents (writ petitioners in the High Court) in the first two SLPs.
sup iported the order of the High Court and submitted further that since the said respondents have given up their seats in other colleges and have been admitted in the Punjab Engi neering College any order throwing them out from the Punjab Engineering College, at this juncture would cause them irreparable prejudice.
They submitted that the Chandigarh Administration and the College authorities have been sleep ing over the matter until a contempt petition was filed and that they moved this Court only after they were summoned in the Contempt proceedings.
They should be held dis entitled to any relief on account of laches, submitted the counsel.
We are of the considered opinion that the orders of High Court are wholly unsustainable.
We shall consider both the directions separately.
Let us first consider SLP 16066 of 1991, arising from C.W.P. 12644/91.
The rule as framed by the Chandigarh Administration and as published by the College in its prospectus in the year 1991 92 placed in category I children and spouses of only those Defence Personnel who were awardees of gallantry decorations of Paramvir Chakra, Mahavir Chakra or Vir Chakra in person or posthumously.
It did not include Ashok Chakra, Kirti Chakra or Shaurya Chakra.
The validity of the rule was not expressly questioned before the High Court.
Assuming that it was so questioned and assuming that the High Court was satisfied that the rule was discriminatory and bad for the reason of not including Ashok Chakra etc., the only course open to it was to strike down the offending rule.
It could also have directed the authorities to reframe the rule and to make admissiions accordingly.
High Court however did not choose to do so.
It merely directed that since Shaurya Chakra is immediately below Vir Chakra in the order of precedence and since respondents 3 and 4 in the writ peti tion admitted under sub category I have obtained lesser marks than the writ petitioner, he should be given admission without disturbing the admission given to respondents 2 and 3 in that writ petition.
The entire reasoning of the High Court has been extracted by us herein above.
It shows that absolutely no reason is assigned for granting the said direction.
All that it says is that since Shaurya Chakra is also awardable for gallantry and is placed imme 334 diately below Vir Chakra, the writ petitioner should be granted admission.
If really the High Court was of the opinion that Shaurya Chakra is equivalent to Vir Chakra and should be treated on the same par as Vir Chakra then it should spelt out the position also of Ashok Chakra and Kirti Chakra.
which are above Shaurya Chakra.
According to the Rules notified children/spouses of Ashok Chakra, Kirti Chakra & Shaurya Chakra awardees did not fall under category 1 nor under categories 2 or 3.
They would fail under catego ry 4 or category 5, as the case may be, depending upon whether their parent/spouse was an ex service person or a serving person.
There may have been other candidates who are the children/spouses of Shaurya Chakra awardees and for that matter, Ashok chakra and Kirti Chakra awardees who may have obtained more marks than the writ petitioner (first respond ent in SLP 16066 of 1991) but who did not claim a seat under category 1 nor were considered as such.
They may not have stated the fact of their parent/spouse being a Ashok chakra/Kirli Chakra Shaurya Chakra awardee, nor filed the relevant citation, since it was not relevant as per the published Rules.
Had the proper course been followed, all of them could have applied properly and could have been consid ered.
By saying this we do not mean to say that the Rule is bad.
We do not mean to say so at all.
There may be good reasons for the Rule as published or there may not be.
That is not the issue.
What we are saying is that if the High Court was of the opinion that all the gallantry awar dees (including Ashok, Kirti and Shaurya Chakra) should be placed in category 1, it should have said so, struck down the category and, may be, directed reframing of rule and admissions made on that basis.
Coming to SLP 16065 of 1991, the position appears to been even worse.
Without assigning any reason the High Court has directed that category 4 should be made category 5 and category 5 should be made category 4.
In short, it has switched these two categories.
Again, we must say that if the High Court thought that this categorisation was discrim inatory and bad it ought to have struck down the categorisa tion to that extent and directed the authority to ' re frame the rule.
It would then have been open to the rule making authority either to merge these two categories or delete one or both of them, depending upon/he opinion they would have formed on a review of the situation.
We must make it clear again that we express no opinion on the question of validity or otherwise of the rule.
We are only saying that the High Court should not have indulged in the exercise of 'switch ing ' the categories, and that too without giving any reasons thereafter.
Thereby.
it has practicably assumed the rule of rulemaking authority, or.
at any rate, assumed the role of an Appellate Authority.
That is clearly not the function of the High Court acting under Article 226 of the Constitution of India.
Now, let us notice the implications and consequences of the said 'switching '.
335 By directing that category 4 should be treated as category 5 and conversely category 5 should be treated as category 4, the High Court has prejudicially affected the rights of candidates falling under category 4 without even hearing them.
It must be remembered that these categories are mentioned in the order of priority as emphasised herein before.
A rulemaking authority need not observe the rule of hearing, but the High Court exercising its judicial power cannot dispense with the requirement and that is precisely the grievance of the petitioner in S.L.P. 16451/91 arising from V.W.P. 14606 of 1991.
He was entitled to be considered under category 4 (as per the prospectus) whereas by virtue of the High Court 's order his category has become category 5, the result of which is that no seat may be left for his category, whereas the said category was entitled to some seats at least according to the Rules as framed and pub lished by the Administration and College.
Suffice is to say that the giving the said direction, while the admission were in progress, the situation has been confounded beyond re call.
Article 226 of the Constitution of India empowers the High Court to issue to any person or authority (including the government) directions, orders or writs including writs in the nature of Habeas Corpus, mandamus, Prohibition, quo warrants and certiorari, or any of them for the enforcement of any of the rights conferred by Part III and for any other purpose.
Though the Article itself does not contain any restric tive words, the Courts have, ever the years, evolved certain self constraints though, we are not bound by the procedural technicalities governing these high prorogative writs in English law.
As observed by a Constitution Bench in Bassappa vs Nagappa ; at 256: "In view of the express provisions in our Constitution we need not now look back to the early history or the procedural technicalities of these writs in English law, nor feel op pressed by any difference or change of opin ion, expressed in particular cases of English Judges.
We can make an order or issue a writ in the nature of certiorari in all appropriate cases and in appropriate manner, so long as we keep to the broad and fundamental princi ples that regulate the exercise of jurisdic tion in the matter of granting such writ in English law.
" While this is not the place to delve into or detail the self constraints to be observed by the Courts while exercis ing the jurisdiction under Article 226, one of them, which is relevant herein, is beyond dispute viz. while acting under Article 226, the High Court does not sit and/or act as an Appellate Authority over the orders/actions of the Subor dinate Authori 336 ties/Tribunals.
Its ' jurisdiction is supervisory in nature.
One of the main objectives of this jurisdiction is to keep the government and several other authorities and Tribunals within the bounds of their respective jurisdiction.
The High Court must ensure that while performing this function it does not overstep the well recognized bounds of its own jurisdiction.
Though we are satisfied that the orders and directions made by the High Court are totally unsupportable in law, the subsequent developments dissuade us from allowing these SLPs.
As stated above, the three respondents writ petition ers (first respondent in SLP.
16066/91 and respondents I and 2 in SLP.
16065/91) have been admitted into this college (Punjab Engineering College) on 28th October, 1991, where upon they have given up the seats which they had obtained in other colleges.
This statement of theirs is not disputed either by the Chandigarh Administration or the college authorities.
Depriving the said respondents of their admis sion in this college at this stage would result in grave and irreparable prejudice to them.
We think that the Administra tion and College authorities ought to have acted with more alacrity and approached this Court earlier than they did.
By the time, these SLPs were taken up by us and stay granted, the said respondents were already admitted into the College and, they say, they had given up their seats in the other colleges.
On this score alone, we decline to interfere with the orders in C.W .P. 12644/91 and 12485/91.
Now coming to SLP 16451 of 1991, the situation is this: By virtue of the orders of the High Court, three students who were not entitled to admission according to rules have been given admission against the three vacancies which had arisen since the finalization of the admissions.
The college authorities say that but for the orders of the High Court, these three vacancies would have gone to the first three candidates in the waiting list.
The petitioner in SLP 16451 of 1991 says that he is one such person in the waiting list and he would have obtained admission but for the admission given to the three candidates in pursuance of the High Court orders.
We do not know whether the petitioner 's case is true.
All the same, we think it appropriate to make the following direction: the college authorities shall create three more seats in the said course and admit the first three available students in the waiting list against those seats.
The Chandigarh Administration shall pass the neces sary orders in this behalf.
Action in terms of this direc tion shall be taken forthwith by the Chandigarh Administra tion and the college authorities.
Before we part with this case we wish to make an obser vation.
In matters of this nature where the High court directs students to be admitted in Educational Institutions.
it would be advisable if the High Court stays 337 the operation of its order for a period of about 3 to 4 weeks, if a request therefor is made by the Educational Institution or the State, as the case may be.
SLPs disposed of accordingly.
R.P. Petitions disposed of.
| The Union Territory of Chandigarh, by its Memo dated 19.5.1982 as modifited by another Memo dated 6.9.1990, reserved 5% of seats for children/spouses of military/pars military personnel.
Pursuant thereto the Punjab Engineering College, reserved 15 seats for such candidates.
For the purpose of admission the college categorised in its prospec tus these candidates into 5 sub categories.
These belonging to the respective categories and obtaining qualifying marks in the entrance examination were to be admitted meritwise in the order of priority in descending order: sub category 1 consisted of children/spouses of defence personnel who were awardees of gallantry decorations of Paramvir/Mahavir/Vir Chakra in person or posthumously, or, dependent children/spouses of defence/pars military personnel who were killed or totally incapacitated in action while in service.
Dependent childern/spouses of defence/pars military person nel who died in service were put in sub category 2.
Subcate gory 3 comprised the dependent children/spouses of defence/pars military personnel incapacitated while in service, Dependent children/spouses of Ex servicemen (mili tary and pars military) were 323 placed in sub category 4; and those of serving defence/pars military personnel found place in sub category 5.
For the academic year 1991 92 out of the 15 seats, 9 seats went to all the 9 qualified candidates belonging to sub categories 1 to 3, and remaining seats were allotted to 6 candidates meritwise out of 90 qualified candidates be longing to sub category 4.
Sub category 5 went unprovided.
Respondent no.1 in SLP No.16066/91, who appeared in the entrance examination for the academic year 1991 92 but did not get admission, filed a writ petition before the High Court contending that his father was an awardee of 'Shaurya Chakra ' which was equivalent to Vir Chakra and therefore his case ought to have been considered in sub category 1.
On behalf of the College it was stated that 'Shaurya Chakra ' award was not covered under the rules and regulations and, therefore, respondent no.1, being the son of an Exservice man, could be considered only in sub category 4.
Respondents no.1 and 2 in SLP No.16065/91, the sons of the serving defence personnel, filed another writ petition before the High Court challenging the categorization of defence personnel as unreasonable and contended that chil dren of serving defence personnel should have been preferred over the children of Exserviceman.
The High Court allowed both the writ petitions and directed the College to admit all the three petitioners.
It ordered that subcategory 5 should be treated as sub category 4 and sub categery 4 should be treated as sub category 5, and the admissions should be made accordingly.
The petitioner in SLP No.16451/91, being the son of an serviceman, was initially entitled to be considered under sub category 4 which by the order of the High Court was converted into sub category 5.
He challenged the said con version of categories by yet another writ petition which was dismissed by the High Court.
The Chandigarh Administration and the College filed SLPs No.16066 and 16065 of 1991 against the orders of the High Court allowing the two writ petitions, whereas SLP No. 16451 of 1991 was filed by the petitioner in the third writ peti tion which was dismissed by the High Court.
324 It was contended on behalf of Chandigarh Administration and the College that the High Court exceeded its jurisdic tion in granting the impugned order in as much as in writ jurisdiction the High Court does not sit as an appellate authority over the rule making body nor can it re write the rules.
On 15.11.1991 the three Special Leave Petitions were dis posed of.
Giving reasons in support of its order dated 15.11.1991 this Court, HELD: 1.
While acting under Article 226 of the Constitu tion, the High Court does not sit and/or act as an appellate authority over the orders/actions of the subordinate author ities/tribunals.
Its jurisdiction is supervisory in nature.
[pp. 335 H; 336 A] One of the main objectives of this jurisdiction is to keep the government and several other authorities and tribu nals within the bounds of their respective jurisdiction.
The High Court must ensure that while performing this function it does not overstep the wellrecognised bounds of its own jurisdiction.
[p. 336 A] 2.1 In the instant case, the High Court should not have indulged in the exercise of 'switching ' the categories and that too without giving any reasons therefor.
Thereby, it has practicably assumed the role of rule making authority, or, at any rate, assumed the role of an appellate authority.
That is clearly not the function of the High Court acting under Article 226 of the Constitution of India.
334 G H1 2.2 If the High Court was satisfied that the rule was discriminatory and bad, the only course open to it was to strike down the offending rule.
It could also have directed the authorities to reframe the rule and make admissions accordingly.
[p. 333 F] By directing that category 4 should be treated as cate gory 5 and conversely category 5 should be treated as cate gory 4, the High Court has prejudicially affected the rights of candidates falling under category 4 without even hearing.them, particularly when these categories were men tioned in the order of priority.
[p. 335 A] 3.
A rule making authority need not observe the rule of hear 325 ing, but the High Court exercising its judicial power cannot dispense with the requirement.
[p. 335 AB] 4.
Although the orders and directions made by the High Court were totally unsupportable in law, yet, in view of the subsequent developments, the Special Leave Petitions could not be allowed.
By the time the SLPs were taken up and stay granted, the respondents were already admitted in the Col lege and they gave up their seats which they had obtained in other colleges.
Depriving them of their admission in the College at such a late stage would result in grave and irreparable prejudice to them.
The Administration and the College authorities ought to have acted with more alacrity and approached this court earlier than they did.
[p. 336 B D] 5.
In matters where the High Court directs the students to be admitted in educational institutions it would be advisable if the High Court stays the operation of its order for a period of about 3 to 4 weeks if a request therefor is made by the educational institution or the State as the case may be.
[pp. 336 GH; 337 A]
|
(Civil) No. 1345 of 1989.
(Under Article 32 of the Constitution of India).
431 WITH WRIT PETITION (Civil) 1110/89, 869/90, 740/90, 1100/90, 194/91, 195/91, 265/90, 327/91, 337/91, 334/91, 333/91, 330/91, 329/91, 322/91, 432/91, 420/91, 431/91, 573/91, 181/91, 316/91, 381/91, 390/91, 238/91, 686/91, 687/91 & 167/91) R.K. Garg, R.K.Jain, Govind Mukhoty, Ved Prakash Gupta, Suresh Chand Garg, Ms. Bharti Sharma, Rani Chhabra, B.S. Chauhan, Gaurav Jain, N.K. Goel, D.B. Vohra, Ms. Abha Jain, Vijay Hansaria, A.K. Tiwari and C.K. Ratnaparkhi for the Petitioners.
