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iminal Appeal No '400 of 1993.
From the Judgment land order dated 3.6.
1992 of the Punjab and Haryana High Court in Criminal Revision No. 443 of 1990.
P. Chadambaram, Mukul Rohtagi, Ms. Bina Gupta and Ms. Monika Mohil for the Appellants.
N.N. Goswamy, Y.D. Mahajan and N.D. Garg for the Respondent.
The Judgments of the Court were delivered by K. RAMASWAMYJ: Special leave granted.
The appellant, accused No. 2 in p.
(CBI) No. 40/2, dated February 18, 1985, F.I.R. No. RC No. 2 to 4/1983 dated March 4,1983 and P.S. SPE/CBI/CTU (E) I/New Delhi, Dist.
Delhi and four other namely, V.P. Anand, Baldev Raj Sharma, Bansi La] and Ranjit KumarMarwah are accused in the said case.
It is the prosecution case that the accused hatched a conspiracy at Chandigarh to cheat Punjab National Bank for short 'PNB '.
In furtherance thereof V.P. Anand floated three New Link Enterprises and M/s. Moonlight Industries in the name of Baldev Raj Sharms, his employee and M/s. Guru Nanak Industries in the name of Bansi Lal, yet another employee.
He opened current accounts in their respective names in the P.N.B. at Chandigarh.
In furtherance of the conspiracy and in confabulation with V.P. Anand, the appellant, Ajay Aggarwal, a non resident Indian at Dubai who is running M/s. Sales International, Dubai, agreed to and got credit facility by way of Foreign Letters of Credit Nos.
4069 p, 4070 p and 4084 p, issued proforma invoices of the said concern and addresses to PNB through Guru Nanak Industries and New Link Enterprises.
Ranjit Marwah, the 5th accused, Manager of P.N.B., In charge, of foreign exchange department confabulated with the accused, issued Foreign Letter of Credit in violation of import policy.
The Bills of Lading were addressed to PNB at Chandigarh.
The cable confirmation of P.N.B. was sent to M/ s Sales International by P.N.B., Chandigarh for confirmation of discrepancy.
The appellant had confirmed correctness thereof in the name of V.P. Anand.
Placing reliance thereon authority letter was issued by P.N.B., Chandigarh and cables were sent subsequent thereto to remit the amounts to Emirates National Bank Ltd. through Irving Trust Company.
V.P. Anand was present on September 16, 1981 at Dubai and at his instance the Emirats National Bank, Dubai informed the 551 P.N.B., Chandigarh that the discrepancy in the document adeptable to V.P. Anand and claimed to have inspected the goods on board in vessel, M.V. Atefeh.
On receipt of the information from the Sales International, Dubai, full amount in US Dollars 4, 39,200 was credited against all the three Letters of Credit on discount basis.
During investigation it was found that Vessel M.V. Atefeh was a nonexistent one and three Foreicn Letters of Credit were fabricated on the basis of false and forged shipping documents submitted by the appellant, Ajay Aggarwal to the Emirates National Bank, Dubai.
Thus the P.N. B. was cheated of an amount of Rs. 40,30,329.
Accordingly charge sheet was laid against the appellant.
and others for offences punishable under sections 120B read with Sections 420 (Cheating), 468 (Forgery) and 471 using as genuine (Forged documents), I.P.C.
The Chief Judicial Magistrate, Chandigarh by his order dated January 11, 1990 discharged all, the accused of the offences on the ground that conspiracy and the acts done in furtherance thereof had taken place outside India and, therefore the sanction under section 188 Criminal Procedure Code, 1973 for short the 'Code ' is mandatory.
Since no such sanction was produced the prosecution is not maintainable.
On revision, the High Court of Punjab and Haryana in Criminal Revision No. 443 of 1990 by order dated June 3, 1992 held, that the conspiracy had taken place at Chandigarh.
The overt acts committed in pursuance of that conspiracy at Dubai constituted offences under sections 420, 467 and 471, I.P.C., are all triable at Chandigarh without previous sanction of the central Govt.
The order of discharge, therefore, was set aside and the appellant and other accused were directed to be present through their counsel in person in the Trial Court on July 17,1992 to enable the court to take further proceedings in accordance with law.
This appeal has been filed by the appellant alone under article 136 of the constitution.
Sri Chidambaram, learned Senior counsel contended that the appellant was not a privy to the conspiracy.
He was an N.I.R. businessman at Dubai.
He never visited Chandigarh.
Even assuming for the sake of argument that conspiracy had taken place and all act committed in furtherance thereof were also at Dubai.
The transaction through, bank is only bank to bank transaction.
Even assuming that some of the offences were committed in India since as per the prosecution case itself that part of the conspiracy and related offences were committed at Dubai, by operation of Section 188 read with the proviso thereto with a non obstanti clause, absence of sanction by the Central Govt.
knocks of the bottom of the jurisdiction of the courts in India to take cognisance of or to enquire into of try the accused.
He placed strong reliance on 1.
Fakhrulla khan and Ors.
vs Emperor AIR 1935 Mad. 326, In re M.L. Verghese AIR 1947 MAD.
352, kailash Sharma vs State [1973] Crl.
Law Journal 1021 and K. Satwant Singh vs State of Punjab ; Sri Goswami, the learned senior counsel for the respondents contended that the conspiracy to cheat.
PNB was hatched at Chandigarh.
All the accused committed 552 overt acts in furtherance.
All the accused committed overt acts in furtherance on the conspiracy at Chandigarh and, therefore, the sanction of the Central Govt.
is not necessary.
The High Court had rightly recorded those findings.
There is no need to obtain sanction under section 188 of the Code.
The diverse contentions give rise to the primary question whether the sanction of the Central Govt.
as required under proviso to section 188 of the Code is necessary.
Section 188 of the Code reads thus "Offence committed outside India when an offence is committed outside India (a) by a citizen of India, whether on the high seas or elsewhere; or (b) by a person, not being such citizen, on any ship or aircraft registered in India, he may be dealt with in respect of such offence asif it had been committed at any place within India at which he may be found: Provided that, notwithstanding anything in any of the preceding sections of this Chapter, no such offence shall be inquired into or tried in India except.
with the previous sanction of the Central Government".
Section 3, IPC prescribes punishment of offences committed beyond, but which by law may be tried with, India, It provided that any person liable, by any Indian law, to be tried for an offence committed beyond India shall be dealt with according to the provisions of this Code for any act committed beyond India in the same manner as if such act had been committed within India.
Section 4 extends its territorial operation postulating that IPC shall apply to any offence committed by (1) any citizen of India in any place without any beyond India; (2) any person on any ship or aircraft registered in India wherever it may be.
Explanation in this section the word offence ' includes every act committed outside India which, if committed in India, would be punishable under this Code. 553 Illustration A, who is a citizen of India, commits a Murder in Uganda.
He can be tried and convicted of murder in any place in India in which he may be found.
The Code of Criminal Procedure extends to whole of India except the State of Jammu & Kashmir and except chapters 8, 10 and 11, the other provisions of the Code shall not apply to the State of Nagaland and to the tribal area.
However, the State Govt. has been empowered, by a notification, to apply all other provisions of the Code or any of them to the whole or part of the State of Nagaland and such other tribal areas, with supplemental, incidental or consequential modifications, as may be specified in the notification.
Therefore, the Code also has territorial operation.
The Code is to consolidate and amend the law relating to criminal procedure.
Section 188 was suitably amended pursuant to the recommendation made by the Law Commission.
Chapter VIII deals with jurisdiction of the courts in inquiries and trials.
Section 177 postulates that every offence shall ordinarily be inquired into and tried by a Court within whose local jurisdiction it was committed but exceptions have been engrafted in subsequent sections in the Chapter.
Section 179 provides venue for trial or enquiry at the place where the act is done or consequences ensued.
So inquiry or trial may be had by a Court within whose local jurisdiction such thing has been done or such consequence has ensued.
Section 188 by fiction dealt offences conumitted by a citizen of India or a foreigner outside India or on high seas or elsewhere or on any ship or aircraft registered in India.
Such person was directed to be dealt with, in respect of such offences, as if be had committed at any place within India at which he may be found.
But the proviso thereto puts and embargo that notwithstanding anything in any of the preceding sections of this Chapter have been done such offences shall not be inquired into or tried in India except with the previous sanction of the Central Govt.
Judicial power of a State extends to the punishment of all offences against the municipal laws of the State by whomsoever committed within the territory.
It also has the power to punish all such offences wherever committed by its citizen.
The general principle of international law is that every person be it a citizen or foreigner who is found within a foreign State is subjected to, and is punishable by, its law.
Otherwise the criminal law could not be administered according to any civilised system of jurisprudence.
Sections 177 to 186 deal with the venue or the place of the enquiry or trial of crimes.
Section 177 reiterates the well established common law rule that the proper and ordinary situs for the trial of a crime is the area of jurisdiction in which the acts occurred and are alleged to constitute the crime.
But this rule is subject to several well recognised exceptions and some of those exceptions have been engrafted in subsequent sections in the chapter of the Code.
554 Therefore, the provisions in Chapter VIII are elastic and not peremptory.
In consequence there with Sections 218 to 223 of the code would also deal with exceptions engrafted in the Code.
Therefore, they do permit enquiry or trial of a particular offence along with other offences at a common trial in one court so that the court having jurisdiction to try an offence gets jurisdiction to try other offence committed or consequences thereof has ensued.
The procedure is hand maid to substantive justice, namely, to bring the offenders to justice to meet out punishment under IPC or special law as the case may be, in accordance with the procedure prescribed under the Code or special procedure under that Act constituting the offence.
The question is whether prior sanction of the Central Govt.
Is necessary for the offence of 'conspiracy under proviso to section 188 of the Code to take cognizance of an offence punishable under section 120 B etc.
I.P.C. or to proceed with trial.
In Chapter VA, conspiracy was brought on statute by the Amendment Act, 1913 (8 of 1913).
Section 120 A of the I.P.C. defines 'conspiracy ' to mean that when two or more persons agree to do, or cause to be done an ilegal act, or an act which is not illegal by illegal means such an agreement is designated as "criminal conspiracy".
No agreement except an agreement to commit an offence shall amount to a criminal conspiracy, unless some act besides the agreement is done by one or more parties to such agreement in furtherance thereof.
Section 120 B of the I.P.C. prescribes punishment for criminal conspiracy.
It is not necessary that each conspirator must know all the details or the scheme nor be a participant at every stage.
It is necessary that they should agree for design or object of the conspiracy.
Conspiracy is conceived as having three elements: (1) agreement (2) between two or more persons by whom the agreement is effected , and (3) a criminal object, which may be either the ultimate aim of the agreement, or may constitute the means, or one of the means by which that aim is to be accomplished.
It is immaterial whether this is found in the ultimate objects.
The common law definition of criminal conspiracy was stated first by Lord Denman in jones case that an indictment for conspiracy must "charge a conspiracy to do an unlawful act by unlawful means" and was elaborated by Willies, J. on behalf of the judges while referring the question to the House of Lords in Mulcahy vs Reg and the House of Lords in unanimous decision reiterated in Quinn vs Leathem ; at 528) as under: A conspiracy consists not merely in the intention of two or more, but in the agreement.
of two or more to do ,in unlawful act, or to do a lawful act by unlawful means.
So long as such a design rests in intention only it is not indictable, When two agree to carry it into 555 effect, the very plot is an act in itself, and the act of each of the parties, promise against promise, actus contra actum, capable of being enforced, if lawful, punishable of for a criminal object or for the use of criminal means".
This Court in B. G. Barsay vs The State of Bombay [1962] 2 SCR at 229, held "The (list of the offence is an agreement to break the law.
The parties to such an agreement will be guilty of criminal conspiracy, though the illegal act agreed to be done has not been done.
So too, it is an ingredient of the offence that all the parties should agree to do a single illegal act.
It may comprise the commission of a number of acts.
Under section 43 of the Indian Penal Code, an act would be illegal if fit is an offence or if it is prohibited by law".
In Yashpal vs State of Punjab the rule was laid as follows "The very agreement, concert or league is the ingredient of the offence.
It is not necessary that all the conspirators must know each and every detail of the conspiracy as long as they are co participators in the main object of the conspiracy.
There may be so many devices and techniques adopted to achieve the common goal of the conspiracy and there may be division of performances in the chain of actions with one object to achieve the real end of which every collaborator must be aware and in which each one of them must be interested.
There must be unity of object or purpose but there may be plurality of means sometimes even unknown to one another, amongst the conspirators.
In achieving the goal several offences may be committed by some of the conspirators even unknown to the others.
The only relevant factor is that all means adopted and illegal acts done must be and purported to be in furtherance of the object of the conspiracy even though there may be sometimes misfire or over shooting by some of the conspirators".
In Mohammed Usman.
Mohammad Hussain Manivar & Anr.
vs State of Maharashtra ; , it was held that for an offence under section 120B IPC, the prosecution need not necessarily prove that the conspirators expressly 556 agreed to do or cause to be done the illegal act.
the agreement may be proved by necessary implication.
In Noor Mohammed Yusuf Momin vs State of Maharashtra ; , it was held that section 120 B IPC makes the criminal conspiracy as a substantive offence which offence postulates an agreement between two or more persons to do or cause to be done an act by illegal means.
If the offence itself is to commit an offence, no further steps are needed to be proved to carry the agreement into effect.
In R. K. Dalmia & Anr.
vs The Delhi Administration It 963] 1 SCR 253, it was further held that it is not necessary that each member of a conspiracy must know all the details of the conspiracy.
In Shivanarayan Laxminarayan & Ors.
State of Mahrashtra & Ors. , this court emphasized that a conspiracy is always hatched in secrecy and it is impossible to adduce direct evidence of the same.
The offence can be only proved largely from the inferences drawn from acts or illegal omission committed by the conspirators in pursuance of a common design.
The question then is whether conspiracy is continuing offence.
Conspiracy to commit crime it self is punishable as a substantive offence and every individual offence committed pursuant to the conspiracy is separate and distinct offence to which individual offenders are liable to punishment, independent of the conspiracy.
Yet, in our considered view, the agreement does not come to an end with its making, but would endure till it is accomplished or abandoned or proved abortive.
Being a continuing offence, if any acts or omissions which constitutes an offence, are done in India or outside its territory the conspirators continuing to be parties to the conspiracy and since part of the acts were done in India, they would obviate the need to obtain sanction of the Central Govt.
all of them need not be present in India nor continue to remain in India.
In lennart Schussler & Anr.
vs Director of Enforcement & Anr. ; , a Constitution Bench of this Court was to consider the question of conspiracy in the setting of the facts, stated thus "A. 2 was the Managing Director of the Rayala Corporation Ltd. Which manufactures Halda Typewriters.
A. 1 was an Export Manager of ASSAB.
A. 1 and A.2 conspired that A.2 would purchase material on behalf of his Company from ASSAB instead of M/s Atvidaberos, which provided raw material.
A.2 was to over invoice the value of the goods by 40 per cent of true value and that he should be paid the difference of 40 per cent on account of the aforesaid over invoicing by crediting it to A.2 's personal account at Stockholm in a Swedish Bank and requested A. 1 to help him in opening the account in Swenska Handles Banken, Sweden and to have further 557 deposits to his personal account from ASSAB.
A. 1 agreed to act as requested by A.2 and A.2 made arrangements with ASSAB to intimate to A. 1 the various amounts credited to A.2 's account and asked A. 1 to keep a watch over the correctness of the account and ' to further intimate to him the account position from time to time through unofficial channels and whenever A. 1 come to India.
A. 1 agreed to comply with this request.
This agreement was entered into between the parties in the year 1963 at Stockholm and again in Madras in the year 1965.
The question was whether Sec.
120 B of the Indian Penal Code was attracted to these facts".
Per majority, Jaganmohan Reddy, J. held that the gist of the offence defined in section 120 A IPC, which is itself punishable as a substantive offence is the very agreement between two or more persons to do or cause to be done an illegal act or legal act by illegal means, subject, however, to the proviso that where the agreement is not an agreement to commit an offence, the agreement does not amount to a conspiracy unless it is followed up by an overt act done by one or more persons in pursuance of such an agreement.
There must be a meeting of minds in the doing of the illegal act or the doing of a legal act by illegal means.
in furtherance of the conspiracy, certain persons are induced to do an unlawful act without the knowledge of the conspiracy or the plot they cannot be held to be conspirators, though they may be guilty of an offence pertaining to the specific unlawful act.
The offence of conspiracy is complete when two or more conspirators have agreed to do or cause to be done an act which is itself an offence, in which case no overt act need be established.
It was contended in that regard that several acts which constitute to make an offence under section 120 B may be split up in parts and the criminal liability of A. 1 must only be judged with regard to the part played by him.
He merely agreed to help A.2 to open an account in the Swedish Bank, having the amounts lying to the credit of A.2 with Atvidaberg to that account and to help A.2 by keeping a watch over the account.
Therefore, it does not amount to a criminal conspiracy.
While negating the argument, this court held thus: "It appears to us that this is not a justifiable contention, because what has to be seen is whether the agreement between A. 1 and A.2 is a conspiracy to do or continue to do something which is illegal and, if it is, it is immaterial whether the agreement to do any of the acts in furtherance of the commission of the offence do not strictly amount to an offence.
the entire agreement must be viewed as a whole and it has to be ascertained as to what in fact the conspirators intended to do or the object they wanted to achieve".
558 Thus, this court, though not in the context of jurisdictional issue, held that the agreement not illegal at its inception would become illegal by subsequent conduct and an agreement to do an illegal act or to do a legal act by illegal means, must be viewed as a whole and not in isolation.
It was also implied that the agreement shall continuing till the object is achieved.
The agreement does not get terminated by merely entering into an agreement but it continues to subsist till the object is either achieved or terminated or abandoned.
In Abdul Kader vs State AIR 1964 Bombay 133, a conspiracy was formed in South Africa by appellants to cheat persons by dishonestly inducing them to deliver money in the Indian currency by using forced documents and the acts of cheating were committed in India.
When the accused were charged with the offence of conspiracy, it was contended that the conspiracy was entered into and was completed in South Africa and, therefore, the Indian Courts had no jurisdiction to try the accused for the offence of conspiracy.
The Division Bench held that though the conspiracy was entered in a foreign country and was completed as soon as the agreement was made, yet it was treated to be a continuous offence and the persons continued to be parties to the conspiracy when they committed acts in India.
Accordingly, it was held that the Indian Courts had jurisdiction to try the offence of conspiracy.
In U.S. vs Kissal ; , Holmes, J. held that conspiracy is a continuous offence and stated "is a perversion of natural thought and of natural language to call such continuous co operation of a cinema to graphic series of distinct conspiracies rather than to call it a single one. a conspiracy is a partnership in criminal purposes.
That as such it may have continuation in time.
is shown by the rule that overt act by one partner may be the act of all without any new agreement specifically directed to that act".
In Ford vs U. section ; at 620 to 622, Tuft, C.J. held that conspiracy is a continuing offence.
In Director of public Prosecutions vs Door and Ors.
1973 Appeal Cases 807 (H.L.), the five respondents hatched a plan abroad, i.e. Belgium and Morocco and worked out the details to import cannabis into the United States via England, In pursuance thereof two vans with cannabis concealed in them were shipped from Morocco to Southampton; the other van was traced at Liverspool, from where the vans were to have been shipped to America and the cannabis in it was found.
They were charged among other offences with conspiracy to import dangerous drugs.
At the trial, the respondents contended that the Courts in England had no jurisdiction to try them on the count of conspiracy since the conspiracy had been entered into abroad.
While rejecting the contention, Lord Wilberforce held (at page 817) "The present case involves international elements the accused are 559 aliens and the conspiracy was initiated abroad but there can be no question here of any breach of any rules of international law if the) are prosecuted in this country.
Under the objective territorial principle ( use the terminology of the Harward Research in Inter national Law) or the principle of University (For the prevention of the trade in narcotics falls within this description)or both, the courts of this country have a clear right, if not a duty, to prosecute in accordance with our municipal law.
The position as it is under the international law it not, however, determinative of the question whether, unde r our municipal law, the acts committed amount to a crime.
That has to be decided on different principles.
If conspiracy to import drugs were a statutory offence, the question whether foreign conspiracies were included would be decided upon the terms of the statute.
Since it is (if at all) a common law offence, this question must be decided upon principle and authority In my opinion, the key to a decision for or against the offence charged can be found in an answer to the question why the common law treats certain actions as crimes.
And one answer must certainly be because the actions in question are a threat to the Queen 's peace or as we would now perhaps say, to society.
Judged by this test, there is every reason for, and none that I can see against, the prosecution.
Con spiracies are intended to be carried into effect, and one reason why, in addition to individual prosecution of each participant, conspiracy charges are brought is because criminal action organised and executed, in concert is more dangerous than an individual breach of law.
Why, then, restrain from prosecution where the relevant concert was, initially, formed outside the United Kingoom?.
The truth is that, in the normal case of a conspiracy carried out, or partly carried out, in this country, the location of the formation of the agreement is irrelevant; the attack upon the laws of this country is identical wherever the conspirators happened to commit; the "conspiracy" is a complex formed indeed, but not separately completed, at the first meeting of the plotters".
Viscount Dilhorne at page 823 laid the rule that: "a conspiracy does not end with the making of the agreement.
It will continue so long as there are two or more parties to it intending to carry out the design.
It would be highly unreal to say that the conspiracy to carry out the Gunpower plot was completed when the conspirators met and agreed to the plot at Catesby".
561 in my view, be considered contrary to the rules of international comity for the forces of law and order in England to protect the Queen 's peace by arresting them and putting them in trial for conspiracy whether they are British subjects or foreigners and whether or not conspiracy is a crime under the law of the country in which the conspiracy was born".
At page 835 it was held that the respondents conspired together in England notwithstanding the fact that they were abroad when they entered into the agreement which was the essence of the conspiracy.
That agreement was and remained a continuing agreement and they continued to conspire until the offence they were conspiring to commit was in fact committed.
Accordingly, it was held that the conspiracy, though entered into abroad, was committed in England and the courts in England and jurisdiction.
The ratio emphasizes that acts done in furtherance of continuing conspiracy constitute part of the cause of action and performance of it gives jurisdiction for English Courts to try the accused.
In Trecy vs Director of Public Prosecutions 1971 Appeal Cases 537 at 563 to ,(H. L.).
the facts of the case were that the appellant therein posted in the Isle of Wright a letter written by him and addressed to Mrs. X in West Germany demanding money with menaces.
The letter was received by Mrs. X in West Germany.
The appellant was charged with black mail indictable section 21 of the Theft Act, 1968.
While denying the offence, it was contended that the courts in England were devoted of jurisdiction.
Over ruling the said objection, Lord Diplock at page 562 observed: "The State is under a correlative duty to those who owe obedience to its laws to protect their interests and one of the purposes of criminal law is to afford such protection by determining by threat of punishment conducted by other persons which is calculated to hand to those interests.
Comity gives no right to a State to insist that any person may with immunity do physical acts in its own territory which have harmful consequences to persons within the territory of another state.
It may be under no obligation in comity to punish those acts itself, but it has no ground from complaint in international law if the State in which the harmful consequences had their effect punishes, when they do enter its territories, persons who did such acts".
Prof. Williams, Glanville in his article "Venue and the Ambit of Criminal Law at 528 stated thus: 562 "Sometimes the problem of determining the place of the crime is assisted by the doctrine of the continuing crime.
Some crimes are regarded as being of a continuing nature, and they may accordingly be prosecuted in any jurisdiction in which they are partly committed the partial commission being, in the eye of the law, a total commission '.
In the context of conspiracy under the caption inchoate crimes" It was stated: "The general principle seems to be that jurisdiction over an inchoate crime appertains to the State that would have had jurisdiction had the crime been consummated".
Commenting upon the ratio laid down in Board of Trade vs Owen [1957] Appeal Cases 602, he stated at page 534 thus "The seems to follow owen as logical corollary that our courts will assume jurisdiction to punish a conspiracy entered into abroad to commit a crime here.
Although the general principle is that crime committed abroad do not become punishable here merely because their evil effects occur here, there may be an exception for inchoate crimes aimed against persons in this country.
Since conspiracy is the widest and vaguest of the inchoate crimes, it seems clearly that the rule for conspiracy must apply to more limited crimes of incitement and attempt also".
At page 535 he further stated that "the rule of inchoate crimes is therefore an exception from the general principle of territorial jurisdiction.
The crime is wholly committed in the State A, yet is justiciable also in State B".
At page 535 he elucidated that "certain exceptions are recognised or suggested".
Lord Tucker in own 's case (supra) illustrated that a conspiracy D 2 England to violate the laws of a foreign country might be justiciable here if the preferments the conspiracy charged would produce a public mischief within the State or injure a person here by causing him damage, abroad".
At page 536 be stated that "as another exception from the rule in Board of, Trade vs Owen (supra it seems from the earlier decision that a conspiracy entered into here will be punishable if the conspirators contem plates that the illegality may be performed either within British jurisdiction or abroad even though, in the event, the illegality is performed abroad".
His statement of law now receives acceptance by House of Lords in Doot 's case.
563 In Halsbury 's Law of England, third edition, vol.
10, page 327, para 602, while dealing with continuing offence it was stated as under: "A criminal enterprise may consist of continuing act which is done in more places than one or of a series of acts which are done in several places.
In such cases, though there is one criminal enterprise, there may be several crimes, and a crime is committed in each place where a complete criminal act is performed although the act may be only a part of the enterprise".
It was further elucidated in para 603 that: "What constitutes a complete criminal act is determined by the nature of the crime.
Thus, as regards continuing acts, in the case of sending by post or otherwise a libellous or threatening letter, or a letter to provoke a breach of the peace, a crime is committed, both where the letter is posted or otherwise sent, and also where it is received, and the venue may be laid in either place.
Archbold in Criminal Pleadings, Evidence and Practice, 42nd edition (1985) Chapter 23, in para 28 32 at p. 2281, Wright on Conspiracies and Agreements at pages 73 74, Smith on Crimes at page 239 and Russel on Crime, 12th edition, page 613 stated that conspiracy is a continuing offence and liable to prosecution at the place of making the agreement and also in the country where the acts are committed.
Thus, an agreement between two or more persons to do an illegal act or legal acts by illegal means is criminal conspiracy.
If the agreement is not an agreement to commit an offence, it does not amount to conspiracy unless it is followed up by an overt act done by one or more persons in furtherance of the agreement.
The offence is complete as soon as there is meeting of minds and unity of purpose between the conspirators to do that illegal act or legal act by illegal means.
Conspiracy itself is a substantive offence and is distinct from the offence to commit which the conspiracy is entered into.
It is undoubted that the general conspiracy is distinct from number of separate offences committed while executing the offence of conspiracy.
Each act constitutes separate offence punishable, independent of the conspiracy.
The law had developed several or different models or technics to broach the scope of conspiracy.
One such model is that of a chain, where each party performs even without knowledge of other a role that aids succeeding parties in accomplishing the criminal objectives of the conspiracy.
An illustration, of a single conspiracy, its parts bound together as links in a chain, is 564 the process of procuring and distributing narcotics or an illegal foreign drug for sale in different parts of the (,lobe.
In such a case, smugglers, middlemen and retailers are privies to a single conspiracy to smuggle and distribute narcotics.
The smugglers knew that the middlemen must sell to retailers , and the retailers knew that the middlemen must buy of importers of someone or another.
Thus the conspirators at one end of the chain knew that the unlawful business would not, and could not, stop with their buyers, and those at the other end knew that it had not begun with their settlers.
The accused embarked upon a venture in all parts of which each was a participant and an abettor in the sense that, the success of the part with which he was immediately concerned, was dependent upon the success of the whole.
It should also be considered as a spoke in the hub.
There is a rim to bind all the spokes to gather in a single conspiracy.
It is not material that a rim is found only when there is proof that each spoke was aware of one another 's existence but that all promoted in furtherance of some single illegal objective.
The traditional concept of single agreement can also accommodate the situation where a well defined group conspires to commit multiple crimes so long as all these crimes are the objects of the same agreement or continuous conspiratorial relationship, and the conspiracy continues to subsist though it was entered in the first instance.
Take for instance that three persons hatched a conspiracy in country 'A ' to kill 'D ' in country 'B ' with explosive substance.
As far as conspiracy is concerned, it is complete in country 'A ' one of them pursuant thereto carried the explosive substance and hands it over to third one in the country 'B ' who implants at a place where 'D ' frequents and got exploded with remote control. 'D ' may be killed or escape or may be diffused.
The conspiracy continues till it is executed in country 'B ' or frustrated.
Therefore, it is a continuing act and all are liable for conspiracy in country 'B ' though first two are liable to murder with aid of section 120 B and the last one is liable under section 302 or 307 IPC, as the case may be.
Conspiracy may be considered to be a march under a banner and a person may join or drop out in the march without the necessity of the change in the text on the banner.
In the comity of International Law, in these days, committing offences on international scale is a common feature.
The offence of conspiracy would be a useful weapon and there would exist no conflict in municipal laws and the doctrine of autrefoes convict or acquit would extend to such offences.
The comity of nations are duty bound to apprehend the conspirators as soon as they set their feet on the country territorial limits and nip the offence in the bud.
A conspiracy thus, is a continuing offence and continues to subsist and committed wherever one of the conspirators does an act or series of acts.
So long aits performance continues, it is a continuing offence till it is executed or rescinded or frustrated by choice or necessity.
A crime is complete as soon as the agreement is made, but it is not a thing of the moment.
It does not end with the making of the 565 agreement.
It will continue so long as there are two or more parties to it intending to carry into effect the design.
Its continuance is a threat to the society against which it was aimed at and would be dealt with as soon as that jurisdiction can properly claim the power to do so.
The conspiracy designed or agreed abroad will have the same effect as in India, when part of the acts, pursuant to the agreement are agreed to be finalised or done, attempted or even frustrated and vice versa.
In K. Satwant Singh vs The State of Punjab ; , a Constitution Bench of this Court was to consider as to when section 188 of the Code would be applicable to a case.
The facts therein was that the appellant had cheated the Govt.
of Burma whose office was at Shimla punishable under section 420 IPC.
The accused contended that the part of the act was done at Kohlapur where payment was to be made and on that basis the court at Shimla had no jurisdiction to try the offence without prior sanction of the political agent.
Considering that question this court held that if the offence of cheating was committed outside British India, the sanction would be necessary but on facts it was held that: "It seems to us, on the facts established in this case, that no part of the offence of cheating was committed by the appellant outside British India.
His false representation to the Govt.
of Burma that money was due to him was at a place in British India which induced that govt.
to order payment of his claims.
In fact, he was paid at Lahore at his own request by means of cheques on the Branch of the Imperial Bank of India at Lahore.
The delivery of the property of the Govt.
of Burma, namely, the money, was made at Lahore, a place in Brithsh India, an d we cannot regard, in the circumstances of the present case, the posting of the cheques at Kohlapur either as delivery of property to the appellant at Kohlapur or payment of his claims at Kohlapur.
The entire argument founded on the provisions of section 188 of the Code, therefore, fails.
Far from helping the appellant the ratio establishes that if an offence was committed in India the need to obtain sanction under section 188 is obviated.
In Purshottamdas Dalmia vs Stale of West Bengal ; , this court, when the appellant was charged with offences punishable under sections 120B, 466 and 477, the appellant contended that offence of conspiracy was entered into at Calcutta the offences of using the forged documents was committed at Madras.
Therefore, the court at Calcutta had no jurisdiction to try the offence under section 471 read with section 466, EPC, even though committed in pursuance of the conspiracy and in course of the same transaction.
This court held that the desirability of trying the offences of alit 566 he overt acts committed in pursuance of a conspiracy together is obvious and sections 177 and 239 of the Code leave no manner of doubt that the court which has the jurisdiction to try the offence of criminal conspiracy has also the jurisdiction to try all the overt acts committed in pursuance of it even though outside its territorial jurisdiction.
In LN.
Mukherjee vs The State of Madras ; , it was further held that the court having jurisdiction to try the offences committed in pursuance of the conspiracy, has also the jurisdiction to try the offence of criminal conspiracy, even though it was committed outside its territorial jurisdiction.
This view was further reiterated in R.K. Dalmia vs Delhi Administration ; at 273 and Banwari Lal Jhunjhunwala and Ors.
vs Union of India and Anr.
1963] supp.
2 SCR 338.
Therein it was held that the court trying an accused for offence of conspiracy is competent to try him for offences committed in pursuance of that conspiracy irrespective of the fact whether or not overt acts have been committed within its territorial jurisdiction.
The charges framed therein under section 409 read with sections 120B, 420, IPC and section 5(1) (D) read with section 5(2) of the Prevention of Corruption Act were upheld.
Thus we hold that sanction under section 188 is not a condition precedent to take cognizance of the offence.
If need be it could be obtained before trial begins.
Conspiracy was initially hatched at Chandigarh and though itself is a completed offence, being continuing offence, even accepting appellant 's case that he was at Dubai and part of conspiracy and overt acts in furtherance thereof had taken place at Dubai and partly at Chandigarh; and in consequence thereof other offences had been ensued.
Since the.
offences have been committed during the continuing course of transaction culminated in cheating P.N.B. at Chandigarh, the need to obtain sanction for various offences under proviso to section 188 is obviated.
Therefore, there is no need to obtain sanction from Central Govt.
The case may be different if the offences were committed out side India and are completed in themselves without conspiracy.
Perhaps that question may be different for which we express no opinion on the facts of this case.
The ratio in Fakhruila Khan has no application to the facts in this case.
Therein the accused were charged for offences under section 420, 419, 467 and 468 and the offences were committed in native State, Mysore.
As a result the courts in British India i.e. Madras province had no jurisdiction to try the offence without prior sanction.
Equally in Verghese 's case the offences charged under section 409, IPC had also, been taken place outside British India.
Therefore, it was held that the sanction under s, 188 was necessary.
The ratio in Kailash Sharma 's case is not good at law.
The appeal is accordingly dismissed.
R.M. SAHAI J.
While agreeing with Brother Ramaswamy, J., I propose to add a few words.
Prosecution of the appellant under Section 120B read with Section 420 and 471 of the Indian Penal Code (in brief 'IPC ') was assailed for 567 absence of sanction under Section 188 of the Criminal Procedure Code (in brief 'Cr. P. C. ').
Two submissions were advanced, one that even though criminal conspiracy was itself an offence but if another offence was committed in pursuance of it outside India then sanction was necessary; second an offence is constituted of a number of ingredients and even if one of them was committed outside the country Section 188 of the Cr.
P.C. was attracted.
Language of the section is plain and simple.
It operates where an offence is committed by a citizen of India outside the country.
Requirements are, therefore, one commission of an offence; second by an Indian citizen; and third that it should have been committed outside the country.
Out of the three there is no dispute that the appellant is an Indian citizen.
But so far the other two are concerned the allegations in the complaint are that the conspiracy to forge and cheat the bank was hatched by the appellant and others in India.
Whether it was so or not, cannot be gone into at this stage.
What is the claim then? Two fold one the appellant was in Dubai at the relevant time when the offence is alleged to have been committed.
Second, since the bills of lading and exchange were prepared and were submitted to the Emirates National Bank at Dubai and the Payment too was received at Emirates National Bank in Dubai, the alleged offence of forgery and cheating were committed outside India.
Is that so? Can the offence of conspiracy or cheating or forgery on these allegations be said to have been committed outside the country? Substantive law of extra territory in respect of criminal offences is provided for by Section 4 of the IPC and the procedure to inquire and try it is contained the Section 188 Cr.
P.C. Effect of these sections is that an offence committed by an Indian citizen, outside the country is deemed to have been committed in India.
Proviso to Section 188 Cr.
P.C. however provides the safeguard for the NRI to guard against any unwarranted harassment by directing, "that, notwithstanding anything in any of the preceding sections of this Chapter, no such offence shall be inquired into or tried in India except with the previous sanction of the Central Government.
" Since the proviso begins with a non obstinate clause its observance is mandatory.
But is would come into play only if the principal clause is applicable, namely, it is established that an offence as defined in clause 'n ' of Section 2 of the Cr.
P.C. has been committed and it has been committed outside the country.
What has to be examined at this stage is if the claim of the appellant that the offence under Section 120B read with Section 420 and Section 471 of the IPC were committed outside the country.
An offence is defined in the Cr.
P.C. to mean an 568 act or omission made punishable by any law for the time being in force.
None of the offences for which the appellant has been charged has residence as one of its ingredients.
The jurisdiction to inquire or try vests under Section 177 in the Court in whose local jurisdiction the offence is committed.
It is thus the commission of offence and not the residence of the accused which is decisive of jurisdiction.
When two or more persons agree to do or cause to be done an illegal act or an act which is illegal by illegal means such agreement is designated a criminal conspiracy under Section 120A of the IPC.
The ingredients of the offence is agreement and not the residence.
meeting of minds of more than two persons is the primary requirement.
Even if it is assumed that the appellant was at Dubai and he entered into an agreement with his counterpart sitting in India to do an illegal act in India the offence of conspiracy came into being when agreement was reached between the two.
The two minds met when talks oral or in writing took place in India.
Therefore, the offence of conspiracy cannot be said to have been committed outside the country.
In Mobarik Ali Ahmed vs The State of Bombay. ; this court while dealing with the question of jurisdiction of the Courts to try an offence of cheating committed by a foreign national held that the offence of cheating took place only when representation was made by the accused sitting in Karachi to the complaints sitting in Bombay.
The argument founded on corporeal presence was rejected and it was observed: "What is, therefore, to be seen is whether there is any reason to think that a foreigner not corporeally present at the time of the commission of the commission of the offence does not fall within the range of persons punishable therefor under the Code.
It appears to us that the answer must be in the negative unless there is any recognised legal principle on which such exclusion can be founded or the language of the Code compels such a construction".
If a foreign national is amenable to jurisdiction under Section 179 of the Cr.
P.C. a NRI cannot claim that the offence shall be deemed to have been committed outside the country merely because he was not physically present.
Preparation of bill of lading at Dubai or payment at Dubai were not isolated acts.
They were part of chain activities between the appellant and his associates with whom he entered into agreement to cheat the bank at Chandigarh.
Any isolated act or omission committed at Dubai was insufficient to constitute an offence.
The illegal act of dishonestly inducing the bank at Chandigarh was committed not by preparation of bill at Dubai but its presentation in pursuance of agreement to cheat.
The submission thus founded was on residence or on preparation of bills of lading or encashment at Dubai are of no consequence.
569 Nor is there any merit in the submission that even part of the offence would attract Section 189 as the section operates when offence is committed outside India.
An offence is committed when all the ingredients are satisfied.
The section having used the word offence it cannot be understood as part of the offence.
Section 179 Cr.
P.C. empowers a court to try an offence either at a place where the offence is committed or the consequences ensue.
On the allegations in the complaint the act or omissions were committed in India.
In any case the consequence of conspiracy, cheating and forging having taken place at Chandigarh the offence was not committed outside the country therefore the provisions of Sec.
188 Cr.
P.C. were not attracted.
ORDER For reasons given by us in our concurring but separate orders the appeal fails and is dismissed.
Parties shall bear their own costs.
Appeal dismissed.
| The prosecution case was that the appellant, a non resident Indian at Dubai, hatched a conspiracy along with four others to cheat the Bank at Chandigarh.
in furtherance of the conspiracy, the appellant got credit facility by way of Foreign Letters of Credit and issued proforma invoices of his concern and addressed to the Bank through the establishments of other accused.
The Manager of the Bank, another accused, in confabulation with 544 the appellant and other accused, being in charge of foreign exchange department, issued Foreign letter of Credit in violation of import policy.
The Bills of Lading were addressed to the Bank.
The cable confirmation of the Bank was sent to appellant 's concern at Dubai for confirmation of discrepancy.
The appellant confirmed correctness thereof.
Placing reliance thereon, authority letter was issued by the Bank and cables were sent subsequent thereto to remit the amount .
to the Dubai Bank through one Irving Trust Company, At the instance of accused Anand, The Dubai Bank informed the Bankat Chandigarh that the discrepancy in the document adaptable to accused Anand and claimed to have inspected the goods on board in the vessel.
On receipt of the information from the appellant 's concern at Dubai, full amount is US Dollars 4,39,200 was credited against all the three Letters of Credit on discount basis.
The investigation established that the vessel was a non existent one and three Foreign Letters of Credit were fabricated on the basis of false and forged shipping documents submitted by the appellant to the Dubai Bank.
Thus the Bank at Chandigarh was cheated of an amount of Rs. 40,30,329.
The accused were charge sheeted under section read with sections 420, 468, and 471, IPC.
The Trial Court discharged all the accused of the offenses on the ground that conspiracy and the acts done in furtherance thereof had taken place outside India and as no sanction under section 188, Code of Criminal Procedure 1973 was produced, the prosecution was not maintainable.
The High Court in revision held that the conspiracy took place at Chandigarh and the overt acts committed In pursuance of that conspiracy at Dubai constituted offences under sections 420,467 and 471 IPC., and they were triable at Chandigarh without previous sanction of the Central Govt.
The High Court setting aside the order of discharge of the trial Court, directed to continue further proceedings in accordance with law.
That order of the High Court was challenged under this appeal under Article 136 of the Constitution.
The appellant contended that he was not a privy to the conspiracy and the conspiracy did not take place at Chandigarh; and that even assuming that some of the offences were committed in India, by operation of section 188 read with the proviso thereto with a non obstanti clause, absence of sanction by the 545 Central Govt.
barred the jurisdiction of the Courts in India to take cognisance of or to enquire into or try the accused.
The respondents submitted that the conspiracy to cheat the Bank was hatched at Chandigarh; that all the accused committed over acts in furtherance of the conspiracy at Chandigarh and therefore, the sanction of the Central Govt.
was not necessary.
Dismissing the appeal, this Court, HELD: Per K. Ramaswarmy, J. 1.01.
Judicial power of a State extends to the punishment of all offences against the municipal laws of the State by whomsoever committed within the territory.
It also has the power to punish all such offences wherever committed by its citizen.
The general principle of international law is that every person be it a citizen or foreigner who is found within a foreign State is subjected to, and is punishable by, its law.
Otherwise the criminal law could not be administered according to any civilised system of jurisprudence.
(553F) 1.02.
Conspiracy may he considered to be a march under a banner and a person may join or drop out in the march without the necessity of the change in the text on the banner.
In the comity of International Law, in these days, commiting offences on international scale is a common feature.
The offence of conspiracy would be a useful weapon and there would exist no contact in municipal laws and the doctrine of autrefois convict or acquit would extend to such offences.
The comity of nations are duty bound to apprehend the conspirators as soon as they set their feet on the country territorial limits and nip the offence in the bud.
(564 F G) 2.01.
Section 120 A of the I.P.C. defines 'conspiracy ' to mean that when two or more persons agree to do, or cause to be done an illegal act, or an act which is not illegal by illegal means such an agreement is designated as criminal conspiracy".
No agreement except an agreement to commit an offence shall amount to a criminal conspiracy, unless some act besides the agreement is done by one or more parties to such agreement in furtherance thereof.
(557 C) 546 2.02.
Section 120 B of the I.P.C. prescribes punishment for criminal conspiracy.
It is not necessary that each conspirator must know all the details of the scheme nor be a participant at every state.
It is necessary that they should agree for design or object of the conspiracy.
Conspiracy is conceived as having three elements: (1) agreement (2) between two or more persons by whom the agreement is effected; and (3) a criminal object, which may be either the ultimate aim of the agreement, or may constitute the means, or one of the means by which that aim is to be accomplished.
It is immaterial whether this is found in the ultimate objects.
(554 E) 2.03.
Conspiracy to commit a crime itself is punishable as a substantive offence and every individual offence committed pursuant to the conspiracy is separate and distinct offence to which individual offenders are liable to punishment, independent of the conspiracy.
(556 D) 2.04.
The agreement does not come to an end with it .
making, but would endure till it is accomplished or abandoned or proved abortive.
Being a continuing offence, if any acts or omissions which constitute an offence are done in India or outside its territory the conspirators continuing to be parties to the conspiracy and since part of the acts were done in India, they would obviate the need to obtain sanction of the Central Govt.
All of them need not he present in India nor continue to remain in India.
(556 E) 2.05.
An agreement between two or more persons to do an illegal act or legal acts by illegal means is criminal conspiracy.
If the agreement is not an agreement to commit an offence, it does not amount to conspiracy unless it is followed up by an overt act done by one or more persons in furtherance of the agreement.
The offence is complete as soon as there is meeting of minds and unity of purpose between the conspirators to de that illegal act or legal act by illegal means.
Conspiracy itself is a substantive offence and is distinct from the offence to commit which the conspiracy is entered into.
It is undoubted that the general conspiracy is distinct from number of separate offences committed while executing the offence of conspiracy.
Each act constitutes separate offence punishable, independent of the conspiracy.
(563 F G) "Jones 'Case, 1832 B & A D 345; Mulcahy vs Reg., (1868) L.R. ; Quinn vs Leathem, ; at 528; B.G. Barsay.
vs The State of Bombay, ; Yashpal vs The State of Punjab, ; Mohammed Usman, Mohamned Hussain Manivar & Anr.v.
State of Maharashtra, [1981] 3SCR 68;Noor 547 Mohammad Yasuf Monin vs State of Maharashtra, ; ; R.K. Dalmia & Anr.
vs The Delhi Administration, ; ; Shivanarayan Laxminarayan & Ors.
vs State of Maharashtra & Ors.
and Lennari Schussler & Anr.
vs Director of Enforcement & Anr., 1197012SCR 760, referred to. 2.06.
A conspiracy is a continuing offence and continues to subsist and committed wherever one of the conspirators does an act or series of facts.
So long as it ; performance continues, it is a continuing offence till it is executed or rescinded or frustrated by choice or necessity A crime is complete as soon as the agreement is made, but it is not a thing of the moment It does not end with the making of the agreement.
It will continue so long as there are two or more parties to it intending to carry into effect the design.
Its continuance is a threat to the society against which it was aimed at and would be dealt with as soon as that jurisdiction can properly claim the power to do so.
The conspiracy designed or agreed abroad will have the same effect as in India,.
when part of the acts, pursuant to the agreement are agreed to be finalised or done, attempted or even frustrated and vice versa.
(564 H, 565 A) Abdul Kader vs State.
AIR 1964 Bombay 133; U.S. vs Kissal, ; ; Ford vs U.S., ; at 620 to 622; Director of Public Prosecutions vs Doot and Ors., (1973) Appeal Cases 807 (H.L); Treacy vs Director of Public Prosecutions, (1971) Appeal Cases 537 at 563 (H.L.) and Board of Trade vs Owen.
(1957) Appeal Cases 602, referred to.
Prof. Williams, Glanville: "Vanue and the Ambit of Criminal Law", at 528; Halsbury 's Law of England, third edition Vol.
page 327, Para 6O2; Archobold:Criminal pleadings.
Evidence and Practice 42nd edition, [1985] Chapter 23, In para 28 32 at page 2281; Writ: Conspiracies and Agreements, at pages 73 74; Smith: Crimes, at page 239 and Russel; Crime, 12th edition, page 613, referred to. 2.07.
Sanction under section 188 is not a condition precedent to take cognizance of the offence.
If need be it could he obtained before trial begins.
Conspiracy was initially hatcher at Chandigarh and though its elf is a completed offence, being continuing offence, even accepting appellant 's case that he was at Dubai and part of conspiracy and overt acts in furtherance 548 thereof had taken place at Dubai and partly at Chandigar and in consequence thereof other offences had been ensued.
Since the offences have been committed during the continuing course of transaction culminates in cheating P.N.B. at Chandigarh, the need to obtain sanction for various officer under proviso to section 188 is obviated.
Therefore, there is no need to obtain sanction from Central Govt.
The case may he different if the offences were committed out side India and are completed in themselves without conspiracy.
(566 D E) K. Satwant Singh vs The State of Punjab, ; ; In Re M. L Verghese, AIR 1947 Mad. 352; T. Fakhulla Khan and Ors.
vs Emperor, AIR 1935 Mad. 326; Kailash Sharma vs State, 1973 Crl.
law journal 1021, distinguished.
Purshottamdas Dalmia vs State of Bengal, ; ; L.N. Mukherjee vs The State of Madras, ; ; R.K. Dalmia vs Delhi Administration ; at 273; Banwari Lal Jhunjhunwala and Ors vs Union of India and Anr., [1963] Supp. 2 SCR 338, referred to.
Per R.M. Sahai, J. (Concurring) 1.1.
Language of the section 188, Code of Criminal Procedure is plain and simple.
It operates where an offence is committed by a citizen of India outside the country.
Requirements are, therefore, one commission of an offence; second by an Indian citizen; and third that it should have been committed outside the country.
(567 D) 1.2.
Substantive law of extra territory in respect of criminal offences is provided for by Section 4 of the IPC and the procedure to inquire and try it is contained in Section 1 88 Cr.
P.C. Effect of these sections is that an offence committed by an Indian citizen outside the country is deemed to have been committed in India.
(567 E) 1.3.
Since the proviso to Section 188, Cr.
P.C. begin .
with a non obstinate clause its observance is mandatory.
But it would come into play only if the principal clause is applicable, namely, it is established that an offence as defined in dause 'n 'of Section 2 of the Cr.
P.C. has been committed and it has been committed outside the country.
(567 G) 549 1.4.
What has to be examined at this stage is if the claim of the appellant that the offence under Section 120B read with Section 420 and Section 471 of the IPC were committed outside the country.
An offence is deemed in the Cr.
P.C. to mean an Act or omission made punishable by any law for the time being in force.
None of the offences for which the appellant has been charged has residence as one of its ingredients.
(567 H, 568 A) 1.5.
The jurisdiction to inquire or try vests under Section 177 in the Court in whose local jurisdiction the offence is committed.
It is thus the commission of offence and not the residence of the accused which is decisive of jurisdiction.
When two or more persons agree to do or cause to be done an illegal act or an act which is illegal by illegal means such agreement is designated a criminal conspiracy under Section 120A of the IPC.
The ingredients of the offence is agreement and not the residence.
Meeting of minds of more than two persons is the primary requirement Even if it is assumed that the appellant was at Dubai and he entered into an agreement with his counterpart sifting in India to do an illegal act in India the offence of conspiracy came into being when agreement was reached between the two.
The two minds met when talks oral or in writing took place in India.
Therefore, the offence of conspiracy cannot be said to have been committed outside the country.
(568 B C) 1.6.
If a foreign national is amenable to jurisdiction under Section 179 of the Cr.
P.C. a NRI cannot claim that the offence shall be deemed to have been committed outside the country merely because he was not physically present (568 F) Mobarik Ali Ahmed vs The State of Bombay, ; , referred to.
An offence is committed when all the ingredients are satisfied.
The section having used the word 'offence ' it cannot be understood as part of the offence.
Section 179 Cr.
P.C. empowers a court to try an offence either at a place where the offence is committed or the consequences ensue.