Yogeshwar Prasad, Mrs. S.Dixit, G.V.Rao, A.V.Rangam, B.Parthasarthy and Ms. A. Subhashini for the Respondents.
The Judgment of the Court was delivered by KULDIP SINGH, J.
The liberalization for private sector operations in the Road Transport field under Section 80 and other provisions of The has been challenged in these bunch petitions under Article 32 of the Constitution, filed by the existing operators, primarily on the ground that they have been adversely affected in the exercise of their rights under Articles 14 and 19 of the Constitution of India.
It is necessary to notice the statutory provisions operating in the field of motor transport business prior to and after the coming into force of The (hereinafter called 'the Act ') The (hereinafter called 'the old Act was enacted and en forced with the object of having closer control to establish a coordinated system of transport.
The subject of 'Mechani cally Propelled Vehicles ' being in List Ill of the VIIth Schedule to the Constitution, various amendments were made from time to time by several State Legislatures either adding to or modifying the provisions of the old Act.
Chap ter IV of the old Act consisted of sections 42 to 68 provid ing "control of transport vehicles".
Sections 47 and 57, to the relevant extent, are re produced as under: "47.Procedure of Regional Transport Authority in considering application for stage carnage permit (1) A Regional Transport Authority shall, in considering an application for a stage carriage permit, have regard to the following matters, namely: (a) the interest of the public generally; (b) the advantages to the public of the serv ice to be provided, 432 including the saving of time likely to be effected thereby and any convenience arising from journeys not being broken; (c) the adequacy of other passenger transport services operating or likely to operate in the near future, whether by road or other means, between the places to be served: (d) the benefit to any particular locali ty or localities likely to be afforded by the service; (e) the operation by the applicant of other transport services, including those in respect of which applications from him for permits are pending; (f) the condition of the roads included in the proposed route or area, and shall also take into consideration any representations made by persons already pro viding passenger transport facilities by any means along or near the proposed route or area, or by any association representing persons interested in the provision of road transport facilities recognized in this behalf by the State Government, or by any local authority or police authority within Whose jurisdiction any part of the proposed route or area lies; . . . . (3) A Regional Transport Authority may, having regard to the matters mentioned in sub section (1), limit the number of stage carriages generally or of any specified type for which stage carriage permits may be granted in the region or in any specified area or on any specified route within the region.
Procedure in applying for and granting permits. (1) An application for a contract carriage permit or a private carrier 's permit may be made at any time.
(2) An application for a stage carriage permit or a public carrier 's permit shall be made not less than six weeks before the date on which it is desired that the permit shall take effect, or, if the Regional Transport Authori ty appoints dates for the receipt of such applications, on such dates.
(3) On receipt of an application for a stage carnage permit or a public carrier 's permit, the Regional Transport Authority shall make the application available for inspection at the office of the Authority and shall publish the application or the sub ' 433 stance thereof in the prescribed manner to gether with a notice of the date before which representation in connection therewith may be submitted and the date, not being less than thirty days from such publication, on which, and the time and place at which, the applica tion and any representations received will be considered: Provided that, if the grant of any permit in accordance with the application or with modi fications would have the effect of increasing the number of vehicles operating in the re gion, or in any area or any route within the region, under the class Of permits to which the application relates, beyond the limit fixed in that behalf under sub section (3) of Section 47 or sub section (2) of Section 55, as the case may be,, the Regional Transport Authority may summarily refuse the application without following the procedure laid down in this sub section.
The old Act was repealed by the Act which came into force on July 1, 1989.
The Statement of Objects and Reasons appended to the Act is re produced as under: "The (4 of 1939), consolidates and amends law relating to motor vehicleS.
This has been amended several times to keep it up to date.
The need was, however, felt that this Act should now inter alia, take into account also changes in the road trans port technology, pattern of passenger and freight movements, development of the road network in the country and particularly the improved techniques in the motor vehicles management.
Various Committees like National Transport Policy Committee, National Police Commission, Road Safety Committee, Low Powered Two wheel ers Committee, as also the Law Commission have gone into different aspects of road transport.
They have recommended updating, simplification and rationalisation of this law.
Several Members of Parliament have also urged for comprehensive review of the , to make it relevant to the modern day requirements.
A Working Group was, therefore, constitut ed in January, 1984 to review all the provi sions of the and to submit draft proposals for a comprehensive legislation to replace the existing Act.
This Working Group took into account the suggestion and recommendations earlier made by various bodies and institutions like Central Institute of Road 434 Transport Automotive Research Association of India, and other transport organisations including the manufacturers and the general public.
Besides, obtaining comments of State Governments on the recommendations of the Working Group, these were discussed in a specially convened meeting of Transport Minis ters of all States and Union Territories.
Some of the more important modifications so sug gested related for taking care of (a). . . . . (b). . . . . . (c) the greater flow of passenger and freight with the least impediments so that islands of isolation are not created leading to regional or local imbalances; (d). . . . . (e) simplification of procedure and policy liberalization for private sector operations in the road transport field; and (f). . . .
The proposed legislation has been prepared in the light of the above background.
Some of the more important provisions of the Bill provide for the following matters, namely: (a) to (f) . . . . . . (g) liberalized schemes for grant of stage carriage permits on non nationalized routes, all india tourist permits and also national permits for goods carriages. (h) to 1) . . . . .
Chapter V of the Act substitute for Chapter IV of the old Act consisting of Sections 66 to 96, provides for 'co ntrol of transport vehicles '.
Sections 71, 72 and 80, to the relevant extent, are reproduced as under: "71.Procedure of Regional Transport Authority in considering application for stage carriage permit.
(1) A Regional Transport Authority shall, while considering an application for a stage carriage permit, have regard to the objects of this Act: Provided that such permit for a route of fifty kilometers or less shall be granted only to an individual or a State transport undertaking.
435 (2) A Regional Transport Authority shall refuse to grant a stage carnage permit if it appears from any time table furnished that the provisions of this Act relating to the speed at which vehicles may be driven are likely to be contravened: Provided that before such refusal an opportunity shall be given to the applicant to amend the time table so as to conform to the said provisions.
(3)(a) The State Government shall, if so directed by the Central Government having regard to the number of vehicles, road condi tions and other relevant matters, by notifica tion in the Official Gazette, direct a State Transport Authority and a Regional Transport Authority to limit the number of stage car riages generally or of any specified type, as may be fixed and specified in the notifica tion, operating on city routes in towns with a population of not less than five lakhs. . . . (4) A Regional Transport Authority shall not grant more than five stage carriage permits to any individual or more than ten stage carriage permits to any company (not being a State transport undertaking).
(5) In computing the number of permits to be granted under sub section (4), the permits held by an applicant in the name of any other persons and the permits held by any company of which such applicant is a director shall also be taken into account.
Grant of stage carriage permits (1) Subject to the provisions of Section 71, a Regional Transport Authority may, on an appli cation made to it under Section 70, grant a stage carriage permit in accordance with the application or with such modifications as it deems fit or refuse to grant such a permit: Provided that no such permit shall be granted in respect of any route or area not specified in the application.
Procedure in applying for and granting permits, (1) An application for a permit of any kind may be made at any time.
(2) A Regional Transport Authority shall not ordinarily refuse to grant an application for permit of any kind made at any time under this Act: Provided that the Regional Transport Authority may summarily refuse the application if the grant of any permit in 436 accordance with the application would have the effect of increasing the number of stage carriages as fixed and specified in a notifi cation in the Official Gazette under clause (a) of sub section (3) of section 71 or of contract carriages as fixed and specified in a notification in the Official Gazette under clause (a) of sub section (3) of Section 74: Provided further that where a Regional Transport Authority refuses an application for the grant of a permit of any kind under this Act, it shall give to the applicant in writing its reasons for the refusal of the same and an opportunity of being heard in the matter.
" A comparative reading of the provisions of the Act and the old Act make it clear that the procedure for grant of permits under the Act has been liberalised to such an extent that an intended operator can get a permit for asking irre spective of the number of operators already in the field.
Under Sections 57 read with Section 47(1) of the old Act an application for a stage carnage permit was to be published and kept for inspection in the office of the Regional Trans port Authority so that the existing operators could file representations/objections against the said application.
The application, along with objections, was required to be decided in a quasi judicial manner, Section 47(3) of the old Act further permitted the imposition of limit on the grant of permits in any region, area or on a particular route.
It is thus obvious that the main features of Chapter IV "con trol of transport vehicles" under old Act were as under: 1.
The applications for grant of permits were published and were made available in the office of the Regional Transport Authority so that the existing operators could file repre sentations; 2.
The applications for grant of permits along with the representations were to be decided in quasi judicial manner; and 3.
The Regional Transport Authority was to decide the applications for grant of permits keeping in view the criteria laid down in section 47(1) and also keeping in view the limit fixed under Section 47(3) of the Act.
An application for grant of permit beyond the limited number fixed under Section 47(3) was to be rejected summarily.
The Parliament in its wisdom has completely effaced the above features.
The scheme envisaged under Section 47 and 57 of the old Act has been completely done away with by the Act.
The right of existing 437 operators to file objections and the provision to impose limit on the number of permits have been taken away.
There is no similar provision to that of Section 47 and Section 57 under the Act.
The Statement of Objects and Reasons of the Act shows that the purpose of bringing in the Act was to liberalize the grant of permits.
Section 71(1) of the Act provides that while considering an application for a stage carriage permit the Regional Transport Authority shall have regard to the objects of the Act.
Section 80(2), which is the harbinger of Liberalisation, provides that a Regional Transport Authority shall not ordinarily refuse to grant an application for permit of any kind made at any time under the Act.
There is no provision under the Act like that of Section 47(3) of the old Act and as such no limit for the grant of permits can be fixed under the Act.
There is, however, a provision under Section 71(3) (a) of the Act under which a limit can be fixed for the grant of permits in respect of the routes which are within a town having popula tion of more than five lakhs.
The petitioners are existing stage carnage operators on different routes.
They hold permits granted by the Regional Transport Authorities concerned.
Mithlesh Garg, petitioner in Civil Writ Petition No. 1345/89 has stated that he holds a stage carnage permit and plies his vehicles on the Meerut Parikshitgarh Hasifabad Laliana and allied routes under the jurisdiction of the Regional Transport Authority, Meerut.
According to him prior to the enforcement of the Act, 23 permit holders were operating on the said route but thereafter under Section 80 of the Act the Regional Trans port Authority, Meerut has issued 272 more permits in re spect of the same route.
Similar facts have been stated in the other writ petitions.
As mentioned above the petitioners are permit holders and are existing operators.
They are plying their vehicles on the routes assigned to them under the permits.
They are in the full enjoyment of their funda mental right guaranteed to them under Article 19(1)(g) of the Constitution of India.
There is no threat of any kind whatsoever from any authority to the enjoyment of their right to carry on the occupation of transport operators.
There is no complaint of infringement of any of their statu tory rights.
Their only effort is to stop the new operators from coming in the field as competitors.
We see no justifi cation in the petitioners ' stand.
More operators mean healthy competition and efficient transport system.
Over crowded buses, passengers standing in the aisle, persons clinging to the bus doors and even sitting on the roof top are some of the common sights in this country.
More often one finds a bus which has noisy engine, old upholstry, uncomfortable seats and continuous emission of black smoke from the exhaust pipe.
It is, therefore, necessary that there should be plenty of operators on every route to pro vide ample choice to the commuter public to board the vehi cle of their choice and patronize the operator who is 438 providing the best service.
Even otherwise the liberal policy is likely to help in the elimination of corruption and favouritism in the process of granting permits.
Re stricted licensing under the old Act led to the concentra tion of business in the hands of few persons thereby giving rise to a kind of monopoly, adversely affecting the public interest.
The apprehensions of the petitioners, that too many operators on a route are likely to affect adversely the interest of weaker section of the profession, is without any basis.
The transport business is bound to be ironed out ultimately by the rationale of demand and supply.
Cost of a vehicle being as it is the business requires huge invest ment.
The intending operators are likely to be conscious of the economics underlying the profession.
Only such number of vehicles would finally remain in operation on a particular route as are economically viable.
In any case the transport system in a state is meant for the benefit and convenience of the public.
The policy to grant permits Liberally under the Act is directed towards the said goal.
The petitioners who are already in the business want to keep the fresh entrants out of it and as such eliminate the healthy compe tition which is necessary to bring efficiency in the trade.
This Court in Jasbhai Desai vs Roshan Kumar & Ors., ; posed the following questions for its determina tion: "Whether the proprietor of a cinema theater holding a licence for exhibiting cinematograph films, is entitled to invoke the certiorari jurisdiction ex debito justitiae to get a 'No Objection Certificate ', granted under Rule 6 of the Bombay Cinema Rules, 1954 (for short, the Rules) by the District Magistrate in favour of a rival in the trade, brought up and quashed on the ground that it suffers from a defect of jurisdiction, is the principal question that falls to be determined in this appeal by special leave.
" Sarkaria, J. speaking for the Court an swered the question in the following words: "In the light of the above discussion, it is demonstrably clear that the appellant has not been denied or deprived of a legal right.
He has not sustained injury to any legally pro tected interest.
In fact the impugned order does not operate as a decision against him, much less does it wrongfully affect his title to something.
He has not been subjected to a legal wrong.
He has suffered no legal griev ance.
He has no legal peg for a justiciable claim to hang on.
While a Procrustean approach should be avoided, as a rule the Court should not interfere at 439 the instance of 'stranger ' unless there are exceptional circumstances involving a grave miscarriage of justice having an adverse impact on public interests.
Assuming that the appellant is a 'stranger ', and not a busybody, then also, there are no exceptional circum stances in the present case which would justi fy the issue of a writ of certiorari at his instance.
On the contrary, the result of the exercise of these discretionary powers, in his favour, will, on balance, be against public policy.
It will eliminate healthy competition in this business which is so essential to raise commercial morality; it will tend to prepetuate the appellant 's monopoly of cinema business in the town; and above all, it will, in effect, seriously injure the fundamental rights of respondents 1 & 2, which they have under Article 19(1) (g) of the Constitution, to carry on trade or business subject to 'reasonable restrictions ' imposed by law.
The instant case fails well nigh within the ratio of the this Court 's decision in Rice and Flour Mills vs N.T. Gowda, wherein it was held that a rice mill owner has no locus standi to challenge under Article 226, the setting up of a new rice mill by another even if such setting up be in contravention of section 8(3) (c) of the Rice Milling Industry (Regulation) Act, 1958 because no right vested in such an appli cant is infringed.
For all the foregoing reasons, we are of opinion that the appellant had no locus standi to invoke this special jurisdiction under article 226 of the Consti tution.