On the allegations in the complaint the act or omissions were committed in India.
In any case the consequence of conspiracy, cheating and forging having taken place at Chandigarh the offence was not committed outside the country therefore the provisions of Sec.
188 Cr.
P.C. were not attracted.
(569 B)
|
Appeal No.241 of 1993.
From the Judgment and Order dated 9.10.1991 of the Punjab and Haryana High Court in Civil Writ Petition No. 5727 of 1991.
Harish N. Salve Jagdish Singh Kuhar, and A.K. Mahajan for the Appellant.
Ujagar Singh, Ms. Naresh Bakshi R.S. Yadav and G.K. Bansal for the Respondents.
The Judgment of the Court was delivered by S.C. AGRAWAL ,J.
: This appeal relates to the inter se seniority of the appellant and respondent No. 3 in the punjab Superior Judicial Service (hereinafter referred to as 'The Service ').
The appellant and respondent No. 3 were both appointed to the Service on May 26, 1986 on the basis of selection by direct recruitment.
The appellant belongs to the general category whereas respondent No. 3 is a Mazhbi Sikh, which is a Schedule Caste in Punjab.
The recruitment to the Service is governed by Punjab Superior Judicial Service Rules, 1963 (hereinafter referred to as 'The Rules ').
By Rule 8 A, which was inserted in the rules by notification dated June 14,1977, the instructions issued by the State Government from time to time in relation to reservation of appointments or posts for Scheduled Castes and Backward Classes were made applicable for the purpose of making appointments to the posts in the Service.
The orders of the State Government relating to persons belonging to Scheduled Castes in this regard which have a bearing in this appeal are as follows (1) Letter dated June 6, 1974 from the Secretary to the Government of Punjab, Welfare of Scheduled Castes and Backward Classes Department to all Heads of Department etc.
It was communicated that it had been decided to increase the percentage of reservation in direct recruitment in all services from 20% to 25% in the case of members of Scheduled Castes and from 2% to 5% in the case of members belonging to Backward Classes.
In the said letter, it was also indicated 599 that the vacancies to be reserved for the members of Scheduled Castes in a lot of 100 vacancies would be at the points specified below 1, 5, 9, 13, 17, 21, 25, 29, 33, 37, 41, 45, 49, 53, 57, 61, 65, 69, 73, 77, 8 1, 85, 89, 93 and 97 and so on.
It was also directed that the Roster already existing would not be abondoned, but would now be maintained in continuation from the vacancy in the existing Roster last filled up according to the new pattern of reservation that has been prescribed in the earlier paragraphs in the said letter.
(2) Circular dated November 19,1974 relates to carrying forward of reservation for members of Scheduled Castes/Backward Classes.
It was directed that "the reservation should be carried forward from vacancy to vacancy in the same block until a Scheduled Caste or a Backward Class person, as the case may be, is appointed or promoted in the same block.
It was further directed that if all the vacancies in any block determined on the basis of prescribed Roster are filled up by other category person due to non availability of Scheduled Castes or Backward Classes persons, the reservation should be carried forward to the subsequent blocks.
The said letter required that the reservation should be carried forward from vacancy to vacancy in each block and from block to block until the carried forward vacancies are filled up by the members of the Scheduled Castes or Backward Classes.
It was also provided that only one reserved vacancy out of the carried forward vacancies should be filled in a block of appropriate Roster in addition to the normal reserved point of the block.
(3) Letter dated May 5, 1975, from the Secretary to the Government, Punjab, Welfare of Scheduled Castes & Backward Classes Department addressed to all Heads of Departments etc.
It was communicated that the Government have decided that henceforth, 50% vacancies of the quota reserved for Scheduled Casstes should be offered to Balmikis and Mazhbi Sikhs, if available, as a first preference from amongst the Scheduled Castes candidates.
(4) Letter dated.
April 8, 1980 addressed by the Under Secretary to the Government of Punjab, Welfare Department Reservation Cell, to all Heads of Departments etc.
The position with regard to the implementation of instructions regarding reservation for Mazhbi Sikhs and Balmikis under the letter dated May 5, 1975 was clarified as follows "i) Combined merit list can be disturbed while giving appointment 600 to the candidate belonging to Balmikis and Mazhbi Sikhs.
ii) On the basis of 50% reservation the first reserved vacancy can be offered to Balmikis and Mazhbi Sikhs although his name may be below in the merit list.
iii)On the basis of 50% reservation, Balmikis and Mazhbi Sikhs 1, 3, 5 and so on reserved vacancies shall go to the candidates of these castes if available and 2,4, 6 and so on reserved vacancies shall go to other Scheduled Castes candidates.
It is clarified here that these instructions are to be implemented when the names of the candidates of Balmikis and Mazhbi Sikhs are included in the merit list after selection.
If no candidate belonging to these communities has been selected or less candidate selected then the reserved vacancy should be filled up from amongst the other Scheduled Castes candidates meaning thereby no reserve vacancy reserved for Balmkis and Mazhbi Sikhs should be carried forward." After the introduction of Rule 8 A in the Rules, four persons were appointed by way of direct recruitment to the Service in the year 1979.
One out of them, Shri Balwant Rai, belonged to a Scheduled Caste (other than Balmikis or Mazhbi Sikhs).
Thereafter, in 1981, one post fell vacant but no person belonging to a Scheduled Caste 'could be selected and the candidate belonging to general category was appointed against the said post.
In the year 1982, selection was made for two posts but only one person could be selected and he also belonged to the general category and no person belonging to a Scheduled Caste was available for appointment.
In 1986, six persons including the appellant and respondent No.3 were appointed on the basis of direct recruitment.
Out of those six persons, four belonged to the general category and two belonged to Scheduled Caste.
One of the two persons was Shri G.S. Sarma who belonged to a Scheduled Caste other then Balmikis or Mazhbi Sikhs.
In the merit list for the said selection the appellant was placed at No. 1, Shri G.S. Sarma was at No. 2 and respondent No. 3 was at No. 5.
As per the Roster, Shri G.S. Samra was placed at Point No.7, the appellant at Point No.8 and respondent No. 3 at Point No. 9.
After joining the Service, Shri G.S. Samra resigned from the same and had ceased to be a member of the Service prior to April 1, 1988.
In the tentative seniority list of the members of the Service as on April 1, 601 1988, the appellant was placed at Serial No. 52 and respondent No. 3 was placed at Serial No.53.
Respondent No.3 submitted a representation against his placement in the seniority list and claimed that he should be placed against the post reserved for Scheduled Caste at Serial No. 5 in the Roster and on that basis he should be given the seniority of the year of 198 1.
He also submitted that since he is a Mazhbi Sikh, he is entitled to preference over Shri G.S. Samra who belonged to a Scheduled Caste other than Balmikis and Mazhbi Sikhs, and he claimed that he should have been placed at Point No.7 in the Roster and Shri G.S. Samra should have been placed at Point No. 9 and on that basis also respondent No. 3 is senior to the appellant.
Representation was also invited from the appellant.
in this regard.
After considering the said representations the High Court, on its administrative side, decided that the respondent No. 3 was entitled to be placed above Shri G.S. Samra in view of the Circular Letter dated May 5, 1975 and that he should have been placed against Point No. 7 in the roster and Shri G.S. Samra should have been placed against Point No.9 in the Roster.
On that basis the seniority list was revised and respondent No.3 was placed at Serial No. 52 while the appellant were placed at Serial No. 53.
Feeling aggrieved by the revision in the seniority, the appellant filed a writ petition in the High Court which was dismissed by the High Court by judgment and order October 9, 199 1.
This appeal is directed against the said judgment of the High Court.
There is no dispute that appellant has been rightly assigned Point No. 8.
If Respondent No. 3 has to be assigned Point No.7 as found by the High Court, then he would be senior to the appellant but if Respondent No. 3 is assigned Point No. 9 then appellant would be senior to Respondent No. 3 It is, therefore, necessary to determine whether respondent No. 3 is entitled to be placed at Point No. 7 in the Roster in place of Shri G.S. Samra who should be placed at Point No.9 or that the respondent no.3 should be assigned Point No.9 of the Roster.
The said question requires consideration of the various orders relating to reservation for Scheduled Castes to which reference has been made earlier.
As indicated earlier by letter dated June 6, 1974 points 1, 5, 9, 13, 17, 21, 25, 29, 33, 37,41, 45, 49, 53, 57, 6 1, 65, 69, 73, 77, 81, 85, 89, 93 and 97 in the Roster are reserved for members of Scheduled Castes.
By letter dated May 5, 1975, 50% of the vacancies of the quota reserved for Scheduled Castes are required to be offered to Balmikis and Mazhbi Sikhs, if available, as a first preference from amongst the Scheduled Castes candidates.
In view of the clarifications contained in the letter dated April 8, 1980 on the basis of 50% reservation the first reserved vacancy can be offered to Balmikis and Mazhbi Sikhs although his name may be below in the merit list and on the basis of 50% reservation, amongst the vacancies reserved for Scheduled Caste, vacancies 1, 3, 5 and so on would go to Balmikis and Mazhbi Sikhs, if available, and reserved vacancies 2, 4, 6 and so on would go to other Scheduled 602 Castes candidates.
It has also been clarified that if no candidate belonging to the communities of Balmikis and Mazhbi Sikhs was selected or less number of candidates were selected then the reserved vacancies should be filled up amongst the other Scheduled Castes candidates and that no vacancy reserved for Balmikis and Mazhbi Sikhs should be carried forward.
In view of the aforesaid clarifications out of the posts reserved for Scheduled Castes in the Roster, there was reservation for Balmikis and Mazhbi Sikhs on the posts against the following points in the Roster 1, 9, 17, 25, 33, 41, 49, 57, 65, 73, 81, 89, and 97.
There was reservation for members of Scheduled Castes other than Balmikis and Mazhbi Sikhs on the posts against the following points in the Roster: 5, 13, 21, 29, 37, 45, 53, 61, 69, 77, 85, and 93.
The learned counsel for the appellant has urged that since these orders relating to reservation for Scheduled Castes became applicable to the Service with effect from June 14, 1977, when Rule 8 A was inserted, all appointments to the Service after June 14, 1977 have to be made in accordance with these orders.
The submission is that the first appointment, by direct recruitment, of a person belonging to the Scheduled Castes was of Shri Balwant Rai made in 1979.
That was at point No. 1 in the Roster.
That should have gone to a Balmiki or a Mazhbi Sikh but since no person belonging to those communities was available, Shri Balwant Rai, who belongs to a Scheduled Caste other than Balmikis and Mazhbi Sikhs, was appointed.
It has been further urged that in view of the clarification contained in the letter dated April 8.
1980, a vacancy reserved for Balmikis and Mazhbi Sikhs is not required to be carried forward and the Balmikis and Mazhbi Sikhs cannot claim reservation in respect of the next vacancy at Point No. 5 which was reserved for Scheduled Castes other than Balmikis and Mazhbi Sikhs and they can only claim the vacancy that was reserved for Balmikis or Mazhbi Sikhs at point No.9.
It was submitted that Shri G.S. Samra who belonged to a Scheduled Caste other than Balmikis and Mazhbi Sikhs was entitled to be appointed against the reserved vacancy at Point No.5 reserved for a candidate belonging to a Scheduled Caste other than Balmikis and mazhbi Sikhs but since at the time of selections that were made in the years 1981 and 1982, no person belonging to a Scheduled Caste was available.
The vacancy at Point No. 5 reserved for Scheduled Castes was carried forward to point No. 7 and Shri G.S. Samra had to be adjusted at point No.7 in the Roster.
The submission is that respondent No. 3, being a Mazhbi Sikh, could not claim to be placed at point No. 7 in the Roster against a vacancy which was reserved for a candidate belonging to a Scheduled Castes other than Balmikis and 603 Mazhbi Sikhs and he could be only placed against the vacancy at point No.9 in the Roster.
The learned counsel for the respondent No.3 on the other hand has urged that in view of the order dated May 5, 1975, 50% vacancies of the quota reserved for Scheduled Castes have to be offered to Balmikis and Mazhbi Sikhs and since Shri Balwant Rai belonging to a Scheduled Caste other than Balmikis and Mazhbi Sikhs had been appointed in 1979, the next post should go to Balmikis and Mazhbi Sikhs, and on that basis, respondent No.3 was entitled to be appointed against the second post at point No. 7 of the Roster and Shri G.S. Samra could only be appointed against third post at point No.9 in the roster.
In the alternative, it was urged that the order dated April 8, 1980 could only have prospective operation with effect from the date of issue of the said order and the sub roster indicated by the said order could be given effect to only from that date and on that basis the first post reserved for Scheduled Castes should go to Balmikis or Mazhbi Sikhs and on that basis also respondent No.3 was entitled to be placed against point No.7 in the 100point roster and Shri G.S. Samra against point No.9 in the said roster.
From a parusal of the letter dated April 8,1980, we find that it gives clarifications on certain doubts that had been created by some Departments in the matter of implementation of the instructions contained in the earlier letter dated May 5,1975.
Since the said letter dated April 8,1980 is only clarificatory in nature, there is no question of its having an operation independent of the instructions contained in the letter dated May 5, 1975 and the clarifications contained in the letter dated April 8, 1980 have to be read as a part of the instructions contained in the earlier letter dated May 5, 1975.
In this context it may be stated that according to the principles of statutory construction a statute which is explanatory or clarificatory of the earlier enactment is usually held to be restrospective.
(See: Craies on Statute Law, 7th Ed., p. 58).
It must, therefore, be held that all appointments against vacancies reserved for Scheduled Castes made after May 5, 1975 (after May 14, 1977 in so far as the Service is concerned), have to be made in accordance with the instructions as contained in the letter dated May 5, 1975 as clarified by letter dated April 8, 1980.
On that view, the appointment of Shri Balwant Rai in 1979 has to be treated to be an appointment made under the said instructions and operation of these instructions cannot be postponed till April 8, 1980.
If the matter is considered in this light then the sub roster as indicated in the letter dated April 8, 1980 would have to be applied in respect of the post on which Shri Balwant Rai was appointed in 1979 and the said appointment has to be regarded as having been made against the vacancy at point No 1.
in the the roster which was reserved for Balmikis or Mazhbi Sikhs but since no Balmiki or Mazhbi 604 Sikh was selected for that post, the said vacancy was assigned to Shri Balwant Rai who belonged to a scheduled Caste other than a Balmiki or Mazhbi Sikh.
The said vacancy which was reserved for Balmikis or Mazhbi Sikhs could not be carried forward in view of the directions contained in the letter dated April 8, 1980.
The next post reserved for Scheduled Castes at point No. 5 in the roster was meant for a person belonging to a Scheduled Caste other than Balmikis and Mazhbi Sikhs.
In the selections that were made in 1981 and 1982 no person belonging to a Scheduled Caste was selected and, therefore, posts at Points nos.
5 and 6 in the Roster became available to candidates in the general category and the vacancy at Point no.5 reserved for Scheduled Castes was carried forward to point No.7 In 1986, two persons belonging to Scheduled Castes, namely Shri G.S. Samra and respondent No.3 were selected.
Shri G.S. Samra belonged to a Scheduled Caste other than Balmiki and Mazhbi Sikh whereas respondent No. 3 was a Mazhbi Sikh.
Since the post at point No.5 which had been carried forward to point No.7 was reserved for a candidate belonging to a Scheduled Caste other than Balmiki or Mazhbi Sikh it had to be assigned to Shri G.S. Samra falling in that category and respondent No. 3 who was a azhbi Sikh could only be appointed against the reserved vacancy at point No.9 in the Roster.
Respondent No. 3 can not claim that the vacancy at Point No.7 should be assigned to him.
If respondent No.3 is adjusted against the vacancy at Point No. 9 in the Roster, he has to be placed in seniority below the appellant who was appointed against point No. 8 in the Roster.
In the judgment under appeal, the High Court has placed reliance on the instructions dated March 6, 1961 and the decision of this Court in Jagjit Singh vs State of Punjab, ; The instructions dated March 6, 1961 deal with a situation where the services of a Government Servant belonging to Scheduled Castes/Tribes and Backward Classes are terminated and a resultant vacant occurred.
It has been directed as under "With a view to safeguard the interests of the members of the Scheduled Castes/Tribes and Backward Classes, it has been decided that if the services of a Government Servant belonging to Scheduled Castes/Tribes or Backward Classes are terminated, the resultant vacancy should not be included in the normal pool of vacancies to be filled in accordance with the Block System but should be filled up on ad hoc basis from the candidates belonging to these castes and classes.
In other words the intention is that the posts vacated by members of Scheduled Castes/Tribes and Backward classes should remain earmarked and be filled up by members belonging to these Classes.
" 605 In Jagjit Singh 's case, this Court was dealing with appointments to the Punjab Civil Service (Executive Branch).
These selection was made for appointment against 12 vacancies in the said Service and other vacancies in the Allied Services.
Two of the vacancies in the Punjab Civil Service were reserved for Scheduled Castes candidates.
Three persons were selected from among the members of Scheduled Castes.
The appellant in the said appeal was at third place in the merit list of the Scheduled Castes candidates.
The first two candidates on the merit list were appointed and the appellant was appointed on the post of "A" Class Tehsildar in one of the Allied Services.
Subsequently, one of the two candidates who had been appointed to the Punjab Civil Service resigned his office and a question arose as to whether the appellant was entitled to be appointed to the Punjab Civil Service against the vacancy arising on account of resignation of the Scheduled Castes candidate who had been appointed earlier.
The appellant laid his claim for such appointment on the basis of the instructions contained in the circular of March 6, 196 1.
The said claim of the appellant was upheld by this Court and it was held that the resultant vacancy caused by resignation of one of the Scheduled Castes candidate should have gone to the appellant.
The Circular dated March 6, 1961 and the decision in Jagjit Singh vs State of Punjab (supra) do not have a bearing on the question in controversy in the instant case because here there is no dispute that the respondent No.3 has been appointed against the post reserved for members of Scheduled Castes and the question is about the inter se placement of two persons appointed against vacancies reserved for Scheduled Caste candidates.
The Circular dated March 6, 1961 does not deal with the said question and it has to be dealt with on the basis of the instructions contained in the orders dated May 5, 1975 and April 8, 1980.
For the reasons aforementioned the appeal is allowed, the judgment and the order of the High Court dated October 9, 1991 is set aside.
The Civil Writ Petition filed by the appellant in the High Court is allowed and it is declared that respondent No.3 can only be treated to have been appointed against the vacancy at Point no.9 in the Roster and on that basis he must be placed below the appellant in the seniority list.
Respondent No.2 is directed to revise the seniority list of the members of the Service accordingly.
The appellant would be entitled to conse quential benefits if any, accruing to him as a result of such revision in the seniority.
The parties are left to bear their own costs.
N.V.K. Appeal allowed.
| Recruitment to the Punjab Superior Judicial Service was governed by the Punjab Superior Judicial Service Rules, 1963.
Rule 8 A inserted in the said rules by notification dated June 14, 1977 provided that instructions issued by the State Government from time to time in relation to reservation of appointments for posts for Scheduled Castes and Backward Classes were applicable for appointments to posts in the Service.
The Secretary to the Government of Punjab, Welfare of Scheduled Castes and Backward Classes Department by letter dated June 6, 1974 Informed all Heads of Department etc.
that it had been decided to increase the percentage of reservation in direct recruitment in all services from 20% to 25 % in the case of members of Scheduled Castes and from 2% to 5 % in the case of members belonging to Backward Classes, and Indicated the vacancies to be reserved for the members of Scheduled Castes in a lot of 100 vacancies and specified the points.
It also directed that the Roster already existing would not be abandoned, but would now be maintained in continuation from the vacancy in the existing Roster last filled up according to the new pattern of reservation.
Circular dated November 19, 1974 made provision for carrying forward of reservation for members of Scheduled Castes/Backward Classes, and directed that the reservation should be carried forward form vacancy to vacancy in the same block until a Scheduled Caste or a Backward Class person is appointed or promoted in the same block, and that the reservation should be carried from vacancy to vacancy in each Mock and from block to block until the carried forward vacancies are filled up.
594 By letter dated May 5,1975 the Secretary to the Government, Welfare Department Communicated to all Heads of Department ; that the Government has decided that henceforth, 50% vacancies of the quata reserved for Scheduled Castes should be offered to Balmikis and Mazhbi Sikhs as a first preference from amongst the Scheduled Castes candidate, .
The Under Secretary, Welfare Department Reservation Cell by his letter dated April 8,1980, clarified the position with regard to the implementation of instructions regarding reservation for Mazhbi Sikhs and Balmikis contained in the aforesaid letter dated May 5,1975, the Clarification was to the effect that : (1) the combined merit list can be disturbed while giving appointment to the candidate belonging to Balmikis and MazhbiSikhs; (ii) the first reserved vacancy can he offered to Balmikis and Mazhbi Sikhs although their name may be below in the merit list, and (iii) on the basis of 50% reservation Bal mikis and Mazhbi Sikhs 1,3,5 and so on reserved vacancies shall go to the candidates of these castes if available and 2,4,6 and so on reserved vacancies shall go to other Scheduled Castes candidates.
After introduction of Rule 8 A in the Punjab Superior Judicial Service Rules, four persons were appointed by way of direct recruitment to the Service in the year 1979.
One of them, Shri Balwant Rai, belonged to a Scheduled Caste (other then Balmikis or Mazhbi Sikhs).
Thereafter, in 1981 one post fell vacant but no person belonging to a Scheduled Caste could be selected and candidate belonging to general category was appointed against the said post In 1982, selection was made for two posts but only one person could he selected and he also belonged to the general category and no person belonging to a Scheduled Caste was available for appointment.
In 1986, six persons including the appellant and respondent No. 3 were appointed on the basis of direct recruitment.
Out of those six persons, four belonged to the general category and two belonged to Scheduled Castes.
One of the two persons was Shri G.S. Samra who belonged to a Scheduled Caste other than Balmikis or Mazhbi Sikh.
In the merit list for the said selection the appellant was placed at No. 1, Shri G.S. Samra at No. 2, and respondent No. 3 at No. 5.
As per the Roster, Shri G.S. Samra was placed at Point No. 7, the appellant at Point No. 8 and respondent No. 3 at Point No. 9.
After joining the Service, Shri G.S. Samra resigned and had ceased to be a member of the service prior.
to April, 1, 1988.
In the tentative seniority list as on April 1, 1988,the appellant was placed at serial No. 52 and respondent No.3 was placed at serial No. 53.
Respondent 595 No. 3 submitted a representation against his placement in the seniority list and claimed that he should be placed against the post reserved for scheduled castes at Serial No. 5 in the Roster and on that basis be given the seniority of the year of 1981, and that since he is a Mazhbi Sikh, he is entitled to preference over Shri G.S. Samra who belonged to a Scheduled Caste other than Balmikis and Mazhbi Sikhs, and he claimed that he should have been placed at Point No. 7 in the Roster and Shri G.S. Samra should have been placed at Point No. 9 and on that basis also respondent No. 3 is senior to the appellant.
Representation was also invited from the appellant in this regard.
After considering the representations the High Court decided that respondent No. 3 was entitled to he placed above Shri G.S. Samra in view of the Circular Letter dated May 5, 1975 and that he should have been placed against Point No. 7 in the roster and Shri G.S. Samra should have been placed against Point No. 9 in the Roster, In the revised seniority list Respondent No. 3 was placed at Serial No. 52 while the appellant was placed at Serial No. 53.
Aggrieved by the aforesaid decision the appellant filed a Writ petition in the High Court which was dismissed.
The appellant appealed to this Court and contended that the first appointment, by direct recruitment, of a person belonging to the Scheduled Castes was of Shri Balwant Rai made in 1979, that was at Point No. 1 in the Roster, and should have gone to a Balmiki or Mazhbi Sikh but since no person belonging to these communities was available Shri Balwant Rai who belonged to a Scheduled Caste was appointed.
Relying on the clarification contained in the letter dated April 8, 1980 it was submitted that the vacancy at Point No. 5 reserved for Scheduled Castes was to be carried forwarded to point No. 7 and Shri G.S. Samra had to he adjusted at Point No. 7 in the Roster, that respondent No.3 being a Mazhbi Sikh could not claim to be placed at Point No. 7 against a vacancy which was reserved for a candidate belonging to Scheduled Castes other than Balmikis and Mazhbi Sikhs and that he could the before be only placed against the vacancy at Point No. 9 in the Roster.
The appeal was contested on behalf of Respondent No. 3 who urged that in view of the order dated May 5,1975,50% vacancies of the quota reserved for Scheduled Castes have to be offered to Balmikis and Mazhbi Sikhs and since Shri Balwant Rai belonging to a Scheduled Coste other than Balmikis & Mazhbi Sikhs had been appointed in 1979, the next post should go to Balmikis and Mazhbi sikhs, and on that basis, respondent No. 3 was entitled to be appointed against the second post at point No.7 of the Roster and Shri 596 GS.
Samra could only be appointed against third post at Point No. 9 in the Roster.
It was also urged that the clarification contained in the letter dated April 8, 1980 could only have prospective operation with effect from the date of its issue, and the sub roster indicated therein could be given effect to only from that date, and on that basis also respondent No3 was entitled to be placed against Point No. 7 in the 100 point roster and Shri GS.
Samra against Point No. 9 in the said roster.
Allowing the appeal and setting aside the judgment of the High Court, this Court, HELD : 1. (a).
There is no dispute in the instant case, that respondent No3 has been appointed against the post reserved for members of Scheduled Castes and the question is about the inter se placement of two persons appointed against vacancies reserved for Scheduled Caste candidates.
The Circular dated March 6, 1961 does not deal with the said question and it has to be dealt with on the basis of the instructions contained in the orders dated May 5,1975 and April 8,1980.
(605 E) Jagjit Singh vs State of Punjab, ; , explained and distinguished.
1.(b).
Respondent No.3 can only be treated to have been appointed against the vacancy at point No. 9 in the Roster and on that basis he must be placid below the appellant in the seniority list.
Respondent No 2 is directed to revise the seniority list of the members of the Service accordingly.
The appellant would be entitled to consequential benefits accruing as a result of revision in the seniority.
(605 F) 2.
The letter dated April 8, 1980 gives clarifications on certain doubts that had been created by some Departments in the matter of implementation of the instructions contained in the earlier letter dated May 5,1975.
Since the said letter dated April 8, 1980 is only clarificatory in nature there is no question of its having an operation independent of the instructions contained in the letter dated May 5, 1975 and the clarifications contained in the letter dated April 8,1980 have to be read as a part of the instructions contained in the earlier letter dated May 5, 1975.
(603 E) 3.
A statute which is explanatory or clarificatory of the earlier enactment is usually held to be retrospective.
597 Craies on Statute Law 7th Edn.
p. 58, relied on.
(603 F) 4.
All appointments against vacancies reserved for Scheduled Castes made after May 5,1975 (after May 14,1977 in so far as the Punjab Superior Judicial Service is concerned) have to be made in accordance with the instructions as contained in the letter dated May 5, 1975 as clarified by letter dated April 8, 1980.
(603 F) 5.
The appointment of Shri Balwant Rai in 1979 has to be treated to be an appointment made under the said instructions and operation of these instructions cannot be postponed till April 8, 1980.
The sub roster as indicated in the letter dated April 8, 1980 would have to be applied in respect of the post on which Shri Balwant Rai was appointed in 1979 and the said appointment has to be regarded as having been made against the vacancy at Point No. 1 in the roster which was reserved for Balmikis or Mazhbi Sikhs but since no Balmiki or Mazhbi Sikh was selected for that post, the said vacancy was assigned to Shri Balwant Rai who belonged to a Scheduled Caste other than a Balmiki or Sikh.
(603 H, 604 A) 6.
The vacancy at Point No. 1 which was reserved for Balmikis or Mazhbi Sikhs could not he carried forward in view of the directions contained in the letter dated April 8, 1980.
(604 A) 7.
The next post reserved for Scheduled Castes at Point No. 5 in the roster was meant for a person belonging to a Scheduled Caste other than Balmikis and Mazhbi Sikhs.
(604 A) 8.
In the selections that were made in 1981 and 1982 no person belonging to a Scheduled Caste was selected and, therefore, posts at Point Nos. 5 and 6 in the Roster became available to candidates in the general category and the vacancy at Point No. 5 reserved for Scheduled Castes was carried forward to point No. 7.
(604 B) 9.
In 1986, two persons belonging to Scheduled Castes, namely Shri G.S Samra and respondent No. 3 were selected.
(604 B) 10.
Since the post appoint No. 5 which had been carried forward to point No. 7 was reserved for a candidate belonging to a Scheduled Caste other than Balmiki or Mazhbi Sikh it had to be assigned to Shri G.S. Samra falling in that category and respondent No.3 who was a Mazhbi Sikh could only be ap 598 pointed against the reserved vacancy at Point No. 9 in the Roster.
Respondent No.3 can not claim that the vacancy at Point No.7 should be assigned to him.
If respondent No.3.
is adjusted against the vacancy at Point No.9 in the Roster, he has to be placed in seniority below the appellant who was appointed against Point No. 8 in the Roster.
(604 C)
|
DICTION: Civil Appeal No. 8670 of 1983.
From the JudGment and Order dated 3. 9. 1982 of the Punjab and Haryana HiGh Court in ReGular First Appeal No. 1 105 of 198 1.
WITH C.A. Nos. 8634 to 86 58/83 and 8660 62/83, 8665 to 8669/83 and 8671 72/ 83 Prem Prasad Juneja and R.S. Sodhi for the Appellants.
H.M. Singh for G.K. Bansal for the Respondents.
648 The Judgment of the Court was delivered by K. RAMASWAMY, J.
The common questions of law arose for decision in these appeals.
Hence they are disposed of together.
Notification under section 4 (1) of the Land Acquisition Act 1 of 1984 was published in the Punjab State Gazette on January 27, 1978 acquiring 89 acres 4 canals and 12 marlas of land situated in Dhuri village for public purpose, namely to set up new Mandi Township.
The. appellants claimed at the rate of Rs. 30.000 per Bighabut Land Acquisition Officer after classifying the lands into six blocks A to F, awarded market value ranging between Rs. 30,000 to Rs. 6,000 acre.
On reference under section 18 of the Act, the District Judge, Sangrur in his judgment dated May 13, 1981 disagreed with the classification and found that all the lands are possessed of the same quality.
Relying on sale deeds, exhibit p 3 dated September4,1972, p 5 dated June 14,1976, p 2 dated February 23, 1977 and p 4 dated July 15, 1977, all small extents, he calculated at an average of Rs. 1300 per Biswa and awarded to the lands belonging to Jaswant Kaur Baldev Singh and Gurdev Singh at the rate of Rs. 1,000 per Biswael finding that their lands are abutting Abadi (village) and for the rest awarded at the rate of Rs. 800 per Biswa with statutory solatium at 15% and interest of 6% per annum on enhanced compensation.
Dissatisfied therewith the State filed the appeals and against disallowed claims, the claimants in one batch filed appeals and in another batch filed cross objections.
The learned Single Judge relied on exhibit p3 and p 5 filed by the claimants and exhibit R 4 and R 6 filed by the State as comparable instances and calculated the average which worked out at Rs. 750 per Biswa.
He found that the lands are possessed of potential value for further building purposes.
Therefore, he carved out belting at a depth of 100 ft. from the main road to those lands, deducted 1/3rd towards developmental charges and awarded the market value at the rate of Rs. 750 to the land situated abutting to the main road to the depth of 100 ft. and for the balance lands at the rate of Rs.500 per Biswa.
The State appeals were allowed and of the claimants and cross objection were dismissed.
The Division Bench confirmed the judgment of the learned Single Judge.
The claimants filed these appeals by special leave.
In the first batch no witness has been examined, but in the second batch witnesses were said to have been examined in proof of these documents but their evidence was not made part of the record.
Equally of the sale deeds.
It is seen that the documents in the second batch p top 1 include those filed in the first batch.
exhibit p 5 is dated Sept. 4, 1972, in which 20 Biswas of land was sold for Ice Factory.
It was situated in the town itself.
The price fetched therein was Rs. 20,000 Therefore, it worked out at the rate of Rs. 1,000 per Biswa.
exhibit p10 is dated August 25, 1975, 7 Biswas of land in Dhaula village was sold for Rs. 649 75,000 which works out at rate of Rs. 1071 per Biswa.
exhibit p 7 is dated June 14,.
1976,3 Bighas 16 Biswas of land situated at Dhularoad side was sold for Rs. 4,500 which works out at the rate of Rs. 1285 per Biswa.
Ex.p 8 dated June 15, 1977 is for 4 Biswas of land at Dhula road sold for Rs. 4,000 which works out at Rs. 1,000 per Biswa.
exhibit p 4 is dated Feb. 23, 1977,3 Biswas of land in the heart of the town Dhuri was sold for Rs. 6,000 which works out to Rs. 2,000 per Biswa.
exhibit p 6 is dated may 18,1977, one Bigha7 Biswas were sold for Rs. 1,000, which works out to Rs. 370 per Biswa.
This land is away from the town and also from the acquired land.
exhibit p 9 is dated July 12, 1977, 15 Biswas of land were sold for Rs. 24,000 working out at the rate of Rs. 1,600 per Biswa.
Based thereon it was contended that exhibit p 9 fetches the highest market value and is nearer to the date of notification and would offer comparable price.
The High Court ought to have fixed market value at that rate.
The High Court committed illegality in relying on two sale deeds of the claimants and two mutation entries on behalf of the state in working out the average.
Therefore, fixation of the market value is illegal.
The mutations are not admissible as neither sale deeds were filed not any body connected with them are examined.
The question, therefore, is whether these sale transactions would reflect the prevailing market value of the land of the total extent of 90 acres.
It is seen that in the first batch no one was examined to prove the documents.
In the second batch though witnesses were said to have been examined, the evidence is not on record.
Neither the reference court nor the High Court discussed the evidence and no finding was given.
So we do not have the advantage of any findings in that behalf.
The state filed 5 mutation entries which were marked.
The sale entries exhibit
R 6 is of October 4,1977 and exhibit R 5 of November 13, 1977.
The rates of lands in Saledeeds executed between March 7, 1977 to November 13, 1977, i.e. R 2 on 7.3.77, R 3 on 8.6.77, R 4 on 31.8.77 and R 5 on 30.11.77 work out between Rs. 83 to Rs. 450 per Biswa.
It is settled law that to determine the market value of the land under section 23(1) of the Act the sales of the land under requisition, if any, or the sales in the neighbourhood lands that possessed of same or similar potentialities or fertility or other advantageous features would furnish basis to determine just and fair market value on the premise of hypothetical willing vendor and willing vendee.
The willing vendor who would offer the land and willing vendee who would agree to purchase the land as a prudent man in normal market conditions as on the date of the notification or near about the date of the notification is the acid test.
It is also settled law that the sale and purchase of lands at a throw away price at arm 's length or depressed sales or fecal of sales brought into existence in quick succession to inflate the market value would not offer any basis to determine just market value.
In order to adjudge whether sales are bonafide sales between willing vendor and 650 willing vendee and whether the consideration mentioned in deed was, in fact and really passed on under transaction '.
whether the lands covered by sale deeds and relied on, possessed of same or similar potentialities or fertilities or advantageous features would be brought on record only by examining the vendor or the vendee or if neither of them is available, the attesting witness who has personal knowledge of the bargain and passing of the consideration are mandatory.
Vide Periyar & Pareekanni Rubbers Ltd. vs State of Kerala wherein this court surveyed the entire case Law in that respect.
Since none has been examined in the first batch the sale transactions referred to either by the state or by the claimants cannot be relied upon.
In the second batch since the evidence has not been referred to by the courts below nor discussed by them nor we have the advantage to go through the same, we cannot rely on the same to further enhance the market value.
Therefore, we are left with no option.
but to reject those sale deeds.
Moreover, except exhibit p 9 all other sale deeds are of very small extents.
This court consistently has taken the view in Collecior of Lakhimpur vs Bhuban Chandra Dutta AIR 1971 SC 2015 Mirza Naushery voan Khan & Anr.
vs Collector (Land Acquisition).
Hyderbad ; ; Rain Rattan & Ors.
vs State of U. P. Smt.
Kaushalya Devi Bogra & Ors.v.
Land Acquisition officer, Aurangabad & Anr. ; ; Padma.
Uppal vs State of Punjab & Ors.
; , Administrator General of West Bengal vs Collector.
Varanasi ; and Special Tehsildar, Land Acquisition vs A. Mangala Glowri [1991]4 SCC 218 that sale deeds of small extents being retail price do not offer comparable basis to fix compensation when large block of land is acquired.
To an intending bonafide purchaser if such block of 90 acre is offered for sale, would he agree to purchase at retail price or far less value? Under no circumstance he would agree to purchase at retail prices mentioned above.
In view of the settled legal position the saledeeds, sought to be relied upon, do not give us any basis to determine the market value.
Every endeavour would be made to fix fair and reasonable market value.
If sale transactions relate to the lands under acquisition and if found to be genuine and bonafide transaction between willing vendor and vendee then it may be considered but reasonable margin must be given in fixing whole sale price.
Therefore, all the documents except p 9 are rejected.
The next contention is that the sale deed exhibit p 9 by which 15 Biswas were sold for Rs. 24,000 which works out at the rate of Rs. 1,600 per Biswa and whether this hiohest price should be given to the appellants.
As stated earlier we have no evidence before us as to under what circumstances this document came to be executed and what is the distance between the lands and for what purpose the land was sold and what is the 651 comparable nature of the land, fertility and potentialities of the land, etc.
The contention relying on state of Madras v.A.M.Ranjan & Anr.
[1976] 3SCR35 that highest value should be fixed cannot be accepted in view of the consistent late.
view of this court.
In Collector of lakhimppur 's case (supra), this court accepted the principle of average, but however, rejected the small extent of the lands arid enhancement based on the average at Rs. 15,000 per Bigha was reduced to Rs. 10.000 per Bicha.
In Smt.
Kausalya Devi 's case (supra), this court noted that large extent of land in the developed Aurangabad town was acquired for Medical College, accepted the principle of average worked out by the reference court, varying between Rs. 2.25 to Rs. 5.00 per sq. yard and this court ultimately fixed the market value at the rate of Rs. 1.50 per sq. yard.
In Administrator General of West Bengal 's case (supra) this court upheld rejection of the small plots of lands and accepted two sale deeds of large extent working out the average rate at Rs. 500 per Decimal and ultimately reference court fixed the market value at the rate of Rs. 200 per Decimal.
It is, therefore, clear that the court in the first instance has to determine as to which of the sale deeds are relevant, proximate in point of time and offer comparable base to determine market value.
Thereafter the average price has to be worked out.
It would be seen that this court has taken consistent view of working out average and further deductions have been made in fixing just and fair market value when large chunk of the land was acquired.
We respectfully agree and adhere to the principle and we find no compelling reason to divert the stream or arrest the consistence.
The question then is whether the reduction of the market value by the learned Single Judge is warranted on facts and under law.
In his judoment the learned Judge found that the acquired lands are situated between railway line on the one side and link road going from Dhuri to Sarona on the other side.
On the third side it is surrounded by the in habited area of Dhuri town.
A small portion in Khasra No. 2585 was abutting the Dhola road and the rest of the acquired land is just behind the inhabited area.
While acquiring these lands the Govt.
have excluded the built up area.
He also found that there is tendency of extension of Abadi village towards acquired lands.
Therefore, he found that the lands arepossessed of "Potential value for being housed for urban purpose in the near future and, therefore, had to be valued as such" Thus we have the evidence that the lands are possessed of potential value for being used for building purposes.
In fact, the acquisition itself is for construction of Mandi Township.
The principle of belting is perfectly legal and unexception 652 ble as the lands abutting the main road upto a specified depth, depending on actual material on record, would fetch higher market rate than the lands situated a interior area.
However, on facts of this case the belting is not warranted for the reason that as seen on three sides there exist roads and abutting the village.
As per the plan as found by the High Court there exists a road cutting across the acquired lands.
Therefore, there is not only access on three sides but also to interior lands.
Thus in our view belting and fixation of differential rates of value is not justified.
The next question is what would be the reasonable and just market value the lands were likely to fetch.
In view of the fact that there is no evidence available and since the High Court found that the lands are possessed of potential value the rate of Rs. 1,000 per Biswa as awarded by civil court to the lands abutting abadi and the lands upto a depth of 100 ft is upheld.
In view of the preceding finding we hold that the fixation of uniform rate of Rs. 1,000 per Biswa is legal.
It is seen that this acquired land of 90 acres is undoubtedly undeveloped area and necessarily requires development by laying the roads, parks, drainage, lighting and other civic amenities.
In Brig.
Sahib Singh Kalha & Ors.
vs Amritsar Improvement Trust & Ors. and Administrator General of West, Bengal 's case (supra) this court deducted 53% of the undeveloped lands towards developmental charges while fixing market value at decimal rate etc.
towards amenities.
In Special Tehsildar Land Acquisition, Vishakapatnam 's case,(supra) this court made deduction at 1/3rd.
The appellant placed reliance on Bhagwathula Swamnana & Ors.
vs Special Tahsildar Land Acquisition.
Visakhapatnam ; where this court did not deduct any land towards developmental charges.
But in that case it was found that the lands acquired are situated in fully developed area.
On those circumstances this court did not deduct any land towards developmental charges.
It is seen that the consistent view of this court now is that deduction of at least 1/3rd is necessary towards developmental charges.
Therefore, we uphold deduction of 1/3rd towards development charges from the market value and determine the market value at Rs. 670 per Biswa.
The learned judge while deducting 1/3rd fixed market value at Rs. 759 of frontage lands and Rs. 500 to interior land.
Rs. 750 is obvious mistake, but the state did not take any action to have itch corrected not filed appeals.
Fixation of Rs. 750 per Biswa of lands from road upto a depth of 100 ft. became final.
So we cannot interfere or correct it in claimants appeal.
But for the rest of the lands we award Rs. 670 per Biswa.
with solatium at 15% and interest at 6% on the enhanced market value from the date of taking possession till date of payment.
653 The appeals are accordingly allowed to the above extent.
In the circum stances parties are directed to bear their own costs.
| Notification under section 4 for acquisition of 89 Acres 4 Kanals and 12 Marlas of land in a village in Punjab, published on January 27, 1978.
Appellants claimed compensation Rs. 30,000 per Bigha i.e. Rs. 1500 per Biswa, on the ground that 15 Biswas of land situated near the acquired land had been sold on July 12,1977, for Rs. 24,000 which works out to Rs. 1600 per Biswa.
Land Acquisition Collector classified the acquired land In 6 blocks and awarded Market Value ranging between Rs. 30,000 to Rs, 6000 per acre.
In reference under Section 18, the District Judge disagreed with classification.
The learned Judge, relying on sale deeds dated September 4,1972, June 14, 1976, February 23, 1977 and July 15, 1977, all for small extents, awarded compensation @ Rs. 800 for the rest of land, besides solatium and interest.
Appeals filed in the High Court by State of Punjab and by one batch of claimants.
Another batch of claimants filed cross objections.
The learned Single Judge allowed appeals filed by the State and dismissed appeals and cross objections of the claimants.
Market Value was determined, on working out average price on the basis of sale deeds dated September 4,1972 and June 14, 1976 filed by claimants and mutation entries dated August 31, 1977 and October 4,1977 filed by the State.
Belting was carved at depth of 100 Ft.
from main road and deduction of 1/3rd was made towards development charges.
Consequently market value determined @ Rs. 750 per Biswa for land abutting main road and @ Rs. 500 per Biswa for the rest of land.
Judgment and order of the learned Single Judge was confirmed by Division Bench.
Claimants, by special leave petition filed appeals for higher compensation.
This court determined market value at Rs. 1000 per Biswa and allowing the appeals to that extent, HELD It is settled law that to determine market value of the land, the sales of land under requisition if any or the sales in the neighborhood lands, 646 that possessed of same or similar features or fertility or other advantageous features would furnish basis to fix just and fair market value.
(649 E) The price for which the willing vender would offer the land and willing vendee would agree to purchase it, as a prudent man in normal market conditions, as on date of notification or near about the date, is acid test to fix market value.
Sales and purchases of land at throw away price at arms length or depressed sales or facade of sales made in quick succession to inflate market value do not offer any basis to determine just Market Value.
(649 F) In order to adjudge, whether sales are bonafide, whether consideration mentioned in the deed was infect and really passed, whether the lands covered by sale deeds and relied on possessed of same or similar potentialities or fertilities or advantageous features would be brought out on record only by examination of the vendor or the vendee or if neither of them is available, the attesting witness, who has personal knowledge of the bargain and passing of consideration.
Hence it is mandatory.
(650 A) Periyar & Pareekanni Rubbers Ltd. vs State of Kerala: Sale deeds of small extents being retail price do not offer comparable basis to fix compensation, when large block is acquired.
If sale transactions relate to the lands under acquisition and if found to be genuine and bonafide transactions, then it may be considered but reasonable margin must be given in fixing wholesale price.
(650 E) Collector of Lakhimpur vs Bhuban Chandra Dutta AIR 1971 SC 2015; Mirza Nausherwoan Khan & Another vs Collector (Land Acquisition) Hyderabad ; ; Ram Rattan & Others vs State of Uttar Pradesh ; Smt.
Kaushalya Devi Bogra & Others vs Land Acquisition Officer, Aurangabad Others ; ; Administrator General of West Bengal vs Collector Varanasi ; and Special Tehsildar Land Acquisition vs A Mangal Gowri Court in the first instance has to determine as to which of the sale deeds are relevant, proximate in point of time and offer comparable base to 647 determine market value.
The after average price has to be worked out and the contention that highest value should be fixed cannot he accepted.
(651 D) State of Madras vs A.M. Ranjan & Another ; ; Collector of Lakhimpur vs Bhuban Chandra Dutta AIR 1971 SC 2015; Sint.
Kaushalva Devi Bogra & Others vs Land Acquisition Officer, Aurangabad & Another ; and Administrator General of West Bangal vs Collector, Varanasi ; The Principle of belting is perfectly legal and unexceptionable, as the lands abutting the main road up to a specified depth depending on factual material on record, would fetch higher market value than lands situated in interior area.
(652 A) If the acquired land is undeveloped, deduction of at least 1/ 3rd, is necessary towards development charges.
(652 F) Brig.
Sahib Singh Kalha & Others vs Amritsar Improvement Trust & Others ; Administrator General of West Bengal vs Collector Varanasi ; ; Special Tehsildar, Land Acquisition vs A. Mangal Gowri ; and Bhagwathula Swamnanna & Others vs Special Tehsildar Land Acquisition Visakhapatnam ;
|
Appeal No. 2544 of 1993.
From the judgment and Order dated 7.5.
1992 of the Calcutta High Court in Appeal No. Nil of 1992 in Matter No. 21 of 1991.
P.S, Poti, and S.K. Nandy for the Appellant.
K. Parasaran, A.K. Ganouli, G.K. Banerjee and.
Som Mandal for the Respondent.
R.M. SAHAI, J.
The short and the only question of law that arises for consideration in this appeal is if an appeal was maintainable against an order passed by the Learned Single Judge under Section 39(1) of the either under Section 39(2) of the Act or under the Letters patent jurisdiction.
Facts are not in dispute.
Since the State did not appoint any arbitrator as provided for in clause 25 of the agreement despite letters by the respondent to the Chief Engineer, Public Works Department (P.W.D) and the Secretary P.W.D. the respondent approached the High Court and a Learned Single Judge by order dated 6th September, 1991 revoked the authority of the Chief Engineer to act as an arbitrator and directed one Shri D.K. Roy Chowdhury to act as the sole arbitrator as suggested by the respondent.
Against this order State filed an appeal which has been dismissed by the Division Bench upholding the objection of the respondent as not maintainable.
It has been held that the appeal was not maintainable either under Section 39(2) or under Letters Patent.
It is the correctness of this view that has been assailed in this appeal.
Section 39 of the came up for consideration in Union of India vs Mohindra Supply Company [19621 3 S.C.R. 497.
The Court after going into detail and examining various authorities given by different High [Courts held that no, second appeal lay under Section 39 (2) against a decision given by a Learned Single Judge under Section 39(1).
In respect of the jurisdiction under Letters Patent the Court observed that since was a consolidating and amending act relating to arbitration it must be construed without any assumption that it was not intended to alter the law relating to appeals.
The Court held that in view of bar created by sub section (2) of Section 3 9 debarring an, second appeal from an order passed in appeal under sub section (1) the 'conclusion was 643 inevitable that it was so done with a view to restrict the right of appeal within strict limits defined by Section 39 '.
Therefore, so far the second part is concerned, namely, the maintainability of the appeal under Letters Patent it stands concluded by this decision.
The Learned counsel for the appellant vehemently argued that since the decision by the Supreme Court was in respect of an appeal directed against an order passed by a Learned Single Judge in exercise of appellate jurisdiction no second appeal lay but that principle could not be applied where the order of Learned Single Judge was passed not in exercise of appellate jurisdiction but original jurisdiction.
The argument appears to be without any substance as Sub section (1) of Section 39 which is extracted below "(1) An appeal shall lie from the following orders passed under this Act (and from no others) to the Court authorised by law to hear appeals from original decrees of the Court passing the order: An order (i) superseding an arbitration; (ii) on an award stated in form of a special case; (iii) modifying or correcting an award; (iv) filing or refusing to file an arbitration agreement; (v) staying or refusing to stay legal proceedings where there is an arbitratio n agreement; (vi) setting aside or refusing to set aside an award Provided that the provisions of this section shall not apply to any order passed by Small Cause Court.
(2) No second appeal shall lie from an order passed in appeal under this section, but nothing in this section shall affect or take away any right to appeal to the Supreme Court.
" 644 provides that an appeal could lie only from the orders mentioned in the subsection itself Since the order passed by Learned Singe Judge revoking the authority of the Chief Engineer on his failure to act as an arbitrator was not covered in either of the six clauses mentioned in Section 39 it is obvious that no appeal could be filed against the order of the Learned Single Judge.] Reliance was placed on certain orders passed by this Court and it was urged that settlement of dispute under clause 25 of the agreement being in exclusive domain of the Chief Engineer the High Court was not empowered to appoint anyone else.
The submission is devoid of any merit.
It is not made out from the agreement.
Rather clause 25 itself permits appointment of another arbitrator if the Chief Engineer fails or omits to act as such.
Relevant portion of the agreement is extracted below "Should the Chief Engineer be for any reason unwiling or unable to act as such Arbitrator such questions and disputes shall be referred to an Arbitrator to be appointed by the Arbitrator shall be final, conclusive and binding on all the parties to this contract.
" In one of the decisions given by this Court the order of the High Court was set aside as the dispute being technical in nature the appointment of anon technical arbitrator was not justified.
Here in this the High Court has appointed a retired Chief Engineer and not a non technical man.
No allegation has been made against him.
Therefore, the order of the learned Single Judge also does not suffer from any infirmity.