Accordingly, we answer the question posed at the commencement of this judgment, in the negative.
" We, therefore, see on justification for the petitioners to complain against the liberalised policy for grant of permits under the Act.
Article 19(1)(g) of the Constitution of India guarantees to all citizens the right to practice any profession, or to carry on any occupation, trade or business subject to rea sonable restrictions imposed by the State under Article 19(6) of the Constitution of India.
A Constitution Bench of this Court in Saghir Ahmad vs The State of U.P. and Others, ; held that the fundamental right under Article 19(1)(g) entitles, any member of the public to carry on the business of transporting passengers with the aid of the vehicles.
Mukerjea, J. speaking for the Court observed as under: "Within the limits imposed by State regula tions any member of the public can ply motor vehicles on a public road.
To that extent he can also carry on the business of transporting passen 440 gers with the aid of the vehicles.
It is to this carrying on of the trade or business that the guarantee in article 19(1)(g) is attracted and a citizen can legitimately complain if any legislation takes away or curtails that right any more than is permissible under clause (6) of that article.
" It is thus a guaranteed fight of every citizen whether rich or poor to take up and carry on, if he so wishes, the motor transport business.
It is only the State which can impose reasonable restrictions within the ambit of Article 19(6) of the Constitution of India.
Section 47(3) and 57 of the old Act were some of the restrictions which were imposed by the State on the enjoyment of the fight under Article 19(1)(g) so far as the motor transport business was concerned.
The said restrictions have been taken away and the provisions of Section 47(3) and 57 of the old Act have been repealed from the Statute Book.
The Act provides liberal policy for the grant of permits to those who intend to enter the motor transport business.
The provisions of the Act are in con formity with Article 19(1)(g) of the Constitution of India.
The petitioners are asking this Court to do what the Parlia ment has undone.
When the State has chosen not to impose any restriction under Article 19(6) of the Constitution of india in respect of motor transport business and has left the citizens to enjoy their right under Article 19(1)(g) there can be no cause for complaint by the petitioners.
On an earlier occasion this Court dealt with somewhat similar situation.
The Uttar Pradesh Government amended the old Act by the Motor Vehicle (U.P. Amendment) Act, 1972 and inserted Section 43A.
The new Section 43 A apart from making certain changes in Section 47 of the old A Act also omitted sub section (3) of Section 47 of the old Act) Section 43A provided that in the case of non nationalised routes, if the State Government was of the opinion that it was for the public interest to grant permits to all eligible applicants it might, by notification in the official gazette issue a direction accordingly.
The necessary notification was issued with the result that the transport authorities were to proceed to grant permits as if sub section (3) of section 47 was omitted and there was no limit for the grant of permits on any specified route within the region.
Section 43 A and the consequent notification was challenged by the existing operators before the Allahabad High Court.
The High Court dismissed the writ petitions.
On appeal this Court in Hans Raj Kehar & Ors.
vs The State of U.P. and Ors., ; dismissed the appeal.
Khanna, J.speaking for the Court held as under; "It hardly need much argument to show that the larger number of buses operating on different routes would be for the conven 441 ience and benefit of the travelling public and as such would be in the public interest.
Any measure which results in larger number of buses operating on various routes would neces sarily eliminate or in any case minimise long hours of waiting at the bus stands.
It would also relieve congestion and provide for quick and prompt transport service.
Good transport service is one of the basic requirements of a progressive society.
Prompt and quick trans port service being a great boon for those who travel, any measure which provides for such an amenity is in the very nature of things in the public interest. . . .
The conten tion that the impugned notification is viola tive of the rights of the appellants under article 19(1)(f) or (g) of the Constitution(is equally devoid of force.
There is nothing in the notification which prevents the appel lants from acquiring, holding and disposing of their property or prevents them from practis ing any profession or from carrying on any occupation, trade or business.
The fact that some others have also been enabled to obtain permits for running buses cannot constitute a violation of the appellants ' rights under the above two clauses of article 19 of the Consti tution.
The above provisions are not intended to grant a kind of monopoly to a few bus operators to the exclusion of other eligible persons.
No right is guaranteed to any private party by article 19 of the Constitution of carrying on trade and business without compe tition from other eligible persons.
Clause (g) of article 19(1) gives a right to all citizens subject to article 19(6) to practise any profession or to carry on any occupation, trade or business.
It is an enabling provision and does not confer a right on those already practising a profession or carrying on any occupation, trade or business to exclude and debar fresh eligible entrants from practising that profession or from carrying on that occupation, trade or business.
The said provi sion is not intended to make any profession, business or trade the exclusive preserve of a few persons.
We, therefore, find no valid basis for holding that the impugned provisions are violative of article 19".
The identical situation has been created by Sections 71, 72 and 80 of the Act by omitting the provisions of Section 47(3) of the old Act.
It has been made easier for any person to obtain a stage carriage permit under the Act.
The attack of the petitioner on Section 80 on the ground of Article 19 has squarely been answered by this Court in Hans Raj Kehar 's case (supra).
It has been contended in the writ petitions that differ ent yard sticks have been provided for interregion, intra region and inter State permits 442 under the Act.
According to the petitioners the imposition of limit for grant of inter State permits is permissible under Section 88(5) of the Act whereas no such limit can be imposed in respect of intra region permits.
The contention is that the provisions are discriminatory and are violative of article 14 of the Constitution of India.
We are not impressed by the argument.
The three categories of permit seekers cannot be considered to be belonging to the same class.
Different criteria have been provided under the Act for granting permits in respect of each of the categories.
It is nobody 's case that Section 80 brings about discrimina tion in the matter of grant of permits between applicants belonging to the same class.
The argument on the ground of Article 14 is thus wholly untenable and is rejected.
This question also came for consideration in Hans Raj Kehar 's case (supra) and this Court rejected the contention in the following words: "Argument has also been advanced that the deletion of Section 47(3) would have the effect of removing the limit on the number of permits for intra region routes but that fact would not prevent the imposition of a limit for the number of permits for inter region routes.
This argument has been advanced in the context of the case of the appellants that the impugned provisions discriminate in the matter of issue of permits for intraregion routes and those for inter region routes and as such are violative of article 14 of the Constitution.
We are not impressed by this argument for we find no valid basis for the inference that if there is no limit on the number _of permits for intra region routes,limit on the number of permits for interregional routes would ' have to be imposed.
The object of the impugned notification is to liberalise the issue of permits and we fail to see as to how such a liberal measure can have the effect of intro ducing strictness or stringency in the matter of grant of permits for inter region routes.
Assuming that a different rule is applicable in the matter of inter region routes, the differentiation is based upon reasonable classification.
It is nobody 's case that the impugned provision brings about discrimination in the matter of grant of permits between applicants belonging to the same class.
The argument about the impugned provision being violative of article 14 is wholly trotenable." The learned counsel for the writ petitioners, have relied upon a later decision of this Court in Rameshwar Prasad & Ors., vs State of Uttar Pradesh & Ors., [1983] 2 S.C.C. 195 and have contended that the decision of this Court in Hans Raj Kehars case (supra) no longer holds the 443 field.
There is no force in the contention.
This Court on two occasions interpreted the old Act as amended by the State of Uttar Pradesh at the relevant times.
The provisions of law which were interpreted in Hans Raj Kehar 's case were entirely different than those which were before this Court in Rameshwar Prasad 's ease.
The legal position with which we are faced in these writ petitions is almost similar to that which was considered by this Court in Hans Raj Kehar 's case.
What happened in the State of Uttar Pradesh was that after the U.P. Amendment of 1972 to the old Act, which was subject matter of interpretation before this Court in Hans Raj Kehars ease, it was found that certain anomalies had arisean in the working of the liberal policy of granting permits.
With a view to remedy the situation the U.P. Legislature amended the old Act again by the U.P. Act 15 of 1976 permit ting imposition of limit on the number of permits to be issued.
In spite of the restrictions on grant of permits as provided in the U.P. Act 15 of 1976 the State Government issued notifications permitting grant of permits to all eligible applicants without any upper limit.
This Court held in Ratneshwar Prasad 's ease that the said notifications were inconsistent with the limitation as to the number of permits introduced by the U.P. Amending Act 1976 and as such were bad in law.
Venkataramiah, J. (as he then was) speaking for the Court in Rameshwar Prasad 's ease observed as under: "We may here state that any observations made in Hans Raj Kehar case would be inapplicable so far as these cases presently before us are concerned.
In that case the court was con cerned with sub section (2) of Section 43 A of the Act as it stood then which was a provision enacted by the legislature.
That sub section provided that without prejudice to the gener ality of the power contained in Section 43 A(1) of the Act where the State Government was of opinion that it was in public interest to grant stage carriage permits (except in re spect of routes or areas for which schemes have been published under Section 68 C) or contract carriage permits or public carrier permits to all eligible applicants it may issue appropriate directions as stated there in.
That sub section contained a clear legis lative policy which considered that there could be no public prejudice if all eligible applicants were granted permits.
Without saying anything more on the point, it may be slated that whatever this court may have observed while considering that provision would not apply now as there is a clear depar ture made by the legislature from that policy when it enacted the new sub section (2) of Section 43 A." It is thus obvious that the reliance by the petitioners on the ratio and observations of this Court in Rameshwar Prasad 's case is wholly mis 444 placed.
The Parliament has, under the Act, made a clear departure from the policy and has reverted to the position which was before this Court in Hans Raj Kehar 's case.
Relying on Rameshwar Prasad 's case the petitioners contend that it is in 'public interest ' to limit the grant of permits on intra region routes and while fixing the limit various factors indicated by this Court in the said case are to be taken into consideration.
We do not agree.
The concept of public interest, in relation to motor transport business, as propounded by this Court in Rameshwar Prasad 's case was only in the context of the old Act as amended by the U.P. Act.
We are of the view that the Act having brought in complete change in the policy of granting permits, the observations of this Court in Rameshwar Prasad 's case are not relevant in the present context.
The provisions of law for consideration before this Court in Hans Raj Kehar 's case were almost similar to Section 80 of the Act.
We are, there fore, bound by the law laid down by the four Judges Bench of this Court in Hans Raj Kehar 's case.
The petitioners have further contended that the condi tions of roads, social status of the applicants, possibility of small operators being eliminated by big operators, condi tions of hilly routes, fuel availability and pollution control are some of the important factors which the Regional Transport Authority is bound to take into consideration while taking a decision on an application for grant of permit.
These are the matters which are supposed to be within the comprehension of the transport authorities.
The legislative policy under the Act cannot be challenged on these grounds.
It is not disputed that the Regional Trans port Authority has the power under the Act to refuse an application for grant of permit by giving reasons.
It is for the authority to take into consideration all the relevant factors at the time of quasi judicial consideration of the applications for grant of permits.
The statutory authorities under the Act are bound to keep a watch on the erroneous and illegal exercise of power in granting permits under the liberalised policy.
We, therefore, see no force in any of the contentions raised by the petitioners and as such we dismiss the writ petitions.
The parties are left to bear their own costs.
G.N. Petitions dis missed.
| These Writ Petitions filed before this Court challenged the liberalisation for private sector operations in the Road Transport field, under the .
The petitioners were the existing operators on different routes.
On behalf of the petitioners, it was contended that the issue of more permits on the same route adversely affected their rights guaranteed under Articles 14 and 19 of the Constitution of India.
It was further contended that though imposition of limit for grant of inter State permits was permissible under Section 88(5) of the Act, it was not so in respect of intra region permits and hence it is discrimina tory; that in public interest the grant of intra region permits should be limited.
Dismissing the Writ Petitions, this Court, HELD: 1.1.
Restricted licensing under the old Act led to the 429 concentration of business in the hands of few persons there by giving rise to a kind of monopoly, adversely affecting the public interest.
The apprehensions of the petitioners, that too many operators on a route are likely to affect adversely the interest of weaker section of the profession, is without any basis.
The transport business is bound to be ironed out ultimately by the rational of demand and supply.
Cost of a vehicle being as it is the business requires huge investment.
The intending operators are likely to be con scious of the economics underlying the profession.
Only such number of vehicles would finally remain in operation on a particular route as are economically viable.
In any case the transport system in a State is meant for the benefit and convenience of the public.
The policy to grant permits liberally under the new Act is directed towards the said goal.
[438 A C].
1.2 The petitioners are in the full enjoyment of their fundamental right guaranteed to them under Article 19(1)(g) of the Constitution of India.
There is no threat of any kind whatsoever from any authority to the enjoyment of their right to carry on the occupation of transport operators.
There is no complaint of infringement of any of their statu tory rights.
More operators mean healthy competition and efficient transport system.
Over crowded buses, passengers standing in the aisle, persons clinging to the bus doors and even sitting on the roof top are some of the common sights in this country.
More often one finds a bus which has noisy engine, old upholstery, uncomfortable seats and continuous emission of blacksmoke from the exhaust pipe.
It is, there fore, necessary that there should be plenty of operators on every route to provide ample choice to the commuter public to board the vehicle of their choice and patronise the operator who is providing the best service.
Even otherwise the liberal policy is likely to help in the elimination of corruption and favouritism in the process of granting per mits.
[437 EH; 438 A].
Hans Raj Kehar & Ors.
vs The State of U.P. and Ors., ; , followed.
Jasbhai Desai vs Roshan Kumar & Ors., ; ; ,Saghir Ahmad vs The State of U.P. and Ors., ; , relied on.
Rameshwar Prasad & Ors.
vs State of Uttar Pradesh & 0rs.[1983] 2 SCC 195, distinguished.
It is only the State which can impose reasonable res tric 430 tions within the ambit of Article 19(6) of the Constitution of India.
Section 47(3) and S7 of the old Act were some of the restrictions which were imposed by the State on the enjoyment of the right under Article (19)(1)(g) so far as the motor transport business was concerned.
The said re strictions have been taken away and the said provisions have been repealed from the Statute Book.
The new Act provides liberal policy for the grant of permits to those who intend to enter the motor transport business.
The provisions of the Act are in conformity with Article 19(1)(g) of the Constitu tion of India.
When the State has chosen not to impose any restriction under Article 19(6) of the Constitution of India in respect of motor transport business and has left the citizens to enjoy their right under Article 19(1)(g) there can be no cause for complaint.
[440 B D].
The three categories of permit seekers in respect of interegion, intra region and inter State permits cannot be considered to be belonging to the same class.
Different criteria have been provided under the Act for granting permits in respect of each of the categories.
It is not the case that Section 80 brings about discrimination in the matter of grant of permits between applicants belonging to the same class.
[442 B] Hans Raj Kehar & Ors.
vs The State of U.P. and Ors.
; , relied on.