In the Circumstances the view taken by the Division Bench dismissing the appeal as not maintainable appears to be well founded.
The appeal accordingly fails and is dismissed with costs.
S.K. Appeal dismissed.
| Despite several letters by the respondent to the Chief Engineer Public works Department the State did not appoint any Arbitrator as provided in Clause 25 of the agreement.
Shri D.K. Roy Choudhry who was appointed as a sole Arbitrator by the learned Single Judge revoking the authority of the Chief Engineer to act as an Arbitrator under the agreement.
On appeal by the State under Section 39(2) of the Act or under Letters Patent.
The High Court dismissed the appeal as not maintainable.
This appeal is against the judgment of the High Court.
Appeal dismissed, HELD: 1.Section 39 of the came upon for consideration in U.O.I vs Mohindra Supply Company [1962]3 SCC 497 and the Court held that no Second Appeal lay under section 39(2) against a decision given by a learned Single Judge under Section 39(1).
is a consolidating and amending act relating to arbitration, it must be construed without any assumption that it was not intended to alter the law relating to appeals.
The Court held that in view of bar created by sub section (2) of Section 39 debarring a second appeal from an order passed in appeal under sub section (1) that the 'conclusion was inevitable that it was so done with a view to restrict the right of appeal within strict limits defined by Section 39 '.
Therefore the maintainability of the appeal under Letters Patent it stands concluded by this 641 decision.
(642 G H) 2.
Sub section (1) of Section 39 of the is extracted below: "(1) An appeal shall lie from the following orders passed under this Act (and from no others) to the Court authorised by law to hear appeals from original decisions of the Court passing the order.
An order (1) superseding an arbitration; (ii) on an award stated in the form of a special case; (iii) modifying or correcting an award; (IV) filing or refusing to file an arbitration agreement; (v) staying or refusing to stay legal proceedings where there is an arbitration agreement; (vi) setting aside or refusing to set aside an award; Provided that the provisions of this Section shall not apply to any order passed by a Small Causes Court.
_ (2) No second appeal shall lie from an order passed in appeal under this Section, but nothing in this Section shall affect or take away any right to appeal to the Supreme Court".
(643 D E GH) provides that an appeal could lie only from the orders mentioned in the sub Section itself.
Since the order passed by learned Single Judge revoking the authority of the Chief Engineer on his failure to act as an Arbitrator was not covered in either of the six clauses mentioned in Section 39 it is obvious that no appeal could be filed against the order of the learned Single Judge.
(644 642
|
6 etc.
Civil Appeal No. 1527 from the Judgment and Order dated 7.8.1984 of the Andhra Pradesh High Court in Writ petition No. 8173 of 1984.
A.K. Ganguly.
M.B. Shetye, A. Subha Rao, B, Kanta Rao, T.V.S.N. Chari, Ms. Bharathi Reddy and Ms. Promila for the appearing parties.
as amended by Act 24 of 1994, providing for imposition of entertainments tax it) respect of entertainments held in cinema theatres located in the State of Andhra Pradesh.
The Act has been enacted to provide for the levy of taxes on amusements and other attainments.
Prior to January 1. 1984, Section 4 of the Act provided for levy of entertainment tax at a rate fixed on the basis of percentage of the payment made by a person for admission to any entertainment.
In addition, there was a provision in Section 4 A for levy of a fixed amount, by way of "show tax", for each show.
By Act 59 of 1976, Section 4 C was introduced in the Act and Section 5 of the Act was substituted.
under Section 4 C, it was provided that in respect of entertain 623 ments held within tile jurisdiction of any local authority whose population did not exceed 25,000, a tax for every entertainment show would be levied, not on the basis of each payment for admission, but at a certain percentage of the gross collection capacity per show.
The percentages for such levy were fixed according to the population of the local authority within the jurisdiction of which the entertainments were held. 'Gross collection capacity per show was defined in the Explanation to Section 4 C to mean the notional aggregate of all payments for admission the proprietor would realise per show, if all the seats or accommodation as determined by the licensing authority under the Andhra Pradesh Cinemas (Regulation) Act, 1966 in respect of the place of entertainment are occupied, and calculated at the maximum rate of payments for admission as determined by the said licensing authority.
The levy of tax in the manner as prescribed under Section 4 C could be dispensed with if the proprietor of the theatre opted for the composition scheme contemplated by Section 5 whereunder it was open to a proprietor to enter into an agreement with the prescribed authority to compound the tax payable under Section 4 C for a fixed sum which was to be arrived at in accordance with the formula prescribed under Section 5.
According to this formula, the tax was payable on the basis of a percentage of the gross collection capacity per show for the fixed rounds of shows for the whole year and the number of shows was fixed on the basis of the number of shows exhibited in the previous year.
This arrangement continued till December 31, 1983, whereafter the provisions of Sections 4.4 A and 5 were amended by Act No. 24 of 1984.
The provisions of Sections 4,4 A and 5, as amended by Act 24 of 1984, were as follows "Section 4.
(1) There shall be levied and paid to the State Government a tax on the gross collection capacity on every show (hereinafter referred to as the entertainments tax) in respect of entertainments held in the theatres specified in column (2) of the table below and located in the located areas specified in the corresponding entry in column (1) of the said table, calculated at the rates specified in the corresponding entry in column (3) thereof.
THE TABLE __________________________________________________________ Local Area.
Theatre Rate of tax on the gross collection ca pacity per show _________________________________________________________ (1) (2) (3) _________________________________________________________ 624 (a) Municipal corporations (i)Air conditioned 29 per cent and the Secunderabad Cantonment area and (ii) Air cooled 28 per cent the contiguous area (iii)Ordinary 25 per cent thereof.
(other than air conditioned and air cooled) (b) Selection grade muni (i) Air conditioned 28 per cent cipalities and contiguors area of (ii)Air cooled 27 per cent two Kilometres (iii)ordinary (other 24 per cent thereof.
than air conditioned 27 per cent and air cooled) (c) Special tirade munici (i) Air conditioned 27 per cent palities and contiguous (ii) Air cooled 26 per cent area of two Kilometres (iii) Ordinary 23 per cent thereof.
(other than air conditioned and air cooled) (d) First grade munici palities and conti. (i) Air conditioned 26 per cent guous area of two (ii) Air cooled 25 per cent Kilometres thereof.
(iii) Ordinary (other 22 per cent than air conditioned and air cooled) (e) Second grade munici All categories 21 per cent palities and contiguous area of two Kilometres thereof.
(f) Third grade municipalities, All categories 20 per cent and contiguous area of two Kilometres thereof.
(g) Gram panchayats, selec (i) Permanent and 19 per cent tion grade gram panchayats, semi permanent 20 per cent townships and any other (ii) Touring and local areas.
temporary Explanation.
For the purpose of this section and section 5, the term 'gross collection capacity per show ' shall mean the notional aggregate of all payments for, admission, the proprietor would realise per show if all the seats or accommodation as determined by 625 the licensing authority under the Andhra Pradesh Cinemas (Regulation) Act, 1955, in respect of the place of entertainment are occupied and calculated at the maximum rate of payments for admission as determined by the said licensing authority.
The amount of tax under sub section (1) shall be payable by the proprietor on the actual number of shows held by him in a week." "Section 4 A. (1) In addition to the tax under Section 4, there shall be levied and paid to the State Government in the case of entertain ments held in the local areas specified in column (1) of the Table below, a tax calculated at the rates specified in the corresponding entry in column (2) thereof; THE TABLE Local Areas Rate of tax for every show (a) Municipal Corporation and the Six rupees Secunderabad cantonment area and contiguous area of two Kilometers thereof.
(b) Selection grade, Special grade and the Six rupees first grade municipalities and contiguous area of two kilometers thereof.
(c) Second grade and Third grade Four rupees municipalities and contiguous area of two kilometers thereof.
(d) Gram Panchayats, selection grade Two rupees.
gram panchayats, townships and any other local areas.
(2) The tax leviable under sub section (1) shall be recoverable from the proprietor.
(3) The provisions of this Act other than Sections 4, 6 and 13 shall, so far as may be, apply in relation to the tax payable under subsection (1) as they apply in relation to th e tax payable under Section 4 " 626 "Section 5.
( 1) In lieu of the tax payable under section 4.
in the case of the entertainments held in the theatres specified in column (2) of the table below and located in the local areas specified in the corresponding entry in column (1) of the said table, the proprietor thereof may, at his option and subject to such conditions as may be prescribed, pay the amount of tax to the State Government every week as specified in the corresponding entry in column (3) thereof : THE TABLE Local Area Theatre Amount of tax (1) (2) (3) (a) Municipal corpora (i) Air conditioned 24 per cent tions and the of the gross Secunderabad canton collection capacity ment area and the per show multi contiguous area of plied by 22 two kilometrers thereof.
(ii) Air cooled 23per cent of the gross collection capacity per show multiplied by 22.
(iii) Ordinary 20 per cent of the (other than air gross collection conditioned and capacity per show air cooled) multiplied by 22 (b)Selection grade muni (i) Air conditi 23 per cent of the cipalities and contiguous aned gross collection area of two kilometrers show multiplied by thereof.
(ii) Air cooled 22 per cent of the gross collec tion capacity per show multiplied by 22.
(iii) Ordinary 19 per cent of the (other than air gross collection conditioned and capacity per air cooled show multiplied by 22.
(c)Special grade munici (i) Air conditi 22 per cent of the 627 palities and contiguous oned gross show multi area of two kilo lied by 21.
metrers thereof.
(ii) Air cooled 21 per cent of the gross collection capacity per show multiplied by 21.
(iii) Ordinary 18 per cent of the (other than air gross collection conditioned and capacity per show air cooled) multiplied by 21.
(d)First grade municipali (i) Air conditi 21 per cent of ties and contiguous oned gross show area of two kilo multilied by 21.
metrers thereof.
(ii) Air cooled 20 per cent of the gross collection capacity per show multiplied by 21.
(iii) Ordinary 17 per cent of the (other than air gross collection conditioned and capacity per show air colled) multiplied by 21.
(e) Second grade muni All cate ores 16 per cent of the cipalities and conti gross collection guors area of two capacity per Kilometres there of show.
(f) Third grade muni All categores 15 per cent of the cipalities and gross Collection contiguous area of capacity per show two Kilometres multiplied by 17.
thereof.
(g) Gram panchayats, (i) Permanent 15 per cent of the selection grade gram and semi gross collection panchayats, townships permanent capacity per and any other show multi local areas.
plied by 14.
(ii) Touring 14 per cent of the and temporary gross collection capacity per show multiplied by 7. 628 Explanation.
For the purposes of computing the gross collection capacity per show in respect of any place of entertainment, the maximum seating capacity or accommodation and the maximum rate of payment for admission determined by the licensing authority under the Andhra Pradesh Cinemas (Regulation) Act, 1955, as on the date when the proprietor is permitted to pay tax under this section shall be taken into account.
(2)The amount of tax under sub section (1) shall be payable by the proprietor irrespective of the actual number of shows held by him in a week.
(3)Any proprietor who opts to pay tax under this section shall apply in the prescribed form to the prescribed authority to be permitted to pay the tax under this section.
(4)On being so permitted, such proprietor shall pay the tax for every week as specified in sub section (1).
(5)The option permitted under this section shall continue to be in force till the end of the financial year in which such option is permitted.
(6)It shall be lawful for the prescribed authority to vary the amount of tax payable by the proprietor under sub section (1) during the period of option permitted under this section any time, if there is an increase in the gross collection capacity per show in respect of the place of entertainment by virtue of an upward revision of the rate of payment for admission therein or of the seating capacity or accommodation thereof or where the local area in respect of which permission is granted is upgraded or if it is found for any reason that the amount of tax has been fixed lower than the correct amount.
(7)Every proprietor who has been permitted to pay the tax under this section shall intimate to the prescribed authority forthwith such increase in the gross collection capacity per show in respect of the place of entertainment, failing which it shall be open to the pre scribed authority by giving fifteen days notice to cancel the option so permitted.
629 (8)Where a proprietor fails to pay the amount of tax on the due date, such amount of tax shall be recoverable with interest calculated at such rate as may be prescribed.
(9) The amount of tax due under this section shall be rounded of to the nearest rupee and for this purpose, where such amount contains part of a rupee consisting of paise, then if such part if fifty paise or more it shall be increased to one rupee and if such part is less then fifty paise, it shall be ignored.
" As a result of the said amendments, the earlier mode of levy of tax on the basis of the percentage of each payment for admission prescribed in Section 4 was replaced by a mode similar to that provided in Section 4 C, i.e., on the basis as prescribed percentage of the gross collection capacity per show.
In the table appended below sub section (1) of section 4 rates were fixed on the basis of a percentage of the gross collection capacity per show varying with the category of the local area in which the theatre was situated as well as on the nature of the theatre, viz. air conditioned and air cooled or ordinary (other than air conditioned and air cooled) or permanent, semi permanent including touring and temporary theatres.
In the Explanation to sub section (1) of section 4, the term gross collection capacity per show ' was defined in the same terms as in the Explanation to Section 4 C, to mean the full collection per show if all the seats in the theatre are occupied.
In sub section (2) of section 4, it was specifically provided that the amount of tax under sub section (1) shall be payable by the proprietor on the actual number of shows held by him in a week.
Section 5 gave an option to the proprietor to pay a weekly consolidated amount irrespective of the number of shows actually held by him and the said amount was fixed on the basis of the prescribed number of shows per week.
The number of shows varied with the nature of the theatre as well as the category of the local area in which it was situate.
In section 4 A, a fixed amount was leviable by way of show tax on each show.
A number of writ petitions were filed in the High Court to challenge the validity of sections 4, 4 A and 5 of the Act, as amended by Act 24 of 1984.
The said writ petitions were decided by a division bench of the High Court by judgment dated July 19, 1984.
The constitutional validity of the provisions was challenged on three grounds, viz. : (i) the levy of entertainment tax on the basis of gross collection capacity without reference to the actual amount collected or the actual number of tickets sold or the number of persons admitted was ultra vires the legislative power 630 conferred on the State Legislature under entry 62 of List II of the Seventh Schedule; (ii) section 4 was hit by Article 14 of the Constitution inasmuch as by treating unequals as equals, it gave rise to discrirmination amongst different theatres situate within the same local area; and (iii) the levy of entertainment tax under section 4 being exproprietory amounts to an unreasonable restriction on the right guaranteed to the petitioners by Article 19 (1) of the Constitution, and was not saved by clause (6) of Article 19.
Relying upon the decisions of this Court in Western India Theatres vs Contonment Board, 1959 Supp. 2 SCR 63, Y. V. Srinivasamurthy vs State of Mysore, AIR 1959 SC 894, and State of Bombay vs R.M.D. Chamarbaugwala, ; , the High Court has held that the State Legislature was competent to levy the impugned tax under entry 62 of list 11 of the Seventh Schedule to the Constitution since the said head of legislative power empowers imposition of tax upon entertainments and amusements and not on the persons entertained or the persons provided amusement and it has to be paid by the persons who provides the entertainment or amusement.
The High Court further held that so long as the tax levied retains the character of entertainment tax, the Legislature is competent to adopt such basis or such measure, or such method of levy, as it thinks appropriate.
The High Court rejected the contention that the only method in which Legislature can levy the entertainment tax is that prescribed in the old Section 4, i.e., on the basis of the payment of admission.
The challenge on the around of Article 14 was negatived by the High Court on the view that wide discretion is allowed to the Legislature in the matter of classification and in the matter of selection of persons to be taxed and that the two fold classification made by section 4 could not be said to be either discriminatory or arbitrary much less could it be said that it metes out hostile discrimination to certain theatres.
The High Court also observed that since it was not possible to predicate absolute equality between two theatres, and also because the situation and economics of each theatre are different, it is impossible to expect, or call upon the Legislature to evolve such classification which would meet every conceivable case and which would not result in prejudice even to a single theatre.
It was observed that different rates have been prescribed for different local areas and for different types of theatres, i.e. ordinary, air cooled and air conditioned and the Legislature took note of the fact that rate of occupancy in villages will be lower compared to towns, and similarly, in bigger towns there will be greater rate of occupancy, and finally in cities, the rate of occupancy would be even higher and it could not be said that this expectation was unrealistic, or seunreasonable as to call for interference by the court.
As regards the challenge based on Article 19 (1) (g), the High Court has taken note of the letter dated July 26, 1983 addressed by the Andhra Pradesh Film Chamber of Commerce, to the Hon 'ble Chief Minister of Andhra Pradesh wherein the exhibitors not only asked 631 tax which suggestion was accepted by the Government with certain modifications varying from 2 to 4% over the rates suggested by the Association.
The High Court observed that the rates of tax that were prescribed under section 4 based on an average expected occupancy rate of less than 50 per cent to 66 per cent, could not be said to be either unreasonable or exproprietory.
The High Court, however, held that the agreements which had already been entered into by the proprietors of cinema theatres under section 5, as it stood prior to January 1, 1984, would be effective and valid for the period for which they were entered into.
The High Court has also observed that merely because the form for exercise of option, as contemplated under sub section (3) of section 5, had not been prescribed, it could not be said that section 5 had not come into operation or was unenforceable and that it was open for the proprietor to send an intimation on an ordinary paper and the authority would be bound to treat it as proper intimation.
The High Court rejected the contention that section 5 was discriminatory inasmuch as it did not provide for reduction of the composition amount in case of reduction of seating capacity of a theatre, during the period of one year for which the option was exercised although under sub section (6) of section 5 the provision had been made for enhancement of the composition amount in case the seating capacity/accommodation or the rates of payment for admission were enhanced.
The High Court observed that section 5 was only optional and no one was compelled to be governed by it or to opt for the composition scheme contained in section 5 and that according to the said scheme the option once exercised was in force till the end of the financial year in which such option was permitted and that if a person opts to be governed by section 5 he does so with his eyes open and he must be deemed to have accepted all the conditions and features of the scheme and it was not open to him to say that he would avail of the beneficial provisions of the scheme, while rejecting those features which are not advantageous to him.
C.A.Nos.
4642 47/84,193 221/85,222/85, 223/85,224 28/85. 229, 232 34/ 85, 1468/85 and 1469 70/85 have been filed against the said decision of the High Court dated July 19, 1984.
C.A. Nos. 5722/85, 1527/86, and SLP (C) No. 3127/ 85 have been filed against the decision of the High Court dated August 7, 1984 which is based on the earlier decision dated July 19, 1984 and similarly C.A. Nos.
1858/89 and 4798/89 are directed against the decisions dated February 12, 1986 and March 30, 1998 based on the earlier decision dated July 19, 1984.
During the pendency of these appeals, the Act was amended by A.P. Act 23 of 1988 and A.P. Act 16 of 1991 whereby the Tables below Sections 4,4 A and 5 were substituted and sub Section (6 A) was inserted in Section 5 whereby 632 provision was made for reduction of the amount of tax payable by the proprietor during the financial year if there is a reduction in the seating capacity or in the accommodation of the place of entertainment at any time during the period of six months commencing from the 1st day of April and ending with 30th day of September or from the 1st day of October and ending with 31st day of March of any financial year.
The learned counsel appearing for the appellants have assailed the constitutional validity of sections 4 and 5 on two grounds, viz. : (1) that the impugned provisions do not fall within the ambit of the legislative power conferred on the State Legislature under Entry 62 of List II of the Seventh Schedule of the Constitution , and (2) that the impugned provisions were violative of the right to equality guaranteed under Article 14 of the Constitution inasmuch as they treated unequals as equal by imposing tax at a uniform rate on a particular class of cinema theatres irrespective of their location and occupancy.
While considering the question as to legislative competence of the State Legislature, it is necessary to bear in mind that the impugned provisions provide fir imposition of a tax and a tax has two distinct elements, viz., subject of the tax and the measure of the tax.
The subject of the tax is the person, thing or activity on which the tax is imposed, and the measure of the tax is the standard by which the amount of tax is measured.
The competence of the Legislature to enact a law imposing a tax under a particular head of the legislative list has to be examined in the context of the subject of the tax.
If the subject of the tax falls within the ambit of the legislative power conferred by the head of legislative entry, it would be within the competence of the Legislature to impose such a tax.
It is, therefore, necessary to examine the scope of the legislative entry, viz., Entry 62 of List II, which is invoked in support of the competence of the State Legislature to impose the tax and ascertain whether the subject of the tax imposed by the impugned provisions falls within the ambit of the said entry.
Entry 62 of List 11 is as follows "62.
Taxes on luxuries, including taxes on entertainments, amusements, betting and gambling The said entry is in pari materia with entry 50 of the Provincial List in the Seventh Schedule to the Government of India Act, 1935.
Construing the said entry, this Court, in the Western India Theatres vs Cantonment Board (supra), has rejected the contention that the entry contemplates a law imposing taxes on persons who receive or enjoy the luxuries or the entertainments or the amusements 633 and has held "The entry contemplates luxuries, entertainments and amusements as objects on which the tax is to be imposed. . .
The entry, a,,, we have said, contemplates a law with respect to the matters regarded as objects and law which imposes tax on the act of entertaining is within the entry whether it falls on the giver or the receiver of that entertainment." (p.69) In that case, the Cantonment Board had imposed entertainment tax of Rs. 10 per show on the cinema houses of the appellant in the said appeal and Rs. 5 per show on others.
Upholding the said imposition this Court has held "It is a tax imposed on every show, that is to say, on every instance of the exercise of a particular trade, calling or employment.
If there is no show, there is no tax. .
The impugned tax is a tax on the entertainment resulting in a show".
(p. 69 70) Similarly, in Y. V. Srinivasamurthy vs State of Mysore (supra), upholding the provisions of the Mysore Cinematograph Shows Act, 1951 enacted under the Constitution, which authorised levy of tax on conematograph shows at rates prescribed in a rising scale according to the seating accommodation and the cities where the cinematograph show was held, this Court following the decision in Western India Theatres case (supra) held that the said Act was validly enacted in exercise of the legislative power conferred by entry 62 of List II.
In the instant case, we find that prior to the enactment of Act 24 of 1984, Section 4 provided for levy of entertainment tax on the basis of each payment for admission to the cinema theatre and under Section 4 C, in respect of entertainments held within the jurisdiction of a local authority whose population did not exceed 25,000 the tax was levied on the basis of the prescribed percentage of the gross collection capacity per show.
In other words, there were two modes for levy of the tax, one on the basis of the actual number of persons admitted to each show and the other on the basis of the percentage of the gross collection capacity per show.
As a result of the amendments introduced by Act 24 of 1984, the system for levy of tax on the basis of number of persons actually admitted to each show was dispensed with and the tax was to be levied on the basis of the percentage of the gross collection capacity per show and different percentages were prescribed depending on the type of the theatre and the nature of the local area where it was situated.
Under section 5, an option was given to pay a tax on the basis of the 634 prescribed percentage fixed for a fixed number of shows in a week irrespective of the number of shows actually held.
It is not disputed that the tax as it was being levied prior to January 1, 1984, i.e, before the amendment of Section 4 by Act 24 of 1984, was a tax on entertainment falling within the ambit of entry 62 of List 11.
The question is whether the alteration in the said mode of levy of tax by Act 24 of 1984 has the effect of altering the nature of the tax in a way that it has ceased to be a tax on entertainments and falls beyond the field of legislative competence conferred on the State Legislature by Entry 62 of List 11.
In our view, the said question must be answered in the negative.
The fact that instead of tax being levied on the basis of the payment for admission made by the persons actually admitted in the theatre it is being levied on the basis of the gross collection capacity per show calculated on the basis of the notional aggregate of all the payments for admission which the proprietor would realise per show if all the seats or accommodation in respect of the place of entertainment are occupied and calculated at the maximum rate of payments for admission, would not, in our opinion, alter the nature of the tax or the subject matter of the tax which continues to be a tax on entertainment.
The mode of levy based on 'per payment for admission ' prescribed under Section 4(1) prior to amendment by Act 24 of 1984 necessitated enquiry into the number of shows held at the theatre and the number of persons admitted to a cinematheatre for each show and gave room for abuse both on the part of proprietor as well as other officers incharge of assessment and collection of tax.
The mode of levy or measure of the tax prescribed under section 4(1), and substituted by Act 24 of 1984, is a more convenient mode of levy of the tax inasmuch as it dispenses with the need to verify or enquire into the number of persons admitted to each show and to verify the correctness or otherwise of the return submitted by the proprietor containing the number of persons admitted to each show and the amount of tax collected.
Prior to the enactment of Act 24 of 1984, tax was leviable on the basis of either of the two modes under Section 4(1) and4 C.
On an examination of the rates prescribed under both the modes, the High Court found that under the system of consolidated levy prescribed under Section 4 C the proprietor could break even if the average rate of occupancy was 40%.
As regards the rates prescribed under Section 4 and 5 as amended by Act 24 of 1984, the High Court has observed that the said rates are based on an average expected occupancy rate of less than 50% or 66% depending upon the area in which the theatre is situated.
This would mean that the entertainment tax that would be collected over and above the average occupancy rate would constitute the profit of the proprietor.
In the circumstances, it cannot be said that the adoption of the system of consolidated levy in Section 4(1) as amended by Act 24 of 1984 alters the nature of tax and it has ceased to be a tax on entertainments.
635 It has been urged that since both the modes of levy of tax were prevalent prior to the enactment of Act 24 of 1984, an option should have been given to the proprietor of a cinema theatre to choose between either of the two modes and that under the impugned provisions the choice is confined to two modes of assessment under the same system of consolidated levy based on the gross collection capacity per show, one on the basis on the gross collection capacity per show, under Section 4(1) and other on the basis of gross collection capacity per show for a prescribed number of shows per week under section 5.
We find no substance in this contention.
Once it is held that tax on entertainment could be levied by either of the two modes, viz., per payment of admission or gross collection capacity per show, it is for the legislature to decide the particular mode or modes of levy to be adopted and whether a choice should be available to the proprietor of the cinema theatre in this regard.
The legislature does not transgress the limits of its legislative power conferred on it under Entry 02 of List 11 if it decides that consolidated levy on the basis of gross collection capacity per show shall be the only mode for levy of tax on entertainments.
We are, therefore, unable to accept the contention urged on behalf of the appellants that the impugned provisions contained in Section 4 and 5 as amended by Act 24 of 1984 are ultra vires the legislative power conferred on the State Legislature under Entry 62 of List II.
The challenge to the impugned provisions on the basis of Article 14 is grounded on the principle that discrimination would result if unequals are treated equally are reliance is placed on the decision of this Court in K. T Moopil Nair vs The State of Kerala & Anr, ; It has been urged that under section 4, as substituted by Act 24 of 1984, a uniform rate has been prescribed for cinema theatres of a particular class situate in different parts of the same local area although the average rate of occupancy in the cinema theatres located in different parts of the same local area is not the same and a cinema theatre which is located in the central part of the local area would have better rate of occupancy as compared to a theatre located in a remote part and further that the occupancy in the theatre depends on various of the factors which have not been taken into account.
We find it difficult to accept the contention.
Article 14 enjoins the State not to deny to any person equality before the law or the equal protection of the laws.
The phrase "equality before the law" contains the declaration of equality of the civil rights of all persons within the territories of India.
It is a basic principle of republicanism.
The phrase "equal protection of laws" is adopted from the Fourteenth Amendment to U.S. Constitution.
The right 636 conferred by Article 14 postulates that all persons similarly circumstanced shall be treated alike both in privileges conferred and liabilities imposed.
Since the State, in exercise of its governmental power, has, of necessity, to make laws operating differently on different groups of persons within its territory to attain particular ends in giving effect to its policies, it is recognised that the State must possess the power of distinguishing and classifying persons or things to be subjected to such laws.
It is, however, required that the classification must satisfy two conditions namely, (i) it is founded on an intelligible differentia which distinguishes those that are grouped together from others; and (ii) the differentia must have a rational relation to the object sought to be achieved by the Act.
It is not the requirement that the classification should be scientifically perfect or logically complete.
Classification would be justified if it is not palpably arbitrary.
[See: Re Special Courts Bill, at pp.
534 5361.
It there is equality and uniformity within each group, the law will not be condemned as discriminative, thou oh due to some fortuitous circumstance arising out of a peculiar situation some included in a class get and advantage over others, so long as they are not singled out for special treatment.
[See: Khandige Sham Bhat vs Agricultural Income Tax Officer, ; at p. 8 171 Since in the present case we are dealing with a taxation measure it is necessary to point out that in the field of taxation the decisions of this Court have permitted the legislature to exercise an extremely wide direcretion in classifying items for tax purposes, so long as it refrains from clear and hostile discrimination against particular persons or classes.
[See: East India Tobacco Co. vs State of A.P., 19631 1 SCR 404, at p. 411, P.M. Ashwathanarayanan Shetty vs State of karnataka, 1988, Supp.
3 SCR 155, at p. 188, Federation of Hotel & Restaurant Association of India vs Union of India, , at p. 949, Kerala Hotel & Restaurant Association vs State of Kerala, ; , at p. 530, and Gannon Dunkerley and Co. vs State of Rajasthan, , at p. 3971.
Reference, in this context, may also be made to the decision of the U.S. Supreme Court in San Antonio Independent School District vs Bodrigues, 41 at p. 41, wherein Justice Stewart, speaking for the majority has observed "No scheme of taxation, whether the tax is imposed on property, income or purchases of goods and services, has yet been devised which is free of all discriminatory impact.
In such a complex arena in which no perfect alternatives exist, the court does well not to impose too rigorous a standard of scrutiny lest all local fiscal schemes become subjects of criticism under the Equal Protection Clause.
" 637 Just a difference in treatment of persons similarly situate leads of discrimination, so also discrimination can arise if persons who are unequals, i.e. differently placed, are treated similarly.
In such a case failure on the part of the legislature to classify the persons who are dissimilar in separate categories and applying the same law, irrespective of the differences, brings about the same consequence as in a case where the law makes a distinction between persons who are similarly placed.
A law providing for equal treatment of unequal objects, transactions or persons would be condemned as discriminatory if there is absence of rational relation to the object intended to be achieved by the law.
In K T Moopil Nair vs State of Kerala (supra), this Court was dealing with a law providing for imposition of uniform land tax at a flat rate without having regard to the quality of the land or its productive capacity.
The law was held to be violative of Article 14 of the constitution of the ground that lack of classification had created inequality.
The said decision in K. T Moopil Nair 's case (supra) has been explained by this Court is Jalan Trading Co. (Pvt.) Ltd. vs Mill Mazdoor Union, ; , in the context of challenge to the validity of section 10 of the providing for payment of a minimum bonus of 4% by all industrial establishments irrespective of the fact whether they were making profit.
This Court held that the judgment in Moopil Nair 's case (supra) has not enunciated any broad proposition that when persons or objects which are unequals are treated in the same manner and are subjected to the same burden or liability discrimination inevitably results.
It was observed : "It was not said by the Court in that case that imposition of uniform liability upon persons, objects or transactions which are unequal must of necessity lead to discrimination.
Ordinarily it may be predicated of unproductive agricultural land that it is incapable of being put to profitable agricultural use at any time.
But that cannot be so predicated of an industrial establishment which has suffered loss in the accounting year, or even over several years successively.
Such an establishment may suffer loss in one year and make profit in another. " (p.35) It was further observed "Equal treatment of unequal objects, transactions or persons is not liable to be struck down as discriminatory unless there is simulta 638 neously absence of a rational relation to the object intended to be achieved by the law." (p.36) The limitations of the application of the principle that discrimination would result if unequals are treated as equal, in the field of taxation, have been pointed out by this Court in Twyford Tea Co. Ltd. & Anr.
vs The State of Kerala & Anr., [1970] 3SCR 383, wherein tax at a uniform rate was imposed on plantations.
Hidayatullah, CJ, speaking for the majority, while upholding the tax, has observed "It may also be conceded that the uniform tax falls more heavily on some plantations than on others because the profits ,ire widely discrepant.
But does that involve a discrimination ? If the answer be in the affirmative hardly any tax direct or indirect would escape the same ensure for taxes touch purses of different lengths and the very uniformity of the tax and its equal treatment would become its undoing.
The rich and the poor pay the same taxes irrespective of their incomes in many instances such as the sales tax and the profession tax etc." (pp.
389 390) It was further observed : "The burden is on a person complaining of discrimination.
The burden is proving not possible 'inequality ' but hostile 'unequal ' treatment.
This is more so when uniform taxes are levied.
It is not proved to us how the different plantations can be said to be hostilely or unequally treated.
A uniform wheel tax on cars does not take into account the value of the car, the mileage it runs, or in the case of taxis, the profits it makes and the miles per gallon it delivers.
An ambassador taxi and a fiat tasi give different out turns in terms of money and mileage.
Cinemas pay the same show fee.
We do not take a doctrinaire view of equality." (p.393 94) In the instant case, we find that the legislature has prescribed different rates of tax by classifying theatres into different classes, namely, air conditioned, air cooled, ordinary (other than air conditioned and air cooled), permanent and semipermanent and touring and temporary.
The theatres have further been categorized on the basis of the type of the local area in which they are situate.
It cannot, therefore, be said that there has been no attempt on the part of the legislature to classify the cinema theatres taking into consideration the differentiating circum 639 stances for the purpose of imposition of tax.
The grievance of the appellants is that the classification is not perfect.
What they want is that there should have been further classification amongst the theatres falling in the same class on the basis of the location of the theatre is each local area.
We do not think that such a contention is well founded.
In relation to cinema theatres it can be said that the attendance in the various cinema theatres within a local area would not be uniform and would depend on factors which may very from time to time.
But this does not mean that cinema theatres in a particular category of local area will always be at a disadvantage so as to be prejudicely affected by a uniform rate as compared to cinema theatres having a better location in the local area.
It is, therefore, not possible to accept the contention that the impugned provisions are violative of right to equality guaranteed under Article 14 of the Constitution on the basis that unequals are being treated equally.
Another contention that has been urged on behalf of the appellants is that while provision was made under sub section (6) of section 5 for enhancement of the amount of tax in the event of increase in the amount of gross collection capacity, there was no corresponding provision for reduction for the amount of tax in the event of reduction in the gross collection capacity.
The said provision for enhancement contained in sub section (6) of section 5 relates to the cases where the proprietor of a cinema theatre opts for payment of weekly consolidated amount.
Since the proprietor has the option to opt for the said scheme he cannot complain that the scheme suffers from inequality on account of absence of a corresponding provision for reduction of amount of tax.
In any event the said grievance has how been removed by the introduction of sub section (6 A) in section 5 by amendments, introduced in the Act by A.P. Act 23 of 1988 and A.P. Act 16 of 199 1.
In the result, we find no merit in these appeals and the special leave petition and they are accordingly dismissed.
The parties are, however, left to bear their own costs.
V.P.R. Appeals dismissed.
| Prior to January 1, 1984, the Andhra Pradesh Entertainment Tax Act, 1989, in Section 4, provided for levy of entertainment tax at a rate fixed on the has is of percentage of payment made by a person for admission to any entertainment.
In section 4 C, in respect of entertainments held within the jurisdiction (if any local authority where population did n(it exceed 25, 000.
tax was levied at a certain percentage of the gross collection capacity per show and the percentage for such levy were fixed according to the population of the local authority within the jurisdiction of which the entertainment held.
The Amending Act 24 of 1984, replaced the earlier mode of levy of tax prescribed in Section 4 and introduced a mode of levy of tax on the has is of a prescribed percentage of the gross collection capacity per show.
The rates 617 were fixed on the basis of a percentage of the gross collection capacity per show varying with the category of the local area in which the theatre was situated as well as on the nature of the theatre, viz. air conditioned air cooled or (other than air conditioned and air cooled)or permanent,semi permanent including touring and temporary the atres.
The proprietor was given an option to pay a weekly consolidated amount irrespective of the number of shows actually held by him and the said amount was fixed on the basis of the prescribed number of shows per week.
The number of show. .
varied with the nature of the theatre as well as the category of the local area in which it was situate.
A fixed amount was also leviable by way of show tax on each show.
Before the High Court, a number of writ petitions were filed challenging the validity of sections 4,4 A and 5 of the Andhra Pradesh Entertainments Tax Act, 1939, as amended by Act 24 of 1984, on the grounds that (i) the levy of entertainment tax on the basis of gross collection capacity without reference to the actual amount collected or the actual number of tickets sold or the number of persons admitted was ultra vires the legislative power conferred on the State Legislature under Entry 62 of List 11 of the Seventh Schedule of the Constitution; (ii) section 4 was hit by Article 14 of the Constitution, as it gave rise to discrimination amongst different theatres situate within the same local area; and that (iii) the levy of entertainment tax under section 4 being exproprietory amounted to an unreasonable restriction on the right guaranteed to the petitioners by Article 19(1) (g) of the Constitution and was not saved under Article 19(6).
Relying upon the decisions in Western India Theatres vs Cantonment Board. [1959] Supp. 2 SCR 63; Y.V. Srinivasamurthy vs State of Mysor.
AIR 1959 SC 894 and State of bombay vs R.M.D. Chamarbaugwala.
A. I. R. the High Court dismissing the writ petitions held that the State Legislature was competent to levy the tax under Entry 62 of List 11 of the Seventh Schedule; that as the tax levied retained the character of entertainment tax, the Legislature was competent to adopt such basis or such measure, or such method of levy; that wide discretion was allowed to the Legislature in the matter of classification and in the matter of selection of persons to be taxed and that the two fold classification made by section 4 was neither discriminatory nor arbitrary or it did not mete out hostile discrimination to certain theatres; that the rates of tax that were prescribed under section 4 based on an average expected occupancy rate of less than 50 per cent to 66 per cent, was neither unreasonable nor expropriatory; that section 5 was only optional and no) one was compelled to be governed by it or to opt for the composition scheme and if a person opted to be governed by section 5, he must be deemed 618 to have accepted all the conditions and features of the scheme.
During the pendency of these appeals Special leave petition in this court the Act of 1939 was amended by A.P. Act 23 of 1988 and A.I. Act 16 of 1991, whereby the Tables below sections 4, 4 A and 5 were substituted and subsection (6A) was inserted in section 5.
Before this Court the appellants and the petitioners reiterated two contentions raised before the High Court while assailing the constitutional validity of sections 4 and 5 of the Act, namely, (1) that the impugned provisions did not fall within the ambit of the legislavite power conferred on the St .Ate Legislature under Entry 62 of List 11 of the Seventh Schedule of the Constitution; (ii) that the impugned provisions were violative of Article 14 of the Constitution, as they provided for imposing tax at a uniform rate (in a particular class of Cinema theaters irrespective of their location and occupancy.
Dismissing the appeal and the Special Leave petition, this Court, HELD: 1.1.
While considering the question as to legislative competence of the State Legislature, it is necessary to bear in mind that the impugned provisions provide for imposition of a tax and a tax has two distinct elements viz., subject of the tax and the measure of the tax.
The subject of the tax is the person, think or activity on which the tax is imposed, and the measure of the tax is the standard by which the amount of tax is measured.
(632 1)) 1.2.
The competence of the Legislature to enact a law imposing a tax under a particular head of the legislative list has to be examined in the context of the subject of the tax.
It the subject of the tax falls within the ambit of the legislative power conferred by the head of legislative entry, it would be within the competence of the Legislature to impose such as tax.
(632 E) 1.3.
Prior to the enactment of Act 24 of 1984, there were two modes for levy of the tax, one on the basis of the actual number of persons admitted to each show and the other on the basis of the percentage of the grows collection capacity per show.
As a result of the amendments introduced by Act 24 of 1984, the system for levy of tax on the basis of number (of persons actually admitted to each show was dispensed with and the tax was to be levied on the basis of the percentage of the gross collection capacity per show and different percentages were prescribed depending on the type of the theatre and the 619 nature of the local area where it was situated.
(633 F H) 1.4.
The question whether the alteration in the said mode of levy of tax by Act 24 of 1984 has the effect of altering the nature of the tax in a way that it has ceased to he a tax on entertainments and falls beyond the field of legislative competence conferred (in the State Legislature by Entry 62 of List 11, must he answered in the negative. 'The fact that instead of tax being levied on the basis of the payment for admission made by the persons actually admitted in the theater it is being levied on the basis of the gross collection capacity per show calculated on the basis of the notional aggregate of all the payments fair admission which the proprietor would realise per show if all the seats or accommodation in respect of the place of entertainment are (occupied and calculated at the maximum rate of payments for admission, would not alter the nature of the tax or the subject matter of the tax which continues to he a tax on entertainment.
(634 B D) 1.5.
The mode of levy based on 'per payment for admission ' proscribed under Section 4(1) prior to amendment by Act 24 of 1984 necessitated enquiry into the number of shows held at the theatre and the number of persons admitted to a cinema theatre for each show and gave room for abuse both on the part of proprietor as well as other officers incharge of assessment and collection of tax.
The mode of levy or measure of the tax prescribed under section 4(1),as substituted by Act24 of 1984, is a more convenient mode of levy of the tax inasmuch as it dispenses with the need to verify or enquire into the number of persons admitted to each show and to verify the correctness or otherwise of the returns submitted by the proprietor containing the number of persons admitted (A) each show and the amount of tax collected.
(634 E) 1.6.
On an examination of the rates prescribed under both the modes it is found that under the system (of consolidated levy prescribed under Section 4 C, the proprietor could break even if the average rate of occupancy was 40%.
As regards the rates prescribed under Sections 4 and 5 as amended by Act 24 of 1984 they are based on an average expected occupancy rate of less than 50% or 66% depending upon the area in which the theatre is situated.
This would mean that the entertainment tax that would be collected over and above the average occupancy rate would constitute the profit of the proprietor.
In the circumstances, it cannot be said that the adoption of the system of consolidated levy in Section 4(1) as amended by Act 24 of 1984 alters the nature of tax and it has ceased to be a tax on entertainments.
(634 F H) 620 1.7.
Once it is held that tax #in entertainment could be levied either of the two modes, viz., per payments of admission or gross collection capacity per show, it is for the legislature to decide the particular mode or modes of levy to be adopted and whether a choice should he available to the proprietor of the cinema theatre in this regard.
The legislature does not transgress the limit: of its legislative power confer red on it under Entry 62 of List 11 if it decides that consolidated levy on the basis of gross collection capacity per show shall be the only mode for levy of tax on entertainments (635 C) 1.8.
The impugned provisions contained in Sections 4 and 5 as amended by Act 24 of 1984 are not ultra vires the legislative power conferred on tile State Legislature under Entry 62 of List 11.
(635 D) Western India Theatres vs Cantonment Board, [1959] Supp. 2 SCR 63 and Y. V Srinivasamurthy vs State of Mysore AIR 1959 SC 894, explained. 2.01.
The right conferred by Article 14 postulates that all persons similarly circumstanced shall he treated alike both in privileges conferred and liabilities imposed, Since the State, in exercise of its governmental power, has, of necessity, to make laws operating differently on different groups of persons within its territory to attain particular ends in giving effect to its policies, it is recognised that the State must possess the power of distinguishing and classifying persons or things to be subjected to such laws.
It is, however, required that the classification must satisfy two conditions, namely, (i)it is founded on an intelligible different is which distinguishes those that are grouped together from others; and (ii) the differential must have a rational relation to the object sought to be achieved by the Act.
It is not the requirement that the classification should be scientifically perfect or logically complete.
Classification would be justified if it is not palpable arbitrary.
(636 A C) Re Special Courts Bill, at pp.
534 536 and Khandige Sham Bhat vs Agricultural Income Tax Officer, ; at p. 817.
followed.
In the field of taxation the legislature exercises an extremely wide discretion in classifying items for the purposes, so long as it refrains from clear and hostile discrimination against particular persons or classes.
(636 E) 621 East India Tobacco Co vs State of A.P. ; at p. 411; P.M. Ashwathanarayana Shetty vs State of Karnataka.
[1988] Supp.3 SCR 155 at p.m 188; Federation of Hotel & Restaurant Association of India vs Union of India, at p. 949, Kerala Hotel & Restaurant Association vs State of Kerala; , at p. 530: Gannon Dunkerley, and Co. vs State of Rajasthan, at 397; and San Antonio Independent School District vs Bodriques; , at p. 41, referred to.
just as a difference in the treatment of persons similarly situate leads to discrimination ', so also discrimination can arise if persons who are unequals, i.e. differently placed.
are treated similarly.
In such a case failure on the part of the legislature to classify the persons who are dissimilar in separate categories and applying the same law, irrespective of the differences brings about the same consequence as in a case where the law makes a distinction between persons who are similarly placed.
A law providing for equal treatment of unequal objects transactions or persons would he condemned as discriminatory if there is absence of rational relation to the object intended to he achieved by the law.
(637 A B) K. T Moopil Nair vs The State of Kerala & Anr.
, ; , distinguished.
Jalan Trading Co. (pvt.) Ltd. vs Mill Mazdoor Union, ; and Twyford Tea Co. Ltd. & Anr vs The State of Kerala & Anr., ; , referred to.
In the instant case, the legislature has prescribed different rates of tax by classifying theatres in the different classes, namely, air conditioned,air cooled, ordinary (other than air conditioned and air cooled), permanent and semi permanent and touring and temporary.
The theatre% have further been categorized on the basis (of the type of the local area in which they are situate.
It cannot, therefore, be said that there has been no attempt on the part of the legislature to classify the cinema theatres taking into consideration the differentiating circumstances for the purpose of imposition of tax.
(638 G H) 2.05.
In relation to cinema theatres it can he said that the attendance in the various cinema theatres within a local area would not be uniform and would depend on factors which may vary from time to time.
But this does not mean that cinema theatres in a particular category of local area will always 622 be at a disadvantage so as to be prejudicially affected by a uniform rate as compared to cinema theatres having a better location in the same local area.
The contention that the impugned provisions are violative of right to equality guaranteed under Article 14 (if the Constitution on the basis that unequals are being treated equally cannot be accepted.
(639 B C) 3.
The provision for enhancement contained in sub section (16) of section 5 relates to the cases.
There the proprietor of a cinema theatre opts for payment of weekly consolidated amount.
Since the proprietor has the option to opt for the said scheme he cannot complain that the scheme suffers from inequality.
on account of absence of a corresponding provision for reduction of amount of tax.
(639 E)
|
(Civil) No. 71 of 1992.
WITH Writ Petition (Civil) No. 323 of 1993.
Under Article 32 of the Constitution of India.
J.P. Bhatacharjee, N.R. Choudhry and Somnath Mukherjee for the Petitioners in W.P.No. 71/93.
S.N. Mukherjee for the Petitioners in W.P. No. 323/93.
Ms. B. Sunita Rao for V.K. Verma for the Respondents.
The Judgment of the Court was delivered by R.M.SAHAI,J.
Casual labourers of South Eastern Railway, alleged to have been appointed between 1964 69 and retrenched between 1975 78 have approached this Court for a direction to opposite parties to include their names in the 753 live casual labourer register after due screening and give them reemployment according to their seniority.
Further prayer is to restrain the opposite parties from filling vacancies from open market.
Basis of their claim is two fold, one circulars issued by the Railway Board on 8th June and 18th June, 1981 laying guideline regarding recruitment, retrenchment and employment of the casual labourers, second Judgments delivered by this Court in 1985 and 1987 directing the opposite parties to prepare a scheme and absorb the casual labourers in accordance with their seniority.
Issuing of circulars by the Railway Board or decisions by this Court could not and has not been disputed.
Nor it is disputed that in pursuance of the orders passed by this Court the opposite parties framed a scheme in 1987 for employing retrenched casual labourers.
On 2.3.
1987 a letter was issued from the Railway Establishment addressed to the General Managers for employing casual labourer retrenched before 1981 if they satisfied the requirements mentioned therein which is extracted below: "Pursuant to directions given by the Hon 'ble Supreme Court in their order dated 23.2.1987, in W.P. No. 332 of 1986, the Ministry desire that the cases of project casual labour who had worked as such before 1. 1.81 and who were discharged due to completion of work or for want of further work, may also be considered for the purpose of implementation of the scheme contained in the Ministry 's letter of even No. dated 1.6.84 and 25.6.84 as modified in the letter dated 11.9.1986.
Representation along with documentary proof reaching the office mentioned above after 31.3.1987 of those which are incomplete and also those not made with reference to these instructions, will not be considered".
The petitioners who claim to have been retrenched due to completion of Halda project appear to have made a representation in 1990 to the authorities.
The representation runs as under "Respected sir, 1, on behalf of the Fetrenched Labour Congress Union I.O. 754 Tamluk Rly.
Station.
Midnaporoe, beg to humbly submit that the above quoted Circulars are not obeyed by DEN (Con).
TMZ DIZHA.
S.E. Rly.
KGP and they do not follow the orders of they Supreme Court, High Court of Calcutta and Central Administrative Tribunal, Calcutta Bench.
As a result of their indifference, the project casual labour who are retrenched from service on or before 1.1.1981 are in great difficulties and they are not getting scope of absorption.
All the applications deposited in the office of the DEN (CON) KGI in terms of Memo No. PD/E/A/579/A/837 in reference to CE/ C/GRC dated 25.5.1987 are to be approved.
In such circumstances, I beg to request you to intervene in the matter as expeditiously as humble.
Needless to say, if your grievances are not sympathetically admitted and the retrenched labour be not absorbed.
We shall have no alternative way except launching vigorous movement in the next stage.
Your faithfully, (BHUDEV JALUA)" The representation does not give any detail.
It is not mentioned if the scheme was given due publicity or not.
No explanation is given as to why the petitioners did not approach till 1990.
Nor it is stated if any of the casual labourer Not it is stated if any of the casual labourer of the project were reemployed or not.
It is vague and was lacking in material particulars.
Two questions arise, one, if the petitioners are entitled as a matter of law for reemployment and other if they have lost their right, if any, due to delay.
Right of casual labourer employed in projects, to be reemployed in railways has been recognized both by the Railways and this Court.
But unfortunately the petitioners did not take any step to enforce their claim before the Railways except sending a vague representation nor did they even care to produce any material to satisfy this Court that they were covered in the scheme framed by the Railways.
It was urged by the learned counsel for petitioners that they may be permitted to produce their identify cards etc.
, before opposite parties who may accept or reject the same after 755 verification.
We are afraid it would be too dangerous to permit this exercise.
A writ is issued by this Court in favour of a person who has some right.
And not for sake of roving enquiry leaving scope for maneuvering.
Delay itself deprives a person of his remedy available is law.
In absence of any fresh cause of action or any legislation a person who has lost his remedy by lapse of time loses his right as well.
From the date of retrenchment if it is assumed to be correct a period of more than 15 years has expired and in case we accept the prayer of petitioner we would be depriving a host of others who in the meantime have become eligible and are entitled to claim to be employed.
We would have been persuaded to take a sympathetic view but in absence of any positive material to establish that these Petitioners were in fact appointed and working as alleged by them it would not be proper exercise of discretion to direct opposite parties to verify the correctness of the statement made by the petitioners that they were employed between 1964 to 1969 and retrenched between 1975 to 1979.
The writ petitions accordingly fail and are dismissed.
But there shall be no orders as to costs.
U.R. Petitions dismissed.
| The petitioners claimed to he casual labourers of the South Eastern Railway appointed between 1964 69 and retrenched between 1975 78.
They prayed (1) for inclusion of their names in the live casual register and reemployment according to their seniority, and (2) for restraining the filling of vacancies from the open market.
They relied on two circulars issued by the Railway Board laying down guidelines for the recruitment, retrenchment and employment of casual labourers.
They also relied on two judgments of this court in 1985 and 1987 which directed the preparation of a scheme and absorption of casual labourers in accordance with their scheme.
A scheme was framed in 1987 for employing casual labourers retrenched before 1981 subject to demonstrating suitability before 31st March, 1987.
In 1990 the petitioners made their representation to be considered.
The questions before this court were (a) whether the petitioners were entitled as a matter of law to reemployment and (b) if they had lost their right, if any, due to delay.
752 Dismissing the petitions, this court, HELD 1.
Right of casual labourers employed in projects to be reemployed in railways has been recognised both by the Railways and this Court.
But the petitioners only sent in a vague representation, and there was absence of positive material that they were in fact appointed and working as claimed.
(754 G) 2.
A writ is issued by this court in favour of a person who has some right and not. for the sake of a roving enquiry leaving scope for manoeuver.
Delay itself deprives a person of big remedy available in law.
In the absence of any fresh cause of action of any legislation, a person who has lost his remedy by lapse of time loses his right as well.
(755 A) 4 In any event, more than 15 years have expired, and a host of others who have in the meantime become eligible and entitled to claim to be employed would he deprived if the petitioners ' claim were accepted.
(755 B)
|
Appeal No. 2684 (NM) /93 etc.
From the Judgment and Order dated 2.4.
92/ 27.4.
92 of the Bombay High Court in W.P. No. 27 of 1990.
658 Harish N. Salve, R.P. Bhatt, A.K. Ganguli, Dr. Nitin Kantawala, Ms. Hemantika Wahi, T.V.S.N. Chari, Ms Tanuja Sheel, Mrs. Sheela section Rao, P. Parmeswar and E.C. Agrawala, Ranjit Kumar, R. Venkataramani, Mrs. M. Qamaruddin, Abhijat P. Medh for the appearing parties.
The Judgment of the Court was delivered by B.P. JEEVAN REDDY,J.
Leave granted.
Heard counsel for the parties.
These appeals arise from the common judgment and order of the Bombay High Court in a batch of writ petitions.
The question is whether the photographic machinery imported by the appellants falls under Customs Tariff Heading No. 98.01.
If it falls under it, it is entitled to a concessional rate of duty.
If not, it is chargeable to a higher duty.
The was enacted by Parliament with a view to consolidate and amend the law relating to customs duties.
It repealed the Indian Tariff Act, 1934 and Indian Tariff (Amendment) Act, 1949.
Section 2 says that the rates at which duties and customs shall be levied under the are those specified in the First and Second Schedules.
Section 3 levies additional duty equal to excise duty.
Chapter 98 was introduced in the Schedule with effect from February 28, 1986.
It relates to "Project Imports; Laboratory Chemicals; Passengers Baggage, Personal Importation by air or post; Ship Stores".
Chapter 98 provides a concessional rate of duty in respect of articles and items specified therein.
Chapter Note (1) declares, "this chapter is to be taken to apply to all goods which satisfy the conditions prescribed therein, even though they may be covered by a more specific heading elsewhere in this Schedule." In other words, if a particular article mentioned in Chapter 98 also falls under some other chapter/ heading, still such item will be governed by chapter 98 and not by that other chapter/heading.
So far as photographic machinery is concerned, it is not disputed that it falls under chapter 90 where the rate of duty is far higher.
Chapter Note (2) which is of crucial relevance herein reads "Heading No. 98.01 is to be taken to apply to all goods which are imported in accordance with the regulations made under section 157 of the (52 of 1962) and expressions used in this heading shall have the meaning assigned to them in the said regulations.
(emphasis added) 659 Heading 98.01 (Sub Heading 9801.00), being relevant for our purpose, must also be set out: Heading Sub Description of Rate of duty No. heading article Standard No. Prefential Areas 98.01 98.01.00 All items of machinery 60% including prime movers, instruments, apparatus and appliance, control gear and transmission equipment, auxiliary equipment (including those required for research and development purposes, test and quality control), as well as all components (whether finished or not) or raw materials for the manufacture of the aforesaid items and their components required for the intial setting up of a unit, or the substantial expansion of an existing unit, of a specified : (1)Industrial plant, (2) irrigation project, (3) power project, (4) mining project, (5) project for the exploration or oil or other minerals, and (6) such other projects as Central Government may, having regard to the economic development of the country notify in the official Gazette in this behalf; and spare parts, other raw materials (including semifinished material) or consumable stores not exceeding 10% of the value of the goods specified.
above 660 provided that such spare parts, raw materials or consumable stores are essential for the maintenance of the plant or project mentioned in to 6 above.
" (emphasis added) The expression "industrial plant" is not defined in the or, for that matter, in the .
Chapter Note (2) of Chapter 98, which it must be emphasized is apart of statute itself, says that the expressions used in heading No. 98.01 shall have the meaning assigned to them by the regulations made under Section 157 of the and further that heading No. 98.01 shall apply to all goods which are imported in accordance with such regulations.
As contemplated by Chapter Note (2) of Chapter 98 of the , the Central Government framed the Project Imports Regulations under Section 157 of the , contained in notification No. 230/86 Cus.
dated April 3, 1986.
They came into force on the same day.
Regulation (1) of these Regulations says that they shall be called "Project Imports Regulations, 1986" and shall come into force on April 3, 1986.
Regulation (2) says that the said Regulations shall apply for assessment and clearance of goods falling under heading No. 98.01.
Regulation (3) defines certain expressions including the expression "industrial Plant".
The definition reads as follows: "Industrial Plant" means an industrial system designed to be employed directly in the performance of any process or series of processes necessary for manufacture production or extraction of a commodity, but does not include (i) establishments designed to offer services of any description such as hotels, hospitals, photographic studios, photographic film pro cessing laboratories, photocopying studios, laundries, garages and workshops; or (ii)a single machine or a composite machine, within the meaning assigned to it, in Notes 3 and 4 to section XVI of the said Firs t Schedule.
" A perusal of the definition of "industrial plant" makes it clear that it seeks to exclude industrial systems meant for "establishment designed to offer services of 661 any description".
It mentions certain service establishments by way of illustration.
Photographic studios and photographic film processing laboratories happen to be mentioned specifically as some of the establishments designed to offer services.
Once the Project Imports Regulations came into force, the Customs authorities refused to treat the photographic equipment imported by the appellants and others as "industrial plant" falling under heading 98.01 of the customs Tariff Act.
They sought to levy duty thereon under Chapter 90.
In view of the refusal of the Customs authorities to treat the photographic machinery imported by them as "industrial plant" within the meaning of Chapter 98, the appellants approached the Bombay High Court by way of the batch of writ petitions.
Their contention was that until April 3, 1986, photographic machinery was included within the expression "industrial plant" occurring in heading 98.01 as well as in tariff heading 84.66 of the old tariff.
This fact was affirmed by the Government of India when a doubt was raised in their letter bearing No.F 526/52/83 Cus.
(T.U.) dated November 4, 1988.
Even according to the normal meaning and connotation of the expression "industrial plant", photographic machinery falls within its purview.
This is the sense in which the said expression is used in the Tariff Entry 98.0 1.
If so, the ambit and field of the said expression cannot be cut down by a regulation made under Section 157 of the .
If any particular machinery or equipment is to be excluded from the purview of the "industrial plant", it can and should be done only by the Act itself but not by a subordinate legislation like regulations.
It was submitted that the 1986 regulations are outside the purview of Section 157 and are incompetent.
The contentions were negatived and writ petitions dismissed by the Division Bench.
In these appeals, S/Sri Harish Salve and Kantawaala urged the following contention : (1) A perusal of the discloses its scheme.
The Act specifies the articles and things subjected to duty as also the rate to duty.
Specification of articles is not left to be done by a delegate.
It is true that power of exemption is conferred upon the Central government under Section 25 of the , but it is relevant to notice that a notification of exemption issued under Section 25 is required to be laid on the floor of both the houses of parliament by Section 159 of the Act.
This shows the close control which the Parliament intended to exercise over the specification of articles and the rate of duty thereon.
The Regulations made under Section 157 are not subject to Parliament 's scrutiny in the sense that they are not required to be laid on the floor of the houses of Parliament under Section 159.
Evidently, Regulations were not supposed to deal 662 with any matters of substance.
(2) While enacting Section 157, Parliament could never have contemplated delegating, to the Board, the power to cut down the field and ambit occupied by the provisions of the or .
Regulations made by the Board stand on an inferior footing to the rules made by the Central Government under Section 156.
The regulation making power was intended to be utilised for the purpose of providing procedural and peripheral provisions but certainly not for making a substantive provision cutting down the content and ambit of the provisions of the Act.
(3) Even if it is held for some reason that such a power was intended to be and was delegated to the Board, it would be bad since it amounts to excessive delegation of legislative power.
Regulation (3) of the new.
Regulations which defines the expression "industrial plant" is clearly outside the province of regulation making power conferred by Section 157.
The legislative history of tariff entry 98 militates against any such power being exercised by the Board.
The Board cannot take away what the Parliament has given.
The regulation in effect have the effect of amending the provision in the Act.
They take away under the garb of defining the expression "industrial plant" ', the beneficial rate of duty provided by Parliament in the interest of industrial progress of the country.
The Regulations are inconsistent with the provisions of the .
S/Sri Ganguly and T.V.S.N. Chari, learned counsel appearing for the Central Government, on the other hand, fully supported the validity of the said regulations.
They pointed out that the validity of chapter Note (2) was not questioned before the High Court has been expressly recorded in the judgment under appeal.
They submitted that the appellants should not be permitted to do so at this stage.
Once Chapter Note (2) is taken as good, the challenge to the 1986 Regulations must fail.
The said note is not bad as amounting to excessive delegation of legislative power.
In short, they refuted each and every submission made by the learned counsel for the appellants.
and are complimentary.
to each other.
Section 157 of the confers upon the Central Board of Excise and Customs (constituted under the ) the power to make regulations "consistent with this Act and Rules, generally to carry out the purposes of this Act".
Sub section (2) particularises certain matters with respect to which regulations can be made.
The specification of certain matters in sub section (2) is without prejudice to the generality of the power conferred by 663 Sub section (1).
This is consistent with the standard legislative practice.
Section 157 reads; " 157.
Central power to make regulations.
(1) Without prejudice to any power to make regulations contained elsewhere, in this Act, the Board may make regulations consistent with this Act and the rules,generally to carry out the purposes of this Act.
(2) In particular and without prejudice to the generality of the foregoing power such regulations may provide for all or any of the following matters, namely (a) the form of a bill of entry, shipping bill, bill of export, import manifest, import reports, export manifest, export report, bill or transshipment, boat note and bill of coastal goods; (b) the conditions subject to which the transshipment of all or any goods under sub section (3) of Section 54, the transportation of all or any goods under Section 56 and the removal of ware housed goods from one warehouse to another under section 67 may be allowed without payment of duty, (c) the conditions subject to which any manufacturing process or other operations may be carried on in a warehouse under Section 65.
" section 156 confers upon the Central Government the power to make rules "consistent with this Act generally, to carry out the purposes of this Act".
SubSection (2) of Section 156 again Specifies certain matters with respect to which rules can be made.
The specification in sub section (2) is without prejudice to the generality of the power conferred by sub section (1).
The Parliament has appointed two authorities i.e. central government and the Board to make rules/regulations to carry out the purposes of the Act generally.
The character of Rules and of the Regulations made under Sections 156 and 157 respectively is the same both constitute delegated legislation.
The Regulations are subject to an additional limitation viz., they should not be contrary to the Rules 664 made under Section 156.
The purpose of sub section (2) in both the sections is inter alia to allocate certain matters to each of them exclusively; subject to these subsections, both the delegates can exercise the power vested in them for carrying out the purposes of the Act.
No established legislative practice of any considerable duration has been brought to our notice to read any further limitation into the regulation making power under Section 157, assuming that a legislative practice can be read as a limitation.
We cannot, therefore, accept the contention that regulation making power under Section 157 should be confined only to peripheral and/or procedural matters.
It is not necessary for the purposes of this case to emphasis the need or the growing relevance of delegated legislation.
Moreover, enactments like customs Act and are not merely taxing statues but are also potent instruments in the hands of the Government for regulating the economy and the industrial development of the country.
The 'economic ' ministries had the establishments allied to them keep a close watch on the economy, closely monitoring its behaviour.
Power of taxation is one of weapons in the Government 's armoury to regulate the economy.
A certain industry may require encouragement while another may not.
Yet another sector may require to be controlled nay, discouraged on some occasions.
In an under developed country like ours, the emphasis is bound to be more on capital goods industry rather than on consumer goods ' industry.
The domestic industry has also to be protected and encouraged in certain situations.
In 1986, the government which expression in this discussion includes the Board evidently thought that import of 'industrial systems ' meant for 'establishments designed to offer services of any description such as hotels, hospitals, photographic studios, photographic film processing laboratories ' etc.
needs no encouragement in the shape of concessional custom tariff and they said so through the said Regulations made in April 1986.
It is not for the court to question the wisdom of the government 's or for that matter, of Board 's policy.
Board is a part of the government.
It is in direct charge of the administration of the Act along with the government.
Probably, it is for this reason that the Parliament has, through Chapter Note (2), vested the power to define the expressions occurring in Chapter 98 in the Board.
In this scheme of things, we cannot accept the argument of Sri Salve with respect to some kind of an inherent limitation upon the regulation making power of the Board.
We cannot say that the said power is confined only to, what the learned counsel calls, peripheral and/or procedural matters.
There is another and perhaps more simpler answer to the attack upon the validity of the said Regulations.
They are relatable not only to Section 157 of the but more 665 particularly to Chapter Note (2) of Chapter 98 of the .
Chapter Note (2) expressly states that the expressions used in Heading 98.01 shall have the meaning assigned to them in the said regulations.
In accordance with the said Chapter Note, Project Imports Regulations have been made excluding "establishments designed to offer services of any description" from the purview of "industrial plant".
If the said regulations are good any valid, there can be no escape from what they say; the photographic equipment does not fall within the ambit of "industrial plant".
In this view of the matter, the relevance of the alleged legislative practice with respect to regulation making power, or of the situation obtaining prior to the framing of the said regulations, is very little.
The express power conferred by Chapter Note (2) of Chapter 98 cannot be curtailed or abridged with reference to alleged legislative practice relating to regulation making power, assuming that such a practice is established and is relevant.
The only question which really arises is whether Chapter Note (2) amounts to excessive delegation of legislative power.
As rightly pointed out by Thommen,J. In Supreme Court Employees Welfare Association vs Union of India ; "where the validity of a subordinate legislation (whether made directly under the constitution or statute) is in question, the court has to consider the nature, objects and scheme of the instrument as a whole, and on the basis of that examination, it has to consider what exactly was the area over which and the purposes for which power has been delegated by the governing law.
" In statutes like and one has also to keep in mind that such legislation can be properly administered only by constantly adjusting it to the needs of the situation.
This calls for a good amount of discretion to be allowed to the delegate.
As is often pointed out "flexibility is essential (in law making) and it is one of the advantages of rules and regulations that they can be altered much more quickly and easily than can acts of Parliament.
" We have pointed out hereinbefore the necessity of constant and continuous monitoring of the nation 's economy by the government (and its various institutions) and the relevance of these enactments as a means of ensuring a proper and healthy growth.
Looked at from this angle, we are unable to see any substance in the argument that Chapter Note (2) amounts to excessive delegation of the Parliament 's essential legislative function.
Chapter 98 provides a concessional tariff inter alia to industrial plant.
The expression "industrial plant" is a term of wide connotation.
All kind of industrial plants may not require to be encouraged.
Some may; others may not.
Decisions of this nature have to be made from time to time.
Parliament cannot obviously do this.
It has, therefore, left the function to the Board which, as emphasised hereinbefore, is in immediate direct charge of the administration of the Act, along with and subject to the guidance of the central 666 government.
In Vasantlal Maganbhai Sanjanwala vs State of Bombay ; , it is observed by this Court that "self effacement of legislative power in favour of another agency either in whole or in part is beyond the permissible limits of delegation".
At the same time, it is held, "it is for a court to hold on a fair, generous and liberal construction of an impugned statute whether the legislature exceeded such limits.
But the said liberal construction should not be carried by the Courts to the extent of always trying to discover a dormant or a latent legislative policy to sustain an arbitrary power conferred an executive authorities.
It is the duty of the Court to strike down without any hesitation any arbitrary power conferred on the executive by the legislature".
These words were quoted with approval in a subsequent decision of the Constitution Bench in Devidas vs State of Punjab ; Krishna lyer, J. emphasised this very aspect in the context of a taxing statute in Avinder Singh vs Punjab ; The learned Judge said: ". . the legislature cannot self efface its personality and make over, in terms plenary, the essential legislative functions.
The legislature is responsible and responsive to the people and its representatives, the delegate may not be and that is why excessive delegation and legislative, hara kiri have been frowned upon by constitutional law.
This is a trite proposition but the complexities of modem administration are so bafflingly intricate and bristle with details, urgencies, difficulties and need for flexibility that our massive legislatures may not get off to a start if they must directly and comprehensively handle legislative business in all their plenitude, proliferation and particularisation.
Delegation of such part of legislative power becomes a compulsive necessity for viability.
If the 500 odd parliamentarians are to focus on every minuscule of legislative detail leaving nothing to subordinate agencies the annual output may be both unsatisfactory and negligible.
The law making is not a turnkey project, readymade in all detail and once this situation is grasped the dynamics of delegation easily follow.
Thus, we reach the second constitutional rule that the essentials of legislative functions shall not be delegated but the inessentials, however, numerous and significant they be, may well be made over to appropriate agencies.
of course, every delegate is subject to the authority and control of the principal and exercise of delegated power can always be directed, corrected or cancelled by the principal.
" 667 Applying the principles aforesaid, we cannot say that the Parliament has, by empowering the Board to define the expression "industrial plant" occurring in Chapter 98, delegated its essential legislative function.
Indeed, we see no self abnegation on the part of the Parliament.
The power conferred by Chapter Note (2) is undoubtedly different from the power of exemption conferred, by Section 25.
It makes little difference in principle that while an exemption notification is required to be laid on the floor of the Parliament, Regulations made under Section 157 are not so required.
Absence of such requirement does not mean absence of control by the Parliament over the acts of the delegate.
Nor are we satisfied that by excluding the industrial systems meant for establishments designed to offer services of any description, the Board has travelled beyond its brief Reference may be had, in this connection to the decision of this court in State of Tamil Nadu vs Hind Stone Section 15 of the empowers the State Government to make rules for regulating the grant of quarry lease, mining lease and other mineral concessions in respect of minor minerals and purposes connected therewith.
In exercise of the said power, the Government of Tamil Nadu framed Tamil Nadu Minor Mineral concession Rules, 1959.
Rule 8 of the Rules prescribed the procedure for lease of quarries to private persons.
Rule 8(C), which was introduced in the year 1977, imposed a prohibition on the grant of lease of quarries in respect of black granite to private persons.
The Rule provided that notwithstanding anything to the contrary contained in the said rules, no lease for quarrying black granite shall be granted to private persons on or after7th December, 1977.
It could be ranted only to the State Government or to a corporation wholly owned by it.
The validity of Rule 8(C) was challenged on the ground that it travels beyond the purview of the Act inasmuch as the power to make rules conferred upon the State Government by Section 15 was meant for regulating the rant of quarry leases in respect of minor minerals but not for prohibiting it for creating a monopoly in itself (State Government).
It was also argued that since the decision contained in Rule 8(C) involved a major change of policy, it could be done only by the legislature and not by a subordinate legislative body.
Both these arguments were rejected.
Following observations are apposite: ".
It was pointed out by the Privy Council in Commonwealth of Australia vs Bank of New South Wales and we agree with what was stated therein that the problem whether an enactment was regulatory or something more or whether a restriction was direct or only remote or only incidental involved, not so much legal as political, social or economic consideration.
Each case, it was said, must be judged on its own facts and in its own setting of time and circumstances and it might be that in regard to some economic 668 activities and at same Stage of social development, prohibition with a view to State monopoly was the only practical and reasonable manner of regulation.
Another of the submission of the learned counsel was that the G.O.Ms.
No. 1312 dated December 2, 1977 involved a major change of policy, which was a legislative function and therefore beyond the competence of a subordinate legislating body.
We do not agree with the submission.
Whenever there is as witch over from 'private sector ' to 'public sector ' it does not necessarily follow that a change of policy requiring express legislative sanction is involved.
It depends on the subject and the statute.
For example, if a decision is taken to impose a general and complete ban on private mining of all minor minerals, such a ban may involve the reversal of a major policy and so it may require Legislative sanction.
But if a decision is taken to ban private mining of a single minor mineral for the purpose of conserving it, such a ban, if it is otherwise within the bounds of the authority Given to the Government by the Statute, cannot be said to involve any change of policy.
" The statement of law is clear and we agree with it respectfully.
We are, therefore, of the considered opinion that Chapter Note (2) cannot be faulted as an instance of excessive delegation of essential legislative function nor can the Project Imports Regulations be faulted on the ground of travelling beyond the purview of the statute.
For the above reasons, the appeals fail and are dismissed.
No costs.
Appeals failed.
| The by its First and Second Schedules provided the rates of and custom duties to be levied under the .
Chapter 98 introduced in Second Schedule prescribed a concessional rate of duty in respect of articles and items specified therein.
As per Chapter 655 Note (1), if a particular article mentioned in Chapter 98 also fell under some other Chapter/heading, still such item would be governed by Chapter 98 and not by that other chapter/heading.
Photographic machinery was covered under Chapter 90 wherein the rate of duty was far higher, but for purposes of duty it was claimed as "industrial plant" under Chapter 98.01.
The expression "industrial plant" was defined neither in nor in .
Chapter Note (2) of Chapter 98 of the laid down that Heading 98.01 would apply to all goods imported in accordance with the regulations made under.
section 157 of the Act and the expressions used in heading 98.01 should have the meaning assigned to them in the said regulations.
Accordingly, the Project Import Regulations, 1986 were framed.
Regulation (3) of said Regulations defined "industrial plant" exduding from its purview industrial systems meant for "establishments designed to offer services of any description" such as.
photographic studios, photographic film processing laboratories etc.
On coming into force of the Project Import Regulations, the Customs authorities refused to treat the photographic equipment imported by the appellants as industrial plant falling under heading 98.01 and sought to levy duty thereon under Chapter 90 of the .
The appellant filed writ petitions before the High Court challenging the validity of the Project Import Regulations, 1986.
The writ petitions were dismissed.
Hence the appeals by special leave.
The appellant contended that regulations made by the Central Board of customs and Excise under section 157 of the , not being subject to Parliament 's scrutiny in the sense that they were not required to be laid on the floor of the Houses of Parliament under section 159 stand on an inferior footing to rules made by the Central Government under section 156, and therefore, the regulation making power was confined only to peripheral and procedural matters and not for making substantive provisions; the Act specified the articles and things subjected to duty as also the rates of duty and such A power was not left to be exercised by a delegate; the Parliament did not contemplate delegating to the Board the power to cut down the field and ambit occupied by the provisions of the or the and such a power, if delegated to the Board, would amount to excessive delegation of legislative power; Regulation (3) of the Project Imports Regu 656 lation defining "Industrial plant" was outside the purview of the regulation making power conferred by section 157 as the same took away under the garb of defining the said expression the beneficial rate of duty provided by the Parliament in the interest of industrial progress of the country.
Dismissing the appeals, this Court, HELD : 1.
The regulation making power conferred on the Central Board of Customs and Excise by section 157 of the customs Act, 1962 is not confined only to peripheral and/or procedural matters.
The Parliament has appointed the Central Government and the Board to make rules/regulations to carry out purposes of the Act.
The character of Rules and of the Regulations made under sections 156 and 157 of the Act respectively Is the same both constitute delegated legislation.
The Regulations are subject to an additional limitation viz., they should not be contrary to the Rules made under section 156.
The purpose of sub section (2) in both the sections is to allocate certain matters to each of them exclusively; subject to these sub sections, both the delegates can exercise the power vested in them for carrying out the purposes of the Act.
(662G H, 663 G H, 664 A) 2.1.
It is not for the Court to question the wisdom of the Government 'sor for that matter, of Board 's policy.
Enactments like and are not merely taxing statutes but are also potent instruments in the hands of the Government for regulating the economy and the industrial development of the country.
Power of taxation is one of the weapons in the Government 's armoury to regulate the economy.
A certain industry may require encouragement while another may not.
Such legislations can be properly administered only by constantly adjusting them to the needs of the situation.
This calls for a good amount of discretion to be allowed to the delegate.
"Flexibility is essential (in law making) and it is one of the advantages of rules and regulations that they can be altered much more quickly and easily than can Acts of Parliament".
Probably, it is for this reason that the Parliament has through Chapter Note (2) vested the power to define the expressions, occurring in Chapter 98, in the Board which is a part of the Government and is in immediate direct charge of the administration of the Act alongwith and subject to the guidance of the Central Government.
Looked at from this angle, it cannot be said that Chapter Note (2) amounts to excessive delegation of the Parliament 's essentialle legislative function.
(665 D , G).
Chapter 98 of the provides a concessional tariff to industrial plant.
The expression "industrial plant" is a term of wide 657 connotation.
All kinds of Industrial plants may not require to be encouraged.
Some may; others may not.
Decisions of this nature have to be made from time to time.
Parliament cannot obviously do this.
It has, therefore, rightly left the function to the Board.
In 1986, the Government which expression includes the Board thought that import of 'industrial systems ' meant for 'establishments designed to offer services of any description such as hotels, hospitals, photographicstudios, photographic film processing laboratories, etc need no encouragement in the shape of concessional custom tariff and they said so through the Project Imports Regulations, 1986 which cannot he said to have travelled beyond the purview of the statute.
Nor can it be said that the Board has travelled beyond its brief by excluding the "Establishments designed to offer services of any description" from the preview of "industrial plant" as defined under Regulation (3) of the Project Imports Regulations.
Accordingly, photographic equipment does not fall within the ambit of "industrial plant".
(665 G H, 666 A, 668 E) 2.3.
It cannot be said that the Parliament has, by empowering the Board to define the expression "industrial plant" occurring in Chapter 98, delegated its essential legislative function.
There is, indeed, no self abnegation on the part of the Parlimaent.
The express power conferred by Chapter Note (2) of Chapter 98 of is undoubtedly different from the power of exemption conferred by Section 25.
It makes little difference in principle that while an exception notification is required to be laid on the floor of the parliament, Regulations made under Section 157 are not so required.
Absence of such requirement does not mean absence of control by the Parliament over the acts of the delegate.
(661 G H) Supreme Court Employee Welfare Association vs Union of lndia ; Avinder Singh vs Punjab ; & State of Tamil Nadu vs Hind Stone ; , relied on.
Vasantial Maganbhai Sanjanwala vs State of Bombay, ; & Devidas vs State of Punjab ; , referred to.
|
Appeal No. 266 (NT) of 1980.
From the Judgment and Order dt 14.12.1979 of the Allahabad High Court in Sales Tax Rev. No. 214 of 1979.
Harish N. Salve, P.P. Singh and Ms. Meenakshi Grover for the Appellant.
R.C. Verma and Ms section Mukherjee for R.B. Misra for the Respondent.
The Judgment of the Court was delivered by YOGESHWAR DAYAL, J.
This appeal is directed against the judgment of the Single Judge of the Allahabad High Court passed in Sales Tax Revision No. 214 of 1979 dated 14th December, 1979.
By the impugned judgment the High Court set aside the order of the Judge (Revisions), Sales Tax, U.P. Lucknow holding that the Phosphorous Bronze which the assessee/appellant herein have been manufacturing, fell within the ambit of Notification No. ST II 333/X 10121971 dated the 15th November, 1971 issued in exercise of the powers under the second proviso to sub section (2) of section 3 A of the U.P. Sales Tax Act, 1948 (U.P. Act No.
XV of 1948), and took the view that the relevant entry at serial No. 2(a) of the said Notification did not cover the goods prepared by the appellant herein and was thus liable to be taxed as an unclassified commodity at the rate of 3.5%.The relevant entry reads as under: SI.
No. Description of goods Rate of tax 1. . . . 2. (a) Copper, tin, nickel or zinc 1 per cent.m or any other alloy containing any of these metals only.
(b). . . .
The contention on behalf of the appellant is that Phosphorous Bronze manufactured and marketed by them is covered under the aforesaid entry.
According to the appellant the said Phosphorous Bronze is made of tin and copper only.
It is further contended on behalf of the appellant that the small quantity of Phosphorous is used to deoxidise the metal and as such the Phosphorous is not an 721 essential substance of Phosphorous Bronze.
It is, however, admitted case of the parties that without the use of Phosphorous the Phosphorous Bronze cannot be produced and certain quantity of Phosphorous still remains in the Phosphorous Bronze.
The contention of the respondent is that Phosphorous Bronze is an alloy containing not only the metals mentioned in the aforesaid entry but Phosphorous also and as such it is not covered under the aforesaid entry.
The words "other alloy containing any of these metals only" mean that the alloy made of these metals i.e. copper, tin, nickel or zinc only and that alone is covered under the said entry.
It was submitted that if any other metal or substance is included in such an alloy, the same would not be covered under the aforesaid entry.
A similar question arose in the case of Commissioner of Sales Tax, U. P. vs Hindustan Metal Works, Hathras reported in (1964) 15 Sales Tax Cases 97 wherein it was held as under: "The Notification exempts tax on sale of alloys prepared from the solution of two or more of the metals enumerated therein.
On account of the word "only" the sale of an alloy prepared from the solution of two or more of those metals and some other substance or substances would not be exempt from tax.
The assesse sold an alloy called phosphorous bronze which was prepared from the solution of copper, tin, phosphorous and lead.
Phosphorous and lead are not mentioned in the notification.
They are deliberately added by the assessee as per agreement between the parties.
The sale is, therefore, prime facie liable to be taxed.
" We were referred to various dictionary meanings of the words Phosphorous Bronze 'which have been noticed by the learned Judge dealing with case in the High Court.
We are really concerned with the interpretation of the entry.
The emphasis in the entry is either it should be pure copper, tin, nickel or zinc and if it is an alloy containing two or more metals, it must be an alloy containing these metals only.
The expression "only" is very material for understanding the meaning of the entry.
Since the alloy in dispute contains Phosphorous, may be in a very small quantity, it cannot fall within entry 2(a) of the aforesaid Notification.
The appeal consequently fails and is dismissed with costs.
U.R. Appeal dismissed.
| By Notification No. ST 11 333/X 1012 1971 dated 15 November 1971, entry 2(a) copper, tin, nickel, zinc or any other alloy containing any of these metals only were made exigible at a reduced rate of sales tax of I The Judge (Revisions) Sales Tax, U.P., Lucknow held that phosphorous bronze falls within this notification.
The Single Judge of the Allahabad High Court took a contrary view and held that it was taxable as an unclassified commodity at 3.5%.
Before this court it was contended that phosphorous bronze is made of tin and copper only; that a small quantity of phosphorous is used to deoxidize the metal and that it is not an essential substance of the phosphorous bronze.
It was, however, admitted that without the use of phosphorous, phosphorous bronze cannot he produced, and a certain quantity remains in the phosphorous bronze.
Dismissing the appeal, this Court, HELD: (1) The emphasis in the entry is that it must contain, even if an alloy, "only" copper, tin, nickel or zinc.
The expression "only" is very material for understanding the meaning of the entry.
Since the alloy in dispute contains phosphorous, may he in a very small quantity, it cannot fall within entry 2(a) of the notification.
(721 G) Commissioner of Sales Tax vs Hindustan Metal Works (1964) 15 STC 97 720 referred to.
|
(c) No. 715 of 1990.
Under Article 32 of the Constitution of India.
Gobinda Mukhoty, R.K. Jain, Yusuf H. Machhale, Ms. K. Amreswari, (N.P) R.N. Sachthey, N.N. Goswamy, Ashwani kumar, Mukesh K.Giri, A.K. Sharma, B.K. Prasad, (N.P) Ms. Anil Katiyar, Ms. Niranjana Singh, section Wasim A. Qadri, B.K. Prasad,Nafis Ahmad Siddiqui,Asoar Ali Khan,A.S. Bhasme, E.M.S. Anam, Sakil Ahmed Syed, Anil K. Jha, Raj Kumar Mehta, S.K. Agnihotri, B.R. Jad, Anip Sachthey, Syed Ali Ahmed, Syed Tanweer Ahmad, Mohan Pandey, M. Veerappa, K.H. Nobin Singh section K. Mehta, Dhruv Mehta, Aman Vachher, P. K. Manohar, B. B. Singh, Aruneshwar Gupta and R.Mohan for the appearing parties.
The Judgment of the Court was delivered by R.M. SAHAI, J.
Imams,incharge of religious activities of the mosque '(1) have approached this court by way of this, representative, petition under Article 32 of the Constitution for enforcement of fundamental right against their exploitation by Wakf Boards.
Relief sought is direction to Central and State Wakf Boards to treat the petitioner as employees of the Board and to pay them basic wages to enable them to survive.
Basis of claim is glaring disparity between the nature of work and amount of remuneration.
Higher pay scale is claimed for degree holders.
Imams perform the duty of offering prayer (Namaz) for congregation in mosques. 'Essentially the mosque is a centre of community worship where Muslims perform ritual prayers and where historically they have also gathered for political, social and cultural functions '.
(2) The functions of the mosque is summarised by the 13th Century jurist Ibn Taymiyah 'as a. place of fathering where prayer was celebrated and when public affairs were conducted '.
(3) 'All mosques are where Muslim men on an equalitarian basis rich or poor, noble or humble, stand in rows to perform their prayers behind the imam (4) Imams are expected to look after the cleanliness of mosque, call azans from the balcony of the minarets to the whole religious meetings and propagate the Islamic faith.
They are expected to be 745 well versed in the Shariat, the holy Quran, the Hadiths, ethics, philosophy, social, economic and religious aspects.
"Imam or prayer leader is the most important appointee.
In the early days the ruler himself filled this role; he was leader (imam) of the government of war, and of the common salat ("ritual prayer").
Under the Abbasids, when the caliph no longer conducted prayers on a regular basis, a paid imam was appointed.
While any prominent or learned Muslim can have the honor of leading prayers, each mosque specifically appoints a man well versed in theological matters to act as its imam.
He is in charge of the religious activities of the mosque, and it is his duty to conduct prayers five times a day in front of Mihyab '.
(5) On nature of the duties performed by the imams there is no dispute.
But both the Union of India and various State Wakf Boards of different States which have put in appearance in response to the notice issued by this Court have seriously disputed the manner of their appointment, right to receive any payment and absence of any relationship of master and servant.
It is stated that the imams or muazzins are appointed by the Mutwallis.
According to them the Wakf Boards have nothing to do either with their, appointment or working.
It is claimed that under lslamic religious practice they are not entitled to any emoluments as a matter of right as the Islamic law ordains the imams to offer voluntary service.
They are said to be paid some money out of the donations received in mosques or by the Mutwallis of the Boards.
Their job is stated to be honorary and not paid.
Nature of duty under Islamic Sharjat is stated to lead prayers which is performed voluntarily by any suitable Muslim without any monetary benefit.
Some of the affidavits claim that they are appointed by people of the locality.
The Union Government has specifically stated that the Islam does not recognise the concept of priesthood as in other religions and the selection of imams is the sole prerogative of the members of the local community or the managing committee, if any, of the mosque.
According to Karnataka Wakf Board Imamate in the mosque is not considered to be employment.
The allegation of the petitioners that due to meagre payment they are humiliated or insulted in the society, is denied and it is claimed that they are respectable persons who carry on the duty of Imamate as a part of religious activity and not for earning bread and butter.
The Delhi Wakf Board pointed out that the honorarium is paid to an imam as a consideration for his five time presence in the mosque regularly and punctually.
The Board has denied any right to exercise an authority over the mosque where imams and muazzins are appointed by the mutwallis or by the managing committees.
It is stated that holding of a certificate from a registered institution to enable a person to lead the prayer is not necessary as the only requirement for being an imam under the Sharjat is to (1) to (5) The Encyclopedia of Religion Vol.
10 p 121 122 746 have a thorough knowledge of the holy Quaran and the rites, rules and obligations required for offering prayers according to the principles laid down by the Kuran and Sunnah.
The affidavit filed on behalf of Wakf Board has pointed out that mosque can be categorised in five categories, one, which are under direct control or management of the Government such as Mecca Masjid or the mosque situated in public garden which are not governed or regulated by the Muslim Wakf Board ', second, mosques which are under the direct management of Wakf Board , third, mosques which are under the control of mutwallis under various Wakfs according to the wishes of the Wakf as the creator of the Wakf, fourth, mosques which are not registered with the Wakf Board and are managed by local inhabitants and are under the management of the public who offer prayers regularly in a particular mosque , and fifth, mosques which are not managed by mutwallis or the Muslin is of the locality.
It is claimed that imams of fourth and fifth category are not regular and any Muslim can lead the prayers, whereas under the third category mosques are having regular imams.
Financial difficulty of the Wakf Board to meet the demand has also been pointed out.
The Pondicherry Wakf Board has pointed that there is not even one employee except a peon working therein and, therefore, it is not possible to meet the demand of the imam.
It is also claimed that the Board has no control over the pesh imams as they are considered to be well dignified personality of the society and they are given due respect by the Muslim community as a whole.
In the counter affidavit filed by the Punjab Wakf Board it has been stated that imams of mosques in Punjab were being paid on basis of their qualification.
Imam: Nazara (Muntaii grade) are in the scale of Rs. 380 20 58O25 830 30 980, whereas Imams Hafiz (Wasti grade),are paid Rs. 445 20 645 25895 30 1045, and Imam Alim (Muntaii grade) are paid Rs. 520 20 720 25 97030 1120.
They are also paid Rs.30 per month medical allowance and muazzins are paid Rs. 310 per month.
These scales were revised in 1992.
According to them imams of all the mosques in Punjab, Haryana and Himachal Pradesh which come under the Punjab Wakf Board are being paid regularly and they are treated as regular employees.
The Sunni Central Wakf Board of 'Uttar Pradesh filed only a Written submission stating that all the sunni mosques were managed by mutwallis of the concerned managing committees and not by the Wakf Board.
The mosque differs from a church or a temple in many respects.
Ceremonies and service connected with marriages and birth are never performed in mosques.
Tile rites that are important and integral functions of many churches such as confessions, penitencies and confirmations do not exist in the mosques.
(6) Nor any offerings are made as is common in Hindu temples. 'In Muslims countries mosques are subsidized by the States, hence no collection of money from the community is permitted.
The Ministry of Wakf (Endowments) appoints the 747 servant, preachers and readers of the Koran.
Mosques in non Muslim countries are subsidised by individuals.
They are administered by their founder or by their special fund.
A caretaker is appointed to keep the place clean.
The muazzin cells to prayer five times a day from the minaret.
(7) In our country in 1954 was passed by the Parliament for better administration and supervision of Wakfs.
To achieve the objective of the Act Section 9 provides for establishment of a Wakf Board the functions of which are detailed in Section 15.
Sub section (1) of it reads as under "(1) Subject to any rules that may be made under this Act, the (general superintendence of all wakfs in State in relation to all matters, except those which are expressly required by this Act to be dealt with by the Wakf Commissioner, shall vest) in the Boar d established for the State; and it shall be the duty of the Board so to exercise its powers under this Act as to ensure that the Wakfs under its superintendence are properly maintained controlled and administered and the income thereof is duly applied to the objects and for the purposes for the objects and for the purposes for which such wakfs were created or intended: Provided that in exercising its powers under this Act in respect of any wakf, the Board shall act in conformity with the directions of the Wakf, the purposes of the wakf and any usage or custom of the wakf sanctioned by the Muslim law".
Clause (b) of Sub section (2) obliges the board "to ensure that the income and other property of a wakf are applied to the objects and for the purposes for which that wakf was created or intended".
The board is vested not only with supervisory and administrative powers over the wakfs but even the financial power vests in it.
One of its primary duties is to ensure that the income from the wakf is spent on carrying out the purposes for which wakf was created.
Mosques are wakfs and are required to be registered under the Act over which the board exercises control.
Purpose of their creation is community, worship.
Namaz or Salat is the mandatory practice observed in every mosque. "(Among the Five Pillars (arkan; so., rukn) of Islam, it holds the second most import, position, immediately after the declaration of faith (shahadah) (8).
The ' (6) & (7) Encyclopedia, Britannica Vol.
(8) The Encyclopedia of Religion Vol.
748 principal functionary to undertake it is the Imam.
The objective and purpose of every mosque being community worship and it being the obligation of board under the Act to ensure that the objective of the wakf is carried on the Board cannot escape from its responsibility for proper maintenance of religious service in a mosque.
To say, therefore, that the Board has no control over the mosque or Imam is not correct.
Absence of any provision in the Act or the rules providing for appointment of Imam or laying down condition of their service is probably because they are not considered as employees.
At the same time it cannot be disputed that due to change in social and economic set up they too need sustenance.
Nature of their job is such that,they may be required to be present in the mosque nearly for the whole day.
There may be some who may perform the duty as part of their religious observance.
Still others may be ordained by the community to do so.
But there are large number of such persons who have no other occupation or profession or service for their livelihood except doing duty as Imam.
What should be their fate? Should they be paid any remuneration and if so how much and by whom? According to the Board they are appointed by the mutwallis and, therefore, any payment by the board was out of question.
Prima.facie it is not correct as the letter of appointments issued in some states are from the Board.
But assuming that they are appointed by the Mutwallis the Board cannot escape from its responsibility as the mutwallis too section 36 of the Act are under the supervision and control of the Board.
In series of decisions rendered by this Court it has been held that right to life enshrined in Article 21 means right to live with human dignity.
It is too late in the day, therefore, to claim or urge that since Imams perform religious duties they are not entitled to any emoluments.
Whatever may leave been the ancient concept but it has undergone change and even in Muslim countries mosques are subsidised and the Imams are paid their remuneration.
We are, therefore, not willing to accept the submission that in our set up or in absence of any statutory provision in the the imams who look after the religious activities of mosques are not entitled to any remuneration.
Much was argued on behalf of Union and the Wakf Boards that their financial position was not such that they can meet the obligations of paying the imams as they are being paid in the State of Punjab.
It was also urged that the number of mosques is so large that it would entail heavy expenditure which the boards of different States would not be able to bear.
We do not find any co relation between the two.
Financial difficulties of the institution cannot be above fundamental right of a citizen.
If the boards have been entrusted with the responsibility of supervision and administering the wakf then it is their duty to harness resources to pay those persons who perform the most important duty namely of leading community prayer in a mosque the very purpose or which it is created.
749 In the circumstances we allow this petitions and issue following directions (i) The Union of India and the Central Wakf Board will prepare a scheme within a period of six months in respect of different types of mosques some detail of which has been furnished in the counter affidavit filed by the Delhi Wakf Board.
(ii) Mosques which are under control of the Government shall not be governed by this order.
But if their imams are not paid any remuneration and they have no independent income.
The Government may fix their emoluments on the basis as the Central Wakf Board may do for other mosques in pursuance of our order.
(iii) For other mosques, except those which are nonregistered with the Board of their respective States or which are not manned by members of Islamic faith the scheme shall provide for payment of remuneration to such Imams taking guidance from the scale of pay prevalent in the State of Punjab and Haryana.
(iv) The State Board shall ascertain income of each mosque the number and nature of Imams required by it namely full time or part time.
(v) For the full time Punjab Wakf Board may be treated as a guideline.
That shall also furnish guideline for payment to part time imam, (vi) In all those mosques where full time Imams are working they shall be paid the remuneration determined in pursuance of this order.
(vii) Part time and honorary Imam shall be paid such remuneration and allowance as is determined under the scheme.
(viii) The scheme shall also take into account those mosques which are small or are in the rural area or are such as mentioned in the affidavit of Pondichery Board and have no source of income and find out ways and means to raise its income.
(ix) The exercise should be completed and the scheme be enforced within six months.
(x) Our order for payment to Imams shall come into operation from 1st Dec., 750 1993.
In case the scheme it not prepared within the time allowed then it shall operate retrospectively from 1st December, 1993.
(xi) The scheme framed by the Central Wakf Board shall be implemented by every State Board.
The Writ Petition is decided accordingly.
Parties shall bear their own costs.
U.R. Petition allowed.
| A petition was filed in this court by Imams for enforcing their fundamental right against exploitation by Wakf Boards.
Their claim was based on the glaring disparity between the nature of work and the amount of remuneration.
The petitioners sought a direction to the Central and State Wakf Boards to pay them basic wages.
A higher pay scale was claimed for degree holders.
The Union of India and various State Wakf Boards disputed the manner of their appointment, their right to receive any payment, and absence of any relationship of master and servant.
It was variously contended that they were appointed by Mutwallis, or in some cases by the people of the locality where the mosques were situated, and not by the Wakf Boards; that under Islamic religious practice it is voluntary service and there is no entitlement to emoluments; that a certificate from a registered institution is not a necessary requirement for leading in prayer.
It was further contended that the Wakf Boards faced financial difficulties.
The Punjab Wakf Board stated that Imams of mosques in Punjab, Haryana and Himachal Pradesh were paid on the basis of their qualification.
A pay scale was indicated, and the Imams were paid regularly and treated as regular employees.
Allowing the petition, this Court, HELD:(1) By Section 15 of the , the Wakf Board is vested not only with supervisory and administrative powers over the Wakfs but even the financial power vests in it.
One of the primary duties is to ensure that the income from the Wakf is spent on carrying out the purposes for which the 743 Wakf was created.
Mosques are Wakfs and are required to be registered under the Act, over which the Board exercises control.
Purpose of their creation is community worship.
The principal functionary to undertake it is the Imam.
It is the responsibility of the Wakf Board to ensure proper maintenance of religious service in a mosque.
To say, therefore, that the Board has no control over the mosque or Imam is not correct.
(747 G H, 748A) (2) In a series of decisions rendered by this Court it has been held that right to life enshrined in Article 21 means right to live with human dignity.
It is too late in the day to urge that since Imams perform religious duties, they are not entitled to emoluments.
(748 E) (3) Financial difficulties of the institution cannot be above fundamental right of a citizen.
If the Boards have been entrusted with the responsibility of supervising and administering the Wakf then, it is their duty to harness resources to pay those persons who perform the most important duty namely of leading community prayer in a mosque, the very purpose for which it is created.
(748 H) (4) The Union of India and the Central Wakf Board are to prepare a scheme within a period of six months in respect of different types of mosques: (7497 H) The scheme shall take guidance from the scale of pay prevalent in the State Punjab and Haryana.
(749 D) Mosques under control of the government will not he governed by this order except if their Imams are not paid any remuneration and have no independent means of income.
The Government may then fix their emoluments on the basis as the Central Wakf Board may do for other mosques.
(749 C) The State Boards shall ascertain the income of each mosque and the number and nature of Imams required full time or part time and their payment is directed.
(749 E) The scheme shall take account of mosques which are small, or in the rural area, or which have no source of income and find 744 ways to raise income.
(749 G) The order for payment to Imams shall come into operation from 1 December 1993.
Every State Board shall implement the scheme.
(749 H, 750 A)
|
Jurisprudentee the Assistants having been promoted to the Grade of Superintendents Grade 11 after those already working as Superintendents Grade 11 would naturally rank junior to them.
There is no rule of seniority vis a vis for promotes to Superintendent Grade 11 with effect from 1st August, 1981 for calculating seniority and normal rule of service Jurisprudence of length of service will apply.
(718 D) & CIVIL APPELLATE JURISDICTION: Civil Appeal Nos.
4604 to 4609 of 1992.
From the Judgment and Order dated 22.8.
1989 of the Central Administrative Tribunal, Madras in OA.
No. 145 to 150/87.
A.S. Nambiar, P.K. Manohar and Shanti Vasudevan for the Appellant.
R. Venkataramni, V.G. Praoasani and S.M. Garg for the Respondents.
The Judgment of the Court was delivered by 714 YOGESHWAR DAYAL,J.
These six appeals have been filed against the decision of the Central Administrative Tribunal, Madras Bench, dated 22nd August, 1989 while disposing of Original Application Nos.
145 to 150 of 1987.
Those were filed in seriatem by B. Jayaraman; A. Kanakasena Rao; M. Venkatachalam; A. Sherfudeen; K. Viswanathan and P. Madhavan Adiyodi.
The respondents in all these six matters before the Tribunal were the same namely, respondent No. 1 was Union of India whereas respondent Nos. 2 to 13 were the erstwhile Secretarial Assistants promoted as Superintendents Grade 11 and further promoted as Superintendents Grade I in the Secretariat of the Government of Pondicherry and governed by the Government of Pondicherry (Group 'C ' Non Gazetted Ministerial Posts) Recruitment Rules, 1981 (hereinafter referred to as 'the Rules ').
The petitioners before the Tribunal had challenged the promotion of respondents 2 to 13 therein who were promoted from Secretarial Assistants to Superintendents Grade II and further promoted as Superintendents Grade I before them inspite of the fact that the petitioners had already been working as Superintendents Grade II prior to the promotion of the erstwhile Assistants as Superintendents Grade II.
The promotion of respondents before the Tribunal was alleged to be based on tentative seniority list wherein respondent No. 1 had included the feeder service rendered by the Assistants between 1. 1. 1973 and 31.7.1981 for computing the seniority in the grade of Superintendent Grade 11.
The plea of the petitioners before the Tribunal was that from 1.8.1981 respondents 2 to 13 who were Assistants and were in a distinctly lower scale of pay as compared to the applicants, they could not be promoted to the post of Superintendent Grade I before the petitioners.
The Tribunal allowed the applications, O.A. Nos.
145 to 150 of 1987 and held : "It appears to us that there has been some confusion between a liberal provision which has been deliberately made for conferring eligibility for consideration for promotion to the next higher post with reckoning of the period of service rendered in the post of Assistant for the purpose of counting seniority in the post of Superintendent, Grade II.
The tentative seniority lists based on which promotions of respondents 2 to 13 have been made as Superintendents.
Grade I are based on the application of an erroneous principle of determining seniority which is not backed up any statutory provision.
That has led to a situation where persons promoted to a higher grade of Superintendent Grade 11 before the Assistants and in which posts they were also confirmed, being 715 placed below respondents 2 onwards.