Matters such as conditions of roads, social status of the applicants possibility of small operators being eliminated by big operators, conditions of hilly routes, fuel availability and pollution control are supposed to be within the comprehension of the transport authorities.
The legislative policy under the Act cannot be challenged on these grounds.
It is not disputed that the Regional Trans port Authority has the power under the Act to refuse an application for grant of permit by giving reasons.
It is for the authority to take into consideration all the relevant factors at the time of quasi judicial consideration of the applications for grant of permits.
The statutory authorities under the Act are bound to keep a watch on the erroneous and illegal exercise of.
power in granting permits under the liberalised policy.
[444 D F]
|
Appeal No. 4542 1991.
From the Judgment and Order dated 9.1.
1990 of the Central Administrative Tribunal, Madras in O.A. No. 552 of 1989.
P.P.Rao, Narsimha P.S. and Ms. Vijaylakshmi Menon for the Appellants.
Santosh Hegde, A.S. Nambiar, Ms. Sangeeta Garg, P.P.Tripathi, Mrs. Shanta Vasudevan, P.K. Manohar and K.R. Choudhary for the Respond ents.
425 The Judgment of the Court was delivered by VERMA, J.
The Recruitment Rules for the post of Assist ant Engineer in the Public Works Department, Pondicherry, prescribe the educational and other qualifications for appointment by direct recruitment and promotion.
For direct recruits, the qualification prescribed is a Degree in Civil Engineering of a recognised University or Diploma in Civil Engineering from a recognised institution with three years ' professional experience.
For appointment by promotion of Section Officers now called Junior Engineers, the qualifica tion prescribed is as under: "1.
Section Officers possessing a recognised Degree in Civil Engineering or equivalent with three years ' service in the grade failing which Section Officers holding Diploma in Civil Engineering with six years ' service in the grade 50%.
Section Officers possessing a recognised Diploma in Civil Engineering with six years ' service in the grade 50%".
The dispute in the present case is whether a Diploma holder Junior Engineer who obtains a Degree while in service becomes eligible for appointment as Assistant Engineer by promotion on completion of three years ' service including therein the period of service prior to obtaining the Degree or the three years ' service as a Degree holder for this purpose is to be reckoned from the date he obtains the Degree.
The Diploma holders contend that they are entitled to include the earlier period and would be eligible for promotion in this category on obtaining the Degree if the total period of service is three years inclusive of the earlier period.
The Degreeholders contest this position and contend to the contrary.
According to the Degree holders, these are two distinct categories.
In the first category are Degree holders with three years ' service in the grade as Degree holders, the period of three years being subsequent to the date of obtaining the Degree as in the case of the Junior Engineers who join the service with a Degree; and the other category is of Diploma holders with six years ' experi ence.
The Diploma holders went to the Central Administrative Tribunal with this contention and the Tribunals has upheld their claim and directed as under: "In the light of the above, we hold that the applicants are entitled to the relief asked for and accordingly we direct the respondents to consider them for promotion to the post of 426 Assistant Engineer on par with the other Degree ho1ding Junior Engineers, taking due note of their total length of service rendered in the grade of Junior Engineer.
Such a con sideration should be along side other Junior Engineers who might have acquired the neces sary Degree qualification earlier than the applicants, while holding the post of Junior Engineer.
For this purpose, the first three respondents shall take necessary action to convene a review D.P.C. and pass orders on the basis of the recommendations of that D.P.C. within a period of three months from the date of receipt of a copy of this order.
The application is allowed as above".
Hence this petition for grant of special leave by the Degree holders.
Leave is granted.
In our opinion, this appeal has to be allowed.
There is sufficient material including the admission of respondents Diploma holders that the practice followed in the Department for a long time was that in the case of Diploma holder Junior Engineers who obtained the Degree during service, the period of three years ' service in the grade for eligibility for promotion as Degree holders commenced from the date of obtaining the Degree and the earlier period of service as Diploma holders was not counted for this purpose.
This earlier practice was clearly admitted by the respondents Diploma holders in para 5 of their application made to the Tribunal at page 115 of the paper book.
This also appears to be the view of the Union Public Service Commission contained in their letter dated December 6,1968 extracted at pages 99 100 of the paper book in the counter affidavit of re spondents 1 to 3.
The real question, therefore, is whether the construction made of this provision in the rules on which the past practice extending over a long period is based is untenable to require upsetting it.
If the past practice is based on one of the possible constructions which can be made of the rules then upsetting the same now would not be appropriate.
It is in this perspective that the question raised has to be determined.
The Recruitment Rules for the post of Assistant Engi neers in the P.W.D. (Annexure C) are at pages 57 to 59 of the paper book.
Rule 7 lays down the qualifications for direct recruitment from the two sources, namely, Degree holders and Diploma holders with three years ' professional experience.
In other words, a Degree is equated to Diploma with three years ' professional experience.
Rule 11 provides for.
recruitment by promotion from the grade of Section Officers now called Junior Engineers.
There are two catego ries provided therein one is of Degree holder Junior Engi 427 neers with three years ' service in the grade and the other is of Diplomaholder Junior Engineers with six years ' service in the grade, the provision being for 50% from each catego ry.
This matches with Rule 7 wherein a Degree is equated with Diploma with three years professional experience.
In the first category meant for Degree holders, it is also provided that if Degree holders with three years ' service in the grade are not available in sufficient number, then Diploma holders with six years ' service in the grade may be considered in the category of Degree holders also for the 50% vacancies meant for them.
The entire scheme, therefore, does indicate that the period of three years ' service in the grade required for Degree holders according to Rule 11 as the qualification for promotion in that category must mean three years ' service in the grade as a Degreeholder and, therefore, that period of three years can commence only from the date of obtaining the Degree and not earlier.
The serv ice in the grade as a Diploma holder prior to obtaining the Degree cannot be counted as service in the grade with a Degree for the purpose of three years ' service as a Degree holder.
The only question before us is of the construction of the provision and not of the validity thereof and, there fore, we are only required to construe the meaning of the provision.
In our opinion, the contention of the appellants Degree holders that the rules must be construed to mean that the three years ' service in the grade of a Degreeholder for the purpose of Rule 11 is three years from the date of obtaining the Degree is quite tenable and commends to us being in conformity with the past practice followed consist ently.
It has also been so under stood by all concerned till the raising of the present controversy recently by the respondents, The tribunal was, therefore, not justified in taking the contrary view and unsettling the settled practice in the Department.
Consequently, the appeal is allowed.
The impugned order of the Tribunal is set aside resulting in dismissal of the respondents ' application made in the Tribunal.
The Depart ment will now consider the question of promotion in accord ance with this decision.
No costs.
N.P.V. Appeal al lowed.
| The respondents, Diploma holder Junior Engineers in the Public Works Department, pondicherry, approached the Central Administrative Tribunal, with the plea that the period of service rendered by them before they obtained the Degree should be included for reckoning the period of three years ' service prescribed in the Recruitment Rules for promotion to the post of Assistant Engineer in the category of those possessing Degree with three years ' service and if the earlier period was so included, they would be eligible for promotion.
However, Degree holders opposed the respondents ' plea contending that the period of three years prescribed in the Rules was subsequent to the date of obtaining the De gree.
The Tribunal upheld the respondents ' claim and directed that they should be considered for promotion on par with the other Degree holder Junior Engineers, taking due note of their total length of service rendered in the grade of Junior Engineer.
Hence the appeal, by the Special Leave, by the Degree hold ers.
Allowing the appeal, this Court, HELD:1.1 The rules must be construed to mean that the three years ' service in the grade of a Degree holder for the purpose of Rule 11 of the Recruitment Rules, for promotion to the post of Assistant Engineer in the Public Works De partment Pondicherry, is 424 three years from the date of obtaining the Degree by a Diplomaholder.
This is in conformity with the past practice followed consistently.
The Tribunal was not justified in taking the contrary view and unsettling the settled practice in the Department.
[427 D] 1.2 Rule 7 of the Recruitment Rules lays down the quali fications for direct recruitment from the two sources, namely, Degreeholders and Diploma holders with three years ' professional experience.
Thus, a Degree is equated to Diplo ma with three years ' professional experience.
Rule 11 pro vides for recruitment by promotion from the grade of Section Officers, now called Junior Engineers.
There are two catego ries provided therein, viz., (1) Degreeholder Junior Engi neers with three years ' service in the grade and (2) Diplo ma holder Junior Engineers with six years ' service in the grade, the provision being for 50% from each category.
This matches with Rule 7 wherein a Degree is equated with Diploma with three years ' professional experience.
In the first category meant for Degree holders, it is also provided that if Degree holders with three years ' service in the grade are not available in sufficient number, then Diploma holders with six years ' service in the grade may be considered in the category of Degree holders also for the 50% vacancies meant for them.
The entire scheme, therefore, does indicate that the period of three years ' service in the grade re quired for Degree holders according to Rule 11 as the quali fication for promotion in that category must mean three years ' service in the grade as a Degree holder and, there fore, that period of three years can commence only from the date of obtaining the Degree and not earlier.
The service in the grade as a Diploma holder prior to obtaining the Degree cannot be counted as service in the grade with a Degree for the purpose of three years ' service as a Degree holder.
[427 G H, 428 A C]
|
Appeal No. 4568 of 1991.
From the Judgment and Order dated 30.1.89 of the Punjab & Haryana High Court in LPA No. 1251 of 1987.
WITH CA Nos 4569 4686/91 482 M. Chandra Sekhar, Additional Solicitor General, G.L. Sanghi, Hatbans Lal, Har Dev Singh, S.P. Goyal, Harinder Pal Singh, Ms. Naresh Bakshi, S.M. Sarin, P.N. Puff, M.K. Dua, Ms. Madhu Moolchandani, Manoj Swamp, Dr.(Ms.) Meera Agarwal, R.C. Mishra, M.N. Krislmamam, K.P. Sunder Rao, Attar Singh, S.N. Terdal, Hemant Sharma, T.C. Sharma, N.D. Garg, Ms. Kusum Chowdhary and S.P. Sarin for the appearing parties.
The Judgment of the Court was delivered by KANIA, J.
Leave granted.
Counsel heard.
As the controversy before us is a limited one and relates only to the question of granting of benefit of the provisions of Section 23(1 A) introduced into the Land Acquisition Act, 1894 (hereinafter referred to as "the said Act") by the Land Acquisition (Amendment) Act, 1984, (referred to hereinafter as "the Amendment Act of 1984") only a few facts are necessary for the appreciation of the submissions made before us.
This appeal, arising out of S.L.P. (Civil) No, 14297 of 1990 by Special Leave, is directed against the judgment of a Division Bench of the Punjab and Haryana High Court in Letters Patent Appeal No.1251 of 1987.
The other appeals before us are connected appeals filed by the Union of India or the claimants.
The respondent was the owner of a piece of land in one of the villages in District Bhatinda in Punjab.
Land admeasuring 74375 acres situated in various villages in Bhatinda District including the land of the respondent was acquired by the appellants under the said Act.
The Notifications under Sections 4 and 6 of the said Act were published on May 10,1979 and March 27, 1981, re spectively.
The Special Land Collector made and declared his award of compensation in respect of the acquisition of the said land and several other plots of land on March 31,1981.
Being aggrieved by the said award, the respondent and other landowners filed Reference applications under Section 18 of the said Act which were decided by the learned District Judge concerned in 1985 and 1986.
The land acquired was classified into various grades and compensation awarded accordingly.
In the case before us and several other similar cases the benefits under Section 23(1 A) of the said Act were granted to the land owners.
The State appealed to the High Court.
In several other cases where the land owners were not satisfied with the compensation awarded, including the cases where the benefits conferred by Section 23(1 A) were not awarded the land owners filed appeals before the High Court.
483 What is relevant for our purpose is that a learned Single Judge of the High Court confirmed the grant of bene fits under Section 23(1 A)of the said Act where such bene fits had been granted by the learned District Judge and awarded the same where that had not been done by the learned District Judge.
Letters Patent Appeals were filed by the State being dissatisfied with the judgment of the learned Single Judge.
It was submitted on behalf of the Union of India before the Division Bench deciding the Letters Patent Ap peals that the claimants/land owners were not entitled to the benefit of Section 23(1 A) of the said Act introduced by the said Amendment Act, 1984 as aforestated.
It was submit ted on behalf of the appellants that the right to get addi tional amount at the rate of 12% per annum on the enhanced amount of compensation from the date of Notification under Section 4 of the said Act and till the date of the award of the Collector or the date of taking possession whichever is earlier conferred under the provisions of Section 23(1 A) of the said Act was available only in cases where the Collector made his award after 30th day of April, 1982, being the date of the introduction of the Land Acquisition (Amendment) Bill, 1982 in the House of the People, whereas in the present case, the Collector had made his award on March 31, 1981.
Reliance was placed on the Judgment of a Full Bench of the Punjab and Haryana High Court in State of Punjab vs Krishan Lal, AIR (1987) Punjab and Haryana, 222.
The Divi sion Bench repelled this contention and pointed out that the learned Chief Justice H.N. Seth, who spoke for the Full Bench in Krishan Lal 's case (supra) had explained that judgment in the subsequent decision rendered in Maya Devi and Others vs The Union Territory of Chandigarh, Punjab Law Journal (1988) 189.
and pointed out that the land owner was entitled to the additional amount in terms of Section 23(1 A) of the Amendment Act of 1984 if the proceedings for determination of compensation were decided after September 24, 1984, and since the Regular First Appeal in respect of the proceedings for determination of the compensation was decided after September 24, 1984, the Court while adjudi cating upon the amount of compensation payable to the claim ant was bound to grant the additional amount in terms of Section 23(1 A) of the said Act.
The Division Bench in its impugned judgment gave to the claimant the benefit of the added amount referred to in Section 23(1 A) of the said Act.
The same submissions have been made on behalf of the respective parties before us.
Before discussing the submissions of the respective parties, it would not be out of place to set out the rele vant provisions of the said Act.
The said Act, namely, the Land Acquisition Act, 1894, provides for compulsory acquisition of land.
The term 'Award ' has not been defined in 484 the said Act.
Sub clause (d) of Section 3, the definition section, defines the expression 'Court ' as follows: "(d)the expression 'Court ' means a principal Civil Court of original jurisdiction, unless the appropriate Government has appointed, as it is hereby empowered to do, a special judi cial officer within any specified local limits to perform the function of the Court under this Act. ' Part II of the said Act deals with the question of acquisition of land.
Section 11 of the said Act deals with the enquiry and award of compensation by the Collector.
Section 11 A which was introduced into the said Act by the Land Acquisition (Amendment) Act, 1984 (Act No.68 of 1984) provides for the period within which the award shall be made.
Generally speaking, it prescribes that the period for making the award is limited to two years, and the section provides that, if the award is not made within that period, the entire proceedings for acquisition of land shall lapse.