" The Tribunal accordingly set aside the promotions of respondents 2 to 13 before it contained in various orders of the Government of Pondichery dated 7.8.1986; 20.8.1986; 1.9. 1986 and 17.11.1986.
Respondent No. 1 was further directed to prepare the seniority list in the grade of Superintendent Grade II on the basis of the length of service rendered in that grade and thereafter, all the eligible persons may be considered for promotion to the post of Superintendent Grade I and that should include persons like respondents 2 to 13 before it who would Get the benefit of service rendered by them as Assistant between 1. ].
1973 to 31.11.1981 for determining the period of eligibility and not for the purpose of seniority in the cadre of Superintendent Grade 11.
Aggrieved by the order of the Tribunal the Union of India had preferred the present appeals.
It appears the petitioners before the Tribunal were aggrieved by the grant of benefit of service rendered during the period 1. 1. 1973 to 31.7.
1981 by those who were working in the grade of Assistants towards their seniority in the grade of Superintendent Grade 11.
For appreciating the submissions of the learned counsel for the respective parties were may give a statement showing the dates of appointments in various grades and ranking assigned in respect of the petitioners and respondents 2 to 13 in O.A. Nos.
145 to 150 of 1987 before the Tribunal Name of Date of Appointment Seniority in the Asstt.
Supdt.(NS) Supdt.
Supdt.
Supdt.
Supdt.
official Gr.
II Gr.
I GR.IIGr.
I (Applicant in O.A. 145/87) A. Kanakasena 10.12.73 1.8.8.1.
17.11.86 113197 Rao (Applicant in O.A. 146/87) M. Venkatachal 2.8.73 1.8.81 13.10.86 103188 716 am (Applicant in O.A. 147/87) A.
Sherfudeen 30.8.78 1.8.81 7.9.87 140Not (Applicant in Assigned O.A. 148/87) K. Vishwanathan 7.4.77 1.8.81 20.3.87126207 (Applicant in O.A. 149/87) P.Madhavan 10.2.76 1.8.81 17.12.86 119 201 Adiyodi(Appli cant in O.A. 150/87) (R.2)appointed K.C. Kumaran 8.112.64 do 14.5.82 7.8.86184176 (R.3) G.Ranganathan 11.3.65 do 13.1.82 7.8.86186177 (R.4) S.Pushparaj 25.5.65 do 13.1.82 7.8.86187178 (R.5) K.meenakshi 9.5.67 do 9.7.83 7.8.86208179 (R.6) G.Radha 19.5.67 do 12.1.827.8.86188180 Krishnan (R.7) S.Sethuraman 23.11.68 do 12.1.82 20.8.86190183 (R.8) section Felixraj 7.4.69 do 12.1.8222.8.86191184 (R.9) S.Kuppusamy 14.4.69 do 12.1.82 1.9.86 193185 (R. 10) R.Chandra 29.1.70 do 22.8.83 1.9.86212186 sekaran(R. 11) J.Pandurangan 9.3.74 Not 21.6.82 17.11.86 195198 (R. 12)appointed S.Sundarasan Nov. 1964 do 30.9.86 17.11.86 183175 The scales of pay for various period for the posts of Assistant, Superintendent Grade 11 and Superintendent Grade I may also be noticed : NAME OF THE POSTS SCALE OF PAY Pre revised Revised Revised On & from 717 (prior to (w.e.f. 1.8.1981 1973) 1.1.73) Assistant 210 425 425 700 425 700 Superintendent 325 475 550 750 Grade II (who have 550 750 (Supdt.
(N.S.) passed Hr.
Accounts Test).
270 435 425 700 (for others) (for others) Superintendent 350 550 550 900 550 900 Grade I It may be noticed that most of the respondents before the Tribunal were working in the grade of 425 700 when they were promoted to the post of Superintendent Grade II in the pay scale of 550 750.
It is thus clear that on general principles of service jurisprudence the Assistants having been promoted to the grade of Superintendent Grade II after those already working Superintendent Grade 11 would naturally rank junior to them.
The confusion in the Government appears to have been created in view of note and the provision occurring in Schedule VII of the Rules relating to the recruitment to the post of Superintendent Grade 1.
In column 11 thereof the recruitment is provided by 'Promotion ' from among the Superintendent Grade 11 who have completed five years of service in the said post.
There is a note and the proviso to the following effect in column 11 "Note For computing the five years service, the service rendered in the post of Superintendent (Non Secretariat) and the service rendered after 1st January 1973 and upto 3 1st July 1981 in the post of Assistant shall be taken into account Provided that the Superintendents (Non Secretariat) in service as on 31st December 1972 Shall enbloc be Seniors to Assistants in service on that date and the Superintendents (Non Secretariat) and Assistants appointed on or after 1st January 1973 and upto 3 1st July 1981 shall rank inter se with reference to their dates of appointment in the respective posts.
" It is clear that the note merely allows the erstwhile Assistants, who were 718 promoted to the post of Superintendent Grade 11, for purposes of counting the period of five years service as Superintendent Grade 11, to include their service rendered as Assistants after 1. 1.
1973 to 3 1.7.198 1.
This note is for no purpose other than for giving them eligibility for consideration for promotion from the cadre of Superintendent Grade II to the cadre of Superintendent Grade I.
The proviso again is very clear when it says that Superintendents (Non Secretariat) in service as on 31st December, 1972 shall enbloc be seniors to Assistants in service on that date and the Superintendents (Non Secretariat) and Assistants appointed on or after 1st January, 1973 and upto 3 1 St July, 1981 shall rank inter se with reference to the dates of appointment in their respective posts.
All the Superintendents in Grade II who were appointed after 3 1st July, 1981 would naturally rank in the seniority on the basis of respective dates of appointment as Superintendent Grade II.
We are thus in complete agreement with the `reasonings and conclusion of the Tribunal and it is declared that the note in column 11 is only for purposes of giving eligibility to the erstwhile Assistants working as Superintendents Grade II for purposes of being considered for promotion to the post of Superintendent Grade I and not for the purpose of seniority at all.
There is no rule of seniority viz a viz for promotes to Superintendent Grade II with effect from 1st August, 1981 for calculating seniority and normal rule of service jurisprudence of length of service will apply.
With these observations the appeals fail and are dismissed with no order as to costs.
G.S. Appeal dismissed.
| The petitioners before the Central Administrative Tribunal had been working as Superintendents Grade 11 in the Secretariat of the Government of Pondicherry prior to the promotion of respondents Nos. 2.
to 13 (before the Tribunal), the erstwhile Secretariat Assistants as Superintendents Grade 11.
Respondent Nos 2 to 13 were further promoted as Superintendents Grade I before the petitioners on the basis of tentative Seniority list wherein the feeder service rendered by the Assistants between 1.1.
1973 and 31.7.1981 had been included for computing the seniority in the Grade of Superintendent Grade II.
The petitioners before the Tribunal aggrieved by the grant of benefit of service rendered during the period 1.1.
1973 to 31.7.1981 by those who were working in the grade of Assistants towards their seniority in the grade of Superintendent Grade 11 challenged the promotion of respondent Nos 2 to 13 there in who were promoted from Secretarial Assistants to Superintendents Grade II and further promoted as Superintendents Grade I before them inspite of the fact that the petitioners had already been working as Superintendents Grade 11 prior to the promotion of the erstwhile Assistant as Superintendents Grade II.
It was contended by the petitioners before the Tribunal that from 1.8.1981 respondents Nos. 2 to 13 who were Assistants and were in a distinctly 713 lower scale of pay as compared to them could not be promoted to the post of Superintendents Grade I before the petitioners.
The Tribunal allowed the applications and set aside the promotions of respondents No. 2 to 13 before it.
Aggrieved by the order of the Tribunal the Union of India had preferred the present appeals.
Agreeing with the reasonings and conclusions of the Tribunal HELD:The note in Column 11 is only for purposes of giving eligibility to the erstwhile Assistants working as Superintendents Grade 11 for purposes of being considered for promotion to the post of Superintendent Grade I and not for the purpose of seniority at all.
The note merely allows the erstwhile Assistants, who were promoted to the post of Superintendent Grade 11 to include their service rendered as Assistants after 1.1.
1973 to 31.7.
1981 for purposes of counting the period of five years service as Superintendent Grade 11.
This note is for no purpose other than for giving them eligibility for consideration for promotion from the cadre of superintendent Grade 11 to the cadre of Superintendent Grade 1.
(718 A)
|
minal Appeal No. 830 of 1985.
From the Judgment and Order dated 30.7.85 of the Allahabad High Court in Crl.
Revision No. 1937 of 1983.
M.S. Gujral, A.K. Srivastava and Serva Mitter for the Appellant.
R.C. Verma and A.S. Pundit.for the Respondent.
The appellant, was convicted under Sections 120 B, 419, 420, 468, and 471 of the Penal Code.
lie was sentenced to undergo rigorous imprisonments for different periods under the aforesaid Sections.
The appeal filed on behalf of the appellant was dismissed by the learned additional Sessions Judge, Ghaziabad.
The High Court, on revision application being filed on behalf of the appellant set aside his conviction under Section 120 B, but the conviction and sentence under other Sections mentioned above passed by the trial Court were affirmed.
According to the prosecution case, the appellant, established a firm by the name of Seemak Industrial Corporation at Ghaziabad.
The account in the bank was opened in the name of one Vijai Kumar and the aforesaid Industrial Corporation was registered in the Sales Tax Department.
The appellant applied for loan before the U.P. Small Industries Corporation and got a sum of Rs. 39,352.50, in the name of Seemak Industrial Corporation.
Later it was discovered that the aforesaid Seemak Industrial Corporation, was a fake concern and the appellant had cheated, even the U.P. Small Industries Corporation, in respect of the amount advanced by them.
The Trial Court, the Appellate Court as well as the High Court have gone into details of the materials on record for purpose of holding, that the charges framed against the appellant had been established and as such there was no occasion to interfere with the conviction and sentence passed against him.
So far the present appeal is concerned, leave was granted as early as in the year 1985 by this Court, but it has been listed for hearing after about 8 years.
The learned Counsel.
appearing for the appellant, after some arguments on merit confined his submissions to the question of sentence only.
lie pointed out that offences aforesaid had been committed by the appellant, as early as in the year 1973, more than 20 years from now and as such a compassionate view should be taken of the whole matter especially when the amount in respect of which the offences are alleged to have been committed is not excessive.
He pointed out that the appellant has remained in jail for some time, in pursuance of the order of conviction and sentence and as such he need not be sent to jail again.
An affidavit detailing the mitigating circumstances has also been filed by the appellant before us.
Taking all facts and circumstances into consideration, by our order dated 26th April, 1993 we directed the appellant to first deposit an amount of Rs. 40,000 (the loan amount) with the U.P. Small Industries Corporation Ltd. Pursuant to that order Rs. 40.000 has been deposited with the U.P. Small Industries Corporation Ltd., on 4 5 1993 and original receipt granted by the Manager of the said Corporation was produced before us.
The zerox copy, of the said original receipt has been kept on record and the original returned to the learned counsel for the appellant.
An affidavit has also been filed on behalf 'of the appellant stating about 902 the aforesaid deposit.
In the peculiar facts and circumstances of the case while maintaining the conviction of the appellant, we reduce the sentence of imprisonment under different Sections mentioned above to the period already undergone by him.
The appellant, shall however pay a fine of Rs. 2,000 and in default of payment thereof, he shall undergo rigorous imprisonment for a period of one month.
The appeal is allowed in part.
The deposit of Rs. 40,000 made by the appellant with the U.P. Small Industries Corporation Ltd., shall be adjusted towards the amount advanced by the said Corporation to the appellant.
The Corporation shall of course be at liberty to take steps for realisation of any further sum.
which may be due.
against the appellant.
U.R. Appeal partly allowed.
| The appellant was charged with cheating the U.P. Industrial Corporation of Rs. 39,352.50 by registering a take concern, and taking in its name.
Three courts concurrently found the charges against him established.
On the question of sentence, it was contended that more than 20 % cars had elapsed; the amount involved was not excessive and other mitigating circumstances were placed (in the record.
Partly allowing the appeal, this Court HELD:1.
The appellant had deposited Rs. 40,000/ (the loan amount) as directed.
(901 G) 2.
In the peculiar facts and circumstances of the case, conviction maintained but sentence of imprisonment reduced to the period already undergone, and a fine of Rs. 2,000/ , or one month R.I. in lieu thereof.
(902 B)
|
Appeal No. 2909 of 1993.
From the Judgment and Order dated 5.4.1990 of the Patna High Court in C.W.J.C. No. 1465 of 1989 (R).
S.B. Upadhyay for the Appellant.
Uday Sinha, S.K. Verma and Ranjit Kumar for the Respondents.
The following Order of the Court was delivered: Special leave granted.
The controversy in the present case is whether the appellant was qualified to appear for the M.D. (General Medicine) Examination as a teacher candidates The High Court by the impugned order has taken the view that he was not, on the around that he had not completed 3 years training period including one year of the house job, prior to qualifying himself for appearing for the examination.
912 The respondents, P.G. Medical Students Association had challenged the permission given to the appellant to appear for the said examination on two rounds.
The first ground was that he was not a teacher and the second ground was that he had not undergone the necessary training for 2 years and had also not done housemanship in General Medicine for one year.
The requirement of the relevant regulation is that the candidate must have done one year 's housemanship prior to the admission to the Post graduate degree in the same subject in which he wants to appear for the examination or at least six months housemanship in the same Department and the remaining six months in the allied Department.
The period of training thus, shall be 3 years after full registration including one year of the housejob.
The appellant claimed that he was teacher in the Department of Biochemistry in the Rajendra Medical College (R.M.C.) and filed an application for his registration as a student in M.D.
The University forwarded the application to the then Principal of Rajendra Medical College cum Dean, Faculty of Medicine, Dr. C.J.K. Singh.
He objected to his registration on the ground that the appellant was not posted in any of the teaching posts in medical college.
The then Head of the Department of Medicine, Dr. section Sinha also wrote to Dr. C.J.K. Singh that the appellant though attached to the Department of Medicine, was a Bio chemist attached to the Renal Unit and dealt entirely with the subject of Biochemistry.
The appellant filed a writ petition being C.W.J.C. No. 755 of 1988 praying for appropriate direction to the University to permit him to submit his thesis in M.D. (Medicine) examination.
The University contested his claim that he was a teacher and took the stand that since he was not a teacher, he was not eligible for training in M.D. (General Medicine).
For this purpose, the University relied upon the.
letters of Dr. C.J.K. Singh and Dr. section Sinha.
The Court dismissed the said petition on 23rd May, 1988 without deciding the issue as to whether the appellant held a teaching post but recorded a finding that the appellant was not entitled for admission to the examination in M.D. as he had not submitted his thesis and had also failed to produce a certificate of having undergone satisfactory training.
The High Court also held that the acceptance of the thesis was a pre requisite for appearing at the examination.
However, thereafter the present petition was filed by the respondent Association when the appellant was granted permission to appear for the said examination being satisfied that the post which he was holding was a teaching post as pointed out by the State Government.
In this petition, the University supported the appellant by asserting that the, appellant was appointed against a teaching post 913 in the Department of Medicine.
The High Court has again not decided the point whether the appellant was appointed against a teaching post in the Department of Medicine.
For not deciding the point, the High Court has given an additional reason, viz., that many persons who were in fact appointed as teachers would be prejudicially affected since they would become junior to the appellant and they were not before the Court.
For the purposes of the disposal of the writ petition, the High Court presumed that the appellant was teacher in the Department of Medicine in the Rajendra Medical College.
The Court has, however, made it clear that this presumption would be confined to the present case only and the appellant would not be entitled to claim any benefit on the basis of the said presumption.
The High Court has, however, allowed the respondents ' petition only on the grounds that the appellant had not undergone training for 3 years prior to his application to appear for the said examination.
In order to come to the said conclusion, the High Court relied on the fact that although the petitioner was registered with Dr. S.S. Prasad as a trainee on 6th February, 1986, he had not undergone training with him and it was only from 4th February; 1988 onwards that he had undergone the training with another Supervisor, viz., Dr. P.R. Prasad.
Hence, on the date he made the application for appearing in the examination, he had not completed the required 3 years ' training period.
In support of its finding that the appellant had not completed 2 years ' training with Dr. S.s.
Prasad, the former Supervisor, the High Court has relied upon two facts.
The first is that Dr. S.S. Prasad had written to the University that appellant had undergone no training under him.
The second circumstance relied upon is that the second Supervisor, viz., Dr. P.R. Prasad was not appointed as appellant 's Supervisor as per the suggestion of the Dean of the Faculty of Medicine since respondent No. 7 to the petition who had recommended Dr. P.R. Prasad was not the Dean of the Faculty of Medicine at the time of the recommendation.
Hence, according to the High Court even the training of the appellant under Dr. P.R. Prasad was not a valid training The record shows that admittedly the appellant was registered as a trainee under the former Supervisor, Dr. S.S. Prasad on 6th February, 1986 and he continued to be the trainee under him till 4th February, 1988 on which date he was changed as a Supervisor at the request of the appellant.
In his place Dr. P.R. Prasad was appointed as the appellant 's Supervisor on 17th December, 1988.
The appellant, thereafter continued to be the trainee under Dr. P.R. Prasad from 19th December, 1988 to 3rd August, 1989.
Thus the petitioner was registered for M.D. (General Medicine) examination of the University on 6th February, 1986 and by the 3rd August, 1989 when he was due to appear for the examination he had completed 3 years ' training under the two Supervisors.
914 Coming to the respondent Association 's contention that the earlier Supervisor, Dr. S.S. Prasad had denied that the appellant had received any training under him, the University has stated that for the purpose of training, the Supervisor has nothing more to do than guide the candidate for writing thesis.
But more than that, the letter written by Dr. P.V.P. Sinha, the Principal of RMC and Dean, Faculty of Medicines of the Ranchi University to the Registrar of the Ranchi University on 4th July, 1989 speaks volumes on the attitude adopted by Dr. S.S. Prasad towards the appellant.
This letter is Annexure 11 to the rejoinder of the appellant.
The letter makes a complaint that Dr. S.S. Prasad by bypassing the office of the Principal, RMC had addressed directly to the Registrar of the University two letters on 4th May and 3 1st May, 1989.
The Principal then states that he examined the original letter meaning thereby the letter dated 4th May, 1989 and the connected matter and found that Dr. S.S. Prasad had been telling lie to the University and trying to mislead and that is why he had sent the letter directly to the University.
Dr. Prasad had written another letter to the University on 16th May, 1988 regarding the appellant and in that letter he had written that the appellant had been prevented from doing research work connected with his thesis.
The Principal then proceeds to write that when he asked Dr. Prasad in writing vide his letter dated 21st June, 1989 to give him the letter of the Principal or the Dean or the University which had authorised him to prevent the appellant from doing his research work, Dr. Prasad failed to produce any letter.
Thus according to the Principal it became very clear that Dr. Prasad had written the letter dated 16.5.1988 directly to the University to harm the appellant 's career.
The Principal then proceeds to write to University that he would like to bring to the attention of the University that Dr.
Prasad had signed the thesis and certificate of another doctor, viz., Dr. Ashok Kumar Singh on 16.10.1984 when that doctor was registered as an M.D. student in General Medicine only on 26.7.1984 and when Dr. Prasad was not his guide.
It was Dr. R.C.N. Sahai who named the guide for the said Dr. Ashok Kumar Singh.
The Principal then writes that from the perusal of the records as well as from the reply to the explanation sought by him from Dr. Prasad, it had become clear that Dr. Prasad was not made the guide of Dr. Ashok Kumar Singh either by the University or by the Dean or by the Principal and yet he had signed the thesis of Dr. Ashok Kumar Singh barely after 3 months and 11 days of his registration.
The Principal then points out in that letter that a comparison of the two events made it apparent that Dr. Prasad had favoured Dr. Ashok Kumar Singh by violating all the norms statutes of the University and of the Medical Council of India and that even after the University had appointed Dr. P.R. Prasad as the guide of the appellant, Dr. S.S. Prasad was bent upon harming the career of the appellant.
The Principal then adds that there was no record in his office to show that the appellant was ever suspended by the University for doing his M.D. General Medicine.
He had asked Dr. S.S. Prasad to produce any notification of the University regarding the alleged 915 suspension and Dr. S.S. Prasad had failed to do so.
He then concludes the letter by stating that he would, in the circumstances, recommend the University to consider the desirability of removing Dr. S.S. Prasad from all examination work of the Ranchi University.
It is thus apparent that Dr. S.S. Prasad, the former Supervisor of the appellant had become hostile to him and was apparently not cooperating with him in his thesis.
Yet the appellant had proceeded to write a thesis and when it became unbearable, he requested for the change of his Supervisor on 4th February, 1988 pursuant to which the new Supervisor, Dr. P.R. Prasad was appointed on 17th December, 1988.
However, till the new Supervisor was appointed on 17th December, 1988, he continued to be registered with Dr. S.S. Prasad and there is no dispute that under the new Supervisor, viz., Dr. P.R. Prasad he completed his training from 17th December, 1988 to 4th August, 1989.
There is further no dispute that the appellant submitted his thesis prior to the examination.
As regard the qualification of the 7th respondent to make the appointment of Dr. P.R. Prasad as the guide, although the record before us does not show as to who the 7th respondent was, we take it that it is the then Principal, Dr. P.V.P. Sinha who was probably added later as the 7th respondent to the writ petition to whom the High Court has referred to in its judgment.
It is asserted from the Bar on behalf of the appellant that Dr. P.V.P. Sin ha was both the Principal and the Dean of the Faculty of Medicine of the University from a date much prior to 17th December, 1988.
That statement is not controverted nor does the counter filed by the 1st Respondent make any such point.
If that is so, then on the date that Dr. P.R. Prasad was appointed as a Supervisor he was so appointed by a duly qualified person.
Since the High Court has not one into the question as to whether the appellant was appointed against a teaching post and has proceeded on the footing that he was so appointed.
it is not necessary for us to go into the said question.
The appellant was thus fully qualified for appearing in the said examination and in fact on account of the interim orders passed by the High Court he has appeared for the examination.
The High Court has, however, by the impugned decision restrained the University from declaring his results in the examination.
The facts narrated above would reveal that this was a dispute relating to an individual and turned on the facts.
There was no question of law involved in it.
We have, therefore, not understood how the respondent Association could convert an individual dispute into a public interest litigation.
We are of the view that cases where what is strictly an individual dispute is sought to be converted into a public interest litigation should not be encouraged.
The present proceeding is one of the 916 kind.
The learned counsel appearing, for the respondent State wanted to support the respondent Association.
We did not think it necessary to hear the State since the dispute was essentially with regard to the interpretation of the facts relating to the training of an individual medical officer, viz., the appellant.
The University had on the facts of the case accepted the contention of the appellant that he had completed 3 years ' training.
We have not been able to understand as to what stake the State has in denying the said factual position.
It must be remembered in this connection that the State Government itself by its letter of 17th September, 1984 written to the Principal, RMC and had asserted that the post which the appellant was holding, viz., that of Bio chemist in the Artificial Kidney Unit of RM College and Hospital, was a teaching post and that the appellant was posted to that post since 12th February, 1982.
The letter further proceeded to state that the Principal and the Head of the Department of Medicine of RM College and Hospital has also given written certificate that the appellant was posted on a teaching post and therefore his teaching experience would be counted with the Kidney Unit.
A request was, therefore, made in the letter that the appellant 's application for his registration as M.D. General Medicine candidate [Teacher] be forwarded to the University and further action in that regard be intimated to the Regional Additional Commissioner cum Principal Secretary.
There is no dispute further that according to the rules, 4 years teaching experience in the College and the Hospital [which is always combined with practice in the Hospital] is considered equivalent to one year 's house job experience.
It the face of these facts, it is difficult to understand the stand taken by the State Government in the present proceedings.
There is no doubt in our mind that some forces are at work to obstruct the appellant 's career on one ground or the other.
The State Government should not become a party to this came.
In the circumstances, we allow the appeal, set aside the decision of the High Court and hold that the appellant was qualified to appear for the M.D. (General Medicine) examination as a teacher candidate.
Hence, we direct the University to declare his results in M.D. (General Medicine) examination for which he has appeared, forthwith.
There will be no order as to costs.
VPR Appeal allowed.
| The appellant was a teacher in the Department of Biochemistry of Rajendra Medical College.
He filed an application for his registration as a student in M.D.
The University forwarded the application to the Principal of Rajendra Medical College.
The Principal objected to appellant 's registration as he was not posted in any of the teaching posts in Rajendra Medical College.
Though the appellant was attached to the Department of Medicine, was a Biochemist attached to that Renal Unit dealing with the subject of Biochemistry.
The appellant filed a writ petition in the High Court for a direction tot he University to permit him to submit his thesis in M.D. (Medicine) examination on the ground that he was a teacher.
The University took the stand that the appellant was not a teacher and he was not eligible for training in M.D. (General Medicine).
The High Court dismissed the appellants writ petition and held that he was not entitled for admission to the examination in M.D. as he did not such it 910 his thesis and did not produce a certificate of having undergone satisfactory training.
The High Court did not decide on the question whether he held a teaching post or not.
The appellant was granted permission to appear for M.D. (Medicine) examination after the University was satisfied that the appellant was holding a teaching post The respondent Association filed a writ petition before the High Court challenging the permission given to the appellant to appear for the said examination, contending that he was not a teacher and that he did not undergo the necessary training for 2 years and that he did not do housemanship in General Medicine for one year.
The High Court allowed the writ petition on the ground that the appellant did not undergo training for 3 years prior to his application to appear for M.D. (Medicine) examination.
In this writ petition also the High Court did not decide whether the appellant was holding a teaching post.
The appellant filed this appeal by special leave against the High Court 's judgment.
Allowing the appeal, this Court HELD : 1.1.
On account of the interim order passed by the High Court, the appellant appeared for the examination.
The High Court has, however, by the impugned decision restrained the University from declaring his results in the examination.
(915 G) 1.2.
Since the High Court has not gone into the question as whether the appellant was appointed against a teaching post and has proceeded on the footing that he was appointed, it is not necessary for this Court to go into the said question.
(915 F) 2.1.
The facts of the case would reveal that this was a dispute relating to an individual and turned on the facts.
There was no question of law involved in it.
It is not understood how the respondent Association could convert an individual dispute into a public interest litigation.
(915 H) 2.2 Cases where what is strictly an individual dispute is sought to be 911 converted into a public interest litigation should not be encouraged.
The present proceeding is one of the kind.
(915 H) 3.1.
The requirement of the relevant regulation is that the candidate must have done one year 's housemanship prior to the admission to the Postgraduate degree in the same subject in which he wants to appear for the examination or atleast six months housemanship in the same Department and the remaining six months in the allied Department.
The period of training thus, shall be 3 years after full registration including one year of the.
housejob.(912 B) 3.2.
According to the rules, 4 years, (teaching experience in the College and the Hospital (which is always combined.
with practice in the Hospital) is considered equivalent to one year 's house job experience.
In the face of these facts, it is difficult to understand the stand taken by the State Government in the present proceedings.
(916 D) 3. 3.
The University bad on the facts of the case accepted the contention of the appellant that he had completed 3 years ' training.
It is not understood as to what ' state the State has in denying the said factual position.
(916 B)
|
minal Appeal No. 443 of 1993.
From the Judgment and Order dated 22.4.92 of the Calcutta High Court in Crl.
Revision No. 800/92.
A.K. Sen, S.C. Ghosh, Rajiv K. Dutta and B.B. Tawakley for the Appellant.
Amlan Ghosh and Ranjan Mukherjee for the Respondents.
The Judgment of the Court was delivered by MOHAN, J.
leave granted.
The appellant herein was, married to second respondent on 16th January, 1990 according to Hindu Rites and Customs.
They lived together for sometime until second respondent left the matrimonial home to reside with her parents in order to prepare for Higher Secondary Examination which commenced on 5.4.90 920 and continued upto 10.5.90.
In the month of April, 1990 she conceived, on coming to know that she was pregnant, the appellant and the family members did not want her to beget a child.
Therefore she was forced to undergo abortion which was refused by the second respondent.
During the stay She was meted out cruetreatment both physically and mentally.
She came back to the matrimonial home during Durga Pooja in the month of October, 1990.
A female child was born on 3.1.91.
She filed a petition under section 125 Cr.
P.C. before the Learned Chief Judicial Magistrate, Alipore in Misc.
Case No. 143 of 1991 both for herself and the child.
By an order dated 14.8.91 which was passed ex parte he awarded a sum of Rs. 300 per mansum to the mother and Rs. 200 to the child.
Against that order, he moved a revision to the High Court.
That revision is pending as 1837 of 199 1.
Thereafter the petitioner filed a Crl.
Case No. 143 of 1991 for blood group test of the second respondent and the child.
In that proceeding the petitioner herein disputed the paternity of the child and prayed for blood group test of the child to prove that he was not the father of the child.
According to him if that could be established he would not be liable to pay maintenance.
That application was dismissed on two grounds: (i) there were other methods in the Evidence Act to disprove the paternity (ii) moreover it is settled law that medical test cannot be conclusive of paternity.
Aggrieved by this order, a revision was preferred before the High Court.
Dismissing the revision it was held that section 112 of the Evidence Act says where during the continuance of valid marriage if a child is born that is a conclusive proof about the legitimacy.
This section would constitute a stumbling block in the way of the petitioner getting his paternity disproved by blood group test.
The English law permitting blood test for determining the paternity of legitimacy could not be applied in view of section 112 of the Evidence Act.
Therefore it must be concluded that section 112 read with section 4 of the said Act debars evidence except in cases of non access for disproving the presumption of legitimacy and paternity.
It is the contention of Mr. Ashok Sen, learned counsel for the appellant that the only way for the father to disprove the paternity is by blood group test.
Having regard to the development of medical jurisprudence to deny that request to the appellant will be unreasonable.
As a matter of fact, in England, this is commonly resorted to as it will leave no room for doubt.
In 1968 (1) All England Reports p. 20 Re. 1 it was held that even without the consent of the guardian ad litem, the court had power to order an infant be subjected to a blood group test.
921 There is no justification for the court below to refuse the same on the ground that section 112 of the Evidence Act would be an obstacle in seeking relief of blood group test.
Before we deal with the arguments, we will examine the law as available in England.
At the beginning of the century scientists established that human blood had certain characteristics which could be genetically transmitted.
The first recognised system was ABO blood group.
The blood group of a child is determined by the parents ' genetic make up but the number of possibilities is such, that it is not possible to prove that certain individuals are the father on the basis of comparing blood groups, only, that they are not the father.
By 1930s other immunological test became available.
As a result the possibility of establishing paternity increased.
An attempt by way of statutory provision to make blood test compulsory in En land failed in 1938.
However, in 1957 the Affiliation Proceedings Act was passed.
Under that Act, it was assumed that a man was the father once a sexual relationship with the mother at the time of conception was proven unless he could show another man had intercourse with her at that time.
Failing the father 's attempt, the mother 's evidence had to be corroborated by facts such as blood test etc.
Under the Act either party could ask for a blood test and either was entitled to refuse to take part, although only the mother can apply for maintenance.
The Family Reforms Act, 1969 conferred powers on the court to direct taking blood test in civil proceedings in paternity cases.
Courts were able to give directions for the use of the blood test and taking blood samples from the child, the mother and any person alleged to be the father.
Since the passing of 1969 Act the general practice has been to use blood tests when paternity is in issue.
However, it is to be stated the court cannot order a person to submit to tests but can draw adverse inferences from a refusal to do so.
Now under the Fan lily Reforms Act, 1987 in keeping with modern thinking on the continuing and shared responsibility of parenthood, 'parentage ' rather than paternity has to be determined before the court.
Fathers as well as mothers can apply for maintenance.
Therefore contests can include mothers denial of paternity.
This Act finally removed the legal aid for corroboration of mother 's statement of paternity.
Two cases may be usefully referred to: Re L Lord Denning M.R. [1968] All England Reports p. 20 stated thus 922 "but they can say positively that a given man cannot be the father, because the blood groups of his and the child are so different." (emphasis supplied).
In B.R.B. vs J.B. [1968] 2 All England Reports 1023 applied this dictum and held as under: "The Country court judge will refer it to a High Court Judge as a matter suitable for ancillary relief, and the High Court Judge can order the blood test.
Likewise, of course, a magistrate 's court has no power to order a blood test against the will of the parties.
The magistrate can only do it by consent of those concerned, namely, the grown ups and the mother on behalf of the child; but, nevertheless, if any of them does not consent, the magistrate can take that refusal into account1 adhere to the view which expressed in Re L. that (6) "If an adult unreasonably refuses to have a blood test, or to allow a child to have one, I think that it is open to the court in any civil proceedings (no matter whether it be a paternity issue or an affiliation summons,or a custody proceedings) to take his refusalas evidence against him, and may draw an inference there from adverse to him.
This is simple common sense." "The conclusion of the whole matter is that a judge of the High Court has power to order a blood test whenever it is in the best interests of the child.
The judges can be trusted to exercise this discretion wisely.
I would set no limit, condition or bounds to the way in which judges exercise their discretion.
To object of the court always is to find out the truth.
When scientific advances give us fresh means of ascertaining it, we should not hesitate to use those means whenever the occasion requires." "Having heard full argument on the case, lam satisfied beyond any reasonable doubt (to use the expression used in rebutting the presumption as to legitimacy) that LORD DENNING, M.R., was right in saying that such an order may be made in any case where the child is made a party to the proceedings and in the opinion of the judge of the High Court it is in the child 's best interests that it should be made.
" 923 As regard United States the law as stated in Forensic Sciences edited by Cyril H. Wecht is as under: Parentage testing is the major (but not the exclusive) involvement of forensic serology in civil cases.
The majority of disputed parentage cases involve disputed paternity, although an occasional disputed maternity, or baby mix up case does arise, and can be solved using the tools of forensic serology described in this chapter.
Blood typing has been used to help resolve paternity cases since the mid 1920 'section According to Latters, there were 3,000 cases tested in Berlin in 1924, and Schiff and Boyd said that the first case went to court in Berlin in 1924.
Ottenberg, in this country published paternity exclusion tables in 192 1, as did Dyke in England in 1922.
It took somewhat longer to satisfy the courts, both in Europe and in country, that parentage exclusions based upon blood grouping were completely valid.
Wiener said that he had obtained an exclusion in a paternity case in this country which reached the courts early in 1933.
In January of 1934, Justice Steinbrink of the New York Supreme Court in Brooklyn ordered that blood tests be performed in a disputed paternity action, using a s precedent a decision by the Italian Supreme Court of Cassation, but his order was reversed upon appeal.
Soon afterward, however, laws were passed in a number of states providing the courts with statutory authority to order blood testing in disputed paternity cases.
Paternity testing has developed somewhat more slowly in the Unitted States than in certain of the European countries, but today the differences in the number of systems employed, and judicial acceptance of the results, are no longer that great.
A number of authorities have recently reviewed the subject of paternity testing in some detail, and in some cases have summarized the results of large number of cases that they have investigated.
Walker points out that failure to exclude a man, even at the 95 percent level of paternity exclusion does not mean that the alleged father is proven to be biologic father, because absolute proof of paternity cannot be established by any known blood test available.
Although this fact is well known and appreciated by workers it), the field of blood grouping and by attorneys active in this area, it is not generally understood by the lay public.
However, blood group 924 serology, using proven genetic marker systems, represents the most accurate scientific information concerning paternity and is so recognised in the United States, as well as in a number of countries abroad.
" In India there is no special statute governing this.
Neither the Criminal Procedure Code nor the Evidence Act empowers the court to direct such a test to be made.
In 1951 (1) Madras Law Journal p.58O Polavarapu Venkteswarlu, minor by guardian and mother Hanwnamma vs Polavarapu Subbayya in that case the application was preferred under section 151 of the Code of Civil Procedure invoking the inherent powers of the Court to direct a blood test.
The learned judge was of the following view: Section 15 1, Civil Procedure Code, has been introduced in to the Statute book to give effect to the inherent powers.
of Courts as expounded by Woodroffe, J., in Hukum Chand Boid vs Kamalan and Singh.
Such powers can only be exercised ex debito justice and not on the mere invocation of parties or on the mere volition of courts.
There is no procedure either in the Civil Procedure Code or in the Indian Evidence Act which provides for a test of the kind sought to be taken by the defendant in the present case.
It is said by Mr. Ramakrishna for the respondent before m e that in England this sort of test is resorted to by Courts where the question of non access in connection with an issue of legitimacy arises for consideration.
My attention has been drawn by learned counsel to page 69 of Taylor 's Principles and Practice of Medical Jurisprudence, Volume 2, where it is stated thus : "In Wilson vs Wilson, Lancet [1942] 1. 570, evidence was given that the husband 's group was OM, that the wife 's was BM and that the child 's was ABN.
The Court held that the husband was not the father of child, and granted a decree for nullity." "It is also pointed out by learned counsel that in the text books on Medical Jurisprudence and Toxicology by Rai Bahadur Jaising P. Moi, (8th Edition), at page 94, reference is made to a case decided by a Criminal Court at Mercare in June, 194 1, in which the paternity and maternity of the child being under dispute, the Court resorted to the results of the blood grouping test." 925 That may be.
But I am not in any event satisfied that if the parties are unwilling to offer their blood for a test of this kind this Court can force them to do so.
" The same view was taken by the Kerala High Court in Vasu vs Santha 1975 Kerala Law Times p. 533 as "A special protection is given by the law to the status of legitimacy in India.
The law is very strict regarding the type of the evidence which can be let in to rebut the presumption of legitimacy of a child.
Even proof that the mother committed adultery with any number of men will not of itself suffice for proving the illegitimacy of the child.
If she had access to her husband during the time the child could have been begotten the law will not countenance any attempt on the part of the husband to prove that the child is not actually his.
The presumption of law of legitimacy of a child will not be lightly repelled.
It will not be allowed to be broken or shaken by a mere balance of probability.
The evidence of non access for the purpose of repelling it must be strong, distinct, satisfactory and conclusive see Morris vs Davies; , The standard of proof in this regard is similar to the standard of proof of guilt in a criminal case.
These rigours are justified by considerations of public policy for there are a variety of reasons why a child 's status is not to be triffled with.
The stigma of illegitimacy is very severe and we have not any of the protective legislations as in England t o protect illegitimate children.
No doubt, this may in some cases require a husband to maintain children of whom he is probably not their father.
But, the legislature alone can change the rigour of the law and not the court.
The court cannot base a conclusion on evidence different from that required by the law or decide on a balance of probability which will be the result if blood test evidence is accepted.
There is an aspect of the matter also.
Before a blood test of a person is ordered his consert is required.
The reason is that this test is a constraint on his personal liberty and cannot be carried out without his consent.
Whether even a legislature can compel a blood test is doubtful.
Here no consent is given by any of the respondents.
It is also doubtful whether a guardian ad litem can give this consent.
Therefore, in these circumstances, the learned Munsiff was right in 926 refusing the prayer for a blood test of the appellant and respondents 2 and 3.
The learned Judge is also correct in holding that there was no illegality in refusing a blood test.
The maximum that can be done where a party refuses to have a blood test is to draw an adverse inference (see in this connection Subayya Gounder vs Bhoopala, AIR 1959 Madras 396, and the earlier decision of the same court in Venkateswarlu vs Subbayya AIR 1951 Madras 910.
Such an adverse inference which has only a very little relevance here will not advance the appellants case to any extent.
He has to prove that he had no opportunity to have any sexual intercourse with the 1st respondent at a time when these children could have been begotten.
That is the only proof that is permitted under section II 2 to dislodge the conclusive presumption enjoined by the Section.
" In Hargavind Soni vs Ramdulari AIR 1986 MP at 57 held as: "The blood grouping test is a perfect test to determine questions of disputed paternity of a child and can be relied upon by Courts as a circumstantial evidence.
But no person can be compelled to give a sample of blood for blood grouping test against his will and no adverse inference can be drawn against him for this refusal.
" Blood grouping test is a useful test to determine the question of disputed paternity.
It can be relied upon by courts as a circumstantial evidence which ultimately excludes a certain invididual as a father of the child.
However, it requires to be carefully noted no person can be compelled to give sample of blood for analysis against her will and no adverse inference can be drawn against her for this refusal.
In Raghunath vs Shardabai , it was observed blood grouping test have their limitation, they cannot possibly establish paternity, they can only indicate its possibilities.
In Bhartiraj vs Sumesh Sachdeo & Ors., held as: "Discussing the evidentiary value of blood tests for determining paternity, Rayden on Divorce, (1983) Vol. 1) p. 1054 has this to say "Medical Science is able to analyse the blood of individuals 927 into definite groups: and by examining the blood of a given man and a child to determine whether the man could or could not be the father.
Blood tests cannot show positively that any man is father, but they can show positively that a given man could or could not be the father.
It is obviously the latter aspect the proves most valuable in determining paternity, that is, the exclusion aspect for once it is determined that a man could not be the father, he is thereby automatically excluded from considerations of paternity.
When a man is not the father of a child, it has been said that there is at least a 70 per cent chance that if blood tests are taken they will show.
positively he is not the father, and in some cases the chance is even higher: between two giver men who have had sexual intercourse with.
the mother at the time of conception, both of whom undergo blood tests, it has likewise been said that there is a 80 per cent chance that the tests will show that one of them is not the father with the irresistible inference that the other is the father.
The position which emerges on reference to these authoritative texts is that depending on the type of litigation, samples of blood, when subjected to skilled scientific examination, can sometimes supply helpful evidence on various issues, to exclude a particular parentage set up in the case.
But the consideration remains that the party asserting the claim to have a child and the rival set of parents put to blood test must establish his right so to do.
The court exercises protective jurisdiction on behalf of an infant.
In my considered opinion it would be unjust and not fair either to direct a test for a collateral reason to assist a litigant in his or her claim.
The child cannot be allowed to suffer because of his incapacity; the aim is to ensure that he gets his rights.
If in a case the court has reason to believe that the application for blood test is of a fishing nature or designed for some ulterior motive, it would be justified in not acceding to such a prayer." "The above is the dicta laid down by the various High Courts.
In matters of this kind the court must have regard to section 112 of the Evidence Act.
This section is based on the well known maxim pater est quem nuptioe demonstrant (he is the father whom the marriage indicates).
The presumption of legitimacy is this, that a child born of a married woman is deemed to be legitimate, it throws on the person who is interested in making out the illegitimacy, the whole burden of proving it.
The law presumes both that a marriage ceremony is valid, any that every 928 person is legitimate.
Marriage or filiation (parentage) may be presumed, the law in general presuming against vice and immoratility.
" It is a rebuttable presumption of law that a child born.
during the lawful wedlock is legitimate, and that access occurred between the parents.
This presumption can only be displaced by a strong preponderannce of evidence, and not by a mere balance of probabilities.
In Smt.
Dukhtar Jahan vs Mohammed Faroog ; this court held.
"Section II 2 lays down that if a person was born during the continuance of a valid marriage between his mother and any man or within two hundren and eighty days after its dissolution and the mother remains unmarried, it shall be taken as conclusive proof that he is the legitimate son of that man, unless it can be shown that the parties to the marriage had no access to each other at anytime when he could have been begotten.
This rule of law based on the dictates of justice has always made the courts incline towards upholding the legitimacy of a child unless the facts are so compulsive and clinching as to necessarily warrant a finding that the child could not at all have been begotten to the father and as such a legitimation of the child would result in rank injustice to the father.
Courts have always desisted from lightly or hastily rendering a verdict and that too, on the basts of slender materials, which will have the effect of branding a child as a bastard and its mother an unchaste woman.
" This section requires the party disputing the paternity to prove non access in order to dispel the presumption. "Access" and "non access" mean the existence or non existence of opportunities for sexual intercourse; it does not mean actual cohabitation.
The effect of this section is this: there is a presumption and a very strong one though a reubttable one.
Conclusive proof means as laid down under section 4 of the Evidence Act.
From the above discussion it emerges: (1) that courts in India cannot order blood test as matter of course; 929 (2) wherever applications are made for such prayers in order to have roving inquiry, the prayer for blood test cannot be entertained.
(3) There must be a strong primafacie case in that the husband must establish non access in order to dispel the presumption arising under section 112 of the Evidence Act.
(4) The court must carefully examine as to what would be the consequence of ordering the blood test; whether it will have the effect of branding a child as a bastard and the mother as an unchaste woman.
(5) No one can be compelled to give sample of blood for analysis.
Examined in the light of the above, we find no difficulty in upholding the impugned order of the High Court, confirming the order of the Addl.
Chief Judicial Magistrate, Alipore in rejecting the application for blood test.
We find the purpose of the application is nothing more than to avoid payment of maintenance, without making any ground whatever to have recourse to the test.
Accordingly Criminal Appeal will stand dismissed.
Cr, M.P.No.
2224/93 in S.L.P.(cr No. 2648/92 filed by Respondent No. 2 will stand allowed.
She is permitted to withdraw the amount without furnishing any Security.
R.P. S.L.P. dismissed.
| Respondent No. 2 was married to the appellant.
She went to reside with her parents in order to prepare for Higher Secondary Examination.
In the meantime she conceived.
The appellant and his family members asked her to undergo abortion but she refused, and a child was born to her.
In a petition under section 125, Cr.
P.C. riled by respondent No. 2, against her husband, the wife and the child were granted maintenance.
The appellant, disputing the paternity of the child, riled a criminal miscellaneous application for blood group test (if respondent No. 2 and the child.
It was claimed that if it was established that he was not father of the child he would not be liable to pay the maintenance.
The application was dismissed.
Appellant 's revision application was also rejected by the High Court.
The appellant filed the appeal by special leave.
Dismissing the appeal, this Court 918 HELD: 1.1 Courts is India cannot order blood group test as a matter of course.
Unlike the English law* in India there is no special statute governing this.
Neither the Criminal Procedure Code nor the Evidence Act empowers the court ; to direct such a test, *Affiliation Proceedings Act.
, 1957; Family Reforms Act.
, 1969; Family Reforms Act, 1987.
1.2 Wherever applications are made for blood group test in order to have roving inquiry, the prayer cannot be entertained.
Bhartiraj vs Sumesh Sachdeo & Ors: , approved.
2.1 Section 112 read with s.4 of the Evidence Act debars evidence except in cases of non access for disproving the presumption of legitimacy and paternity.
It is a rebuttable presumption of lam, that a child born during the lawful wedlock is legitimate, and that access occurred between the parties.
This presumption can only be displaced by a strong preponderance of evidence and not by a mere balance of probabilities.
2.2 There must be a strong prima facie case in that the husband must establish non access in order to dispel the presumption arising under section 112 of the Evidence Act.
Vasu vs Santha: [1975] Kerala Law Times 533 and Raghunath vs Shardabai, , referred to.
Morris vs Davies ; cited.
3 The Court must carefully examine as to what would be the consequence of ordering the blood test; whether it will have the effect of branding a child as a bastard and the mother as an unchaste woman.
Dikhtar Jahan vs Mohammed Faroog.
; , referred to.
4.1 Blood group test is a useful test to determine the question of disputed paternity.
It can be relied upon by courts as a circumstantial evidence which ultimately excludes a certain individual as a father of the child.
4.2 No person can be compelled to give sample of blood for analysis and no adverse inference can he drawn against a person on account of such refusal.
919 Hargovind Soni vs Ramdulari, AIR [1986] M.P. 57, approved.
Vasu vs Santha, [1975] Kerala Law Times 533, Polavarapu Venkeeswarlu vs Polavarapu Subbayya, , referred to.
Subayya Gounder vs Bhoopala, AIR [1959] Madras 396; Venkateswarlu vs Subbayya, AIR [1951] Madras 910; Hukum Chand Boid vs Kamalan and Singh, Cal. 927, cited.
Wilson vs Wilson, Lancet [1942] 1.570; Re L 1968 [1] All England Reports 20; B. R. B. vs J. B., [1968] 2 All Eng.
Reports 1023, referred to Tauylor 's 'Principles and Practice of Medical Jurisprudence (Vol. 2); 'Medical Jurisprudence and Toxicology (8th Edition) by Rai Bahadur Jaising P. Mod, cited.
`Forensic Sciences ' edited by Cyril H. Wecht, referred to.
In the instant case the purpose of the application for blood group test was nothing more than to avoid payment of maintenance, without making any ground whatever to have recourse to the test.
The High Court was right in confirming the order of the court below rejecting the application.
|
Appeal Nos.
2863 65 of 1993.
From the Judgment and Order dated 21.2.91 of the Kerala High Court in C.M.P. No. 2170/90, 596/91, 597/91 in M.F.A. No. 518 of 1981.
WITH Civil Appeal No. 2960 of 1993.
K.K. Venugopal, G. Ramaswamy, M.N. Krishnamani, K.P. Dandapani E.M.S. Anam, P.N. Puri, A.T.M. Sampath, Pravir Choudhary for the Petitioner/ Appellant.
Shanti Bhushan.
Joshph Vellapall vs R.K.Jain, A Mariarputham, for M/s A. Mariarputham and Mrs. Aruna Mathur for Mrs. Aruna Mathur & Co. for the respondents.
The Judgment of the Court was delivered by R.M. SAHAI, J.
How far could we protect the interests of subscribers who had subscribed to a chit run by a subsidiary company of the appellant ordered to be wound up when allegedly subscriptions were made good by them not merely out of their hard savings but also of sums got by even, pledging and selling the jewelleries and ornaments of their wives, in the fond hope of getting a lumpsum amount on a future date, to meet the expenses of marriages in the family or health hazards of family members and the like, is the issue that really bothered us at the hearing of the appeals.
About 15 years ago the subsidiary company under winding up, diverted the amount of rupees ten crores received by it by way of chit subscriptions to its holding, company (the appellant) resulting in its inability to pay the subscribers, when they became entitled to (yet the prize amounts.
When some of the subscribers approached the High Court and succeeded in getting the subsidiary company wound up, the appellant holding company appeared in Court and prayed for an opportunity to be given to it to revive its subsidiary company.
That prayer was accepted by a Division Bench of The Kerala High Court in the case of Suarshan Chits (India) Ltd., vs G.S. Pilai ILR 1983 vol.
1 Kerala p. 700.
The Division 906 Bench approved the scheme of compromise and arrangement under Sec. 391 of the .
Consequently, it ordered the winding up order to be held in abeyance on condition that the holding company shall execute a security bond to cover subsidiary company 's liability to the extent of a sum of Rs. 10.40 crores owed to its subscribers.
It also directed the holding company to pay off that amount within a period of five years.
Restriction was also placed on alienation of any property by tile holding, company without obtaining prior permission of the Court.
Arrangement was made for managing, affairs of the appellant company as well.
Apart from the Board of Directors an Additional Director was nominated to supervise and keep a watch on the affairs of the company.
Since than the appellant company is run as directed by the High Court but neither the subscribers are paid, as a body of creditors, not the entire amount of rupees ten crores and odd is paid by the appellant to the subsidiary company.
True, that out of nearly one lakh subscribers.
twenty nine thousand and odd subscribers only remain unpaid.
But, that is hardly satisfactory.
Regret is that more than one third of the subscribers remain unpaid even after ten years from the date the High Court ordered the winding up to be in abeyance.
Payment of rupees two crores and odd by the holding company which had the benefit of ten crores and odd rupees for the last 15 years, which amount by any standard is equivalent to fifty crores of rupees of today, we must state, is a poor consolation, for the holding company to claim that all steps to discharge its obligations is taken.
Having noticed in brief, how matters have proceeded, we shall advert to the dispute which has arisen in respect of an offer now made by the holding company to sell 20.79 acres of land for paying the creditors.
Whatever that be, one situation which has been brought about is, its successful attempt in involving, many subscribers who had formed themselves into a creditors association and an owner of a factory adjoining the disputed land, in litigation which has reached this Court more than once.
It is unfortunate that a company which had volunteered to pay ten crores of rupees with in a period of five years has successfully evaded the payment by offering a pittance.
From the date of offer in 1987 six ears have elapsed but no amount worth consideration, appears to have been paid to the subscribers.
We consider it unnecessary to recount in detail the offer made by Ramaswamy Udayar, the appellant in the other appeal, counter offer made by the creditors association, delay in payment by the association, extension of time by this Court for payment by the association, withdrawal of offer by the holding company in the meantime as the High Court had after detailed examination accepted the offer of creditors association for purchase of disputed land and rejection of the claim of Udayar.
Nor do we consider it necessary to deal with rival submission made by learned senior counsel appearing for respective parties, although we heard them at length, as in our opinion that rupees fifty two lakhs and odd the total amount for which the land 907 has to be sold could hardly be sufficient to relieve the agony of the body of subscribers for whose benefit the entire exercise was undertaken by the High Court.
As we have understood the matter, there may be a grain of truth in the allegation that it is Estate Dealers with vested interests who are interfering and in fact the amount paid by the creditors association is of estate dealers.
It may also.
be true that the total membership of the association is not even 5% of the unpaid subscribers.
In the said circumstances and taking into consideration the board consensus reached among learned counsel as to what needs to be done, we decide the two appeals, one filed by the holding company for release of the land and other by Udayar for accepting his bid on the following terms and conditions: (1)The holding company shall deposit with the official Receiver or Assignee concerned a sum equivalent to the deposited sum on which the High Court was pleased to direct sale deed to be executed in favour of the creditors association together with 25% interest minus the interest, if any earned by the deposit made, calculated on the deposited amount, from the date of deposit till 31st July, 1993, within a period of three months from today.
(2) Out of the amount of sale price of the land already deposited by the creditors Association and the interest if any earned thereon plus the sums of money to be deposited by the holding company under the above term and condition (1), a sum equivalent to the amount deposited by creditors Association, together with interest at 25% thereon from the date of deposit upto 31s t July, 1993 shall be refunded to the creditors association in lieu of their claim for disputed land being, given up.
The balance amount shall remain the benefit of general body of creditors of the subsidiary compa (3) The holding company shall pay the entire outstanding de (amounts) payable to the subscribers who were members of creditors association on the date when their claim applications w decided by the Kerala High Court, together with interest there of 12 percent from the date of decision till 31st July, 1993, within same period, namely, three months.
This amount too shall deposited with the receiver for immediate payment to those cre 908 tors subscribers for giving discharge of their claims against the subsidiary company.
(4) In case the above terms and conditions as to deposits to be made by the holding company are complied with.
within the period allowed, for which no extension of time shall be granted, then the disputed land offered for sale by the holding company and purchased by creditor 's associations shall stand released in its holding company 's) favour.
If such deposits are not made, the sale in favour of creditors company shall stand confirmed.
(5) An offer was made by the appellant in Appeal No. 6614 of 1991 that the land being adjacent to its factory he was willing to pay even rupees five lakhs per acre.
Therefore, on release if the land is sold, it shall be sold, as and when such occasion arises, for a price not less than five lakhs per acre.
The amount so realised shall also be deposited by the holding company with the receiver for distribution among general body of creditors of the subsidiary company in discharge of its obligations to pay of the creditors of the subsidiary company.
(6) (a) The receiver shall further take steps to see that the holding company fulfils its obligations and pays the entire balance within a period of one year from 31st August, 1993.
(b) In case of failure to clear the dues of all the subscribers it shall be open to any unpaid subscriber to approach the High Court for recalling the order passed by the High Court in 1983 directing the winding up to be put in abeyance.
(c) It shall also be open to the unpaid subscribers to approach the High Court for th e aforesaid reasons mentioned in clause (b) to take steps to get the amount realised from assets of the holding company.
If such an application is made it shall be disposed of by the High Court expeditiously in accordance with law after hearing, parties concerned.
Both the appeals are decided accordingly.
The parties shall bear their own costs.
R.P Appeals disposed of.
| A subsidiary company of the appellant holding company (C.A. No. 2866 of 1993) diverted to the appellant rupees ten crores received by it by way of chit subscriptions.
It failed to pay the subscribers the prize money.
When some of the subscribers initiated winding up proceedings against the subsidiary company the appellant appeared before the High Court and undertook the liability of the subsidiary company to an extent of a sum of Rs 10.40 Crores to the subscribers.
The High Court approved the scheme of compromise and arrangement under section 391 of the and directed the winding up order to be held in abeyance on the condition that the appellant holding company would pay off the amount or Rs. 10.40 Crores to the subscribers, within five years.
It also restricted alienation (of any property by the holding company.
Without obtaining prior permission (of the Court.
Even ten %,Cars after the order of the High Court, more than one third of the subscribers remained unpaid.
Meanwhile the appellant company took steps to sell 20.79 acres of land to pay the Creditors.
The appellant in C.A.No. 2863 65 (if 1973 made an offer where as the respondent creditors ' association made a counter offer.
The High Court accepted the (offer of Creditors ' association.
Hence the appeals by special leave.
Disposing of the appeals, this Court gave the following 904 Directions : 1.
The holding company shall deposit with the official Receiver fir Assignee concerned a sum equivalent to the deposited sum on which the High Court had directed sale deed to be executed in favour of the creditors association together with 25% interest minus the interest, if any earned by the deposit, made, calculated (in the deposited amount, from the date of deposit till 31st.
July, 1993, within a period of three months.
Out of the amount mentioned in condition (1) above, a sum equivalent to the amount deposited by creditors Association, together with interest at 25% thereon from the date of deposit upto 31st July, 1993 shall be refunded to the creditors association in lieu of their claim for the disputed land being given up.
The balance amount shall remain for the benefit of general body of creditors of the subsidiary company.
Tile holding company shall pay through the receiver the entire outstanding debts payable to the subscribers who were members of the creditors association on the date when their claim applications were decided by the High Court, together with interest thereon at 12 per cent from the date of decision till 31st July, 1993.
In case the above terms and conditions are complied with, within the period allowed then the disputed land offered for sale by the holding company and purchased by creditors ' associations shall stand released in holding company 's favour.
If such deposits are not made, the sale in favour of creditors company shall stand confirmed 5.
In view of the offer made by the appellant in Appeals No. 2863 65 of 1993, the land on its release shall be sold, for a price not less titan five lakhs per acre.
The amount so realised shall also be deposited of the holding company with the receiver for distribution among general body of creditors of the subsidiary, company.
The receiver shall further take steps to see that the holding company fulfils its obligations and pays the entire balance within a period of one year from 31st August, 1993.
In case of failure to clear the dues of all tile subscribers it shall he open to an%.
unpaid subscriber to approach the High Court for recalling the order passed by the High Court for in 1983 direction the winding up to be plot in abeyance, as well as to the steps to get the amount realised front assets of 905 the holding company.
If such an application is made it shall be disposed of by the High Court expeditiously in accordance with law after hearing parties concerned.
|
minal Appeal No. 738 of 1992.
From the Judgment and Order dated 16.11.1992 of the Bombay High Court in Crl.
A. No. 148 of 1989.
A.N. Mulla, Ms. Shefali Khanna and J.M. Khanna for the Appellant.
S.B. Bhasme, S.M. Jadhav and A.S. Bhasme for the Respondents.
The Judgment of the Court was delivered by YOGESHWAR DAYAL, J.
This is an appeal by the four accused persons against the judgment of the Bombay High Court dated 16th November.
Appellant No. 1 who was accused No. 1 was tried for the offence of having 880 committed the murder of his daughter in law Sangita, wife of appellant No. 2 who was accused No.2, during the night between 14th September, 1984 and 15th September, 1984 at the residential house of the appellants at Murtizapur with common intention and also for having treated her with cruelty on account of dowry amount.
In the alternative the appellants were also charged for the offence of having abetted the deceased Sangita in commission of suicide by subjecting her to cruelty.
Appellant no.3, who was accused No.3, is the wife of accused No.1 and appellant No.4, who was accused No. 4.
is their daughter.
Appellants 1 to 4 are hereinafter called accused Nos. 1 to 4.
The story of the prosecution was as follows: The accused run a printing press at their residence.
Marriage of accused No. 2 was settled with the 5th daughter of Madan lal (PW. 8).
Few days prior to the settlement of the marriage.
marriage of her elder sister was also settled.
As such marriages of both the daughters i.e. Sangita and Hemlata were celebrated at Paratwada on 28th April, 1994.
Talk over the marriage had taken place about a month prior to the marriage and the same was finalised after about 2 or 3 days of such talks.
At the time of finalisation, accused No. 1 demanded Rs. 20,000 by way of hard cash as dowry, besides other articles, add he himself had given such demands in writing vide Ext.
Though agreed, Madan Lal, father of the deceased could not give Rs. 20,000 at the time of marriage.
He also could not give the gold agreed, though he assured to comply with the demands later on getting the crops.
After the marriage, on account of the month of Shrawan, and as per custom, Sangita resided with her parents.
It was during her stay after the marriage that she was found disturbed and sullen.
Though she herself did not give out the reason therefore, but on insistence by the father to know the reason she told him that accused No. 1 had an evil eve on her and that other members of the family used to beat and ill treat her because of the failure on the part of Madan Lai to pay the dowry amount.
Though Madan lal assured that he would come down to Murtizapur and pursued the accused, but he could not visit Murtizapur.
After the month of Shrawan, Sangita returned to Murtizapur but not communication was made about her safe return by the accused persons to her father.
The accused persons had a telephone connection and Madan Lal (PW.8), two three days prior to the date of the incident contacted accused No. 1 on telephone.
Accused No. 1 talked angrily with Madan Lal.
Madan Lal then requested accused No. 1 to call Sangita on telephone.
Sangita came on phone and in answer to his query she broke down and Stated weeping and told Madan lal as to why he did not send Ganesh Chaturthi Neg ', 'Neg ' means a customary offer that the father of the bride has to pay on an auspicious day.
It varies according to financial capacity of the father.
He told 881 Sangita that he had committed it mistake and assured that he would be sending it immediately.
On the next day lie had got drawn a draft of Rs. 101/ on State Bank of India.
74 A is the said draft.
It was thereafter when Madan Lai was on a visit to Amravati that Madan Lal received a message about Sangita having got burnt on 15th September, 1984.
During the night between 14th and 15th September.
1984 at about midnight the accused found Sangita not in her bed and smell of burning.
They found that in the rear side open space Sangita was burning and lying down.
According to the defence the doors were closed from inside and there was no access to the said open space.
Accused No. 1 informed the police about the occurrence that he had seen through the window opening on the )pen space.
Accused No. 1 at about 3.45 a.m. on 15th September, 1994 submitted it report (Ext.82) to the police wherein he had stated that about 2. 10 a.m. in the night Sangita was found to be burnt and died in the bath room.
Mundheh.
the investigating Officer gave instructions to the accused persons not to disturb the situation.
Initially on the report of the accused, accidental death was registered.
PW9 when reached the spot on 15th September.
1984 at about 10.00 a.m. he made spot Panchnama vide ext.63.
He also found a postcard.
half burnt, (Ext. 62) by the side of the dead body.
He thereafter drew inquest panchnama (Ext.64).
PW. 1 Bhanudas acted as a panch.
PW.9 having convinced that it was a case of murder, lodged it report on behalf of the State registering the offence punishable under Section 302 read with Section 34 of the Indian Penal Code.
Dr. Lande, PW.3, on 15th September, 1994 at about 5.00 p.m. conducted the post mortem.
The Additional Sessions Judge on the basis of the material filed with the challan.
on 30th September, 1994 trained a charge under Sections 302.499 A and 201 read with Section 34 of the Indian Penal code and thereafter recorded the evidence of PWs.
1 to 9.
Thereafter by an order dated 22nd August, 1988 the trial court framed an additional charge for the offence punishable under Section 306 read with Section 34 of the Indian Penal Code.
The accused persons challenged the framing of the additional charge before the High Court but the challenge was defeated.
The accused persons were accordantly tried.
Their defence through out was a total denial.
It appears that during arguments the Prosecutor did not think it proper to press for the diffence punishable under Section 302 read with Section 34 of the Indian penal Code.
According to the Prosecutor the only case made out was for the offences punishable under Sections 306, 498 A read with Section 34 of the Indian Penal Code.
The trial court endorsed the view of the Public Prosecutor and did not 882 discuss the relevant evidence it all on the charge of Section 302 and recorded a finding of acquittal in that behalf.
He also held that the charge of Section 201 also did not survive.
The learned trial Judge also held that the prosecution hits not been able it) prove that the accused persons with their common intention treated Sangita with cruelty or thereby abetted her to commit suicide.
He accordingly acquired all the accused persons for the offence punishable under Section 306 read with Section 34 of the Indian Penal Code.
The State filed all appeal against their order of acquittal and the High Court on appeal castigated the trial judge for having gone merely oil the statement of the public Prosecutor without applying his own mind on the evidence.
The High Court examined the evidence afresh.
The High Court posed a question is to whether the nature of death of Sangita was suicidal or homicidal and ultimately gave a finding that it was a case of homicidal death and found all the accused guilty under Section 302 read With Section 34 and Section 201 read with Section 34.
The accused were also find guilty under Sections 498 A read with Section 34.
For the offence under Section 302 read with Section 34 all of them were sentenced to rigorous imprisonment `for life and different fines.
For the offence under Section 201 read with Section 34 all the accused persons were sentenced to rigorous imprisonment for three years and each of them was fined Rs.1,000/ .
For the offence under Section 498 A read with Section 34 all of them were sentenced to one year rigorous imprisonment and a fine of Rs.2,000.
Learned counsel for the defence, however, submitted before the High Court that the charge under Section 302 read with Section 34 did not survive tit view of the concession made by the Prosecutor and also in view of the framing of the additional charge under Section 306 read with Section 34.
It was also submitted that the framing of the additional charge negated the theory of murder in pith and substance.
The High Court, however negatived this submission and on consideration of the evidence convicted all the accused persons as stated above.
Body of Sangita suffered 100% burn injuries and smell of kerosene was even noticed in the spot panchanama.
The description 1005 burn does not really fully 883 convey the condition of the body.
Asper the inquest report the dead body was lying on its back in the open court yard at the back side of the house of the accused.
Both the legs were partly stiffen.
Both the hands were partly bent and lying at side.
Hairs on the head burnt and even fleshy portion is also burnt at some places.
There was slight hair at some portion of head.
Complete body was burnt and skin on it also peeled up.
Face had became red and black.
Eyes were closed and burnt.
Nose was burnt and blood was cozing from the nose and mouth.
Tongue was slightly protruding out.
Brassier of the left side was totally burnt and right side was partly burnt.
Ash of burnt cloth was visible on stomach.
A partly burnt small piece of the border of saree was lying there.
Some pieces of saree, burnt and sticking each other, were lying on the stomach.
Skin on palm of both hands was peeled up and was appearing reddish.
Skin on the complete body was burnt and peeled up.
On observing the body by turning its upside down, the complete body was burnt from back side.
On observing the private parts of the deceased through Pancha No.3 it was stated that private parts were burnt and there was no injury and to ascertain the actual cause of death, the dead body was sent to the Civil Surgeon, Murtizapur for post mortem.
According to Dr. Lande, who conducted the postmortem, on opening of trachea black particles were found.
He recorded that probable cause of death was 100% burn with bum shock with asphysix.
On the basis of medical evidence the High Court again felt the necessity to ascertain whether the act of pouring kerosene oil was voluntarily by the victim or the act of a third person.
The High Court felt that the trial court has not even discussed the medical evidence or the inquest report and hastily reached the conclusion that it was a case of suicidal death.
According to the High Court the entire approach of the trial court was thoroughly unsatisfactory and grossly erroneous.
After going through the evidence the High Court gave the following findings: That the deceased could not control her emotional out burst even during the presence of her father in law while talking on telephone.
The deceased was a young girl of 20 years.
A determination to suffer extreme pain in silence could not be a matter of speculation.
"In third degree injuries, as per Dr. Lande, the victim suffers extreme pain.
Such injuries will make the person to give out cries and shouts for help." The shouting and crying of the deceased was not only obvious but inevitable.
Undisputedly, none had heard the cries or shouts of the deceased while she was in flames.
This circumstance alone does not support the probability of suicidal death.
884 The trial court has wrongly read the contents of letter Ext.
62 and its interpretation is highly illegal.
Undisputedly Sangita returned from Paratwada after "Shrawani Mass" just a week before the incident, probably by 7th September, 1984.
She was subjected ' to insinuation and accused used to refer her as "awara", "loafer".
"badmash", She wanted to convey this to her father through post card (Ext.62) which seemingly not delivered.
By this letter she requested her father not to visit Murtizapur.
This letter never reached post off ice and the message could not be passed to Madan Lai, PW. 8.
Before accomplishing her design to convey this message, she could not bring an end to her life.
Sangita could not simply think of committing suicide while in possession of Ext.62.
Sangita at the time of incident, as per the post mortem report.
was having, a pregnancy of 3 4 months and this is also not in tune with the act of commission of suicide.
The Sessions Judge omitted to discuss the complete evidence of Dr. Lande and the post mortem report Ext.50.
As per post mortem report the eye ball and tongue of the deceased were protruding.
Dozing of the blood was found from the nose and mouth.
In case of death due to burning such injuries cannot be sustained.
Sangita was assaulted before she was set on fire.
There might be a definite attempt to cause death by strangulation before pouring kerosene oil on her person.
Relying of the evidence of PW.1, Shivraj, a neighbour who heard a shriek of ' woman as a result of strangulation coming from the house of the accused.
Taking into account tile medical evidence read with the testimony of PW.1, Shivraj, Sangita met with tile homicidal death.
A ball of cloth half burnt was also found by the side of the body.
The ball was used for gagging her mouth as a precautionary measure to handicap her from raising cries or shouts.
PW.5, Bhanudas, had also noticed dragging marks in the court yard and the deceased after assault was dragged and kept at the spot.
While in flames Sangita did not make any movement.
She was completely motionless.
The latching of doors of the compound was not accepted as an act of the deceased.
Latching of doors and pouring of kerosene after assault was a farcical venture skilfully and conveniently made to bring colour of suicide to the incident.
885 The High Court then posed the question as to who is responsible for homicidal death of Sangita.
It was held that it could not be an act of an individual It was joint venture.
There is no direct evidence.
Undisputedly the payment of Rs.20,000/ was not made nor the tither items mentioned in Ext.
73 were given till the date of incident.
On her second visit, the deceased had disclosed to her father, Madan Lal.
that the members of in laws ' family had beaten and ill treated her for the reason of non fulfillment of dowry and other articles.
A reading of the letter indicates that the accused persons had very serious grievance against Sangita and her parents for non fulfillment of dowry demands.
Recovery of handkerchief at the instance of accused No. 1 in pursuance of a disclosure statement and the seizure thereof vide Ext.69 from a drawer of the table of the office.
The handkerchief was smelling, kerosene oil.
It was concealed at a place which was not normally or ordinarily used for keeping the handkerchief.
This handkerchief was used at the time of the incident.
None of the accused persons made any attempt to reach the spot even though they noticed the death of Sangita.
They merely allowed the body to be burnt.
Accused persons had quoted exact time of death in Ext.82 which means that they were mentally alert and conscious of the happening in the house.
The refusal to disclose the death of Sangita to the chowkidar of the locality, PW.2, Rahadursingh.
The meeting with chowkidar Bahadursingh was falsely denied in the statement under Section 313 of the Code of Criminal Procedure.
Homicidal death occurred by Sangita while she was in their custody.
The incident with its gravity and extent cannot in any manner go unnoticed.
As such the accused persons were duty bound to offer plausible explanation.
Their action was concerted.
well thought out.
well planned.
With the aforesaid findings all the accused persons were found guilty by the High Court and the appellants have come up in appeal before this Court.
This court on application of appellant Nos. 3 and 4 i.e. another in law and sister in law of the deceased, admitted them to be on hail.
Apart from the inferences noticed by the High Court there are certain other features in the post mortem report Ext.
15 which may also be noticed at this state.
It is stated in paragraph 13 of the post mortem report that the whole (if skin of face 886 was burnt and Covered at places with black soot.
Eye ball slightly protruding Tongue was protruding from mouth.
Blood stained discharge from nose and mouth.
In paragraph 17 it is noticed heirs of the scalp, eye lashes, both ears, eyes, whole neck.
whole chest.
whole abdomen suffer from burns.
Buttock and pubic hairs also burnt.
Black soot was present over burnt area of face, chest, abdomen.
In paragraph 19 it is stated Brain & Meninges congested.
In paragraph 20 it is stated Larynx.
Trachea and Bronchi congested, on opening, troches.
black particles seen inside human.
Right lung left lung congested.
Right ventricle of the heart was full whereas left was empty.
In paragraph 21 it is stated liver and gall bladder congested.
pancreas and suprarenals congested.
spleen congested, kidneys congested and bladder empty, i.e. parenchymatous organs show intense venous congestion.
Dr. K.S. Narayan Reddy, M.D. D.C.P., M.I.A.F.M., F.I.M.S.A.,F.A.F.Sc., Professor of Forensic Medicine, Osmania Medical College Hyderabad in his well known treatise THE ESSENTIALS OL FFORENSIC MEDICINE AND TOXICOLOGY.
Sixth Education at page 255 gives descriptions of internal as well as external symptoms of manual strangulation.
At page 255 while dealing with signs of asphyxia.
the learned author observes : "The face may be livid, blotchy and swollen, the eyes wide open, bulging and suffused, the pupils dialated, the tongue swollen, dark cloured and protruded.
Petechial hemorrhages are common into the skin of the eyelids, face, forehead, behind the cars and scalp.
Bloody froth may escape front the mouth and nostrils and there may he bleeding from the nose and cars.
The hands are usually clenched.
The genital organs may be congested and there may be discharge of urine, faeces and seminal fluid.
" While internal injuries described little later included as under "The larynx.
trachea and bronchi are congested and contain frothy.
often blood stained mucus.
The lungs are markedly congested and show ecchymoses and larger subaerial hemorrhages.
Dark fluid blood exudes on section.
Silvery looking spots under the pleural surface due to rupture of the air cells which disappear on pricking.
are seen in more than 505 cases.
The parenchymatous organs show intense venous congestion and in young persons ecchymoses are usually seen on the heart and kidneys.
The brain is contested and shows petechial hemorrhages.
The right side of the heart is full of dark fluid blood and the left empty.
Both the cavities are full if the heart stopped during diastole.
" Whereas in burn injuries the learned author at pages 237 238 observes.
"the 887 brain is usually shrunken, firm and yellow to light brown due to cooking.
The dura matter is leathery." (dura matter is meninges of the brain).
If the death has occoured from suffocation.
aspirated blackish coal particles are seen in the nose, mouth and whole of the respiratory track.
Their presence is proof that the victim was alive %,.hen tile fire occurred.
The pleurae are contested or inflamed.
The lungs are usually congested.
may be strunken and rarely anemic.
Visceral congestion is marked in many cases.
The heart is usually filled with clotted blood. 'The adarme;s (glands above kidneys) may he enlarged and congested.
Some of these symptoms or internal and external injuries are common in case of strangulation and burn like face is swollen and distorted, the tongue protruded.
the lungs are usually congested visceral congestions is marked in many cases.
What is to he noticed in the present case is that there are hardly "any cries" as per the defence also by the deceased.
This is not possible even in case of suicide.
Even if the burns ,ire inflicted with suicidal intent tile victim is bound to cry out of pain.
Admittedly there was no cries and, therefore, it was not a Case of suicidal burn but the deceased was put in a condition where she could not cry and yet get burnt by third party.
As is clear from the aforesaid commentary of Dr. K.S. Narayan Reddy that if it was a case of merely burns the blood of the heart would have got clotted.
Even the postmortem report does not say that asphvsix was due to burn.
Coupled with all the internal injuries which occur in the case of strangulation.
are present in this case.
As pointed out by the High Court there is no direct evidence to connect the appellants with the offence of murder and the prosecution entirely rests its case only on circumstantial evidence.
There is a series of decisions of this Court propounding the cardinal principles to be followed in cases in which the evidence is of circumstantial nature.
It is not necessary to repapitulate all those decisions except stating the essential ingredients as noticed by Pandian, J. in the case reported as The State of Uttar Pradesh vs Dr. Ravindra Prakesh J. in the case 2 SC 114 at 121, to prove quilt of an accused person by circumstantial evidence.
They are: (1) The circumstance from which tile conclusion is drawn should be fully proved; (2) the circumstances should he conclusive in nature; 888 (3)all the facts so established should he consistent only with the hypothesis of guilt and inconsistent with innocence: (4)the circumstances should.
to a moral certainty, exclude the possibility of guilt of any person other than the accused.
" Now let us examine the impelling circunistances attending the case and examine whether tile cumulative effect of those circumstances negatives tile innocence of tile appellants and serves a definite pointer towards their guilt and unerringly leads to the conclusion that with all human probability the offence was committed by the appellants and none else.
There is no doubt that when the incident occurred there was no outsider its the house.
The circumstances which ire establislied its having closely linked up with one another may be noticed 1) The motive for the occurrence.
2) The place where the tragic incident occurred was in possession and occupation of the appellants.
3) The occurrence had happened in the wee hours when body else would have had ingress at the place where the incident allegedly occurred.
4) The appellants admit their presence.
The positive features, which occurred, had it been it pure case of burning, there would he evidence of vomiting.
6) The positive opinion of the doctor that the death was due to asphysix as well apart from 100% burns.
7) The deceased was carrying fetus of 3 4 months 8) The extensive use of kerosene as seen from the burn shows that the deceased was practically 889 drenched as sort of a bath with kerosene. 9) Total absence of any shout or cries except one which was heard by way o f strangulation by PW.
1. 10) Blood in heart was not found clotted.
Right ventricle heart was full of blood but left ventricle wits empty.
11) Besides total burning of neck was to destroy evidence of attempted strangulation.
12) In burn brain is usually shrunken and firm whereas in strangulation it is congested.
As noticed by Pandian, J. in the aforesaid decision, opinion of Taylor in Medical Jurisprudence is quoted below.
It reads thus: "Not uncommonly the victim who inhales smoke also vomits and inhales some vomit, presumably due to bouts of coughing, and plugs of regur gitated stomach contents mixed with soot may be found in the smaller bronchi, in the depths of the lungs.
" By the time a person could take a bath of kerosene she is likely to get fainted and would not be in a position thereafter to burn herself.
A total burning, of the face and the neck shows that even at portions where she was not wearing any clothes were not burnt.
It could only be possible if she had poured kerosene on her head and face also.
It is not understood as to how the unposted post card found near the dead body was not burnt when the whole body had got burnt.
It in fact indicates that the planting of the post card was to show that it was a case of suicidal death.
In passes all human probabilities that the appellants have satisfied themselves by watching through the window the burning of daughter in law without any due and cry or without and serious attempt to save her.
We are thus satisfied that it was a case of murder and not suicidal death.
So far as the accomplicity of appellants 1 and 2 are concerned, there is no doubt.
But 890 it is not necessary if appellant Nos. 3 4 i.e. mother in law and sister in law of the deceased have also participated in the murder of the deceased.
For the aforesaid reasons we dismiss the appeal on behalf of appellant.
Nos. 1 and 2 but give benefit of doubt to appellant Nos. 3 and 4 and accept the appeal on their behalf.
They are accordingly acquitted.
The convictions and sentences of appellant Nos. 1 and 2 are upheld.
U. R. Appeal dismissed.
| Sangita was married to accused 2 on 28th April, 1984.
In the intervening night of 14115 September 1984, the accused found Sangita burning.
Sangita 's body suffered 100% burns and the smell of kerosene was noticed even in the spot panchnama.
There had been problems relating to dowry, and she had complained of ill treatment and of being beaten because of failure to pay the dowry amount.
The trial judge acquitted accused 1 4 her father in law, husband, mother in law and sister in law respectively.
The High Court examined the evidence a fresh, while castigating the trial judge for having gone merely on the statement of the Public Prosecutor that only a case under Ss. 306, 498 A and 34 was made out.
The High Court Convicted the accused under S.302 r/w 34, S.201 r/w 34 and 498 A r/w 34.
Partly dismissing the appeal, this Court.
HELD: 1.
It was a case of murder and not suicidal death.
It is not possible that there were no 'cries ' from the deceased while she was burning.
This is not possible even in a case of suicide.
Some of the symptoms of internal and external injuries are common in 879 case (if strangulation and burns.
But some symptoms that occur in the case of strangulation, and not in case of burns, are present in this case.
Dr. K.S. Narayan Reddy, The Essentials of Forensic Medicine and Toxicology 6th edn.
p. 55, relied on.
The prosecution rests its case only on circumstantial evidence.
Therefore, it is necessary to examine the impelling circumstances attending the case and examine whether the cumulative effect of those circumstances negatives the innocence of the appellant ,; and serves a definite pointer towards their guilt and unerringly leads to the conclusion that with all human probability the offence was committed by the appellants and none else.
State of U.P. vs Dr. Ravindra prakash Mittal, JT(1992) 2 SC 114 at 121.
applied.
Taylor, Medical jurisprudence, relied on.
On an appreciation of the circumstances which arc established as being closely linked to one another, the complicity of appellants 1 and 2 is not in doubt.
But it is not necessary that appellants 3 and 4 also participated in the murder of the deceased.
They are given the benefit of doubt and accordingly acquitted.
|
il Appeal No. 2860 of 1993.
From the Judgment and Order dt.
31.10.1990 of the Punjab and Haryana High Court in L.PA.
No. 1427 of 1982.
K. Lahiri and J.D. Jain for the Appellant.
D.V. Sehgal and K.K. Mohan for the Respondents.
The Judgment of the Court was delivered by G.N. RAY, J.
Special leave granted.
Heard learned counsels for the parties.
867 On the application for special leave to appeal notice was issued by this Court on the respondents indicating therein that the said application for special leave to appeal will be disposed of finally at the notice stage itself on the short question as to why the disciplinary proceedings and the order passed therein should not be set aside and a fresh enquiry should be ordered on the ground that one of the participants of the enquiry committee was biased.
Such notice was served on the respondents and the respondent Nos. 1 and 4 have entered appearance through a ' learned counsel and also filed counter affidavit to the special leave petition.
The appellant was appointed as Principal of Dr. Hari Ram (Co education) Higher Secondary School, Datarpur in Tehsil of Dasuya in the District of Hoshiarpur.
He was placed under suspension by the Managing Committee of the said School and charge sheet containing 12 charges was issued to the appellant.
Charge No. 12 was to the following effect: "the following amounts are reported to have been used by you and are unaccounted for: A sum of Rs. 129.37 on account of amalgamated fund for the ' month of December, 1969 given to you by Shri Maru Ram teacher ' incharge amalgamated fund.
" The school authorities appointed an enquiry committee consisting of three members of which the said Shri Maru Ram was one of the members.
It is an admitted position that the said Shri Maru Ram appeared as a witness in support of charge No. 12 on behalf of administration in the said enquiry proceedings.
The appellant raised an objection for inclusion of the said Shri Maru Ram in the enquiry, committee but the said objection of the appellant was overruled by the Enquiry ' Committee inter alia on the ground that "similarly your objection to the appointment of Shri Maru Ram in the enquiry committee is ill conceived, unfounded, unjustified and invalid because, Shri Maru Ram is as good a member of the Managing Committee as any one else and as such as member is entitled to act on any sub committee formed by the Managing Committee and even perhaps more in this case because to give you a fair trial, it was necessary to have a teachers ' union 's representative on the Enquiry Committee.
Shri Maru Ram represented the Union of the staff of the school and is thus your own representative as such.
" 868 There is no dispute to the fact that the said Shri Maru Ram himself deposed in the enquiry proceeding in support of Charge No. 12 against the appellant and he also participated as one of the members of the Enquiry Committee.
Tile Enquiry Committee found the appellant guilty on some of the charges including the said charge No. 12.
The Managing Committee proposed to dismiss the appellant from service.
It is not disputed that the disciplinary proceeding against the petitioner is to be carried out in accordance with the provisions of the Punjab Aided (Schools Security of Service) Act, 1969.
Sub Section (2) of Section 3 of the said Act is set out hereunder: "No order of dismissal or removal or reduction in rank of an employee shall take effect unless it has been confirmed by the Deputy Commissioner who may refuse to do so, if in his opinion the provisions of Sub section (1) have not been complied with." In view of such provision in the aforesaid Act, the report of the Managing Committee and the proposal for dismissal of the appellant from service were sent for confirmation by the Deputy Commissioner.
The appellant being informed of the decision of the Managing Committee to dismiss him from service subject to the confirmation by the Deputy Commissioner, Hoshiarpur, made an application to the President of the Managing Committee for the inspection of the stipend register and the office file of the case of December 29, 1970 ' so that he could make a proper representation to the Deputy Commissioner of Hoshiarpur.
The Managing Committee.
however, did not give inspection to the appellant of the said records but the original application made by the appellant to the President of the Managing Committee was not entertained but then and there returned with the remarks "under what rules do you wish to see the file please.
Sd/ R.D. Sharma 29.12. 1970.
" The appellant there after submitted his representation to the Deputy Commissioner against the proposed order of dismissal of the appellant and it was urged by the appellant that the Managing Committee acted in a prejudicial manner and had been trying to urge his dismissal on unfounded grounds.
By order dated March 18,1971, the Deputy Commissioner rejected the representation of the appellant.
The appellant thereafter preferred an appeal against the order of con on by the Deputy Commissioner under Sub section (5) of Section 3 of the said Act to the Commissioner, Jullundur Division but such appeal was also dismissed by the Commissioner on December 3, 1973.
The appellant thereafter moved a Writ 869 Petition in the High Court of Punjab and Haryana being Civil Writ Petition No. II 21 of 1974 inter alia praying for qushing the enquiry report and the orders passed by the Managing Committee, Deputy Commissioner, Hoshiarpur and the Commissioner, Jullundur Division.
The Managing Committee contested the said Writ Petition by entering appearance though Paras Ram, Local Manager cumVice President of the Managing Committee and the counter affidavit was also filed to the Writ Petition.
The Managing Committee disputed the contention of the appellant that the enquiry committee was biased, partial and inimical towards the appellant and Shri Maru Ram, a member of the staff with whom the appellant was not on good terms and who was the root cause of the trouble became the member of the enquiry committee and after his inclusion the enquiry was summed up in a slip shed manner.
In the counter affidavit it was contended on behalf of the Managing Committee that in the Managing Committee members of the staff are required to be taken.
Two members from teaching staff were taken on the Managing Committee and the appellant Principal was one of the members and the other member was the said Shri Maru Ram.
As the appellant himself was the accused, the only member who could be taken in the enquiry committee was the other representative of the teachers union, Shri Maru Ram.
It was further stated that the appellant had raised objection before the Committee against his inclusion in the enquiry committee but such objection was not entertained, and it was stated that the enquiry committee was neither partial nor inimical towards the appellant and the enquiry committee was comprised of three members including the President Shri B.B. Kashyap and the said Shri Maru Ram, teachers representative in the Managing Commiittee.
In the counter affidavit, it was further stated that the appellant had applied for inspection of the stipend register but such demand of inspection was made after the appellant was dismissed.
Even then, the inspection was not denied and the appellant had been asked to indicate under what rules he could see the file.
At this stage, it may be indicated that when the appellant had asked for inspection, there was no question of the appellant being dismissed because under the said Act the proposed order of dismissal cannot take effect until such proposal is confirmed by the Deputy Commissioner.
The appellant asked for inspection of the register to make effective representation before the Deputy Commissioner.
But such inspection was not given and the application itself was returned then and there apparently on the ground of absence of any specific rule for such inspection.
A Single Bench of the Punjab and Haryana High Court allowed the Writ Petition on the ground that the departmental proceeding was vitiated for the flagrant violation of the principle of natural justice.
The learned Judge indicated that Charge No. 12 was sought to be proved by Shri Maru Ram himself who appeared as a witness before the enquiry committee although he was one of the 870 members of the enquiry committee.
Since one of the members of the Managing Committee acted both as a Judge and as a witness to prove one of the charges against the appellant despite the objections made by the appellant against the inclusion of such member in the Committee, the entire enquiry proceeding was vitiated.
The learned Judge further held that the contention of the respondents that the bias of Shri Maru Ram, even if any, should be restricted only to charge No. 12 and as such the order of dismissal also on the basis of other charges should not be set aside, could not be accepted.
The learned Judge was of the view that since Shri Maru Ram conducted the enquiry with bias, the said bias continued and percolated to the entire proceeding and such bias therefore should not be restricted to charge No. 12 only.
The learned Judge also rejected the contention of the respondents that as the appellant did not raise the plea of bias on the part of Shri Maru Ram before the Deputy Commissioner or the Commissioner specifically, the appellant should not be allowed to raise the question of bias.
The learned Judge held inter alia that it was evident from the enquiry proceeding and the report of the enquiry committee that the said Shri Maru Ram was member of the enquiry committee and had also deposed as a witness in the enquiry proceeding.
Since such report was required to be considered by the Deputy Commissioner for the purpose of affirming, the proposed order of dismissal, the said fact of bias and prejudice was required to be considered and the appellant was not debarred from raising such vital plea of bias in the Writ proceeding.
The learned Judge was of the view that in the facts and circumstances of the case, the decision of the Managing Committee and the orders passed by the Deputy Commissioner and the Commissioner on the basis of an illegal and biased enquiry against the petitioner could not he sustained.
The learned Judge therefore, allowed the said petition, set aside the proposed order of dismissal and the order of confirmation passed by the Deputy Commissioner and the appellate order passed by the Commissioner and directed the Deputy Commissioner to decide the reference made by the Managing Committee for confirmation of the proposed order of dismissal passed by the Deputy Commissioner in the light of the observations made in the judgment.
The Managing Committee being aggrieved by the said decision of the learned Single Judge of the Punjab and Haryana High Court preferred an appeal before a Division Bench of punjab and Haryana High Court being L.P.A. No. 1427 of 1992.
The Division Bench, however, held that it had not been brought on record as to what objection was taken and in what form against Shri Maru Ram who was a member of the enquiry committee.
The Division Bench, however, noted the order passed by the Managing Committee rejecting the objection of inclusion of Shri Maru Ram in the Managing Committee by quoting the order passed by the enquiry committee.
The Division Bench was of the view that the plea of bias could be waived and if the appellant felt that the enquiry proceeding was vitiated by the 871 reason of bias because of inclusion of Shri Maru Ram, he could have raised specific plea of bias before the Deputy Commissioner and Commissioner.
Since such specific plea was not raised before the Deputy Commissioner and Commissioner, the appellant should not be allowed to raise such contention in the Writ Petition.
The Division Bench also held that the plea of bias of Shri Maru Ram as indicated in the Writ Petition was also very vague.
The Division Bench further held that the Deputy Commissioner gave opportunity to the appellant to meet certain charges and he was not influenced by Charge No. 12 only in respect of which the said Shri Maru Ram appeared as witness.
As it appeared from the order that the Deputy Commissioner was impressed with some other char ges for which the order of dismissal could be confirmed, no interference was called for against the impugned order.
The Division Bench, therefore, allowed the appeal and dismissed the Writ Petition.
As aforesaid, the appeal is directed against the said impugned judgment of ,he Division Bench in L.P.A. No. 1427 of 1982 dismissing the Writ Petition.
In terms of the notice issued on the special leave application the short question as to why the enquiry and the order passed therein should not be set aside and a fresh enquiry should not be ordered on the ground that one of the participants of the Committee was biased, is required to be considered in this appeal.
In Administrative Law, Rules of natural justice are foundational and fundamental concepts and law is now well settled that the principles of natural justice are part of the legal and judicial procedures.
On the question whether the principles ofnatural justice are also applicable to the administrative bodies, formerly, the law courts in En land and India had taken a different view.
It was held in Franklin vs Minister of Town and Country Planning ; that the duty imposed on the minister was merely adn Anistrative and not being judical or quasijudicial, the principle of natural justice as applicable to the judicial or quasi judicial authorities was not applicable and the only question which was required to be considered was whether the Minister had complied with the direction or not.
Such view was also taken by the Indian courts and reference may be made to the decision of this Court in Kishan Chand Arora vs Commissioner of police, Calcutta ; It was held that the compulsion of hearing before passing the order implied in the maxim audi alteram pertem applied only to judicial or quasi judicial proceedings.
Later on, the law courts in England and also in India including this Court have specifically held that the principle of natural justice is applicable also in administrative proceedings.
In Breen vs Amal ganaled Engineering Union Lord Denning emphasised that Statutory body is required to act fairly in function whether administrative or judicial or quasi judical Lord 872 morris observed (as noted by this Court in Maneka Gandhi 's decision that.
"We can think, take pride in what has been done in recent periods and particularly in the field of administrative law by invoking and by applying these principles which we broadly classify under the designation of natural justice.
Many testing problems as to their application yet remain to be solved.
But I affirm that the area of administrative action is but one area in which the principles are to be deployed.
" It may be indicated herein that the aforesaid observation was quoted with approval by this Court in the decision in Maneka Gandhi vs Union of India 1.
In State of Orissa vs BinapaniDei ; , this Court also accepted the application of the principle of natural justice in the order which is administrative in character.
It was observed by Shah,J. : "It is true that the order is administrative in character, but even an administrative order which involves civil consequences. must be made consistently with the rules of natural justice." Similar view was also taken in A.K. Kraipak vs Union of India & Ors.
and the observation of Justice Hedge may be referred to "Till very recently it was the opinion of the courts that unless the authority concerned was required by the law under which it functioned to act judicially.
there was no room for the application ofthe rules of natural justice.
The validity of that limitation is now questioned.
If the purpose ofthe rules of natural justice is to prevent miscarriage of justice, one fails to see why those rules should be made inapplicable to administrative enquiries.
" There are number of decisions where application of principle of natural justice in the decision making process of the administrative body having civil consequence has been upheld by this Court but it is not necessary to refer to all such decisions.
Prof Wade in his Administrative Law, (1988) at page 503, has very aptly observed that the principles of natural justice are applicable to almost the whole range of administrative powers.
Since the rules of natural justice were not emodied rules it is not possible and 873 practicable to precisely define the parameter of natural justice.
In Russel vs Duke of Norfold 19491 1 All ER 109 Tucker, L.J. observed: "There are, in my view no words which are of universal application to every kind of inquiry and the every kind of domestic tribunal.
The requirements of natural justice must depend on the circumstances of the case, the nature of the inquiry, the rules under which the tribunal is acting, the subject matter that is being dealt with, and so forth.
" It has been observed by this Court in Union of India vs P.K. Roy. ; that "The extent and application of the doctrine of natural justice cannot be imprisoned within the strait jacket of a rigid formula.
The application of the doctrine depends upon the nature of the jurisdiction conferred on the administrative authority, upon the character of the rights of the persons affected, the scheme and policy of the statute and other relevant circumstances disclosed in the particular case.
" Similar view was also expressed in A.K Kraidak 's case (ibid).
This Court observed: "What particular rule of natural justice should apply to a given case must depend to a great extent on the facts and circumstances of that case, the framework of the law under which the enquiry is held and the constitution of the Tribunal or body of persons appointed for that purpose.
Whenever a complaint is made before a court that some principle of natural justice had been contravened, the court has to decide whether the observance of that rule was necessary for a just decision on the facts of that case.
" Prof. Wade in his Administrative Law has succinctly summarised the principle of natural justice to the following effect: "It is not possible to lay down rigid rules as to when the principles of natural justice are to apply: not as to their scope and extent.
Everything depends on the subject matter, the application for principles of natural justice, resting as it does upon statutory 874 implication, must always be in conformity with the scheme of the Act and with the subject matter of the case.
In the application of the concept of fair play there must be real flexibility.
There must also have been some real prejudice to the complainant: there is no such thing as a merely technical infringement of natural justice.
The requirements of natural justice depend on the facts and the circumstances of the case, the nature of the enquiry, the rules under which the tribunal is acting, the subject matter to be dealt with, and so forth.
" One of the cardinal principles of natural justice is : Nemo debetesse judex in propria causa (No man shall be a judge in his own cause).
The deciding authority must be impartial and without bias, It has been held by this Court in Secretary to Government Transport Department vs Munuswamy ; that a predisposition to decide for or against one party without proper regard to the true merits of the dispute is bias.
Personal bias is one of the three major limbs of bias namely pecuniary bias, personal bias and official bias.
A classic case of personal bias was revealed in the decision of this Court in state of U.P. vs Mohd. Nooh In the said case, a departmental enquiry was held against an employee.
One of the witnesses against the employee turned hostile.
The officer holding the enquiry then left the enquiry, gave evidence against the employee and there after resumed to complete the enquiry and passed the order of dismissal.
This Court quashed the order of dismissal by holding inter alia that the rules of natural justice were grievously violated.
In the instant case, Charge No. 12 states that a particular sum on account of amalgamated fund for the month of December was given to the appellant by Shri Maru Ram who was teacher incharge of the amalgamated fund.
In the enquiry committee comprising of the three members, the said Shri Maru Ram was taken as one of the members and he himself deposed to establish the said Charge No. 12 and thereafter again joined the enquiry committee and submitted a report holding the appellant guilty of some of the charges including the said Charge No. 12.
Shri Maru Ram was interested in establishing the said charge.
From the charge itself, it is apparent that he had a predisposition to decide against the appellant.
It is really unfortunate that although the appellant raised an objection before the enquiry committee by clearly indicating that the said Shri Maru Ram was inimical towards him and he should not be a member in the enquiry committee, such objection was rejected on a very flimsy ground, namely, that since the said Shri Maru Ram was one of the members of the Managing Committee and was the representative of the teachers in the Managing Committee it was necessary to include him in the enquiry 875 committee.
It is quite apparent that the enquiry committee could have been constituted with other members of the Managing Committee and the rules of the enquiry are not such that Shri Maru Ram being teacher 's representative was required to be included in the said enquiry committee so that the doctrine of necessity maybe attracted.
If a person has a pecuniary interest, such interest, ever it very small, disqualifies such person.
For appreciating a case of personal bias or bias to the subject matter the test is whether there was a real likelihood of a bias even though such bias has not in fact taken place.
De Smith in his Judicial Review of Administrative Action, (1980) at pace 262 has observed that real likelihood of bias means at least substantial possibility of bias.
In R.v.
Sunderland Justices (373) it has been held that the Court will have to judge the matter as a reasonable man would judge of any matter in the conduct of his own business.
In R versus Sussex Justices (259) it has been indicated that answer to the question whether there was a real likelihood of bias depends not upon what actually was done but upon what might appear to be done.
In Halsbury Laws of England, (4th Edn.) Vol.2, para 551, it has been indicated that the test of bias is whether a reasonable intelligent man, fully apprised of all the circumstances, would feel a serious apprehension of bias.
The same principle has also been accepted by this Court in Manak Lal vs Dr. Prem Chand ; This Court has laid down that the test is not whether in fact, a bias has affected the judgment; the test always is and must be whether a litigant could reasonably apprehend that a bias attributable to a member of the tribunal might have operated against him in the final decision of the tribunal.
It is in this sense that it is often said that justice must not only be done but must also appear to be done.
In the facts of the case, there was not only a reasonable apprehension in the mind of the appellant about the bias of one of the members of the enquiry committee, namely, the said Shri Maru Ram but such apprehension became real when the said Shri Maru Ram appeared as a witness against the appellant to prove the said charge and thereafter proceeded with the enquiry proceeding as a member of the enquiry committee to uphold the correctness of his deposition as a Judge.
The learned Single Judge considering the aforesaid facts came to the finding that the participation of Shri Maru Ram as a member of the enquiry committee has vitiated the enquiry proceeding because of flagrant violation of the principles of natural justice.
Unfortunately, the Division Bench set aside such judgment of the learned Single Judge and dismissed the Writ Petition improperly, to say the least, on a technical ground that plea of bias of Shri Maru Ram and his acting as a Judge of his own case by being a member of the enquiry committee was not specifically taken before the Deputy commissioner and also before the appellate authority, namely, the Commissioner by the appellant and as such the said plea should not be allowed to be raised in writ proceeding, more so, when the case of prejudice on 876 account of bias could be waived by the person suffering such prejudice.
General] v, a point not raised before be tribunal or administrative authorities may not be allowed to be raised for the first time in the writ proceeding more so when the interference in the writ jurisdiction which is equitable and discretionary is not of course or must as indicated by this Court in A.M. Allison versus State of Assam; , particularly when the plea sought to be raised for the first time in a Writ proceeding requires investigation of facts.
But if the plea though not specifically raised before the subordinate tribunals or the administrative and quasi judicial bodies, is raised before the High Court in the writ proceeding for the first time and the plea goes to the root of the question and is based on admitted and uncontroverted facts and does not require any further investigation into a question of fact, the High Court is not only justified in entertaining the plea but in the anxiety to do justice which is the paramount consideration of the Court, it is only desirable that litigant should not be shut out fromraising such plea which goes to the root of the lis involved.
The aforesaid view has been taken by this Court in a number of decisions and a reference may be made to the decisions in A.S. Arunachalam Pillai vs M/s. Southern Roadways Ltd. and another , The Cantonment Board, Ambala vs Pyarelal In our view, the learned Single Judge has very rightly held that the Deputy Commissioner was under an obligation to consider the correctness and propriety ofthe decision of the Managing Committee based on the report of the enquiry committee which since made available to him, showed on the face of it that Shri Ramu Ram was included and retained in the enquiry committee despite objection of the appellant and the said Shri Maru Ram became a witness against the appellant to prove one of the charges.
It is really unfortunate that the Division Bench set aside the decision of the learned Single Bench by taking recourse to technicalities that the plea of bias on account of inclusion of Shri Maru Ram in the enquiry committee and his giving evidence on behalf of the department had not been specifically taken by the appellant before the Deputy Commissioner and the Commissioner.
The Division Bench has also proceeded on the footing that as even apart from Charge No. 12, the Deputy Commissioner has also considered the other charges on consideration of which along with Charge No. 12, the proposed order ofdismissal was made, no prejudice has been caused to the appellant.