There is a proviso to the said section and an Explanation, but it is not necessary to consider the same for the purpose of this case.
Sub section (1) of Section 18 which is includ ed in Part III of the said Act runs as follows: "18.
Reference to Court (1) Any person interested who has not accepted the award may, by written application to the Collector, require that the matter be referred by the Collector for the determina tion of the Court, whether his objection be to the measurement of the land, the amount of compensation, the person to whom it is pay able, or the apportionment of the compensation among the persons interested." Section 23 deals with the matters to be considered by the Court for determining the compensation to be awarded for the land acquired under the said Act.
We may mention here that under the general scheme of the said Act, the landowner whose land has been acquired is entitled to be paid the market value of the land acquired as prevailing at the time of the publication of the notification under Section 4 issued together with the solatium at the prescribed rate in consideration of the compulsory nature of the acquisition.
Prior to the coming into effect of the Amendment Act of 1984 solatium was fixed at the rate of 15 per centum.
Sub section (1 A) which was introduced into Section 23 of the said Act by the Amendment Act of 1984 runs as follows: "In addition to the market value of the land, as above provided, the Court shall in every case award an amount calcu 485 lated at the rate of twelve per centum per annum on such market value for the period commencing on and from the date of the publi cation of the notification under Section 4, subsection (1), in respect of such land to the date of the award of the Collector or the date of taking possession of the land, whichever is earlier.
" By the said Amendment Act of 1984 the expression "thirty per centum" was substituted in place of the expression "fifteen per centum" in sub section (2) of Section 23 of the said Act.
Sub section (2) of Section 23 now runs as follows: "(2) In addition to the market value of the land, as above provided, the Court shall in every case award a sum of thirty per centum on such market value, in consideration of the compulsory nature of the acquisition." .lmo
These amendments were effected in the Land Acquisition Act (the said Act) by the Land Acquisition (Amendment) Act, 1984, ("the Amendment Act of 1984") as set out earlier.
Sub sections (1) and (2) of Section 30 of the Amendment Act of 1984 run as follows: "30 Transitional Provisions: (1) The provisions of sub section (1 A) of Section 23 of the principal Act, as inserted by Clause (a) of Section 15 of this Act, shall apply, and shall be deemed to have applied, also to, and in relation to, (a) every proceedings for the acquisition of any land under the principal Act pending on the 30th day of April, 1982 the date of intro duction of the Land Acquisition (Amendment) Bill, 1982, in the House of the People, in which no award has been made by the Collector before that date; (b) every proceeding for the acquisition of any land under the principal Act commenced after that date, whether or not an award has been made by the Collector before the com mencement of this Act.
(2) The provisions of sub section (2) of Section 23 and Section 28 of the principal Act, as amended by Clause (b) of Section 15 and Section 18 of this Act respectively shall apply, and shall be deemed to have applied, also to, and in relation to, any award made by the Collector or Court or to any order passed by the High Court or Supreme Court in appeal against 486 any such award under the provisions of the principal Act later the 30th day of April, 1982, the date of introduction of the Land Acquisition (Amendment) Bill.
1982, in the House of the People and before the commence ment of this Act.
" (emphasis supplied by us) On behalf of the appellants reliance was placed by learned Counsel on the decision of this Court in Union of India and Others vs Filip Tiago De Gama of Vedem Vasco De Gama, [1990] 1 SCC 277.
The respondent, on the other hand, placed strong reliance on the decision of a Full Bench of the Bombay High Court in Jaiwant Laxman P. Sardesai and etc.
vs Government of Goa, Daman Diu and Another etc, AIR 1987 Bombay 214.
On the basis of the aforesaid judgment of the Bombay High Court it was submitted by the respondent/claim ant that a wide and liberal interpretation should be given to the provisions of sub section (1 A) of section 23 and the amount calculated as set out in the said sub section awarded in all cases where any proceeding was pending in any court including the High Court or this Court in connection with the determination of compensation for the land acquired.
We may mention that both the parties referred us to the deci sion of a Constitution Bench of this Court in Union of India and Another etc:.
vs Raghuvir Singh (dead) by Lrs etc; , We propose to discuss these decisions a little later but before doing so, we propose to analyse the relevant provisions of the said Act and the effect thereof.
A perusal of the provisions of sub section (1 A) of Section 23 makes it clear that the said sub section deals with substantive rights and it confers a substantive right to claim the additional amount calculated as set out in the said sub section in the circumstances set out therein.
Similarly, sub section (2) of Section 23 also confers a substantive right on the claimant to a higher solatium.
Under the well settled rules of interpretation, the said provisions of the said Act, being substantive in nature, can have only prospective application unless the language in which the provisions are couched, read in the context, shows that the intention of the legislature was to give retrospec tive effect to them.
The language of sub section (lA) of Section 23 shows that a duty is cast on the court tO award an amount calculated as stated therein in addition to the market value of the land acquired for the period commencing from the date of the publication of the Section 4 Notifica tion to the date of the award of the Collector or the date of taking possession, whichever is earlier.
(Emphasis supplied) The expression "award" used in section 23 (I A) suggests that the 487 intention of the legislature was to make the provisions of the said subsection applicable to cases where the Collector had yet to make his award or the Trial Court heating the Reference under Section 18 of the Land Acquisition Act had still to make its award after the coming into force of the said sub section on September 30, 1984.
The expression "award" is to be distinguished from the expression "decree" and hence, it appears that in the absence of any contrary or inconsistent provision in the said Act the provisions of sub section would not come into play where the award had been made by the Collector earlier as well as by the Refer ence Court but ton the date of coming into effect of the said sub section, an appeal from the said award might have been pending in a court.
In that case, the Court would not be "awarding" any amount but would be making a "decree" for an amount.
By reason of the provision of section 30(1)(a) of the Amendment Act of 1984 the provisions of section 23(1 A) of the said Act were, by a deeming provision, made also ap plicable to every proceeding for the acquisition of land under the said Act where the Collector had not made his award by April 30,1982.
On a correct interpretation of the provisions of section 23 (1 A) read with section 30(1)(a) of the Amendment Act of 1984, an additional amount calculated in the manner indicated in section 23(1 A) is also payable in those cases where the Collector had not made his award on or before April 30, 1982, even in cases where the court might have made its award before September 24, 1984.
It is true that the aforesaid construction we are giving to the provisions of Section 23(1 A) and Section 30(1)(a) will, in a sense, limit the benefits strictly conferred by Section 30(1)(a) to only those cases where the Collector as well as the Court have made their respective awards between April 30, 1982 and September 24, 1984 but, in our view, that cannot be helped as that is the result of the plain grammatical construction of the clear language used in the relevant provisions.
We are of the opinion that we would not be justified in giving an unduly restricted meaning to the provisions of Section 23(1 A) unwarranted by the plain language of that sub section as appears to have been done in the case of Union of India and Others vs Filip Tiago De Gama of Vedem Vasco De Gama discussed more particularly hereinaf ter, in order to give a wider meaning of the provisions of Section 30(1)(a).
Section 23(1 A) refers clearly to the duties of the Court.
As we have already pointed out, the court is defined by Section 3(d) as the principal court of original jurisdiction, except in the circumstances set out in the said sub section, which would be the court having jurisdiction to decide the reference under Section 18 of the said Act.
There, is therefore, no warrant to read in the place of the word 488 "Court" in Section 23(1 A) the word "Collector".
Moreover, the decision of such a court determining compensation is regarded as an award under the said Act.
In the light of these provisions, there is no warrant to give an unduly restricted meaning to Section 23(1 A) of the said Act, as pointed out above.
Coming now to the decisions cited before us we find that in the case before the Full Bench of the Bench of the Bombay High Court in Jaiwant Laxman P. Sardesai and etc.
vs Govern ment of Goa, Daman and Diu and Another etc.
(AIR 1987 Bombay 214) the facts were that the Notification under Section 4 of the said Act was published on October 3, 1969, in the Gov ernment Gazette of the Government of Goa.
The Notification under Section 6 was published on June 10, 1971 The Land Acquisition Officer declared his award on August 2, 1972.
All these events undoubtedly occurred prior to April 30, 1982.
However, on a Reference made under Section 18 of the said Act on December 24, 1973, the Civil Court investigated the claim and gave its award on June 24, 1985.
The award was, therefore, made by the Court not before April 30, 1982, but after September 30, 1984, when the provisions of the Land Acquisition (Amendment) Act, 1984, had already come into effect.
It was, therefore, strictly speaking, not necessary for the court to make any observation regarding the legal position in a case where both the Collector as well as the Court in a Reference under Section 18 had made their respective awards before April 30,1982.
Moreover, we find that the judgment appears to proceed on a somewhat unwarranted assumption.
This is clear from the following observations which appear at paragraph 5 of the aforesaid Report (p 217): "It is not in dispute that where on the date of the commencement of the amending Act any proceedings for determination of compensation were pending before the Collector under Sec tion 11 of the Act or before the Court under reference under Section 18 of the Act or before the High Court in appeal under Section 54 of the Act, then the amended section 23 (I A) would be applicable to such proceedings, in absence of subsection (1) of Section 30.
" In our view, it was erroneously taken as undisputed that had the provisions of sub section (1) of Section 30 not been in existence, the provisions of the amended section 23(1 A) would have applied to a case where the Collector as well as the Court had already made their award before April 30, 1982, but an appeal was pending in the High Court on April 30, 1982, or on the commencement of the Land Acquisition (Amendment) Act.
As we have already pointed out, the cor rectness of this as 489 sumption is very much in dispute before us.
In these circum stances, we find ourselves unable to accept as correct the view taken by the Full Bench of the Bombay High Court to the extent that it extends the operation of the provisions of section 23(1 A) even to cases where the Collector as well as the Reference Court had made their awards before April 30, 11982, in the case before the Full Bench of the Bombay High Court in Jaiwant Laxman P. Sardesai and etc.
vs Government of Goa, Daman and Diu and Another etc., AIR 1987 Bombay 214.
As far as the decision of a Division Bench comprising two learned Judges of this Court in Union of India and Others vs Filip Tiago De Gama of Vedem Vasco De Gama [1990] 1 S.C.C. 277 strongly relied upon by the appellants is concerned, we find that in that case the Land Acquisition Officer made his award determining the compensation on March 5, 1969.
On a reference under Section 18 the Civil Court made its award on May 28, 1985, that is, even after Septem ber 24,1984, when the Amendment Act of 1984 came into ef fect.
The view taken by the Division Bench is that, as the Collector had made his award before April 30, 1982, then the additional amount referred to in section 23 (1 A) could not be awarded.
This view has been taken on the basis that sub section (1)(b) of Section 30 of the said Act provides that the provisions of section 23(1 A) shall be applicable to every acquisition proceeding commenced after April 3 O, 1982, irrespective of the fact whether the Collector has made the award on or before September 24, 1984, and that sub section (1) of Section 30 does not refer to court award and the court award is used only in sub section (2) of Section 30.
(See para 21 of the said report).
We find that on the plain language of section 23(1 A) itself, which we have set out earlier, the duty was cast on the Court to award an additional amount calculated as prescribed therein which would mean that it is directed to be awarded by the court, namely, the Reference Court, in all cases which are pending before that court on September 1,1984.
Sub section (1)(a) of Section 30 undoubtedly lays down that the provi sions of section 23(1 A) of the Act are also made applicable to all proceedings for the acquisition of any land under the said Act pending on April 30, 1982, where no award had been made by the Collector before that date.
At first glance this would appear to suggest that the additional amount referred to in section 23 (1 A) could not be awarded where the Col lector had made his award before April 30, 1982.
But this provision cannot be allowed to cut down the benefits avail able to the claimants on a plain reading of section 23(1 A).
This is clear from the use of the word "also" in the opening pan of section 30(1).
In our opinion, the view taken by the Bench comprising two learned Judges of this Court in that case cannot be accepted as correct as it is too narrow and unduly cuts down the operation of the benefit conferred under the 490 plain language of section 23 (1 A) of the said Act.
As far as the provisions of section 30(2) are concerned, we do not feel that we are called upon to interpret the same in this decision.
In our view, therefore, the said decision cannot be accepted as good law in so far as it lays down that in order to bring the provisions of section 23(1 A) of the said Act into play the Collector must have made his award after April 30, 1982.
Coming to the decision in Union of India and Another vs Raghuvir Singh (dead) by Lrs.
(Supra) referred to earlier, we find that it mainly concerned itself with the provisions of section 30(2) of the said Amendment Act with which we are not directly concerned here and in that connection, the Constitution Bench of this Court has made the following observations (p. 779): "In construing section 30(2), it is just as well to be clear that the award made by the Collector referred to here is the award made by the Collector under Section 11 of the parent Act, and the award made by the Court is the award made by Principal Civil Court of Original Jurisdiction under Section 23 of the parent Act on a reference made to it by the Collector under Section 19 of the parent Act.
There can be no doubt that the benefit of the enhanced solatium is intended by section 30(2) in respect of an award made by the collector between April 30, 1982, and September 24, 1984, Likewise the benefit of the enhanced solatium is extended by section 30(2) to the case of an award made by the Court between April 30, 1982, and September 24, 1984, even though it be upon reference from an award made before April 30, 1982.
" The Court went on to point out that (p.780): "Section 30(2) of the Amendment Act extends the benefit c. the enhanced solatium to cases where the award by the Collector or by the Court is made between April 30, 1982, and September 24, 1984, or to appeals against such awards decided by the High Court and the Supreme Court whether the decisions of the High Court or the Supreme Court are rendered before September 24, 1984, or after that date.
All that is material is that the award (empha sis supplied) by the Collector or by the Court should have been made between April 30, 1982, and September 24, 1984.
We find ourselves in agreement with the conclusion reached by this Court in K. Kamalajammanniavaru vs Special Land Acquisition Officer, and 491 find ourselves unable to agree with the view taken in Bhag Singh vs Union Territory of Chandigarh ; The expanded meaning given to section 30 (2) in the latter case does not, in our opinion, flow reasonably from the language of that sub section.
It seems to us that the learned Judges in that case missed the significance of the word 'such ' in the collocation 'any such award ' in section 30(2).
Due significance must be at tached to that word, and to our mind it must necessarily intended that the appeal to the High Court or the Supreme Court, in which the benefit of the enhanced solatium is to be given, must be confined to an appeal against an award of the Collector or of the Court rendered between April 30, 1982, and September 24, 1984.
" We find that this decision which was rendered by a Constitution Bench of this Court comprising 5 learned Judges runs in no way counter to the view which we have taken and, in fact, it leads some support to the view which we are taking.
In the case before us, as the Reference Court has made its award after September 24, 1984 the benefit of the provisions of section 23(1 A) was clearly available to the claimant as held in the impugned judgment.