Such view, to say the least, cannot be accepted in the facts and circumstances of the case.
The learned Single Judge, in our view, has rightly held that the bias of Shri Maru Ram, one of the members of the enquiry commttee had percolated throughout the enquiry proceeding thereby vitiating the principles of natural justice and the findings made by the enquiry committee was the product of a biased and prejudiced mind.
The illegality committed in conducting the departmental proceedings has left an indelible stamp of infirmity on the decision of the Managing Committee since affirmed by the Deputy Commissioner and the Commissioner.
The observatiory of S.R. Das, C.J. 877 in Mohd nooh 's case (ibid) may be referred to in this connection: "Where the error, irregularity or illegality touching jurisdiction or procedure committed by an inferior court or tribunal of first instance is so patent and loudly obstrusive that it leaves on its decision an indelible stamp of infirmity or vice which cannot be obliterated or cured on appeal or revision.
If an inferior court or tribunal of first instance acts wholly without jurisdiction or patently in excess of jurisdiction or manifestly conducts the proceedings before it in a manner which is contrary to the rules of natural justice and all accepted rules of procedure and which offends the superior court 's sense of fair play, the superior court may, we think, quite properly exercise its power to issue the prerogative writ of certiorari to correct the error of the court or tribunal of first instance, even if an appeal to another inferior court or tribunal was available and recourse was not had to it or if recourse was had to it, it confirmed what ex facie was a nullity for reasons aforementioned.
" We have, therefore, no hesitation in allowing the appeal by setting aside the impugned judgment of the Division Bench of Punjab and Haryana High Court and the order of dismissal of the appellant passed by the Managing Committee of the School confirmed by the Deputy Commissioner and affirmed in appeal by the Commissioner.
This decision, however, will not preclude the Managing Committee.
however, from proceeding a fresh with the departmental proceedings from the stage of issuance of charge sheet.
It is, however, made clear that if a fresh enquiry proceeding is initiated it should be ensured that the enquiry committee is not composed with any of the members of the previous enquiry committee and such proceeding should be completed within a period of four months from today.
In the special facts of the case and in view of the financial difficulties pleaded by the respondent we do not think that it will be proper to compel the management to pay full back wages.
The school authorities and other concerned authorities are directed to pay one fourth of the salary to the appellant from the date of dismissal till today and thereafter go on paying the salary with such increments which the appellant would have been entitled to in the absence of initiation of the departmental proceeding.
Considering the facts of the case, we allow this appeal with costs against the appearing respondents.
| The appellant, appointed Principal of Dr. Hari Ram (Co education) Higher Secondary School, was placed under suspension and a charge sheet containing 12 charges issued to him.
Charge No. 12 accused him of use of an unaccounted sum of Rs. 129.37, given to him by Maru Ram, teacher in charge of amalgamated fund.
The enquiry committee constituted comprised 3 members, of which the said Maru Ram was a member.
Maru Ram deposed as a witness for the administration in support of charge No. 12.
The appellant 's objection to the inclusion of Maru Ram on the enquiry committee was overruled, and he was found guilty of some of the charges including the said charge and the Managing Committee proposed to dismiss him from service.
The appellant 's application for inspection of documents to enable him to make his representation before the Deputy Commissioner the confirming authority under S.3(2) of the Punjab Aided Schools (Security of Service) Act, 1969 was rejected by the Managing Committee, the Deputy Commissioner and the Commissioner.
The appellant then filed a writ petition in the High Court for quashing the enquiry report and the orders passed by the Managing Committee, the Deputy Commissioner and the Commissioner.
The Managing Committee, opposing the petition, contended that the enquiry committee was not partial or inimical towards the appellant.
It was 864 contended that maru Ram was the only teacher member of the Managing Committee other than the appellant himself , therefore only Maru Ram could be taken in the enquiry committee as a representative of the teachers ' union.
It was further contended that though the application for inspection had been made after his dismissal, he had not been refused permission for inspection; he had been asked to indicate the rules under which he could see the file.
A Single Judge of the Punjab and Haryana High Court allowed the petition on the ground that the departmental proceeding was vitiated by the flagrant violation of natural justice.
Since one of the members of the Managing Committee acted both as a Judge and as a witness to prove one of the charges against the appellant despite the objections made by the appellant against the inclusion of such member in the committee, the entire enquiry proceeding was vitiated.
He held that the bias continued and percolated to the entire proceeding and should not be restricted to charge no. 12.
Since the enquiry report was required to be considered by the Deputy Commissioner for the purpose of affirming the proposed order of dismissal, the fact of bias and prejudice was required to be considered and the appellant was not debarred from raising such vital plea of bias in the writ proceeding.
The decision arrived at on the basis of an illegal and biased enquiry could not be sustained.
On appeal, the Division Bench reserved the order of the Single Judge.
It held that the plea of bias was vague; that the appellant had waived it by not raising it specifically before the Deputy Commissioner and Commissioner, and that as the Deputy Commissioner was not influenced by charge no.12 only but was impressed with some other charge, no interference with the impugned order was called for.
Allowing the appeal, this Court, HELD: 1.
In Administrative Law, Rules of natural justice are foundational and fundamental concepts and the law is now well settled that the principles of natural justice are part of the legal and judicial procedures.
(871 E) Franklin vs Minister of Town and Country Planning ; Kishan Chand Arora vs Commissioner of Police, Calcutta ; ; Breen vs Amalgamated Engineering Union ; Maneka Gandhi vs Union of India [1978] 2 SCR 621; State of Orissa vs Bina pani Dei and A.K.Kraipak vs Union of India & Ors.[1970] 1 SCR 457, 865 referred to.
2.Since the rules of natural justice are not embodied rules, it is not possible and practicable to precisely define the parameters of natural justice.
(872 H) Russel vs
Duke of Norfolk [1949] ALL ER109; Union of India vs P.K. Roy ; ; A.K.Kraipak vs Union of India and Prof. Wade.
Administrative Law, edn 1988 p. 503 referred to.
3.One of the cardinal principles of natural justice is: Nemo debet esse judex in propria causa: No man shall be a judge in his own cause.
The deciding authority must be impartial and without bias.
(874 C) Secretary tit Government Transport Department vs Munuswamy ; and State of U.P. vs Mohd. Nooh ; , referred to.
(874 C) For appreciating a case of personal bias, the test is whether there was a real likelihood of a bias even though such bias has not in fact taken place.
De Smith, Judicial Review of Administrative Action [1980] p. 269 R Sunderlal Justices at 373; R. vs Sussex Justices at 259; Halsbury 's Laws of England (4th Edn.) Vol.2, para 551 and Manak Lal vs Dr. Prem Chand ; , referred to.
It is in this sense that it is often said that justice must not only be done but must also appear to be done.
(875 E) 4.In the facts of this case, there was not only a reasonable apprehension of bias (if one of the members of the enquiry committee, but such apprehension became real when Maru Ram appeared as a witness against the appellant, and.
thereafter proceeded with the enquiry proceeding as a member of the enquiry committee to uphold the correctness of his deposition as a Judge.
(875 F) 5.The Division Bench dismissed the writ petition improperly on a technical ground that the plea of bias could not be raised in a writ proceeding especially when it was not specifically taken before the Deputy Commissioner and the Commissioner; more so when this defence could be waived by the person suffering the prejudice.
(876 E) 866 Generally a point not raised before the tribunal or administrative authorities may not be allowed to be raised for the first time in writ proceedings.
Which is equitable and discretionary and interference is not a matter of course particularly when the plea sought to be raised for the first time in a writ proceedings requires investigation of facts.
(876 A) A.M. Allison vs State of Assam.
, ; , referred to.
But if the plea goes to the root of the question and is based on admitted and uncontroverted facts and does not require any further investigation into a question of fact, it is only desirable that a litigant should not he shut out from raising such plea.
(pp. 19 20) (876 C) A.S. Arunachalam Pillai vs M/s. Southern Roadways Ltd. ; and The Cantonment Board vs Pyarelal ; , referred to.
6.The bias of Shri Maru Ram, one of the members of the enquiry committee had percolated throughout the enquiry proceeding thereby vitiating the principles of natural justice and the findings made by the enquiry committee was the product of a biased and prejudiced mind.
The illegality committed in conducting the departmental proceedings has left an indelible stamp of infirmity on the decision of the Managing Committee since affirmed by the Deputy Commissioner and the Commissioner.
(876 G) State of U.P. vs Mohd. Nooh.
; , relied on.
|
Appeal No. 2221 of 1993.
From the Judgment and Order dated.5.5.
1993 of the Madhya ' Pradesh High Court in M.P. No. 4420 of 1991.
Harish N. Salve and L.R. Singh for the Appellant.
Anoop Choudhary, A.K. Sanghi, S.V. Deshpande and section K. Agnihotri for the Respondents.
The Judgment of the Court was delivered by Mohan, J.
Leave granted in SLP filed by Indian Medical Council, Jabalpur.
All these appeals are dealt with under a common judgment since they arise out of the same judgment passed in Misc.
Petition No.4420 of 1991 by the Madhya Pradesh High Court, Jabalpur Bench.
One Dr.
Nelson ,father of respondent1 was serving in Madhya Pradesh State Public Health in the Department of Surgery in the Medical College at Jabalpur.
His wife, Dr. (Mrs.) Shobha Nelson was also working as a Lecturer in the Department of Obstetrics and Gynecology in Medical College in a purely temporary capacity.
Nelson applied for foreign assignment.
He was selected for the same.
Therefore.
a request was made by the Government of India (Department of Personnel and Administrative Reforms) vide its letter dated 2nd of January.
1975 790 requesting the State Government to spare the services of Dr .
S.K. Nelson for foreign assignment with Zanzibar Government.
The Under Secretary to the Government of Madhya Pradesh, Department of Public Health and Family Planning replied on 15.4.1975 that it was not possible for the State Government to spare his services.
However, Dr. Nelson proceeded on two months ' vacation with effect from 1.5.75.He wrote a letter to the Dean of Medical College Jabalpur that he was proceeding, on long leave owing, to unavoidable family circumstances.
Even after the expiry of the period of leave he did not rejoin the post.
His request for further extension of leave was rejected.
Notwithstanding the same Dr. Nelson and his wife proceeded to Tanzania and the first respondent, Silas Nelson, also accompanied them.
It also requires to be mentioned in passing that a request was made to the Government of madhya Pradesh to spare the services of Dr. Shobha Nelson.
It was pointed out by tile State Government that she being ;A temporary servant she had no lien and she will have to resign the State service before joining her duties in Zanzibar.
She also absented unauthorisedly and proceeded to Tanzania along with her husband.
The first respondent claimed to have passed G.C.E. 'O ' level as well as 'A ' level examinations from the University of London conducted by the Education Council of the Government at Dar es Salam in Tanzania.
He also claimed that he had obtained credits in 'A ' level in three subjects i.e. Biology, Physics and Chemistry and 'O ' level in six subjects i.e. Biology, Chemistry, English language.
English Literature, Mathematics and Physics.
On this basis he claimed that he was entitled to admission in any Medical College in India.
According to him these examinations are considered to be equivalent qualifying examinations and pre requisite for admission to any Medical College.
It was also stated that Rani Durgawati University of Jabalpur had given an equivalence certificate.
He obtained admission in Muhmbili Medical College in the Faculty of Medicine.
which is affiliated to the University of Dar es Salam, in the year 1989.
lie had completed one year at the same college and University.
Thereafter he was pursuing his study in the second year.
Having regard to the fact that he had studied the subjects in Anatomy, Physiology, Biochemistry, Preventive and Social Medicine including, Behavioural Science and Biostatistics, Medical Psychology and Developmental Studies and Medical Surgery, he had undergone a wider course.
Therefore, according to him, he possesses the eligibility criteria for admission to the MBBS Degree Course at Jabalpur.
A request was made by the father of the first respondent to nominate the first respondent to MBBS Course directly under Central Government quota.
This request related not only to the first respondent but also his sister.
However, the Central Government advised Dr. Nelson to approach the Medical Council oflndia 791 and the concerned University in jabalpur seeking their concurrence to the migration of his two children from the University of Dar es Salam.
Tanzania to Medical College in jabalpur.
On 20th December, 1989, Dr. nelson approached the appellant, Medical Council of India (hereinafter referred to as the Council) for grant of no objection to the transfer.
This request was turned down on 12.1.90 as migration was not permissible under the Rules.
The position was further made clear by the letter of the appellant dated 28.12.90.
Aggrieved by this the first respondent and his sister Kumari Divya Nelson filed Writ Petition Misc.
Petition No. 2535 of 1990 before the Madhya pradesh high Court at Jabalpur.
The prayer was for a writ of mandamus to direct the respondents to grant admission to them to the 2nd year of MBBS Degree Course at Medical College jabalpur.
It was contended that the Council had not authority to object or refuse the issue of no objection certificate since its primary function is to prescribe minimum standards of medical education.
It is the University alone which should be concerned about the admission.
The High Court by its judgment dated 12.7.91 allowed the writ petition.
It directed the appellant and other authorities to consider the case of respondent 1 and his sister within a period of two months for their admission in the Medical College, jabalpur in the light of clause 'E ' of the mandatory recommendations approved under Section 33 of the .
It was also held that though the Council had considered the case of the candidates yet it had not looked into the individual merits regarding their eligibility for transfer to Medical College,jabalpur which affiliated to Rani Durgawati Vishwa vidyalaya, jabalpur.
Besides teh impugned letter of the council does not show any application of mind as it is not speaking order.
In complete with the above directions the Executive Committee of the appellant (Council) reconsidered the case on 20.8.91.
The question was whether the migration of the respondent on individual merit to Medical College.
jabalpur under clause v 'e ' of the Migration Rules was permissible.
It was concluded that the migration could not be allowed since the ground were not sufficient for such migration.
It was also of the view that the facts stated for considering the individual case on merits were not relevant.
What is important to be considered is the course of study the student had already undergone vis a vis the course being taught in the Medical College in Which the migration is sought.
The candidate had not also finished enough materials to make comparison with 792 the course of study conducted in medical College at jabalpur.
For these reasons the request for migration was rejected.
The same was reiterated by a letter dated 4.1.92.
After this, a review petition was filed to recall the order dated 12.7.91 of the High Court.
However the review petition was dismissed by the High Court.
An application for contempt was also dismissed.
There upon Misc, Petition No. 4420 of 1991 came to be filed seeking admission in the 2nd year or the 1st professional M.B.B.S. Course at Medical College, Jabalpur on the same grounds as were alleged previously.
direction was issued on 23.12.1991 to give provisional admission.
After admission of the writ petition the same order was continued.
Though an application was preferred by the respondents 2 to 4 to have the order vacated on the ground that migration from an unrecognized Medical College to a recognised Medical College was not permissible, the same was dismissed.
Some interesting development took place during this stage.
The candidates did not produce the required document.
Hence provisional admission was not granted to them by the respondents 2 to 4.
That led to the filing of Interlocutory Application No. 2805 of 1992 for further direction.
Respondents 2 to 4 also filed an application for direction on 26.3.92 inter alia pointing out that before grant of provisional admission, the writ petitioners were required to submit proof of their having passed 1st year course at Tanzania.
In the absence of such proof the admission was impossible.
Further in which year of the MBBS course the first respondent was to be admitted, was not free from difficulty.
it was averred that even without passing the first year from the university of Dar es Salam the claim is made for admission to the second year.
This is nothing but fraud the High Court strangely permitted the writ petitioner.
Kumari Divya Nelson to withdraw herself from the petition and it directed respondent 1 alone could prosecute his studies.
The authorities were directed to grant provisional admission his filing necessary forms and depositing admission fees without insisting on the production of any other certificate or testimonials or syllabus of Dar es Salam University.
For non compliance with this direction a contempt application was taken but by the first respondent.
On peril of contempt the Dean (Respondent 4) had not other option but to comply with the order of provisional admission.
Against this order directing provisional admission without insisting on the production of any other documents SLP (C) No. 10498 of 1992 was preferred.
Leave was granted on 7.9.92 by this court staying the operation of the order dated 18.5.92 of the High Court.
This Court directed that the interim order well subsist 793 till the disposal of the writ petition before the High Court and requested the High Court to dispose of the writ petition of the respondent I expeditiously.
By the impugned judgment dated 5th March, 1993 the writ petition was allowed The resolution dated 20th August, 1991 refusing to accede to the request of the writ petitioner respondent (1) for migration was quashed holding that there was no application of mind by the Council.
lt is under these circumstances these appeals by special leave to appeal have come to be preferred.
Mr. harish N. Salve, learned counsel for the appellant would submit the following grounds attacking the impugned judgment: The High court erred in directing admission to respondent I in recognised medical college in India from an unrecognized college by way of migration/ transfer.
WI the more so.
when such impermissibility has been recognised by this Court in Medical Council of India, New Delhi vs Rajendra section Sankpal and Ors.
(C. A Nos. 3 4 of 1991 dated 21.10.92) and order dated 6.12.1990 of this Court passed in Medical Council of India vs Ms. Sunita Anant Chavan & Ors.
(I.A. Nos. 2 7 in Transfer Petition (Civil) Nos. 230 235 of 1989).
The High Court misread Regulation V. Under that Regulation migration is allowed from a recognised medical college to another recognised college and that too within three moths after passing of the first professional examination.
In so far as the first respondent has neither undergone study in a medical college recognised by the Council nor has he passed the first professional examination, he could not he admitted to the second year.
The first respondent failed in the subject of Anatomy which is one of the papers taught in the first year at Dar es Salam University.
Under the Examination Regulation of the said University he was required to sit in the supplementary examination in the failed subject before the beginning of the next academic year.
Thus he was required to clear the said paper within six weeks.
Should he fails in the supplementary examination he ceases to be a student of the College/University.
In so far as the first respondent did not take the supplementary examination he ceased to be a student of Dar es Salam University.
Therefore, the question of migration could not arise at all.
The first yen course of Dar es SalamlJniversitv is not equivalent to the first phase of MBBS Examination in India.
794 Equivalence has to be decided by only an expert body, that too, on technical and academic matters.
It is not in the domain of assessment or evaluation by the Court.
The High Court should not have embarked on the determination of equivalence on the basis of sketchy materials placed before it.
The High Court erred in relying on.
Minakshi Malik, vs University of Delhi; , There, the candidate was not, in any matter, ineligible while here, the first respondent is ineligible.
The High Court erred overlooking that an administrative authority like the appellant is not required to pass reasoned orders.
The decree awarded by Dar es Salam University is not recognised and :Is not included under any of the Schedules of the Medical Council of India Act, 1956.
Therefore, there was no occasion for the appellant to decide the equivalence.
Should the first respondent be anxious he should have placed all the materials.
In opposition to this, learned counsel for the respondents, argues that the Council has taken a self contradictory stand.
In one breath, it will contend that there are no materials to decide the equivalence and in the other breath it would say it is not equivalence.
Under these circumstances, in view of the cryptic order passed, the High Court itself decided finding that the Council had not applied its mind.
The High Court was satisfied on the basis of documents there is equivalence.
The High Court is well entitled to do so.
More so, having regard to the ruling of Minakshi Malik 's case (supra) Equity also must weigh in favour of the first respondent.
In any event, the first respondent had passed his pre Medical test successfully in the year 199 1.
He also belong s to scheduled tribe.
Therefore, on the basis of these two documents his candidature could be considered for admission to first year MBBS Course for the ensuing academic year of 1993 94 as otherwise, the career of a young man would be completely ruined.
The factual position with regard to study of the first respondent in Dar es Salam University requires to be carefully analysed.
The claim of the first respondent is that he has passed G.C.E. 'O ' level as well as 'A ' level examinations from the University of London conducted by the Education Council of the Government at Dar es Salam in Tanzania.
He claims to have obtained credits in 'A ' level in the following three subjects (i) Biology, (ii) Physics; and 795 (iii) Chemistry In `O ' level he claim.
,; to have obtained credits in the following six subjects (i) Biology, (ii) Chemistry, (iii) English Language, (iv) English Literature, (v) Mathematics; and (vi) Physics On this basis, he claims admission to any Medical College in India as these are considered to be equivalent qualifying examinations and prerequisite for admission to any Medical College.
It is claimed on behalf first respondent at Rani Durgawati University of Jabalpur has given an equivalence certificate.
That is extracted below "With reference to your above cited letter, it is to inform you that students have passed in five subjects at least at the G.C.E. (Ordinary Level) and two subjects at the (Advanced Level) from University of London, are treated as having successfully completed the 12 year Pre University/Higher Secondary in India.
Hence, if your son Shri Silas Supragya Nelson has passed above examination then he may appear in Pre Medical test examination as desired by you." According to first respondent, he was admitted in Muhmbili Medical College in the Faculty of Medicine which is affiliated to the University of Dar es Salam in the year 1989 and has completed one year at the same College and University.
In the First year he had studied subjects in Anatomy, Physiology Biochemistry, Preventive and Social Medicine which includes Behavioural Science and Bio statistics, Medical.
Psychology and Development Studies & Medical Surgery whereas at Rani Durgawati University, the subjects taught in the first year are Anatomy, Physiology, and Biochemistry.
Thus the courses followed at Dar es Salam University are much wider.
It was further claimed that his course in the said Medical College is equivalent to first year course of MBBS Degree awarded by Rani Durgawati University, Jabalpur and, therefore, he possesses the eligibility criteria for admission to the MBBS Degree Course at Jabalpur.
796 On the said basis migration is sought.
Dar es Salam University is not recognised by the Medical Council of India.
Therefore, front all unrecognised institution admission is sought to a recognised institution.
With the object of maintaining and regulating, standards of medical education in the country, the Parliament enacted "the ".
Under Section 6 of the Act.
the Medical Council of ' India has been incorporated, which is a body corporate having a perpetual succession and a common seal Section 12 of the Act makes provisions for recognition of medical qualifications granted by medical institutions in countries with which there is a scheme of reciprocity.
Under this section, the schedules are given providing list of recognised medical institutions & qualifications.
The first schedule gives list of recognised medical qualifications granted by universities/medical institutions in India; whereas schedule second gives the list of recognised medical qualifications granted by medical institutions outside India.
University of Dar es Salam & its medical institution is not included in the second schedule and therefore the qualifications imparted by that institution are not recognised.
That apart, section 14 of the Act makes provisions for recognition of medical qualifications (granted by countries in which there is not scheme of reciprocity.
The Central Government has not considered Dar es Salam University for such recognition.
It was in this context the following order came to be passed by the appellant "The Director, Medical Education, Madhya Pradesh, Bhopal Subject: Migration of Silas Nelson and Divya Nelson from Dar es Salam Medical College, Tanzania to Medical Collage, Jabalpur.
Sir, With reference to your letter No. 6151/DME/IV dated 12.5.1990 I am to state that the matter regarding, Migration of Silas Nelson and Divya Nelson from Dar es Salam Medical College, Tanzania to Medical College,Jabalpur was duly placed before the Executive Committee of this Council at its meeting held on 20th August, 1991 for consideration.
The Committed decided as under: 797 The Executive Committee considered the matter with regard to the migration of the above candidates on individual merit to Medical College Jabalpur under Clause V(e) of the migration rules and did not allow these migration since the grounds are not sufficient for migration and the facts stated in the individual cases are not very relevant for grant of permission for migration.
For considering any such cause of migration, it is important to consider the cause of study the student has already undergone vis a vis the course being taught in the Medical Colleges in which the migration is sought.
Further it is observed that the candidates seeking their migration have also brought no records to show the course of study being conducted at their medical college for making comparison with the study being conducted in Medical College, Jabalpur.
Hence the applications for migration of the above candidates are rejected.
Your faithfully, (Mrs. M. Sachdeva) Off.
Secretary.
" Concerning migration the rule also is to the effect that the same can be allowed by the University concerned within three months after the passing of the first professional examination.
Then, the question of equivalence arises.
The equivalence came to be decided in the following manner: "Reference Letter dated 28.12.1991 of Dy.
Registrar (General) R.D. University, Jabalpur.
Regarding letter of ku.
Divya Nelson and 2/ Silas Nelson to the University.
I have gone through prospectus of University of Dar es Salam (1990 90) For M.D. degree which is equivalent to M.B.B.S. of Universities abroad (as per letter No. H/Q/G.N/17862 dated 2nd May, 1990 of Director of Training and Occupational Health Service, attached in the file).
For examination at the end of first year in Dar es Salam University the subjects are: 798 Anatomy/Histology Behavioural Sciences Only one Biochemistry Year study.
Physiology Development studies Where in Indian Universities the First MBBS Course which is of 18 months the subjects examined are (As premedical Council of India) Anatomy Physiology one and half, Biochemistry Year study As the detailed syllabus of the 5 subjects taught in one year at Dar es Salam University is not given in the Prospectus, it is difficult to know whether the course is equal as only three subjects are taught in Indian University for one and half years indicating that these subjects are taught in more detail here in our University.
However, in general the subjects taught there in first year included Anatomy, Physiology and Biochemistry (along with other two subjects) which are also the subjects of first M.B.B.S. (one and half years course) here also.
For mote clarification, the Medical Council of India may be consulted because they are the main authority in India in this respect.
Dean, Faculty of Medicine of our University was also consulted in this matter/ sd/ Protessor & Head.
Dept. of Biochemistry Medical College & Chairman Board of Studies for Anatomy, Physiology & Biochemistry.
This may be put up before the standing for confirmation.
" We cannot understand when this was the position with reference to equivalence how the High Court had donned the role of an expert body and would say as follows "The petitioner has filed documents showing that Dr. R.K. Gupta, Reader in Pharmacology of the Medical College, Jabalpur was sent on deputation for teaching in the medical college affiliated to Dar es Salam University.
The petitioner, by filing the documents, wants to show that persons having requisite qualifications for teaching in the Medical College, Jabalpur were posted or appointed at the medical college affiliated to Dar es Salam University.
The documents filed by the petitioner show that the subjects taught in the first year M.B.B.S. at Muhibili Medical 799 College, Dar es Salam University and the subjects taught at the Medical College, Jabalpur are the same.
to us the material consideration is the qualifications necessary for admission to the first year M.B.B.S. course.
The documents on record show that the educational qualifications for admission to the Medical College, Jabalpur and the Muhbili Medical College of Dar es Salam University are the same and there is equivalence of courses.
As there is equivalence of courses required for admission to the first year M.B.B.S. courses in Muhibili Medical College and the Medical College, Jabalpur, the petitioner is entitled to be transferred to the first year M.B.B.S. course of the Medical College, Jabalpur and should be permitted to appear in the examination conducted by the Rani Durgawati University, Jabalpur.
" This is totally unwarranted because the High Court does not have the necessary expertise in this regard.
As to the equivalence we have already extracted the opinion of the Chairman of Board of Studies for Anatomy, Physiology and Biochemistry.
From the above extract it is clearly seen that the Council is the main authority in this respect.
Then again, the High Court had gone wrong in concluding that the individual cases are relevant for the grant of permission for migration.
In our considered view, as rightly concluded by the Council, what is material is the course of study which a student has undergone vis a vis the courses being taught in the Medical College in which the migration is sought.
What the Council was endeavouring to point out was the materials placed before it by the present first respondent were not sufficient to decide the equivalence.
The criticism of the Council, by the High Court, is also not warranted.
First of all, no certificate was produced by the first respondent that he had completed the first year course in Dar es Salam.
Unless and until that is done the question of admission to the second year MBBS could not arise.
The first respondent had not appeared in the supplementary examination.
If that is so, according to the Regulations of Dar es Salam University, he is deemed to have discontinued from that Course.
In such a case the question of giving admission to Medical College at Jabalpur could never arise.
Therefore, looked at from any point of view, the Medical Council of India which is the authority to decide the equivalence, has come to the correct conclusion, in that, there cannot be a migration from unrecognised institution to a recognised Medical College.
The judgment of the High Court is wholly unsupportable.
Once we have arrived at this conclusion the question arises whether the case of the first respondent could be considered for the academic year 1993 94 based on his performance in the pre Medical test for the year 1991.
The statement of 800 marks obtained in pre Medical Test, 1991 is as under: "Subjects Max.
Marks Marks Obtained Physics 300 127 Chemistry 300 220 Botany 300 160 Zoology 300 214 English 300 217 1200 721" He also claims that he belongs to Scheduled Tribe.
We do not have material to show as to whether he was granted admission to any Medical College on the basis of his performance in the pre Medical test for the year 199 1.
However, in the petition for special leave to appeal the appellant has made the following averments "In the said Count er affidavit, on oath the respondent no.1 deliberately, knowingly an d willfully made a false statement that he had never appeared in the Pre Medical Test held in the year 1991 and failed.
It was further stated that in fact it was his younger brother Sushrut who had appeared in the T.M.T Examination of 1992.
The petitioner herein has made an inquiry and has come to know that the respondent no.1 appeared in the Pre Medical Test, 1991 vide application No. 27811 and was allotted Roll No. 624227 but failed to qualify and complete in the said test. .
Since the writ petitioner respondent no.1 appeared in the Pre Medical Test, 1991 vide application No. 27811 and was allotted Roll No. 624227 but failed to qualify and complete, he was not at all eligible for admission to the undergraduate medical course in India.
" If this be the correct position, he would not be entitled to be considered for admission for the academic year 1993 94 on the basis of his performance in the Pre Medical test held in the year 199 1.
It is for the concerned authority to verify the factual situation and decide the matter.
801 We make it clear that if his case has already been considered for admission on the basis of performance in the Pre Medical test 1991 and rejected there is no need to consider his case once again for the year 1993 94.
Otherwise, it may be considered on the basis of performance in the pre Medical test for the year 1991 as against the quota intended for Scheduled Tribe, if his status as belonging to Scheduled Tribe is established provided there is no legal impediment in doing so.
Subject to the above directions, civil appeals will stand allowed.
However, there shall be no order as to costs.
I.A. No. 1 of 1993 in SLP (C) 6161 of 1993 is also allowed.
U.P. Appeal allowed.
| In 1989, respondent 1 and his sister applied for migration from Mumbili Medical College in the Faculty of Medicine, affiliated to the University of Dar es Salam to a recognised medical college in India.
The Medical Council of India turned down this application.
A writ petition was filed in the Court at Jabalpur.
The High Court directed that the appellant and other authorities consider the case of the petitioners.
Thereafter the Executive Committee of the Medical Council reconsidered the case on 20th August, 1991.
It found that the grounds for migration were not sufficient; that it was.
the course of stud already undergone vis a vis that being taught in the medical college in which migration was sought, and not the facts of individual case, which was relevant.
Also the candidate had not furnished enough materials to make the comparison.
The Council therefore rejected the application.
A review petition and contempt petition filed in the High Court were dismissed.
Thereupon, in a miscellaneous petition filed on the same grounds seeking admission in the second year or the 1 year professional MBBS Course at Medical College, Jabalpur the High Court directed that the petitioners be given provisional admission.
The petitioners however, did not produce the required documents and the college did not provisionally admit them.
In an interlocutory application, the High Court permitted one of the petitioners to withdraw herself from the petition and directed that the other petitioner 788 (respondent I before this Court) he granted provisional admission on his filing necessary forms and depositing the fees without insisting ton the Production of any other certificate or testimonials or syllabus (of Dar es Sala in University On fear of contempt, the Dean had to comply with this order.
On an application before it, this Court stayed the interim order and requested the High Court to dispose of the main petition expeditiously.
The High Court allowed the %Tit petition and quashed the resolution dated 20th August, 1991.
refusing migration, holding that there was no application of mind by the Council.
On appeal before this Court, it was contended that the High Court erred in directing admission of respondent in a recognised medical college from an unrecognised medical college by way of migration , that Regulation V had been misread and that not having under gone study in a recognised medical college nor having passed the first professional examination, he could not be admitted to the second year; that he had failed in anatomy and had not sat for his supplementary examination and had therefore ceased to be a student of Dar es Salam University and that the first year course at Dar es Salam University and in India were not equivalent.
Equivalence in any case, it was urged, is to be decided by an expert body and is not in the domain of the Court.
For respondent 1, it was argued that the self contradictory stand of the Council on equivalence had led to the High Court deciding the issue; that equity was in his favour; that he had in any event passed his pre medical test in 1991; and that he belongs to a scheduled tribe.
Allowing the appeal, this Court, HELD: 1.
The Medical Council has come to the correct conclusion that there cannot he migration from unrecognised institution to a recognised medical college.
(799 G) Dar es Salam University has not been recognised as provided in the Indian Medical Council Act, 1956.(7% A) 2.
The High Court does not have the necessary expertise to determine equivalent.
The Medical Council is the main authority in this respect.
(799 C) 789 3.
what is material for grant of permission for migration is the course of study which a student has undergone vis a vis the courses being taught in the medical college in which the migration is sought, and not the individual case.
(799 D) The material placed before the Council was not sufficient to decide equivalence.
The concerned authority is to verify the disputed factual position concerning his performance in the 1991 pre Medical test and decide on considering him for admission for the academic year 1993 94.
(800 E G)
|
pt Petition Nos. 130 & 195 of 1991.
IN Civil Appeal No. 2054 of 1990 From the Judgment and Order dated 23.1.87 of the Central Administrative Tribunal, Calcutta in T.A. No. 1263/86.
G.S. Chatterjee and Avijit Bhattacharjee for the Appellants.
Dr. Anand Prakash, P. Narasimhan for B.K. Prasad, for the Respondents.
The Judgment of the Court was delivered by R.M. SAHAI, J.
Why the appellants should have been forced to file these contempt applications for enforcement of the order passed by this Court as far back as on 30th April 1990 in Civil Appeal No.2054 of 1990, is not without reason.
Grievance of the applicants is that despite clear findings recorded by this Court, opposite parties are going back on it and persisting in the implementation of the order in a manner which frustrates the entire purpose for which the applicants approached this Court and is a clear violation of directions of this Court issued on 30th April 1990.
Entire dispute centered round the practice of exercising option by Assistant Station Masters who were recruited directly.
Were they left any choice in the matter or was it compulsory.
It was held by this Court, that various letters issued made it clear that the option had to be exercised at the time of appointment and where no option was exercised it was deemed to have been exercised.
This Court found that the applicants were those persons who had to exercise option at the time of appointment and their options were irrevocable.
Effect of this was that they had 758 to wait till 1983 when restructuring was done.
The Court further found that the cadre of Assistant Station Master/Station Master in South Eastern Railway was separate and not combined.
But the Chief Personnel Officer applied alternative1, which under restructuring was to be applied to a zone where combined cadre was in vogue, as it was acceptable to leaders of the Union and was beneficial to large number of employees.
The Court therefore did not interfere with implementation of the alternatives, but protected the interest of the applicants by holding thus "But both the employees unions have accepted the implementation of the letter of Chief Personal Officer as it is beneficial to a majority of the employees.
Therefore, it may not be disturbed.
At the same time all those 204 employees who had opted before 1983 must be entitled to the benefit which would have been available to them on their options.
" What remained thereafter, which could not be clear to opposite parties, cannot be appreciated.
The order left no ambiguity that these employees shall be treated separately and would be granted benefit which would have been available to them.
That was possible and obvious if alternative 11 was applied to them.
It was for this reason that the Court directed to create even additional posts.
Attempt was made by the learned senior counsel to urge that it shall disturb seniority and may result in extending it to many others.
We are afraid that this Court in these applications is concerned with the implementation of the order passed by it and not whether the order passed by it was correct or not.
Neither of these submissions were raised earlier and if had been raised, they should be deemed to have been rejected.
Even earlier it had been made clear that no one promoted shall be disturbed.
We, therefore, direct opposite parties to implement the order of this Court in respect of 204/206 employees by applying altemative II to them for purposes of determining their placement and promotion.
After their placements and promotions are so determined under alternative II then they may be governed by the present alternative for future promotions.
Six months ' time was granted in 1990.
The opposite parties have delayed it by nearly two and half years.
We direct the opposite parties to finalise it within two months from today.
The promotions and all benefits shall be given retrospectively.
No application for further extension by opposite parties shall be entertained.
Failure to comply with the directions shall not be treated lightly in future.
759 We are not taking any action in the circumstances for the present.
The contempt applications are disposed of accordingly.
But the respondents shall pay a sum of Rs. 5,000 as costs to the applicants.
U.R. Contempt Petition disposed of.
| The dispute was about whether the exercise of option by Assistant Station Masters, directly recruited, was a matter of choice or was compulsory.
The order of this court of 30 April 1990 inter alia protected the interests of the applicants by holding that the 204/206 employees who had opted before 1983 must be entitled to the benefit which would have been available to them on their options.
The order was not implemented.
It was argued for the condemner that the order of this court would disturb seniority and may result in extending it to many others.
Disposing of the contempt petition, this court, HELD : 1.
The order dt.
30.4.90 left no ambiguity that these employees shall be treated separately and would he granted the benefit that would have been available to them.
(758 D) 2.
The Court in contempt applications is concerned with the implementation of an order passed by it, and not whether such order is correct or not.
3.Neither the submission regarding seniority, nor that it may extend to others was raised earlier, and if raised, they should be deemed to have been rejected.
Even earlier it had been made dear that no one promoted shall be disturbed.
(758 F) 757 4.Within 2 months, alternative 11 to be applied to 204/206 employees for their placement and promotion.
Future promotions may be governed by the present alternative.
Promotions and all benefits shall be given retrospectively.
(758 H) Cost to the applicants of Rs. 5,000
|
appeal Nos.
1450 51 of 1993.
From the Judgment and Order dated 16.7.92.of the Delhi High Court in Civil Writ Petition No. 1780 of 1992 and Civil Misc.
No. 3485 of 1992.
K.T.S. Tulsi, Addl.
Solicitor General and S.N. Terdol for the Appellants.
Kapil Sibal, Vikas Singh, L.R. Singh, Yunus Malik and Gopal Singh for the Respondents.
The Judgment of the Court was delivered by R.M. SAHAI, J.
Was there any valid justification for the appellants, the Union of India, to withhold the payment of subsidy to the respondents, the small scale manufacturers of fertiliser, is the main question that arises for consideration in this appeal directed against the judgment and order of the Delhi High Court? Two other questions that arise in this connection are if the High Court committed any error in exercise of its extraordinary jurisdiction to interfere at the stage of show cause and if a report prepared by the Project Development India Limited (in brief 'PDIL ') behind the back of the respondents could be relied for rejecting the specification of standard fertilizer produced by the respondents.
Before adverting to these issues we consider it necessary to mention that the payment of subsidy to manufacturers of fertilisers was introduced in 1982 under a scheme framed by the Government of India in pursuance of which every manufacturer was required to give a written undertaking to the President of India.
In 1985 Government of India issued a Fertilizer (Control) Order under the Essential Commodities Act.
Sub clause (h) of Clause (2) of the order defines 'fertilizer ' to mean, any substance used or intended to be used as a fertiliser of the soil and/or crop and specified in Part A of Schedule I and includes a mixture of fertiliser, mixtures of micro nutrient fertilisers and special mixture of fertilisers '.
Sub clause (q) of the same clause explains 'prescribed standard of fertilizer ' as under: "Prescribed standard" means (i) in relation to fertiliser included in Column 1 of Part A of 763 Schedule 1, the standard set out in the corresponding entry in Column 2, subject to the limits of permissible variation as specified in Part B of that Schedule; and (ii)in relation to a mixture of fertilisers, the standard set out in respect of that mixture under sub clause (1) of Clause 13 by the Central Government, subject to the limits of permissible variation as specified in Part B of Schedule 1; (iii)in relation to a [mixture of NPK fertilisers, mixture of micronutrient fertilisers and combination thereof], the standard set out in respect of that mixture under sub clause (2) of Clause 13 by the State Government, subject to limits of permissible variation as specified in Part B of Schedule 1.;" And standard specified of single super phosphate (SSP) sulphur manufactured by the respondents is described in Schedule I of the Order as under: "Single Super Phosphate Granulated) (i) Moisture, per cent by weight, maximum (ii) free phosphoric acid (as P 2 0 5) per cent by weight, maximum (iii) Water soluble phosphates (as P 205 per cent by weight , maximum (iv) Particle size Notless than 90 per cent of the material shall pass through 4 nun IS sieve and shall be retained on 1 mm IS sieve.
Not more than 5 per cent shall pass through 1 mm IS sieve.
" The Control Order further deals in detail with price control, distribution,restriction on manufacturers and sale etc. of fertiliser.
Chapter VII deals with enforcement authorities.
Paragraph 27 empowers the State Government and the Central Government to appoint inspectors of fertilisers.
Paragraph 28 empowers the inspectors to secure compliance of the Order by requiring the wholesaler or retail dealer to give any information in his possession with respect to manufacture, draw samples of any fertiliser, enter upon and search any premises etc.
How the sample has to be analysed has been provided by Schedule 11 of the Order.
The basic raw material for manufacture of fertiliser is rock phosphate.
There 764 are various mines spread all over the country from where these rocks are obtained.
They are canalised through State mineral corporations.
One of such mines is located in Hirapur in the State of Madhya Pradesh.
The Government of the State requested the PDIL to undertake laboratory test of these rocks and submit a report for determining disability allowance payable to SSP producers.
The conclusion o f the report is extracted below : "The world reserve of good quality rock phosphate is gradually depleting making the use of non standard and low grade phosphate, in the manufacture of phosphatic fertiliser as essential.
In India, compared to other countries, the availability of usable quality rock phosphate is rather limited, though available in abundance.
This study was made, at the request of Madhya pradesh Government with a view to effectively utilise, to the extent possible the lower grade indigenous rock phosphate from HIRAPUR MINES for SSP production.
Experiments in PDIL laboratory has shown that this rock phosphate cannot be processed in the conventional route to produce SSP, as such, and it is imperative to make blends with any standard rock phosphate.
The report establishes that the rock phosphate available in our country whether it is in Madhya Pradesh or Jaipur appears to be incapable of producing SSP unless it is blended with imported rock.
Proportion of the two depends on the strength of rock obtained from different mines.
The PDIL conducted the test for those rocks whose strength varied from 05 and 0 5 and opined that blending of rock with 24% should be in proportion of 20% and 80%.
The extract from the report runs as under : "The chemical analysis has shown 24.85% P 2 0 5 and 30.03% Silica plus insoluble besides other impurities like high R 2 0 3 compared to 32.4% P 2 0 5, 4.56% Silica plus insoluble and 0.75% R2 03 in standard Jordon variety.
Many proportions of blends were tried in laboratory to find out the optimum blend which would produce SSP of specification laid down by F.C.O. and finally it was concluded that a blend of 20% Hirapur rock matrix and 80 Senegal will be a suitable proportion.
This was confirmed even in pilot plant trials where for a comparison purpose two blends were tested e.g. 30:70 and 20:80 for Hirapur, Senegal rock phosphates.
There 765 was found from analytical results that 20:80 proportion was most suited.
Accordingly study was concentrated towards this 20:80 Hirapur:Senegal blend.
" We now turn to the various issues that arise in this case.
Relying on these reports the subsidy Payable to the manufacturers was withheld and they were required by a letter dated 20th April 1990 to explain as to how they were able to achieve the standard specification.
The letter reads as under: "It is generally observed from the quarterly cost date being submitted by your company that you are either using only low grade rock phosphate for manufacture the P2 05 content of which is less than 30%, or in large proportion thereof.
Please therefore intimate how you are manufacturing SSP of standard specification i.e. of 16% P2 05 content, SSP as required under the specification laid down on the F. C. 0.
" Both the assumptions in the letter were without any foundation.
We shall examine it in detail later.
It was at this stage that the manufacturers approached the High Court.
They claimed that the fertiliser manufactured by them having been checked and verified by the inspectors appointed under the Control Order the opposite parties were not justified either in withholding the subsidy or issuing any notice.
In the counter affidavit filed in the High Court the reason for issuing notice was explained as under: "That in reply to Paras 15 and 16 of the Petition, it is submitted that upto 1.4.1992 imported Rock Phosphate was being procured by the SSP units, including the petitioners through the Minerals & Metals reading Corporation (MMTC) which was a canalising agency.
Rock Phosphate is also available through the State owned indigenous sources such as Rajasthan State Mineral Development Corporation (RSMDC), Rajasthan State Mines & Minerals Limited (RSMML), Uttar Pradesh State Minerals Development Corporation (UPSMDC), Madhya Pradesh State Mining Corporation (MPSMC) and Hindustan Zinc Limited (HZL), and SSP is manufactured by using rocks of standard grade.
The quality of indigenous rock phosphate from the above mentioned State owned sources varies considerably from low grade rock of 14% to 16% P2 05 content to high degree rock of +3 1 % P2 05 content.
For producing 766 SSP of 16% W.S. P2 05 the rock phosphate used should contain a minimum of +3 1% P2 05 and the conversion efficiency of the rock should be more than 9 1 %.
SSP of 16% W.S. P2 05 can be produced by using low grade rocks only after suitably blending it with standard/high grade rock phosphate to have a feed conforming to the above mentioned minimum specifications of +31% P2 05.
That in reply to Para 17 of the Petition it is submitted that indigenous rock phosphate is being procured by the SSP Units from Madhya Pradesh State Mining Corporation, Uttar Pradesh Sate Minerals Development Corporation, Rajasthan State Mining Development Corporation and Rajasthan Mines and Minerals limited.
Since detailed technical examination of th e various grades of indigenous rock phosphate available from sources other than RSMML was not available, the SSP Units were informed that pending detailed technical examination, the prices of such indigenous, rock phosphate would be reimbursed at par with RSMML price for rock phosphate (having +3 1 % P2 05) on a provisional basis only.
A copy of the circular letter issued by the Office of the FICC dated 29th September 1986 to all manufacturers of SSP is at Annexure 1.
Subsequently, Projects and Development India Ltd (PDIL), Sindri, which is a Consultancy and R & D organisation for fertilisers in the public sector, which had conducted an evaluation of MPSMC Rock Phosphate of Hirapur and Jhabua Mines, submitted its report, which indicated that taking into account the P2 05 content and the impurities present in both Jhabua and Hirapur Rock, it is unsuitable to make SSP of 16% W.S. P2 05 content, unless it is blended with minimum of 7O% which grade imported Senegal rock with 30% low grade Jhabua rock and minimum of 80% high grade Senegal rock with 20% low grade Hirapur rock." After considering this a Division Bench of the High Court allowed the writ petition and issued a direction to the appellant to pay the subsidy which was payable to respondents after determining it in accordance with the terms of the scheme under which it was payable within the period specified in the order.
The direction was issued as the Bench found that the basis for denying the subsidy was the report submitted by PDIL prepared behind the back of the manufacturers without issuing any notice to them or inviting their participation.
After excluding the report the bench held that since the payment of subsidy was dependent on basis of laboratory reports furnished by the manufacturers and these reports had been furnished by 767 them and they had not been questioned at any time by the appropriate authorities it was not open to opposite parties either to withhold the subsidy or to initiate the proceedings by issuing show cause notices.
To assail the finding on merits the learned Additional Solicitor General launched a two pronged attack.
He urged that subsidy under the scheme of 1982 was payable only if the fertiliser conformed to specification of 16% water soluble phosphoric penta oxide.
The learned counsel submitted that under the scheme the Department of Fertilisers was entitled to conduct survey and check the quality and the manufacturers were required to give an undertaking that they were to supply prescribed information along with the monthly claim for subsidy.
According to learned counsel claim for subsidy.
According to learned counsel under the said scheme a circular was issued on September 29, 1986 to all the manufacturers of SSP wherein it was clarified that the indigenous rock phosphate being obtained by the manufacturers from sources other than Udaipur was pending a detailed technical examination.
He urged that the circular further stated that the prices were to be worked out on the basis of rock phosphate having plus 3 1% P2 05.
Therefore, pending completion of detailed technical examination the subsidy worked out was provisional.
Anti when the technical examination conducted by the PDIL indicated that on the admitted figures famished by the manufacturers in their quarterly invoices the standard specification could not have been achieved the notice were issued, therefore, the High Court was in error in quashing it.
According to him it was open to the department to get it ascertained from an authentic source if the manufacturers of fertiliser were using proper material and achieving the specified standard.
He urged that the PDIL being independent and reputed body it was not required to issued any show cause notice.
We do not consider it necessary to express any opinion if the PDIL report could have been discarded for want of show cause notice or for being ex party as there are certain features about the report which obviate the necessity of considering its validity on this ground.
From the counter affidavit filed by Managing Director of M/s Brij Fertilizers Pvt Ltd it appears that the manufacturers of SSP have been using rock phosphate which is of hard quality but in order to encourage use of indigenous rock phosphate and to avoid loss of foreign exchange the Government of Madhya Pradesh directed the PDIL laboratory to undertake laboratory test to find out the grade of phosphate from Hirapur mines to enable the manufacturers to claim disability allowance.
The report, therefore, was not concerned with finding out whether any of the manufacturers who were engaged in producing fertilizer were doing so in accordance with standard provided in the Control Order.
In the circumstances it may be that it was not necessary to issue any notice to the manufacturers.
768 Yet the question is, could it furnish material for rejecting the claim of respondents and withholding their subsidy? The learned Additional Solicitor General urged that the non release of subsidy was not based, solely, on report of PDIL but on basis of input cost data supplied by the manufacturers which indicated that on basis of analysis of raw material input provided by the respondents the manufacturers could not have produced SSP of 16% water soluble P2 05.
This assumption appears to be unfounded for more than one reason.
Under the Control Order there is a detailed procedure provided for carrying out test to find out if the fertiliser produced was of specified standard.
It is not disputed that no such test as provided was ever carried by any authority.
Rather the report submitted by the inspectors appointed under the Control Order, indicates that the fertiliser manufactured by the respondents was standard.
We are not willing to accept the submission of the Additional Solicitor General that these reports were incorrect and have been obtained through the connivance of the official machinery.
There is no material on record to indicate that the Government at any point of time doubted the correctness of there ports or initiated an proceedings against any inspector or any officer for it is not possible to draw an inference against the authenticity of the reports which have been given by the authority empowered under the order.
It is not the claim of department that at any point of time prior to submission of the PDIL report any step was taken or the government ever required the inspectors to find out if the manufacture carried on by respondents was in accordance with law and rules.
To discard the certificate issued by the inspector in the circumstances would be arbitrary without any valid reason.
With this we may now examine the PDIL report itself.
As has been seen earlier the purpose of getting the rock tested was to pay disability allowance.
The purpose being entirely different it could not be utilised for a different purpose.
How risky it is to embark on such exercise shall be clear when the result of report obtained by the PDIL is applied to the dates of respondents relied by appellant to justify their action of issuing show cause notice.
From paragraph two of the conclusions of the PDIL, extracted earlier, it is clear that the study was made at the request of Madhya Pradesh Government with a view to effectively utilise to the extent possible the lower grade indigenous phosphate from Hirapur mines for SSP production.
The report concludes, that experiments in PDIL laboratory has shown that this rock phosphate cannot be processed in the conventional route to produce SSP, as such, it is imperative to make blends with any standard rock phosphate.