In the result, the appeal arising out of Special Leave Petition (Civil) No.14297 of 1990 in Union of India vs Zora Singh must be dismissed with costs.
As far as the other appeals filed by the Union of India which have been heard together with the Zora Singh 's case are concerned, learned Counsel for the Union of India has not drawn our attention to any material difference in the relevant facts therein from the facts in Zora Singh 's case.
In fact, the arguments proceeded on the footing that all the relevant facts were the same as in the case of Zora Singh.
In a result, all these appeals must also be dismissed, however, with no order as to costs.
As far as the appeals before us which have been filed by the claimants are concerned, the same will have to be placed before appropriate Benches of this Court for disposal in the light of this decision.
V.P.R. Appeals dis missed.
| The lands of the respondent and other land owners were acquired under the Land Acquisition Act, 1894.
Notifications under sections 4 and 6 of the Act were published on 10.5.1979 and 27.3.1981 respectively.
The respondent and other land owners filed Reference Applications u/s 18 of the Act against the award before the District Judge.
The District Judge classifying the acquired land into various grades awarded compensation and also granted bene fits u/s 23(1 A) of the Act to the respondent and other land Owners.
Hence, the State appealed to the High Court.
Those land owners, who were not satisfied with the compensation awarded and those to whom benefit u/s 23(1 A) were not granted, also appealed to the High Court.
The Single Judge of the High Court confirmed the grant of benefits u/s 23(1 A) of the Act and also granted such benefits to those cases, where such benefits were not given by the District Judge.
The State preferred the Letters Patent Appeals before the Division Bench of the High Court, contending that the respondent and 479 other land owners were not entitled to the benefit of sec tion 23(1 A) of the Act; that the section 23(1 A) was intro duced by the Land Acquisition(Amendment) Act, 1984; that as the Collector had made his award on 31.3.1981 the provisions of section 23(1 A) of the Act was not applicable to the cases of the respondent and other land owners.
The Division Bench of the High Court dismissed the Letters Patent Appeals of the State.
Hence the present appeals by special leave were filed by the State before this Court.
The parties before this Court made the same submissions which were made before the High Court.
Dismissing the appeal, (CA No.4568 of 1991) this Court, HELD: 1.
A perusal of the provisions of sub section(1 A) of section 23 makes it clear that the said sub section deals with substantive rights and it confers a substantive right to claim the additional amount calculated as set out in the said sub section in the circumstances set out therein.
Similarly, sub section(2) of Section 23 also confers a substantive right on the claimant to a higher solatium.
[486 E F] 2.
The provisions of the Act, being substantive in nature, can have only prospective application unless the language in which the provisions are couched, read in the context, shows that the intention of the legislature was to give retrospective effect to them.
The language of sub section(1 A) of section 23 shows that a duty is cast on the court to award an amount calculated as stated therein in addition to the market value of the land acquired for the period commencing from the date of the publication of sec tion 4 of the Notification to the date of the award of the Collector or the date of taking possession, whichever is earlier.
[486 F G] 3.
The expression "award" used in section 23(1 A) suggests that the intention of the legislature was to make the provisions of the said sub section applicable to cases where the Collector had yet to make his award or the Trial Court hearing the Reference under Section 18 of the Land acquisition Act has still to make its award after the coming into force of the said sub section on September 30, 1984.
[486 H 487 A] 480 4.
The expression "award" is to be distinguished from the expression "decree" and hence, it appears that in the absence of any contrary or inconsistent provision in the Act the provisions of subsection(1 A) of section 23 would not come into play where the awards had been made by the Collec tor earlier as well as by the Reference Court but on the date of coming into effect of the said sub section, an appeal from the said award might have been pending in a court.
In that case, the court would not be "awarding" any amount but would be making a "decree" for an amount.
[487 B C] 5.
By reason of the provision of section 30(1)(a) of the Amendment Act of 1984 the provisions of section 23(1 A) of the Act were, by a deeming provision, made also applica ble to every proceeding for the acquisition of land under the Act where the Collector had not made his award by.
April, 30,1982.
On a correct interpretation of the provisions of section 23(1 A) read with section 30(1)(a) of the Amendment Act of 1984, an additional amount calculated in the manner indicated in section 23(1 A) is also payable in those cases where the Collector had not made his award on or before April 30,1982, but the Court might have made its award before September 24,1984.
[487 D E] 6.
The construction that is being given to the provi sions of section 23(1 A) and section 30(1)(a) will, in a sense, limit the benefits strictly conferred by section 30(1)(a) to only those cases, where the Collector as well as the Court have made their respective awards between April 30,1982 and September 24, 1984.
That cannot be helped, as that is the result of the plain grammatical construction of the clear language used in the relevant provisions.
[487 E F] 7.
The Court would not be justified in giving an unduly restricted meaning to the provisions of section 23(1 A) unwarranted by the plain language of the sub section.
[487 F] 8.
Section 23(1 A) refers clearly to the duties of the court.
The court is defined by section 3(d) as the principal court of original jurisdiction, except in the circumstances set out in the said subsection, which would be the court having jurisdiction to decide the reference under section 18 of the Act.
There, is therefore, no warrant to read in the place of the word "Court" in Section 23(1 A) the word "Collector".
Moreover, the decision of such a court deter mining compensation is regarded as an award under the Act.
In the light of the provisions, there is no warrant to give an unduly restricted meaning to section 23(1 A) of the Act.
[487 G 488 A] 481 9.
On the plain language of section 23(1 A) itself, the duty was cast on the court to award an additional amount calculated as prescribed therein which would mean that such amount is directed to be awarded by the court, namely, the Reference court, in all cases which are pending before that court on September 1, 1984.
Sub section (1)(a) of Section 30 lays down that the provisions of section 23(1 A) of the Act are also made applicable to all proceedings for the acquisi tion of any land under the said Act pending on April 30,1982, where no award had been made by the Collector before that date.
At first glance this would appear to suggest that the additional amount referred to in section 23(1 A) could not be awarded where the Collector had made his award before April 30,1982.
But this provision cannot be allowed to cut down the benefits available to the claimants on a plain reading of section 23(t A).
This is clear from the use of the word "also" in the opening part of section 30(1).
[489 E H] 10.
In the present case as the Reference court has made its award after September 24,1984 the benefit of the provi sions of Section 23(1 A) was clearly available to the claim ant.
[491 D] Jaiwant Laxman P.Sardesai etc.
vs Government of Goa, Daman and Diu and Another etc., AIR 1987 Bombay 214(F.B.) and Union of India & Others vs Filip Tiago De Gama of lied era Vasco De Gains, [1990] 1 SCC 277, overruled.
State of Punjab vs Krishan Lal, AIR 1987 Punjab and Haryana 222(F.B.); and Maya Devi and Others vs The Union Territory of Chandigarh, , ap proved.
Union of India and ,Another etc.
vs Raghuvir Singh (dead) by Lrs.
; , ; K. Kamala Jammannia varu vs Special Land Acquisition Officer, [1985] I SCC 582 and Bhag Singh vs Union Territory of Chandigarh, ; , referred to.
|
Contempt Petition Nos.23640/91 & 263/91.
IN Special Leave Petition Nos. 11699, 11700, 11098, 11654, 10190/90 and 429 of 1988.
From the Judgment and Order dated 11.8.1989 of the Patna High Court in C.W.J.C.Nos.
1014, 1013,227,1365 ,red 1363 of 1988.
Prashant Bhushan for the Petitioner, P.D. Sharma for the Respondent.
The Judgment of the Court was delivered by A.S. ANAND, J.
Shorn of details the circumstances giving rise to the filing of these petitions seeking certain direc tions and initiation of contempt proceedings against the respondents are as follows: The petitioners were at the relevant time working as primary school teachers in the State of Bihar.
Services of some of the teachers were terminated.
The orders of termina tion were ' questioned before the High Court of Patna and a Division Bench of that Court vide judgment dated 11.8.1989 accepted the position that the services of the teachers had been terminated on account of improper and illegal recruit ment by the State.
The High Court was, however, of the opinion that the petitioners were not in any way responsible for the improper recruitment.
The Division Bench 418 gave a direction to the State to screen appropriately the cases of the petitioners and to recruit those who satisfy the requirements.
The Division Bench noticed as follows: "On the facts of this case, we observe that persons who are qualified for appointments deserve a consideration and appointment, accordingly on such posts for which they are qualified in preference to other candidates who may be qualified.
We, accordingly, direct the respondents to proceed to take up the appointments of the teachers in the Elementary Schools of Santhal Pargana and Deoghar by inviting applications from the petitioners and other persons who have been removed because they were illegally recruited by the District Superintendent of education and selected if they satisfy the eligibility conditions and appoint them.
In doing so the Respondent State must relax the age limit in case of any of the petitioners found to have become over age during the period of service on stipend and removal.
The petitioners and/or any other candidate who may be appointed in the vacancy so created on account of removal of the peti tioners and other persons appointed by the District Superintendent of Education shall however not claim any benefit of the appoint ment illegally given to them by the District Superintendent of Education but shall receive emoluments and other benefits by dint of their selection and appointment in accordance with law.
" The Court also found that the orders served on the petitioners were violative of principles of natural justice.
However, the Court did not quash the orders of termination but directed that in future selections, preference would be given to the petitioners.
The petitioners filed special leave petitions seeking quashing of the termination orders.
In the special leave petitions certain directions came to be issued by this Court on 7.2.1991.
The State of Bihar was directed that it should carry out the selection process for the retention of the services of those teachers who were qualified at the time of their appointment and that such of the teachers who were found qualified were to be taken back in the employment and were to be given full benefit of continued service irrespective of any break in service on account of the termination of the services.
This court also noticed that the direction of the High Court to the State to hold fresh selections and the methodology to be adopted therefor had become final against the State in as much as the State had not called in question the order of the Divi sion Bench and those directions of the 419 High Court did not require interference.
The Court gave three months to the State for completion of the selection process in accordance with the directions of the High Court.
The outside limit during which the process was required to be completed was fixed as 30th June, 1991.
The Court ob served: "In considering the suitability for selection the Rules which were in force at the time the Teachers were recruited should be taken into account and disqualification shall not be imposed on the basis of any altered Rule.
It will also be open to the State to consider the claim of Teachers who came after the altered Rules in terms of the Rules in force.
The bar of age, we reiterate the direction of the High Court, shall not be used against the Teachers for their selection.
Those of the Teachers who have served in the past but there has been a break in service on account of termination shall have the credit of past service both in regard to the payment of salary as also seniority and other service benefits.
" It transpires that consequent upon the order of this Court dated 7.2.1991, the Commissioner cum Secretary, Human Resources Department, Government of Bihar, made an order on 28.6.1991 determining the categories out of the dismissed teachers, who were eligible for reappointment.
The Commis sioner took the view that under the executive directions/regulations only trained teachers were eligible for appointment in both the categories while the untrained teachers, in exceptional circumstances, could be appointed against the reserved categories of Scheduled Castes, Sched uled Tribes, Urdu and Sanskrit only.
In other words, the Commissioner concluded that those untrained teachers who did not belong to any of the aforesaid four categories but belonged to the general category were not eligible for appointment.
Thus, out of the untrained dismissed teachers numbering about two thousand, only about eighty one teach ers, it is alleged, were found to be qualified and their services were retained.
The petitioners allege that the order of the Commissioner is completely contrary to the executive directions and is also in clear contravention of the order of this Court dated 7.2.1991.
Shri Shanti Bhushan, learned Senior Advocate, appearing for the petitioners submitted that the Commissioner had given a completely wrong interpretation to the executive directions/regulations relating to the appointment of pri mary and middle school teachers in the State of Bihar and had deliberately contravened the orders of this Court dated 7.2.1991.
420 Shri B.B. Singh, learned counsel appearing for the State of Bihar, in reply submitted that there had been no contra vention of the order of this Court dated 7.2.1991 and that the Commissioner had placed a correct interpretation on the executive directions/regulations and had construed the judgment of this Court in the light of that interpretation and, therefore, he had committed no contempt.
Learned coun sel submitted that the interpretation placed by the Commis sioner deserved acceptance.
We have gone through the executive directions/regula tions issued in the form of office letters/orders etc.
concerning the working of The Bihar Non Government Primary School (Taking over of control) Ordinance 1976 and, in particular, the directions relating to the "preparation of waitinglist and appointment of teachers" (para 1) and "the qualifications of candidate for appointment and waiting list" (para 2).
The directions, inter alia, provide that while appointing the teachers I.Sc.
trained will be appoint ed on the basis of I.Sc.
trained and only matric with science trained will be appointed on the basis of matric trained.
Where candidates of the aforesaid qualifications are not available in required number, the candidates having qualifications more than those stated above may also be appointed.
The names of the candidates, in each category, will be written yearwise in the following manner: ". first of all matric trained, then I.A, 1.
trained and thereafter graduate trained, on the basis of marks obtained in educational and training courses and their appointments will be made accordingly.
" Sub clause (d) of Para 2, however, provides: "After the names of trained candidates the names of untrained candidates, of each catego ry will be written in sequence of marks ob tained and qualification." Sub Clause (f) of Para 2 reads thus: "Untrained candidates of different educational qualification may be appointed in reserved category under special circumstances when trained candidates are not available." Sub Clause (1) of Para 2 reads as follows: "Untrained candidates having the qualification of matric or more than it may be appointed in the preliminary pay scale Matric untrained (Middle Trained)." 421 A conjoint reading of the executive orders/directions shows that the untrained candidates are also capable of being appointed in each category but only when the trained teachers are not available in the particular category.
The trained teachers in the order of sequence would indeed get preference over the untrained teachers.
The interpretation placed by the Commissioner, there fore, is not correct and if that interpretation is accepted it would efface the very effect of the order of this Court dated 7.2.1991 and defeat the object of that order which was aimed at providing that all the schools must have teachers.
The Court had taken note of the situation that there was an acute shortage of teachers in primary schools of Santhal Parganas of Bihar due to which most of the schools had been closed down and therefore to tide over the situation the directions extracted above, were given.
The Court had reit erated the directions of the High Court that while making fresh selections the bar of age should not be used against the teachers.
The order of the Court applied to untrained teachers for all the categories also.
The Commissioner has made an order which, in our opinion, is not in conformity with the directions given by this Court and the Division Bench of the High Court.
The directions of the Court, in the peculiar facts and circumstances of the case arising out of closure of a number of schools for want of teachers, provid ed inter alia that even the untrained teachers were entitled to be selected and appointed not only in the reserved cate gories but also in the other categories, provided trained teachers are not available and the untrained teachers are otherwise qualified, without putting the bar of age against them.
From the material on record and after hearing learned counsel for the parties, we are not satisfied that it is a case in which it can conclusively be said that the respond ents have wilfully or deliberately or contemptuously flouted or disobeyed the orders of this Court dated 7.2.1991.
It appears to us to be a case of misinterpretation of the executive directions and order of this Court dated 7.2.1991 and is, therefore, not a fit case in which contempt proceed ings need to proceed any further.
We, accordingly, drop the contempt proceedings and discharge the Rule issued against the respondents.
Since the Court has found entitlement of the untrained teachers in all the categories to appointment provided they are otherwise qualified and trained teachers are not avail able, we direct the respondents to properly comply with the orders of this Court dated 7.2.1991 and select and appoint untrained teachers who are otherwise qualified for appoint ment in all categories without putting the condition of training or age bar against 422 them where trained teachers are not available.
The State must conclude the process of fresh selection in the light of the observations made in this order expeditiously and, in any case.
not later than three months from today.
The petitions are disposed of accordingly.
R.P. Petitions dis posed of.
| The Bihar Non Government Primary School (Taking over of Control) Ordinance, 1976 provided by Para 1 and Para 2 that while appointing teachers, I.Sc. trained will be appointed on the basis of I. Sc trained and only Matric with Science trained will be appointed on the basis of Matric trained, and where such candidates were not available the candidates having qualifications more than these would also be appoint ed.
The petitioners were untrained primary school teachers in the State of Bihar.
Later on their services were termi nated.
They filed writ petitions before the High Court which held that their services had been terminated because of improper and illegal recruitment by the State for which they were not responsible, and that the termination orders were violative of principle of natural justice, but did not quash the orders of termination, and directed the State Government to recruit those dismissed teachers who satisfied the re quirements, and to relax the age limit in case of those who meanwhile became overage.
On the special leave petitions filed by the petitioners this Court by its order dated 7.2.1991, directed the State Government to carry out the selection process to take back in the employment the teachers who were found qualified under the Rules in force at the time of 416 their initial appointment, and to give them full benefit of continued service irrespective of any break in service on account of the termination.
In the special circumstances of the case arising out of closure of a number of schools for want of teachers, the Court held that in the event of non availability of trained candidates even untrained candidates could be appointed, and gave time till 30.6.1991 to complete the selection process in accordance with the directions of the High Court.
Consequent there to the Commissioner cum Secretary, Human Resources Department, Government of Bihar made an order determining eligible categories for reappointment out of the dismissed teachers and hold that under the executive directions/regulations only trained teachers were eligible for appointment while untrained teachers, in exceptional circumstance could be appointed against the reserved catego ries of Scheduled Castes, Scheduled Tribes, Urdu and San skrit only, and held that those untrained teachers who did not belong to any of these categories were not eligible for appointment.
The petitioners filed contempt petitions contending that the Commissioner gave a completely wrong interpretation to the relevant executive directions/regulations and had delib erately contravened this Court 's order dated 7.2.1991.
On behalf of the respondents it was contended that the Commis sioner had correctly interpreted the executive orders/regu lations and did not contravenes this court 's order and, therefore, he committed no contempt.
Disposing of the contempt petitions, this Court, HELD: 1.
(1) The directions of the Court provided that even the untrained teachers were entitled to be selected and appointed not only in the reserved categories but also in the other categories, provided trained teachers were not available and the untrained teachers were otherwise quali fied without putting the bar of age against them.
[p.421D E] 1.2 The interpretation placed by the Commissioner, was not correct and if that interpretation be accepted, it would efface the very effect of the order of this Court dated 7.2.1991 and defeat the object of that order which was aimed at providing that all the schools must have teachers.
The Commissioner 's order was not in cOnformity with the direc tions given by this Court and the High Court.
[p. 421 B D] 417 2.
It appears to be a case of misinterpretation of the executive directions and order of this Court dated 7.2.1991 and was, therefore, not a fit case in which contempt pro ceedings need to proceed any further.
It could not conclu sively be said that the respondents wilfully or deliberate ly or contemptuously flouted or disobeyed the orders of this Court dated 7.2.1991.
[p 421 E F] 3.
The respondents should properly comply with the orders of this Court dated 7.2.1991 and select and appoint untrained teachers who are otherwise qualified for appoint ment in all categories without putting the condition of training or age bar against them where trained teachers are not available.
The process of fresh selection must be con cluded expeditiously and, in any case, not later than three months from the date of the order.
[pp 421 G H; 422 A]
|
Appeal No. 2355 of 1991.
WITH Civil Appeal Nos. 2356 66/91, 2366A 69/91, S.L.P.(C) Nos.
9755/ 91, 9830/91 & 10235 43 of 1991.
From the Judgment and Order dated 27.2.91 of the Punjab & Haryana High COurt in C.W.P. Nos.
8872/89, 10463, 10462/89, 15085/90, 17092/ 89, 11381/90, 15599/90, 12573/89, 14551/89, 10951/90 and 195 of 1991.
D.S.Tiwatia, Anil Mauriya, A.K.GoeI, Mrs. Sheela Goel and B.Y.Kulkarni for the Appellants.
G.Ramaswami Attorney General, G.L.Sanghi, Sudhir Walia, S.Murlidhar and Y.P.Rao for the Respondents.
The Judgment of the Court was delivered by YOGESHWAR DAYAL, J.
These appeals raise a question of the scope and effect of failure of compliance with Section 7 and/or Section 12 of the (hereinafter referred to as 'the Act ').
The question involved is that if the principal employer does not get registration under Section 7 of the Act and/or the Contractor does not get a licence under Section 12 of the Act whether the persons so appointed by the principal employer through the contract would be deemed to be the direct employees of the principal employer or not.
404 There is a direct conflict between the decisions of the High Courts of Punjab, Kerala on the one hand and the deci sions of Madras, Bombay, Gujarat and Karnataka High Courts on the other.
The view of the Punjab and Kerala High Courts is that the only consequence of non compliance either by the principal employer of Section 7 of the Act or by the con tractor in complying with Section 12 of the Act is that they are liable for prosecution under the Act; whereas the view of the High Courts of Madras, Bombay, Gujarat and Karnataka is that in such a situation the contract labour becomes directly the employee of the principal employer.
For the sake of convenience we deal with the facts of Civil Appeal No. 2355 of 1991.
This appeal arises from the decision of a Division Bench of the Punjab & Haryana High Court dated 27th February, 1991 passed in writ petition No. 8872 of 1989.
The Division Bench while deciding a batch of writ petitions followed its earli er decision in the case of Gian Singh & Ors.
F. CI., Patent Appeal No. 1215 of 1990) which has since been reported in The Division Bench in the aforesaid case of Gian Singh held that if the principal employer does not get registration as required under Section 7 of the Act and/or the Contractor does not get the licence under section 12 of the Act, the persons who are appointed by the principal employer through the contrac tor, the only consequence is the penal provisions contained in sections 23 and 24 of the Act and that the principal employer or contractor can be prosecuted under those sec tions, but the Act nowhere provides that such employees employed through the contractor would become the employee of the principal employer.
In the High Court judgment, under appeal, reliance was placed on behalf of the workmen on the views of the High Courts of Karnataka, Madras, Gujarat and Bombay in the cases reported as FCI.
Loading and Unloading Workers Union vs Food Corporation of India , The Workmen of Best & Crompton Industries Ltd. vs The Management of Best & Crompton Engineering Ltd., Madras and Ors., (1985) (1) Lid 492; Food Corporation of India Workers Union vs Food Corpo ration of India and Others and United Labour Union and Others vs Union of India and Others, but the High Court took the view that it was not applicable.
To appreciate the correctness of one view or the other.
it will be necessary to go through the object and the scheme of the Act.
The object; of the Act were dealt with by the Supreme Court in the case of M/s 405 Gammon India Ltd. and Others vs Union of India and Others, (1974) 1) SCC 596 in paragraph 14 at page 600 as follows: "The Act was passed to prevent the exploita tion of contract labour and also to introduce better conditions of work.
The Act provides for regulation and abolition of contract la bour.
The underlying policy of the Act is to abolish contract labour, wherever possible and practicable, and where it cannot be abolished altogether, the policy of the Act is that the working conditions of the contract labour should be so regulated as to ensure payment of wages and provision of essential amenities.
That is why the Act provides for regulated conditions of work and contemplates progres sive abolition to the extent contemplated by Section 10 of the Act, Section 10 of the Act deals with abolition while the rest of the Act deals mainly with regulation.
The dominant idea of Section 10 of the Act is to find out whether contract labour is necessary for the industry, trade, business, manufacture or occupation which is carried on in the estab lishment.
" As the long title and the preamble of the Act shows that it is an Act to regulate the employment of contract labour in certain establishments and to provide for abolition in certain circumstances and for matters connected therewith.
The Statement of Objects and Reasons mentions that the system of employment of contract labour has tended itself to various abuses and the question of its abolition had been under consideration of the Government for a long time.
The Planning Commission had made certain recommendations in the Second Five Year Plan viz. it undertook a study in this behalf on improvement of service conditions of contract labour where the abolition was not possible.
The general consensus thereafter was that the contract labour system should be abolished wherever possible and practicable and further that in a case where the system could not be abol ished altogether, the working conditions of contract labour should be regulated so as to ensure payment of wages and provision of essential amenities.
The above objects have been brought into the Act which was enacted in 1970.
Section 2 gives the definition of various words while section 3 deals with the constitution of Central Advisory Board and section 4 deals with the consti tution of State Advisory Board.
These boards are empowered to constitute various committees as mentioned in section 5.
Chapter III is important and deals with 'registration ' of establishment employing contract labour while Chapter IV deals with 'licensing ' of 406 contractors employed by these establishments.
Section 7 deals with registration of certain establishment notified by the Government and these establishments are obviously the principal employers as defined in section 2(g).
Section 8 provides for revocation of registration in certain cases and section 9 deals with the effect of non registration.
Under Section 9 no principal employer of an establish ment, to which the Act applies shall; (a) in case of an establishment required to be registered under Section 7, but which has not been registered within the time fixed for the purpose under that section (b) in the case of an establish ment the registration in respect of which has been revoked under Section 8 employ contract labour in the establishment after the expiry of the period referred to in clause (a) or after the revocation of registration referred to in clause (b), as the case may be.
Section 10 deals with the prohibi tion of employment of contract labour which reads as fol lows: "10.
Prohibition of employment of contract labour ( 1 ) Notwithstanding anything con tained in this Act, the appropriate Government may, after consultation with the Central Board or, as the case may be, a State Board, prohib it, by notification in the Official Gazette, employment of contract labour in any process, operation or other work in any establishment.
(2) Before issuing any notification under sub section (1) in relation to an establish ment, the appropriate Government shall have regard to the conditions of work and benefits provided for the contract labour in that establishment and other relevant factors, such as .lm18 (a) whether the process, operation or other work is incidental to, or neces sary for the industry, trade, business, manufacture or occupation that is carried on in the establishment; (b) whether it is of perennial nature, that is to say, it is of sufficient duration having regard to the nature of industry, trade, business, manufacture or occupation carried on in that establish ment; (c) whether it is done ordinarily through regular workmen in that establish ment or an establishment similar theretO; (d) whether it is sufficient to employ considerable number of whole time workmen." Chapter IV deals with the licensing of contractors.
Sub clause (1) of 407 Section 12 states that w.e.f.
such date as the appropriate Government may, by notification in the Gazette, appoint, no contractor to whom this Act applies shall undertake or execute any work through the contract labour except under and in accordance with the licence issued in that behalf by the Licensing Officer.
Sub clause (2) of Section 12 provides that subject to the provisions of the Act, a licence in sub section (1) may contain such conditions including, in particular, conditions as to hours of work, fixation of wages and other essential amenities in respect of the labour contract as the appropriate Government may deem fit to impose in accordance with the rules, if any, made under Section 35 and shall be issued on payment of such fees and on the deposit of such sum, if any, as security for due performance of the conditions as may be prescribed.
Section 14 provides for revocation, suspension and amendment of the licences while Section 15 provides for an appeal.
Chapter VI deals with the penalties and procedures.
Section 22 deals with the obstructions.
Section 23 deals with contravention of provisions regarding employment of contract labour and Sections 24 and 25 deal with other offences and offences by companies.
Chapter VII makes certain miscellaneous provi sions and Section 30 provides that laws and agreements inconsistent with the provisions of the Act shall be void except where such agreements or contracts or standing orders afforded more favourable facilities to the employees than provided under the Act.
We shall also refer to Rule 25 of the Rules which mentions the conditions subject to which licence could be issued to a contractor under Section 12.
The said rule inter alia provides that a licence issued to a contractor shall not be transferable, that contractors cannot employ workmen in excess of the number specified therein and that rate of wages payable to the workmen shall be the rate prescribed under the .
Clause (v)(a) of the Rule 25(2) is important and reads as follows: "In cases where the workmen employed by the contractor perform the same or similar kind of working as the workmen directly employed by the principal employer of the establishment, the wage rates, holidays, hours of work and other conditions of service of the workmen of the contractor shall be the same as applicable to the workmen directly employed by the prin cipal employer of the establishment on the same or similar kind of work. ' Rule 25(2) further provides for accommodation for women and children and for the times of work of females.
From the above provisions it is clear that the Act serves two fold purposes (1) regulation of the conditions of service of the workers employed by the contractor who is engaged by a principal employer and; (2) 408 also provides for the appropriate Government abolishing contract labour altogether, in certain notified processes, operation or other works in any establishment.
Neither the Act nor the Rules flamed by the Central Government or by any appropriate Government provide that upon abolition of con tract labour, the said labour would be directly absorbed by the principal employer.
The question arises when the Act does not provide for such a measure, but contents itself by merely regulating the conditions of service of the contract labour, can the Court in proceedings under Article 226 of the Constitution, where the principal employer or the licence contractor violates the provisions of Section 9 or 12 respectively, direct that the contract labour so employed would become directly the employee of the principal employer.
The view of the Bombay High Court in the case of United Labour Union and Others vs Union of India (supra) was really concerned with the appropriate Government for purposes of notification being issued under Section 10(1) of the Act.
It took the view that the Central Government was the appropri ate Government in relation to Air India Corporation but after analysing the provisions of Section 2(ii)(b), 7,8,12,20,21 and 29 the Bombay High Court took the view "The combined effect of these provisions makes it clear that for a valid employment of con tract labour, two conditions must be ful filled, viz., (1) every principal employer of an establishment must be registered and (2) the contractor must have valid licence.
In other words, the mere registration by the principal employer or the holding of licence by contractor alone will not enable the man agement to treat the workmen as contract labour.
Whilst considering the provisions of the Act, it must be kept in mind that this Act is a piece of beneficial legislation.
The aim of the Act is to regulate conditions of serv ice of contract labourers and to abolish contract labour under certain circumstances.
It is therefore meant for securing proper conditions of service to under contract la bour.
It is not the purpose of the Act to render workmen jobless.
The interpretation which must be given is one which would further these objects and not one which results in greater hardship.
It must be noted that there is no provision which states that the rela tionship of principal employer and workmen comes to an end on the abolition of contract labour.
On the contrary as already stated there is a deemed contract labour only if the two conditions of registra 409 tion and licence are fulfilled.
In such a case i.e., where either or both the conditions are not fulfilled, the necessary implication would be that the workmen remain workmen of the principal employer.
It must be remembered that on a failure of the contractor to provide amenities or to pay wages the principal em ployer remains liable for the same.
The same would be the position on a failure by reason of there being no valid contract labour.
Mr. Dhanuka, however, submitted that the Act provides certain penal consequences for non registration.
He submits that there no such provision in the Act, the same cannot be implied.
He submits that in the absence of any such provision the Court cannot give any direction to that effect.
In my view, the penal provisions are provided to dissuade employers from attempting to commit a breach of the provisions of the Act and the Rules made thereunder.
They do not detract from the position that there can be no deemed contract labour if the two conditions are not satis fied.
If the protection or right given by reason of a deeming provision is not available then the natural consequence must follow in addition to the penal consequence, unless there is a provision to the contrary.
As already stated, in the Act there is no provi sion that the services of the workmen, qua the principal employer, stand terminated on the contract labour becoming invalid and/or abol ished".
(emphasis supplied) The question arising before us directly came up for consideration before a division bench of the Gujarat High Court in the case of Food Corporation of India Workers Union vs Food Corporation of India and Others (supra) which ob served : It is evident that (,i) the principal employer should obtain a Certificate of Regis tration and (ii) the workmen can be employed on contract labour basis only through licensed contractor.
The Certificate of Registration is required to be obtained by the principal employer, issued by the appropriate Government under the provisions of Section 7 of the Act.
The licence is to be obtained by the contrac tors under the provisions of Section 12 of the Act.
The workmen can be employed as contract labour only through licensed contractor.
Unless both these conditions are complied with, the provisions of the would not be 410 attracted.
Both these conditions are required to be fulfilled, if one wishes to avail of the provisions of the Act.
Even if one of the conditions is not complied with, the provi sions of the Contract Labour (Regulation & Abolition) Act, 1970 would not be attracted.
Therefore, in a situation wherein either of these two conditions is not satisfied, the position would be that a workman employed by an intermediary would be deemed to have been employed by the principal employer.
In the result it is declared that during the period when the two conditions of obtaining registra tion under Section 7 by the principal employer and of holding licence by the contractor are not complied with and the workmen are employed by contractor, the workmen can claim to be direct employees of the principal employer.
" The decision of the Madras High Court in The Workmen of Best & Crompton Industries Ltd. vs The Management of Best & Compton Engineering Ltd., Madras and Ors., really arose out of an award given by the Labour Court in an industrial dis pute.
The industrial dispute had been raised by the workmen of the principal employer.
They challenged the termination of service of workmen by the Management as the Management did not requisition the service of 75 workmen after 16th October, 1978 on the ground that they were employed by the licensed contractor.
This led to an industrial dispute and on a reference made of the said industrial dispute, the Labour Court rejected the contention of the Management and held that the so called contractor was a mere name lender and did not hold licence under the Act and directed the reinstatement of the workmen with backwages and other bene fits.
This award of the Labour Court was challenged before the High Court by the Management by a writ petition.
The learned Single Judge of the Madras High Court took the view that the conclusion of the Labour Court that the labour contractor was not early a labour contractor, but lie was merely acting as a tool in the hands of the Management is not supported either by the pleadings of the parties or by the evidence.
According to the learned single Judge there was absolutely nothing to displace the weighty documentary evidence in favour of the Management and therefore, he characterised the finding entered by the Labour Court to the contrary as being perverse and vitiated The division bench in Letters Patent Appeal reversed this finding of the learned Single Judge.
The High Court observed at page 497 "In order to enable the Management to have the benefit of the contract labour, the Act has now legalised the employment of 411 such contract labour, provided the intermedi ary contractor holds, a valid licence and provided the Management also holds a valid licence as principal employer.
This is subject to the prohibition contemplated under section 10.
There is no need for us to examine the content of S.10 in this case.
In order to regulate the employment of contract labour and to provide for abolition in certain circumstances, the said Act came to be passed.
According to section 7: "Provided that the registering officer may entertain any such application for registra tion after expiry of the period fixed in this behalf, if the registering officer is satis fied that the applicant was prevented by sufficient cause from making the application in time.
(2) If the application for registration is complete in all respects, the registering officer shall register the establishment and issue to the principal employer of the estab lishment a certificate of registration con taining such particulars as may be prescribed".
Under S.12 of the Act, no contractor to whom this Act applies, shall undertake or execute any work through con tract labour except under and in accordance with a licence issued in that behalf by the licensing officer.
Sub s.(2) of section 12 provides: "Subject to the provisions of this Act, a licence under sub section
(1) may contain such conditions including in particular conditions as to hours of work, fixation of wages and other essential amenities in respect of con tract labour as the appropriate Government may deem fit to impose in accordance with the rules, if any, made under S.35 and shall be issued on payment of such fees and on the deposit of such sum, if any, as security for the due performance of the conditions as may be prescribed".
The combined effect of these two provi sions in our view makes it clear that for a valid employment of "(1)Every principal employer of an establish ment to which this Act applies shall, within such period as the appropriate Government may, by notification in the Official Gazette, fix in this behalf with respect to establishments generally or with respect to any class of them, make an application to the registering officer in the prescribed manner for registra tion of the 412 establishment; contract labour, two conditions should be satisfied, viz., not only the prin cipal employer but also the contractor should possess the requisite licence.
In other words, the holding of licence by one alone will not enable the management to treat the workmen as contract labour." The High Court of Kerala in the case of P. Karunakaran vs The Chief Commercial Superintendent and Others, took the same view as was taken by the Punjab & Haryana High Court in the judgment under appeal.
A similar view was expressed by the Delhi High Court in the case of New Delhi General Mazdoor Union vs Standing Conference of Public Enterprises (Scope) & Another, (1991) 2 Delhi Lawyer 189.
The reference to the Labour Court/Industrial Tribunal could be as to whether it is necessary for the Management to employ contract labour directly or indirectly; a question can as well be referred whether the engagement of contract labour was bona fide or it was a camouflage.
In appropriate cases in industrial adjudication appropriate directions can be given to the principal employer in this behalf.
This has been the subject matter of decisions by the Tribunals/Labour Courts and by this Court also.
The case of Standard Vacuum Refining Co. vs Their Workmen is a case on this point.
It was a case where the workmen employed by an oil refinery demanded that the contract system of labour adopted by the company for cleaning mainte nance of the refinery belonging to the company should be abolished and the said demand was referred for adjudication.
It was found that the work for which the contract was given is incidental to the manufacturing process and is necessary for it and of a perennial nature which must be done every day and in these circumstances the Industrial Tribunal directed the Company to abolish the contract system of labour with effect from a particular date and to have the said work done through workmen engaged by itself.
This direction was given in view of the fact that the work was of a permanent nature and the labour employed through contrac tor was receiving much less wages than the unskilled workmen of the company and they were not having any other benefits and amenities like provident fund, gratuity, bonus, privi lege leave etc.
On the award of the Industrial Tribunal the Supreme Court gave the finding that it was an industrial dispute as defined under Section 20c) of the Industrial Disputes Act.
In dealing with the question whether the Tribunal was justified in giving the directions for abolish ing the contract system the Supreme Court noted that indus trial adjudication generally does not encourage employment of contract labour in modern times and it would be necessary to examine the merits of the dispute apart from gen 413 eral consideration that contract labour should not be encouraged; and that n any case the decision should rest not merely on theoretical or abstract objections to contract labour but also on the terms and conditions of the contract labour and the grievance made by the workmen thereof.
On facts the Supreme Court observed: "It may be accepted that the contractor in the present case is an independent person and the system is genuine and there is no question of the company carrying on this work itself and camouflaging it as if it was done through contractors in order to pay less to the work men.
But the fact that the contract in this case is a bona fide contract would not neces sarily mean that it should not be touched by the industrial tribunals.
If the contract had been mala fide and a cloak for suppressing the fact that the workmen were really the workmen of the company, the tribunal would have been justified in ordering the company to take over the entire body of workmen and treat it as its own workmen.
But because the contract in this case was bona fide, the tribunal has not ordered the company to take over the entire body of workmen.
It has left to it to decide for itself how many workmen it should employ and on what terms and has merely directed that when selection is being made preference should be given to the workmen employed by the present contractor.
" The Supreme Court also noticed that the industrial dispute was confined to the cleaning maintenance of the plant; the work was incidental to manufacturing process and the work is necessary for it and was of a perennial nature which must be done every day and such work is generally done by workmen in the regular employment of the employer and there would be no difficulty in having regular workmen for this kind of work.
It noted that the matter would be differ ent if the work done was of an intermittent or temporary nature or was so little that it would not be possible to employ full time workmen for the purpose.
It would be noticed that after the aforesaid observa tions of the Supreme Court in the case of Standard Vacuum Refining Company (supra) the Parliament while giving power to the appropriate Government to prohibit employment of contract labour in any process or operation or other work in any establishment gave the guidelines in clauses (a),(b),(c) and (d) of sub section (2) of Section 10, as noticed earli er, and guidelines are practically based on the guidelines given to the Tribunals in the aforesaid case of Standard Vacuum Refining Coral)any by this court.
The Act as can 414 be seen from the scheme of the Act merely regulates the employment of contract labour in certain establishment and provides for its abolition in certain circumstances.
The Act does not provide for total abolition of contract labour but it provides for abolition by the appropriate Government in appropriate cases under Section 10 of the Act.
In the present case and the other connected Special Leave Petitions no notification has been issued by the appropriate Government under Section 10 of the Act vis a vis the type of establishment with which we are concerned.
It is not for the High Court to inquire into the ques tion and decide whether the employment of contract labour in any process, operation or in any other work in any estab lishment should be abolished or not.
It is a matter for the decision of the Government after considering the matter, as required to be considered under Section 10 of the Act.
The only consequences provided in the Act where either the principal employer or the labour contractor violates the provision of Sections 9 and 12 respectively is the penal provision, as envisaged under the Act for which reference may be made to Sections 23 and 25 of the Act.
We are thus of the firm view that in proceedings under Article 226 of the Constitution merely because contractor or the employer had violated any provision of the Act or the rules, the Court could not issue any mandamus for deeming the contract labour as having become the employees of the principal employer.
We would not like to express any view on the decision of the Karnataka High Court or of the Gujarat High Court (supra) since these decisions are under challenge in this court, but we would place on record that we do not agree with the aforequoted observations of the Madras High Court about the effect of non registration of.the principal employer or the non licensing of the labour contractor nor with the view of Bombay High Court in the aforesaid case.
We are of the view that the decisions of the Kerala High Court and Delhi High Court are correct and we approve the same.
In the result C.A.2355 of 1991 fails and is dismissed and in view of the observations in C.A. 2355 of 1991, C.A.Nos.2356 66/91, 2366A 69/91 and S.L.P.(C) Nos.
9755/91, 9830/91 & 10235 43/91 are also hereby dismissed.
In the circumstances of the case, parties are left to bear their own costs of the present proceedings.
| Following its earlier decision in 1991(1) P.L.R.I. the High Court held that the principal employer and the Contrac tor were liable for prosecution under the , if they made non compliance of section 7 and section 12 of the Act, respec tively.
Further, it was held that the employee employed through the contractor did not become the employees of the principal employer.
C.A.No. 2335 of 1991 arose by special leave from the decision of the High Court.
The point involved in other appeals is common.
This Court, on the question, if the principal employer did not get registration under section 7 of the Act and/or the contractor did not get a licence under Section 12 of the Act, whether the person so appointed by the principal employer through the contractor would be deemed to the direct employees of the principal employer or not, dismissing the appeals, HELD: 1.
The long title and the preamble of the Con tract Labour (Regulation and Abolition) Act, 1970 show that it is an Act to regulate the employment of contract labour in certain establish 402 ments and to provide for abolition in certain circumstances and for matters connected therewith.
The Statement of Ob jects and Reasons mentions that the system of employment of contract labour has tended itself to various abuses and the question of its abolition had been under consideration of the Government for a long time.
[405 E] 2.
The serves two fold purpose (1) regulations of the conditions of service of the workers employed by the contractor who is engaged by a principal employer; and (2) also provides for the appropriate Government abolishing contract labour alto gether, in certain notified processes operation or other works in any establishment.
Neither the Act nor the Rules framed by the Central Government or by any appropriate Government provide that upon abolition of contract labour, the said labour would be directly absorbed by the principal employer.
[407 H 408 A] 3.
The Act as can be seen from the Scheme of the Act merely regulates the employment of contract labour in cer tain establishment and provides for its abolition in certain circumstances.
The Act does not provide for total abolition of contract labour but it provides for abolition by the appropriate Government in appropriate cases under Section 10 of the Act.
[413 H 414 A] 4.
In the present case and the other connected Special Leave Petitions no notification has been issued by the appropriate Government under Section 10 of the Act.
[414 B] 5.
It is not for the High Court to inquire into the question and decide whether the employment of contract labour in any process, operation or in any other work in any establishment should be abolished or not.
It is a matter for the decision of the Government after considering the matter, as required to be considered under Section 10 of the Act.
[414 C D] 6.
In proceedings under Article 226 of the Constitution merely because contractor or the employer had violated any provision of the Act or the Rules, the court could not issue any mandamus for deeming the contract labour as having become the employees of the principal employer.
[414 E] M/s Gammon India Ltd. and Others vs Union of India, [1974] 1 SCC 596; Standard Vacuum Refining Co vs Their work men, ; F.C.I. Loading and Unloading Workers Union vs Food Corpora 403 tion of India ; Food Corporation of India Workers Union vs
Food Corporation of India and others. , referred to.
Gian Singh & Others vs F.C.I., 1991(1) PLR 1 (Punjab and Haryana); The Workmen of Best & Crompton Industries Ltd. vs The Management of Best & Crompton Engineering Ltd. Madras and Ors, 1985(1) LLJ 492 (Madras); and United Labour Union and Others vs Union of india and Others, 1990(60) FLR 686 (Bombay), over ruled.
P. Karunakaran vs The Chief Commercial Superintendent and Others, 1988(2) LIC 1346 (Kerala) and New Delhi General Mazdoor Union vs Standing Conference of Public Enterprises (Scope) & Another, 1991(2) Delhi Lawyer 189, approved.
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