The objection of the department is not that the rock phosphate should not be blended with imported one but that on the proportion shown along with the strength of indigenous rock used the standard as provided could not have been 769 achieved.
From the analysis of rock phosphate purchased by the manufacturers as per their invoices and attempt was made to demonstrate that if the figures mentioned therein were taken as correct and they are compared with the calculation given by the PDIL it would be clear that the standard specification could not have been achieved.
It is necessary to mention at this stage that the rock phosphate found in Hirapur mines was of three grades.
That is clear from the letter of Assistant General Manager, Mines to the Joint Director, Fertiliser Coordination Committee.
Relevant part of the letter reads, "We were selling Hirapur Phosphorite for so many Fertiliser S.S.P. manufactures since starting of the mining and were never found any complaint regarding its suitability to manufacture SSP Fertiliser.
We have learnt form Fertiliser Manufacturing Units that our Phosphorite is suitable for SSP Fertiliser manufacturing but in case of F0203 contents increases in Phosphorite the Wear and Tear of the plant increases.
We had also been directed by Joint Director (F&A) FICC, vide their letter dated 31.8.89 to sale our Phosphorite in category 'A ' to SSP Units.
This further certifies the suitability of our Phosphorite for SSP manufacturing of requisite grade.
The material supplied to these units are of 32% category 'A ' and not 25% as given in PDIL report hence the question of blending with other Rock Phosphate does not require to Manufacture the requisite grade SSP.
The M.P.S.M.C. was selling Hirapur Phosphorite in different percentages P2 05 grades and not in mix condition.
Out grades and other specifications indicated as below: Before 5.3 1991 From 6.3. 1991 1.1st (A) 1st (A) P2 05 + 30%, Sio2 P2 05 + 29% 3 1 %, + 15%18% Sio2 + 15% 1 8% F0203 below 4.5% Fo203 below 24% A. +1/2" 2.1/2" Size A)+ 1/2"2. 1/2" size B. R.O.M. B. R.O.M. 2.
1st (B) 1st (B) P205+ 28% 30% PrO5 + 27% 29% Sio2 + 18% 770 Sio2+22% Fo203 F 203 above 4.5% above 4.5% A) 1/2" size A) 1/2" size B) R.0 M. B)R.O.M. C) By Product Dust 3.
II Grade P205 + 22% 25% Sio2 and Fo2O3 No grantee.
R.O.M." Further no rock phosphate has been or could be purchased by any manufacturer except through corporation of the State.
This fact is admitted in the counter affidavit of the appellant extracted earlier.
It is also clear from the letter of Assistant General Manager that Brij Fertilisers did not use any rock except Grade 'A '.
It is claimed by the respondents that on a technical assessment conducted by Bhabha Research Institute for Lalitpur rocks that the water soluble in rock phosphate with P2 05 with 29 to 32% is more than 16%.
Even if this report is ignored the letter of Assistant Mines Inspector establishes that water soluble phosphate in Hirapur mines of grade 'A ' was 16%.
Each respondent has filed details of rock phosphate consumed by its unit from various corporations.
The average grade mentioned is 3 1 %.
Not one has used grade II.
Even Avadh Fertiliser has not used rock phosphate below 27%.
From the chart appended in respect of Hirapur mines the blending in proportion of 50% indigenous and 50% indicates that even with rock of 30.66% the water soluble actually was 17.57%.
These figures could not be disputed in the reply filed on behalf of Union of India.
From the PDIL report it is clear that it had undertaken test of rock with 24.85% P2 05 and 30.03% Silica and suggested that most suited blend with such rock was 20% indigenous and 80% imported.
It could not furnish any guideline or material to reject the rock phosphate used by the respondents which varies between 27% P2 05 to 3 1 % P2 05.
In absence of any reliable data or any material the inference drawn by the appellants in the notice was baseless.
The counter affidavit filed in the High Court by the appellant did not explain the basis for concluding that for producing SSP of 16% or P2 05 the rock phosphate should contain a minimum of 3 1 % P2 05.
It is contrary to the letter of Assistant General Manager Mines.
In any case PDIL could not furnish any basis for it.
In absence of any valid justification the entire exercise undertaken by the appellant was vitiated being tainted with arbitrariness.
Failing in his effort to assail the order on merits the learned Additional Solicitor General vehemently urged that the department was not precluded form issuing show cause notice and requiring the manufacturers to appear and explain their claim.
It was urged that the High Court was not justified in quashing the show 771 cause notice and issuing the directions for paying the subsidy without giving an opportunity to the department to verify if the respondents had in fact complied with Control Order.
True, the High Court should normally not interfere at the stage of show cause notice.
But where, from the facts it is apparent that there was no material available with the department to doubt the statement on behalf of the respondents and their own officers at every point of time had issued the certificate the correctness of ' which could not be disputed or doubted except by raising unfounded suspicion or drawing on imagination it would be failing to exercise jurisdiction if the Court does not discharge its constitutional obligation of protecting the manufacturers who, as is apparent from the counter affidavit filed in this Court and the various letters issued from different authorities are in perilous condition as they are not able to meet their liabilities to pay to financial institutions and various other authorities and are facing proceedings on various accounts and have virtually closed their unit.
We are pained to say that the authorities did not realise either the purpose of granting subsidy or the harassment to which the manufacturers have been exposed.
Entire litigation appears to he a sad plight for those who have set up small scale units in the hope that they will stand on their own on the subsidy given by the government as admittedly the price of manufacturing fertilizers is much more than the price fixed by the government for which it assured to pay subsidy.
show cause notice issued by the appellants and issuing the directions to pay the subsidy.
The appeals fail and are dismissed with costs which is assessed at Rs. 10,000 one set.
U. R. Appeal dismissed.
| The respondents were small scale manufactures of fertilizers.
They were entitled to payment of subsidy on meeting prescribed standard in the manufacture of single super phosphate (SSP).
The Government of Madhya Pradesh requested PDIL, a consultancy and R.& D Organisation, to test the rock phosphate at Hirapur mines for determining disability allowance payable to SSP producers.
On the basis of this report, the payment of subsidy was withheld, and a show cause notice issued to the respondents.
A writ petition filed in the High Court was allowed by a Division Bench which quashed the show cause notice and ordered that the subsidy be paid.
It found that the PDIL report had been made without notice to the manufacturers or inviting their participation and that the laboratory report ; furnished by the manufacturers on which the payment (of subsidy was dependent had not been questioned.
On appeal before this Court, the questions to be decided were whether the withholding of payment of subsidy to the respondent was justified; whether the High Court committed any error in interfering at the stage of show cause in exercise of its extraordinary jurisdiction; and whether tile report of PDIL, prepared behind the back of the respondents could be used to reject the standard fertilizer of the respondent.
It was contended for the appellants that a detailed technical examination was pending and the subsidy worked out had on in been provisional, and that PDIL had carried out the examination.
PDIL being independent and reputed, it was not required to here the manufacturers.
Further, the non release of 761 subsidy was also on the basis of input cost data.
It was urged that the High Court was not justified in quashing the show cause notice and issuing directions for paying the subsidy without giving the department an opportunity to verify if the respondents had in fact compiled with the Control Order.
Dismissing the appeal, this Court HELD : 1.
PDIL was engaged to rind out the grade of phosphate from Hirapur mines to enable the manufacturers to claim disability allowance, and not whether they were producing fertilizer in accordance with the standard provided in the Control Order.
The purpose being entirely different, the report could not be utilised for a different purpose.
(767 G) 2.
There is no evidence to doubt the authority of the reports submitted by the inspectors appointed under the Control Order that the fertilizer produced was of specified standard.
(768 B) 3.
On facts, in the absence of any reliable data or any material the inference drawn by the appellants in the notice that the fertiliser was not of a specified standard was baseless.
The entire exercise was therefore vitiated being tainted with arbitrariness.
(770 F G) 4.
The High Court should normally not interfere at the stage of show cause notice.
But where, from the facts it is apparent that there was no material available with the department to doubt the statement on behalf of the respondent, it would be failing to exercise jurisdiction if the Court does not discharge its constitutional obligation of protecting the manufacturers who are in perilous condition as they are not able to meet their liabilities to pay to financial institutions and various other authorities and are facing proceedings on various counts and have virtually closed their unit.
The authorities did not realise either the purpose of granting subsidy or the harassment to which the manufacturers have been exposed.
Entire litigation appears to be a sad plight for those who have set up small scale units in the hope that they will stand on their own on the subsidy given by the Government as admittedly the price of manufacturing fertilisers is much more than the price fixed by the Government for which it assured to pay subsidy.
(771 B D) 762
|
etition Nos. 90 & 312 of 1992.
Under Article 32 of the Constitution of India. , D.D. Thakur, Tapash Ray, M.L. Verma, Gauray Jain, and Ms. Abha Jain for the Petitioner in W.P. No. 90 of 1992.
R.P. Gupta for the Petitioner in W.P. No. 312/92.
G. Ramaswamy, Attorney General, D.P. Gupta, Solicitor General, B. Parthasarthy, C.V.S. Rao, A.S. Bhasme and Chava Badri Nath Babu for the Respondent.
R. K. Jain, and Rajan Mukherjee for the customs, Excise & Gold (Control) Appellate Tribunal.
K.K. Venugopal, Ms. Pallav Shisodia and C.S.S. Rao for the Respondent.
The Judgments of the Court were delivered by AHMADI, J. We have had the benefit of the industry, erudition and exposition of the constitutional and jurisprudential aspects of law on the various questions urged before us in the judgment of our esteemed Brother K. Ramaswamy, J.
But while concurring with the hereinafter mentioned conclusions recorded by him we would like to say a few words to explain our points of view.
Since the facts have been set out in detail by our learned Brother we would rest content by giving an abridged preface which we consider necessary.
It all began with the receipt of a letter dated December 26, 1991, from Shri R.K. Jain, Editor, Excise Law Times, addressed to then Chief Justice of India, Shri M.H. Kania, J., complaining that as the Customs, Excise and Gold Control Appellate Tribunal (for short 'the CEGAT) was without a President for the last over six months the functioning of the Tribunal was adversely affected, in that, the Benches sit for hardly two hours or so, the sittings commence late at about 10.50 818 a.m., there is a tendency to adjourn cases on one pretext or the other so much so that even passing of interim orders, like stay orders, etc., is postponed and inordinately delayed, and the general tendency is to work for only four days in a week.
The work culture is just not there and the environmental degradation that has taken place is reflected in the letter of Shri G. Sankaran dated June 3, 1991 who prematurely resigned as the President of the CEGAT.
Lastly, he says that there were nearly 42,000 appeals and approximately 2000 stay petitions pending in the CEGAT involving revenue worth crores of rupees, which will remain blocked for long.
Three directions were sought, namely, "(i) the immediate appointment of the President to the CEGAT, preferably a senior High Court Judge , (ii) order an enquiry into the mal functioning of the CEGAT; and (iii) issue all other directions as your Lordship may deem fit and necessary.
" This letter was directed to be treated as Public Interest Litigation and notice was issued to the Union of India restricted to relief No. (i) i.e. in regard to the appointment of the President of the CEGAT.
On April 29, 1992, the learned Additional Solicitor General informed the Court that the appointment of the President was made.
On the next date of hearing the relevant file on which the decision regarding appointment was made was produced in a sealed envelope in Court which we directed to be kept in safe custody as apprehension was expressed that the file may be tempered with.
The focus which was initially on the working of the CEGAT and in particular against the conduct and behaviour one of its Members now shifted to the legality and validity of the appointment of respondent No. 3 as its President.
Serious allegations were made against respondent No. 3 and his competence to hold the post was questioned.
It was contended that his appointment was made in violation of the Rules and convention found mentioned in the message of Shri Y.V. Chandrachud, the then Chief Justice of India, dated October 5, 1992 forwarded on the occasion of the inauguration of the CEGAT.
The further allegation made is that even though High Court Judges were available no serious attempt was made to requisition the services of one of them for appointment as President of the CEGAT.
To put a quietus to the entire matter at an early date we called the file from the Registry on May 4,1992 but when we were about to peruse the same the learned Additional Solicitor General contended 'that the Court cannot inspect it because he desired to claim privilege '.
We, therefore, directed that a formal application may be made in that behalf before the next date of hearing and returned the file to enable the making of such an application.
819 Accordingly, the then Finance Secretary filed an affidavit claiming privilege under sections 123 and 124, Evidence Act, and Article 74(2) of the Constitution.
The Minister of State in the Finance Department was also directed to file an affidavit in support of the claim for privilege which he did.
It is in this context that the question of privilege arose in the present proceedings.
Our learned Brother Ramaswamy, J. dealt with this question elaborately.
After referring to the provisions of the relevant Statutes and the Constitution as well as the case law of both foreign and Indian courts, the authoritative text books.
he has concluded as under: "Having perused the file and given our anxious consideration we are of the opinion that on the facts of the case. . it is not necessary to disclose the contents of the records of the petitioner or his counsel.
" We are in respectful agreement with this conclusion recorded by our learned Brother though not entirely for in the reasons which have weighed with him.
On the question of appointment of respondent No. 3 as the President of the CEGAT we must notice a few provisions contained in the CEGAT Members (Recruitment anti Conditions of Service).
Rules, 1997 (hereinafter called 'the Rules ').
Rule 2(c) defines a member, to include the President of the CEGAT also; Rule 3 prescribes the qualifications for appointment and Rule 6sets out the method of recruitment of 'a member through a Selection Committee consisting of a Judge of the Supreme Court of 'India nominated by the Chief Justice of India.
Rule 10 provides for the appointment of the President.
It says that the Central Government shall appoint one of the members to be the President.
Sub rule (2) then provides as under "(2) Notwithstanding anything contained in rule 6.
a sitting or retired judge of a High Court may also he appointed by the Central Government as a member and President simultaneously.
" Sub rule (4) and the proviso thereto bear reproduction "(4) Where a serving judge of a High Court is appointed as a member and President, he shall hold office as President for a period of three years from the date of his appointment or till he attains the age of 62 years, whichever is earlier: 820 Provided that where a retired judge of a High Court above the age of 62 years is appointed its President.
he shall hold office for such period not exceeding three years as may be determined by the Central Government at the time of ' appointment or re appointment.
" It will thus he seen that the rules empower the Central Government to appoint any member as the President of the CEGAT.
It is true that under sub rule (4), a serving judge and under the proviso thereto, a retired judge, can also be appointed a Member and President simultaneously.
In the case of a serving judge his age of superannuation is fixed at 02 years but in the case of a retired judge he may be appointed for it period of three years at the most.
Insofar as a serving High Court Judge is concerned, he holds office until he attains the age of 62 years, vide Article 217 of the Constitution.
It therefore, heats common sense why a sitting Judge of he High Court would opt to serve as the President of tile CEGAT if lie is to retire At the same age without any benefit.
On tile contrary he would lose certain perks which are attached to tile office of a High Court Judge.
Even status wise lie would suffer as his decisions would he subject to the writ jurisdiction of the High Court under Articles 226/227 of tile Constitution.
He may agree to accept the offer only if he had an extended tenure of at least three years.
We are, therefore, in agreement with our learned Brother that sub rule (4) of Rule 10 of the Rules needs a suitable change to make it sufficiently attractive for sitting High Court Judges to accept appointment as the President of the CEGAT.
We also agree with our learned brother that to instill the confidence of the litigating public in the CEGAT.
the Government must make a sincere effort to appoint a sitting Judge of the High Court is a President of the CEGAT in consultation of the Chief Justice of India and it a sitting Judge is not available the choice must fall on a retired Judge as far as possible.
This would he consistent with the assurance given by the Finance Department as is reflected in the letter of Shri Chandrachud, extract wherefrom is reproduced by our learned Brother in his judgment.
Shri Harish Chandra was a Senior Vice President when the question of ' filling, up the vacancy of the President came up for consideration.
He was fully qualified for the post under the Rules.
No challenge is made on that count.
Under Rule 10(1) the Central (Government is conferred the power to appoint one of the Members to be the President.
Since the validity of the Rule is not questioned there can be no doubt that the Central Government was entitled to appoint respondent No. 3 as the President.
But it was said that the track record of respondent No. 3 was poor and he was hardly fit to hold the post of the President of the CEGAT.
It has been averred that respondent No. 3 had been in the past proposed for appointment 821 as a Judge of the Delhi High Court but his appointment did not materialise due to certain adverse reports.
Assuming for the sake of argument that these allegations are factually accurate, this Court cannot sit in judgment over the choice of the person made by the Central Government for appointment as a President if the person chosen is qualified and eligible for appointment under the Rules.
We, therefore, agree with our learned Brother that this Court cannot sit in judgment over the wisdom of the Central Government in the choice of the person to be appointed as a President so long as the person chosen possesses the prescribed qualification and is otherwise eligible for appointment.
therefore, cannot interfere with the appointment of respondent No. 3 on the ground that his track record was poor or because of adverse reports on which account his appointment as a High Court Judge had not materialised.
The allegations made by Shri R.K. Jain in regard to the working of the CEGAT are rave and the authorities can ill afford to turn a Nelson 's eve to those allegations made by a person who is fairly well conversant with the internal working of the Tribunal.
Refusal to inquire into such grave allegations, some of which are capable of verification, can only betray indifference and lack of a sense of urgency to tone up the working of the tribunal.
Fresh articles have appeared in the Excise Law Times which point to the sharp decline in the functioning of the CEGAT pointing to a serious management crises.
It is high time that the administrative machinery which is charged with the duty to supervise the working of the CEGAT wakes up from its slumber and initiates prompt action to examine the allegations by appointing a high level team which would immediately inspect the CEGAT, identify the causes for the crises and suggest remedial measures.
This cannot brook delay.
Lastly, the time is ripe for taking stock of the working of ' the various Tribunals set up in the country after the insertion of Articles 323A 323B in the Constitution.
A sound justice delivery system is a sine qua non for the efficient governance of a country wedded to the rule of law.
An independent and impartial justice delivery system in which the litigating public has faith and confidence alone can deliver the goods.
After the incorporation of these two articles,Acts have been enacted whereunder tribunals have been constituted for dispensation of justice.
Sufficient time has passed and experience gained in these last few years for taking stock of the situation with a view to finding out if they have serve the purpose and objectives for which they were constituted.
Complaints have been heard in regard to the functioning, of other tribunals as well and it is time that a body like the Law Commission of India has comprehensive look in with a view to 822 suggesting measures for their improved functioning.
That body can also suggest changes in the different statutes and evolve a model on the basis whereof tribunals may be constituted or reconstituted with a view to ensuring greater independence.
An intensive and extensive study needs to be undertaken by the Law Commission in regard to the constitution of tribunals under various statutes with a view to ensuring their independence so that the public confidence in such tribunals may increase and the quality of their performance may improve.
We strongly recommend to the Law Commission of India to undertake such an exercise on priority basis.
A copy of this judgment may be forwarded by the Registrar of this Court to the Member Secretary of the Commission for immediate action.
We have thought it wise to clarify the extent of our concurrence with the views expressed by our learned Brother in his judgment to avoid possibility of doubts being raised in future.
We accordingly agree with our learned Brother that the writ petitions should stand disposed of accordingly with no order as to costs.
K.RAMASWAMY, J.: The same facts gave birth to the twin petitions for disposal.
by a common judgment.
On October 11, 1982, the Customs Central Excise and Gold (Control) Appellate Tribunal for short 'CEGAT ' came into existence with Justice F.S. Gill as its President.
After he retired in 1985 no Judge was appointed as President.
In letter dated December 26, 1991, addressed to the Chief Justice of India, the petitioner highlighted the mal functioning of the CEGAT and the imperative to appoint a sitting or retired judge of the High Court as President to revitalise its functioning and to regenerate warning and withering faith of the litigant public of the efficacy of its adjudication.
Treating it as writ petition on February 25, 1992 this court issued rule nisi to the first respondent, initially to make immediate appointment of the President of the CEGAT, prefer ably a senior High Court Judge.
On March 30, 1992 when the Union 's counsel stated that the matter was under active consideration of the government, having regard to the urgency, this court hoped that the decision would he taken within two weeks from that date.
On April 20, 1992 the learned Addl.
Solicitor General reported that the appointment of the President had been made, however.
the order was not placed on record.
In the meanwhile die petitioner filed writ petition No. 312 of 1992 impugning the appointment of Sri Harish Chander, as President and sought to quash the same being in violation of the direction issued by this ( 'our( on February 25, 1992 and to strike down Rules 10(1), (3) and (4) of the CEGAT Members (Recruitment and Conditions of Service) Rules 1987, for short the 'Rule ' as violative of article 43 of the Constitution.
Rule nisi was also issued to the respondents in that writ petition on May 4, 1992.
The tile in a sealed cover was produced.
The first and the third respondents were directed to file their counters 823 within four weeks.
This court also directed the first respondent "to reflect in the counter what was the actual understanding in regard to the convention referred to in the letter of the then Chief Justice of India dated October 5, 1982"; "What procedure was followed at the time of the appointment by first respondents" and "whether Chief Justice of India was consulted or whether the first respondent was free to choose a retired or a sitting Judge of the High Court as President of the Tribunal with or without consultation of the Chief Justice of India".
"It should also point out what procedure it had followed since then in the appointment of the President of the Tribunal".
It should also clarify whether "before the third respondent was appointed as the President, "any effort or attempt was made to ascertain if any retired or a sitting Judge of the High Court could be appointed as the President of the Tribunal" and directed to post the cases for final disposal on July 21, 1992.
At request, to enable to government to file a counter, the rile was returned.
The Solicitor General though brought the file on July 21, 1992.
objected to our inspecting the file and desired to claim privilege.
The file was directed to be kept in the custody of the Registrar General till further orders.
The union was directed to file written application setting out the grounds on which the claim for privilege is founded and directed the Registry to return the sealed envelop as the Solicitor General expressed handicap to make precise claim of the privilege for want of file.
Thereafter an application was filed supported by the affidavit of the Secretary, Finance and the State Minister also filed his affidavit.
Counter affidavits and rejoinders were exchanged in the writ petitions.
The Attorney General also appeared on behalf of the Union.
The government 's claim for privilege is founded upon section 123 of the and article 74 (2) of the Constitution of India.
Later on the Solicitor General modified the stand that the government have no objection for the court to peruse the file but claimed privilege to disclose the contents of the file to the petitioner.
Section 123 of the postulates that "no one shall be permitted to give any evidence derived from unpublished official records relating to any affairs of State, except with the permission of the officer at the head of the department concerned, who shall give or withhold such permission as he thinks fit.
Section 124 provides that no public officer shall be compelled to disclose communications made to him in official confidence, "when he considers that the public interests would suffer by the disclosure".
section 162 envisages procedure on production of the documents that a witness summoned to produce a document shall, if it is in his possession or power, bring it to the court, notwith standing any objection which there may be to its production or to its admissibility.
824 "The validity of any such objection shall be decided by the court.
" The court, if it deems fit, may inspect the documents, unless it refers to matters of State, or take other evidence to enable it to determine on its admissibility.
The remedy under article 32 of the Constitution itself is a fundamental right to enforce the guaranteed rights in Part 111.
This court shall have power to issue writ of habeas corpus, mandamus, certiorari, quowarranto or any other appropriate writ or direction or order appropriate to the situation to enforce any of the fundamental right (power of High court under article 226 is wider).
Article 144 enjoins that all authorities, civil and judicial, in the territory of India shall act in aid of this Court.
Article 142 (1) empowers this Court to make such orders as is necessary for doing complete justice in any cause or matter pending before it.
Subject to the provisions of any law made in this behalf by the Parliament, by Clause 2 of article 142.
this Court "shall have all and every power to make any order for the purpose of securing the attendance of any person, the discovery or production of any documents,or the investigation or punishment of any contempt of itself.
" When this Court was moved for an appropriate writ under article 32, rule nisi would be issued and for doing complete justice in that cause or matter, it has been invested with power to issue directions or orders which includes ad interim orders appropriate to the cause.
All authorities, constitutional, civil judicial, statutory or persons in the territory of India are enjoined to act in aid of this court.
This court while exercising its jurisdiction, subject to any law, if any, made by Parliament consistent with the exercise of the said power, has been empowered by Cl. 2 of article 142 with all and every power to make any order to secure attendance of any person, to issue "discovery order nisi" for production of any documents, or to order investigation .
Exercise of this constituent power is paramount to enforce not only the fundamental rights guaranteed in Part III but also to do complete justice in any matter or cause, presented or pending adjudication.
The power to issue "discovery order nisi" is thus express as well as inherent as an integral power of Judicial review and process in the court to secure the attendance of any person or discovery or production of any document or to order investigation in that behalf.
However.
in an appropriate case, depending on facts on hand, court may adopt such other procedure as would be warranted.
The petitioner must make strong prima facie case to order discovery order nisi, etc.
and it must not be a hunting expedition to fish out some facts or an attempt to cause embarrassment to the respondents nor for publicity.
But on issuance of rule nisi by this Court under article 32 or a discovery order nisi the government or any authority, constitutional, civil, judicial.
statutory or otherwise or any person, must produce the record in their 825 custody and disobedience thereof would be at the pain of contempt.
Section 123 of the Evidence Act gives right to the government, in other words, to the minister or in his absence head of the department, to claim privilege, in other words immunity from disclosure of the unpublished official state documents in public interest.
In a democracy, governed by rule of law State is treated at par with a person by article 19(6) in commercial/industrial activities.
It possessed of no special privileges.
This Court in State of U.P. vs Raj Narain & Ors.
at 349 held that an objection claiming immunity should be raised by an affidavit affirmed by the head of the department.
The court may also require a Minister to affirm an affidavit.
They must state with precision the grounds or reasons in support of the public interest immunity.
It is now settled law that the initial claim for public interest immunity to produce unpublished official records for short "state documents" should be made through an affidavit generally by the Minister concerned, in his absence by the Secretary of the department or head of the Department.
In the latter case the court may require an affidavit of the Minister himself to be filed.
The affidavit should indicate that the documents in question have been carefully read and considered and the deponent has been satisfied, supported by reasons or grounds valid and germane, as to why it is apprehended that public interest would be injured by disclosure of the document summoned or called for.
If the court finds the affidavit unsatisfactory a further opportunity may be given to file additional affidavit or be may be summoned for cross examination.
If the court is satisfied from the affidavit and the reasons assigned for withholding production or disclosure, the court may pass an appropriate order in that behalf.
The Court though would give utmost consideration and deference to the view of the Minister, yet it is not conclusive.
The claim for immunity should never be on administrative routine nor be a garb to avoid inconvenience, embarrassment or adverse to its defence in the action, the latter themselves a ground for disclosure.
If the court still desires to peruse the record for satisfying itself whether the reasons assigned in the affidavit would justify withholding disclosure, the court would, in camera, examine the record and satisfy itself whether the public interest subserves withholding production or disclosure or making the document as part of the record.
On the one side there is the public interest to be protected; on the other side of the scale is the interest of the litigant who legitimately wants production of some documents, which he believes will support his own or defeat his adversary 's case.
Both are matters of public interest, for it is also in the public interest that justice should be done between litigating parties by production of all relevant documents for which public interest immunity has been claimed.
They must be weighed one 826 competing public interest in the balance as against another equally competing public administration of justice.
The reasons are: there is public interest that harm shall not be done to the nation or the public service by disclosure of the document in question and there is public interest that the administration of justice shall not be frustrated by withholding the document which must be produced, if justice is to be done.
The court also should be satisfied whether, the evidence relates to the affairs of the State under sec.
123 or not; evidence is relevant to the issue and admissible.
As distinct from private interest, the principle on which protection is given is that where a conflict arise between public and private interest, private interest must yield to the public interest.
In S.P. Gupta & Ors.
etc vs Union of India & Ors.
[1982] 2 SCR 365, this court by seven Judges ' bench held that the court would allow the objection to disclosure if it finds that the document relates to affairs of State and its disclosure would be injurious to public interest, but on the other hand, if it reaches the conclusion that the document does not relate to affairs of State or that the public interest does not compel its non disclosure or that the public interest in the administration of justice in the particular case before it overrides all other aspects of public interest, it will overrule the objection and order disclosure of the document.
When an objection was raised against disclosure of a particular document that it belongs to a class which in the public interest ought not to be disclosed, whether or not it would be harmful to disclose that class document or the contents of that particular document forming part of the class would be injurious to the interest of the state or the public service, it would be difficult to decide in vacuum the claim because it would almost invariably be supported by an affidavit made either by the Minister or head of the department and if he asserts that to disclose the contents of the document would or might do to the nation or the public service a grave injury, the court out of deference will be slow to question his opinion or to allow any interest, even that of justice, to prevail over it unless there can be shown to exist some factors suggesting either lack of good faith or an error of judgment on the part of the minister or the head of the department or the claim was made in administrative routine without due consideration or to avoid inconvenience or injury to their defence.
However, it is well settled law that the court is not bound by the statement made by the minister or the head of the department in the affidavit and it retains the power to balance the injury to the State or the public service against the risk of injustice.
The real question which the court is required to consider is whether public interest is so strong to override the ordinary right and interest of the litigant that he shall be able to lay before a court of justice of the relevant evidence.
In balancing the competing interest it is the duty of the court to see that there is the public interest that harm shall not be done to the nation or the 827 public service by disclosure of the document and there is a public interest that the administration of justice shall not be frustrated by withholding documents which must be produced if justice is to he done.
It is, therefore, the paramount right and duty of the court not of the executive to decide whether a document will be produced or may he withheld.
The court must decide which aspect of public interest predominates or in other words whether the public interest which requires that the document should not be produced out weighs the public interest that a court of justice in performing its functions should not be denied access to relevant evidence.
In some cases, therefore, the court must weight one competing aspect of the public interest against the other, and decide where the balance lies.
If the nature of the injury to the public interest is so grave a character then even private interest or any other interest cannot be allowed to prevail over it.
The basic question to which the court would.
therefore, have to address itself for the purpose of deciding the validity of the objection would be, whether the document relates to affairs of State or in other words, is it of such a character that its disclosure would be against the interest of the State or the public service and if so, whether the public interest in it ; non disclosure is so strong that it must prevail over the private interesting the administration of justice and on that account, it should not be allowed to be disclosed.
By operation of Sec. 162 of Evidence Act the final decision in regard to the validity of an objection against disclosure raised under section 123 would always be with the court.
The contention, therefore, that the claim of public interest immunity claimed in the affidavit of the State Minister for Finance and the Secretary need privacy and claim for immunity of state documents from disclosure is unsustainable.
The same is the law laid down by the Commonwealth countries, see Conway vs Rimmer. ; ; D. vs National Society for the Prevention of Cruelty to Children ; ; Burmah Oil Co. Ltd. vs Governor and Company of the Bank of England, ; ; Butters Gas and Oil Co. vs
Hammer ; Air Canada vs Secretary of State for Trade ; and Council of Civil Service Unions vs Minister for the Civil service, ; Pursuant to the law laid down in Conway 's, case the Administration of Justice Act, 1970 was made enabling the court to order disclosure of the documents except where the court, in exercise of the power under sections 31 to 34, considered that compliance of the order would be injurious to the public interest consistent with the above approach is the principle laid by this court in S.P. Gupta 's case.
In United States of America the Primacy to the executive privilege is given only where the court is satisfied that disclosure of the evidence will expose military 828 secrecy or of the document relating to foreign relations.
In other respects the Court would reject the assertion of executive privilege.
hi United States vs Reynolds [1935] 1 ; , Environment Protection Agency vs Patsy T. Mink [410] U.S. ; 11; Newyork Times vs U. section ; Pentagan Papers case and U. section vs Richard M. Nixon ; = ; 1035.
What is known as Watergate Tapes case, the Supreme Court of U.S.A. rejected the claim of the President not to disclose the conversation he had with the officials.
The Administrative Procedure Act 5, Art 552 was made.
Thereunder it was broadly conceded to permit access to official information.
Only is stated hereinbefore the President is to withhold top secret documents pursuant to executive order to be classified and stamped as "highly sensitive matters vital to our national defence and foreign policies".
In other respects under the Freedom of Information Act, documents are accessible to production.
In the latest Commentary by McCormick on Evidence, 4th Ed. by John W. Strong in Chapter 12, surveyed the development of law on the executive privilege and stated that at p. 155, that "once we leave the restricted area of military and diplomatic secrets, a greater role for the judiciary in the determination of governmental claims of privilege becomes not only desirable but necessary. . .
Where these privileges.
are claimed, it is for the judge to determine whether the interest in governmental secrecy is out weighed in the particular case by the litigant 's interest in obtaining the evidence sought.
A satisfactory striking of this balance will, on the one hand, require consideration of the interests giving rise to the privilege and an assessment of the extent to which disclosure will realistically impair those interests.
On the other hand, factors which will affect the litigant 's need will include the significance of the evidence sought for the case.
the availability of the desired information from other sources, and in some instances the nature of the right being, asserted in the litigation." In Robinson vs State of South Australia, PC, Shankey vs Whitlan [1979] 53 ALR p.1; FAI Insurances Ltd. vs The Hon.
Sir, Henry Arthus Winneke and ors; , , whitlan vs Australian Consolidated Press Ltd.,[1985] 60 ALR p.7; Minister for Arts Heritage and Environment and Ors.
vs Pekoi Wallsend Ltd and Ors.
and Commonwealth of Australia vs Northern Land Council, and Anr.
, Australian Courts consistently rejected the executive privilege and exercise the power to determine whether the documents need immunity from disclosure in the public interest.
The same view was endorsed by the Supreme Court of 'Canada in R. vs Shinder and Gagnon vs Quebec, Securities Commission ; The Supreme Court of Victoria in Bruce vs Waldron.
[1963] VLR p.3; The Court of Appeal of New south Wales in Re Tunstall.
exhibit P. Brown, [1966] 84 W.N. (Pt.
2) 829 [N.S.W.] 13.
The Court of Appeal of the New Zealand in Corbett vs
Social Security Commission , Creednz Inc vs Governor General [1981] 1 N.L.R. p. 172; The Supreme Court of Ceylon in Apponhamy vs Illangaretute, [1964] 66 C.L.W. 17.
The Court of Appeal of Jamaica in Allen vs By field [No.2] at page 71 and The Court of Session in Scotland in Glasqow Corporation vs Central Land Board, [1956] Scotland Law Time p.4.
The learned Solicitor General contended that a Cabinet sub committee constituted under Rules of Business approved the appointment of Harish Chander as President of CEGAT.
The President accordingly appointed him.
By operation of article 77 (3) and 74(1), the appointment was made by the President.
The file constitutes Cabinet documents forming part of the Preparation of the documents leading to the formation of the advice tendered to the President.
Noting of the officials which lead to the Cabinet note and Cabinet decision and all papers brought into existence to prepare Cabinet note are also its part.
Section 123 of the Evidence Act and Article 74(2) precludes this court from inquiring into the nature of the advice tendered to the President and the documents are, therefore, immuned from disclosure.
The disclosure would cause public injury preventing candid and frank discussion and expression of views by the bureaucrats at higher level and by the Minister/Cabinet Sub committee causing serious injury to public service.
Therefore, Cabinet papers, Minutes of discussion by heads of departments; high level documents relating to the inner working of the government machine and all papers concerned with the government policies belong to a class documents which in the public interest they or contents thereof must be protected against disclosure.
The executive power of the Union vested in the President by Operation of article 53(1) shall be exercised by him either directly or through officers subordinate to him in accordance with the Constitution.
By operation of article 73(1), subject to the provisions of the constitution, the executive power of the Union shall extend to the matters with respect to which Parliament has power to make laws.
Article 75(1) provides that the Prime Minister shall be appointed by the President and the other Ministers shall be appointed by the President on the advice of the Prime Minister; article 75(3) posits that the Council of Ministers shall be collectively responsible to the House of the People; article 75(4) enjoins that before a Minister enters upon his office, the President shall administer to him the oaths of office and of secrecy according to the forms set out for the purpose in the Third Schedule to the Constitution.
Article 74(1) as amended by section 11 of the Constitution 42nd Amendment Act, 1976 with effect from January 3, 1977 postulates that there shall be a Council of Ministers with the Prime Minister as the head to aid and advise the President who shall, in the exercise of his functions, act in accordance with such 830 advice.
The proviso thereto added by section 11 of the Constitution 44th Amendment Act, 1978 which came into effect from June 20, 1979 envisages that "provided that the President may require the Council of Ministers to reconsider such advice, either generally or otherwise, and the President shall act in accordance with the advice tendered after such reconsideration.
" Clause (2) declares that "the question whether any, and if so what, advice was tendered by Minister to the President shall not be inquired into in any court.
" In Satwant Singh Sawhney vs D. Ramarathnam.
Asstt.
Passport Officer , and in Maganbhai Ishwarbhai Patel vs Union of India and anr.
; , this Court held that the Ministers are officers subordinate to the President under article 53 (1) or 'the Governor under article 154 (1),.
as the case may be.
The President exercises his executive power under Art: 74 (1) through the Council of Ministers with the Prime Minister as its head who shall be collectively responsible to the House of People.
The exercise of the power would be as per the rules of business for convenient transaction of the Govt.
administration made under article 77(3), viz., the Govt.
of India (Transaction of Business) Rules, 1961 for short the 'Business Rules '.
The Prime Minister shall be duty bound under article 78 to communicate to the President all decisions of the Council of Ministers relating to the administration of the affairs of the Union and proposals for legislation etc.
The details whereof are not material.
Article 77(1) prescribes that "all executive actions of the Govt.
of India shall be expressed to be taken in the name of the President and shall be authenticated in the manner specified in the Rules made by the President.
The President issued business rules and has allocated diverse functions to the Council of Ministers, its committees and the officers subordinate to them.
In Shamsher Singh vs State of Punjab ; , a Bench of seven Judges, speaking through Ray, C.J., held that the executive power is generally described as the residue which does not fall within legislative or judical power but executive power also partakes of legislative or judicial, actions.
All powers and functions of the President, except his legislative powers, are executive powers of the Union vested in the President under article 53(1).
The President exercises his functions, except conferred on him to be exercised in his discretion, with the aid and advice of the Council of Ministers as per the business rules allocated among his Ministers or Committees.
Wherever the constitution requires the satisfaction of the President, the satisfaction required of him by the Constitution is not the personal satisfaction of the President, but is of the Cabinet System of Govt.
The Minister lays down the policies.
The Council of Ministers settle the major policies.
The civil servant does it on behalf of the Govt.
as limb of the Govt.
The decision of any Minister or officer under the rules is the decision of the President.
831 Cabinet is a constitutional mechanism to ensure that before important decisions are reached many sides of the question are weighed and considered which would mean that much work must be done beforehand in interdepartmental discussions and in the preparation of papers for Cabinet Committees.
Political decisions of importance are in their nature complies and need sufficient time and considerate thought.
Equally, the decisions relating to public service need probity and diverse consideration.
The Cabinet system is extremely well adapted to making considered decisions with all due speed and expedition.
The principle of ministerial responsibility has a verity of meanings precise and imprecise, authentic and vague.
Parliament rarely exercises direct control over Ministers.
Though the floor of the House is the forum for correcting excesses of the government but rarely a place where a Minister can be expected to keep the information secret.
Therefore, the Minister is answerable for his decision to the Parliament is fanciful.
Sir Ivor Jennings,in his Cabinet Government, stated that the Cabinet is the supreme directing authority.
It integrates what would otherwise be a heterogeneous collection of authorities exercising a vast variety of functions.
Neither the Cabinet nor the Prime Minister, as such, claims to exercise any powers conferred by law.
They take the decision, but the acts which have legal effect are taken by others the Privy Council, a Minister, a statutory commission and the like.
At page 81, it is stated, that the existence and activities of these coordinating ministers does not impair or diminish the responsibility to Parliament of the departmental ministers whose policies they co ordinate.
The ministers are fully accountable to Parliament for any act of policy or administration within their departmental jurisdiction.
It does not follow that the coordinating ministers are non responsible.
Having no statutory powers as coordinating ministers, they perform in that capacity no formal acts.
But they share in the collective responsibility of the Govt.
as a whole, and, as Minister they are accountable to Parliament.
At page 233, he stated that the Cabinet has to decide policy matters.
Cabinet is policy formulating body.
When it has determined on a policy, the appropriate department carries it out, either by administrative action within the law or by drafting a bill to be submitted to Parliament so as to change the law.
The Cabinet is a general, controlling body.
It neither desires, nor is able to deal with all the numerous details of the Govt.
It expects a minister to take all decisions which are not of real political importance.
Every Minister must, therefore, exercise his own discretion as to what matters arising in his department ought to receive cabinet sanction.
At page 35 1, he stated that civil servants prepare memorandum for their Ministers.
Ministers discuss in Cabinet.
Proposals are debated in the House of Commons.
At the, persons involved are peculiar people and nobody knows what the man in the back street thinks of it all, though the politician often thinks he does.
On the Cabinet 832 Minister 's responsibility at page 449, he stated that when it is said that a Minister is responsible to Parliament, it is meant that the House of Commons (in our constitution Lok Sabha) may demand an explanation.
If that explanation is not considered satisfactory and the responsibility is collective, the House will vote against the Govt.
and so compel a resignation or a dissolution.
If the responsibility is not collective, but the act or advice was due to the negligence of or to an error of judgment by a Minister and the House disapproves, the Minister will resign.
In Halsbury 's Laws of England, Fourth Ed., Vol. 8, para 820, it is stated that the Cabinet control of legislative and executive functions, the "modern English system of government is the concentration of the control of both legislative and executive functions in a small body of men, presided over by the Prime Minister, who are agreed on fundamentals and decide the most important questions of policy secretly in the Cabinet.
The most important check on their power is the existence of a powerful and organised parliamentary opposition, and the possibility that measures proposed or carried by the government may subject them to popular disapproval and enable the Opposition to defeat them at the next general election and supplant them in their control of the executive.
In Great Britain, Cabinet system is based on conventions.
Patrick Gordon Walker in his 'The Cabinet ' 1973 Revised Ed.
at p. 178 stated that basically Cabinet is a constitutional mechanism to ensure that before important decisions are reached many sides of the question are weighed and considered.
This means that much work must be done beforehand in interdepartmental discussions and in the preparation of papers for Cabinet Committees and the Cabinet.
Cabinet that acts without briefs or over hastily ' think for themselves ' usually, in my experience, make mistaken decisions.
Political decisions of importance are in their nature complex and need some time and thought.
The cabinet system is extremely well adapted to making considered decisions with all due speed.
Cabinet discussions as distinct from Cabinet decisions must, from their nature, be kept secret.
At page 184 he maintained that the main effective change towards less secrecy would be for the Cabinet to share with Parliament and public more of the factual information on which the government makes some of their decisions.
Moves in this direction have begun to be taken.
In his "the British Cabinet" John P. Mackintosh, 2nd Edn.
at p. 11 stated that if there is dissension between Ministers, matters may be thrashed out in private and the contestants plead in turn with the Prime Minister, but it is in the Cabinet that the conflict must be formally solved, the minority either accepting the decision and assuming joint responsibility or, if they cannot tolerate it, tender their resignations.
At p.529, he stated that some decisions are taken by the Prime Minister alone, some in consultation between him and the senior Ministers, while others are left to heads of departments, to the full Cabinet, to the concerned Cabinet Committee, or to the 833 permanent officials.
Of these bodies the Cabinet holds the central position because, thou oh it does not often govern in that sense, it is the place where disputes are settled, where major policies are endorsed and where the balance of the forces emerge if there is disagreement.
In the end, most decisions have to be reported to the Cabinet and Cabinet Minister are the only ones who have the right to complain, if they have not been informed or consulted.
Hood Phillips and Paul Jackson in their Constitutional and Administrative Law, 7th Ed.
at p.301 stated that the duties of Cabinets are: "(a) the final determination of the policy to be submitted to Parliament ', (b) the supreme control of the national executive in accordance with the policy prescribed by the Parliament, and (c) the continuous coordination and delimitation in the interests of the several departments of State.
" The Cabinet, giving collective . advice" to the Sovereign through the Prime Minister, was said to exercise under Parliament, supreme control over all departments of State, and to be the body which coordinate the work on the one hand of the executive and the legislature, and on the other hand of the organs of the executive among themselves.
At p.307, they stated that "committee system has increased the efficiency of the Cabinet, and enables a great deal more work to be done by Ministers".
The Cabinet itself is left free to discuss controversial matters and to make more important decisions, and its business is better prepared.
The system also enables non Cabinet Ministers to be brought into discussions.
At p.309 it is stated that "the responsibility of Ministers is both individual and collective".
The individual responsibility of a Minister for the performance of his official duties is both legal and conventional: it is owed legally to the sovereign and also by convention to Parliament.
Responsibility is accountability or answerability.
The responsible Minister is the one under whose authority an act was, done, or "who must take the constitutional consequences of what has been done either by himself or in his department".
In 'the Cabinet Walker, at page 183 stated that the feeling is widespread that the Cabinet shrouds its affairs in too much secrecy and that Parliament, Press and public should be able to participate to a greater degree in formulation of policy.
With few exceptions Cabinet decisions have to be made public in order to he made effective, although a small number that do not need to be executed, do not become known, for instance talks with a foreign country or a decision not to take some action.
All other cabinet decisions are necessarily disclosed and are subject to public scrutiny.
Cabinet discussions as distinct from Cabinet decisions must, from their nature, be kept secret.
Cabinet discussions often depend upon confidential advice from civil servants or reports from Ambassadors.
If those are disclosed and thus become subject to public attack, it would be extremely difficult for the cabinet 834 to secure free and frank advice.
In Rai Sahib Ram Jawaya Kapur & Ors.
vs The State of Punjab at 236, this Court held that the existence of the law is not a condition precedent for the exercise of the executive power.
The executive power connotes the residual government function that remain after legislative and judicial functions are taken away, subject to the provisions of the Constitution or the law.
It would thus be held that the Cabinet known as Council of Ministers headed by Prime Minister under article 75(3) is the driving and steering body responsible for the Governance of the country.
They enjoy the confidence of the Parliament and remain in office so long as they maintain the confidence of the majority.
They are answerable to the Parliament and accountable to people.
They bear collective responsibility and shall be bound to maintain secrecy.
Their executive function comprises of both the determination of the policy as well as carrying it into execution, the initiation of legislation, the maintenance of order, the promotion of social and economic welfare, direction of foreign policy.
In short the carrying on or supervision of the general administration of the affairs of Union of India which includes political activity and carrying on all trading activities, the acquisition, holding and disposal of property and the making of contracts for any purpose.
In short the primary function of the Cabinet is to formulate the policies of the Govt.
in confirmity with the directive principles of the Constitution for the Governance of the nation; place before the Parliament for acceptance and would carry on the executive function of the State as per the provisions of the Constitution and the laws.
Collective responsibility under article 75(3) of the Constitution inheres maintenance of confidentiality as enjoined in oaths of office and of secrecy set forth in Schedule III of the Constitution that the Minister will not directly or indirectly communicate or reveal to any person or persons any matter which shall be brought under his/her consideration or shall become known to him/her as Minister except as may be required for the "due discharge of his/her duty as Minister".
The base and basic postulate of its significance is unexceptionable.
But the need for and effect of confidentiality has to be nurtured not merely from political imperatives of collective responsibility envisaged by article 75(3) but also from its pragmatism.
Bagehot in his 'The English Constitution ', 1964 Edition at p. 68 stated that the most curious point about the Cabinet is that so very little is known about it.
The meetings are not only secret in theory, but secret in reality.
By the present practice, no official minute in all ordinary cases is kept of them.
Even a private note is discouraged and disliked. .
But a Cabinet, though it is a committee of the legislative assembly,is a committee with a power which no assembly would unless 835 for historical accidents, and after happy experience have been persuaded to entrust to any committee.
It is a committee which can dissolve the assembly which appointed it; it is a committee with a suspensive veto a committee with a power of appeal.
In Commonwealth of Australia vs Northern Land Council & Anr.
[1991] 103 Australian Law Reports, p. 267, the Federal Court of Australia General Division, was to consider the scope of confidentiality of the cabinet papers, collective responsibility of the Council of Ministers and the need for discovery of the Cabinet note books and dealt with the question thus : "The conventional wisdom of contemporary constitutional practice present secrecy as a necessary incident of collective responsibility.
But historically it seems to have derived from the 17th century origins of the cabinet as an inner circle of Privy Councillors, sometimes called the Cabinet Council who acted as advisors to the monarch. .
However, that basis for confidentiality has to be assessed in the light of the political, imperatives of collective responsibility.
" Confidentiality has been described as ' the natural correlative of collective responsibility.
It is said to be difficult for Ministers to make an effective defence in public of decisions with which it is known that they have disagreed in the course of Cabinet discussions.
The Cabinet as a whole is responsible for the advice and conduct of each of its members.
If any member of the Cabinet seriously dissents from the opinion and policy approved ' by the majority of his colleagues it is his duty as a man of honour to resign.
Cabinet secrecy is an essential part of the structure of government which centers of political experience have created.
To impair it without a very strong reason would be vandalism the wanton rejection of the fruits of civilisation.
By operation of article 75 (3) and oaths of office and of secrecy taken, the" individual Minister and the Council of Ministers with the Prime Minister as its head, as executive head of the State as a unit, body or committee are individually and collectively responsible to their decisions or acts or policies and they should work in unison and harmony.
They individually and collectively maintain secrecy of the deliberations both of administration and of formulating executive or legislative policies.
Advice tendered by the Cabinet to the President should be unanimous.
The Cabinet should stand or fall together.
Therefore, the Cabinet as a whole is collectively responsible for the advice tendered to the President and for the conduct of business of each of his/her department.
They require to maintain secrecy and confidentiality in the performance of that duty of office entrusted by the Constitution and the laws.
Political promises or aims as per manifesto of the political party are necessarily broad; in their particular applications, when voted to power, may be the subject of disagreement among the members of the Cabinet.
836 Each member of the Cabinet has personal responsibility to his conscience and also responsibility to the Government.
Discussion and persuasion may diminish disagreement, reach unanimity, or leave it unaltered.
Despite persistence of disagreement, it is a decision, though some members like it less than others.
Both practical politics and good Government require that those who like it less must still publicly support it.
If such support is too great a strain on a Minister 's conscience or incompatible to his/her perceptions of commitment and find it difficult to support the decision, it would be open to him/her to resign.
So the price of the acceptance of Cabinet office is the assumption of the responsibility to support Cabinet decisions.
The burden of that responsibility is shared by all.
Equally every member is entitled to insist that whatever his own contribution was to the making of the decision, whether favourable or unfavourable, every other member will keep it secret.
Maintenance of secrecy of an individual 's contribution to discussion, or vote in the Cabinet guarantees most favourable and conducive atmosphere to express views formally.
To reveal the view, or vote, of a member of the Cabinet, expressed or given in Cabinet, is not only to disappoint an expectation on which that member was entitled to rely, but also to reduce the security of the continuing guarantee, and above all, to undermine the principle of Collective responsibility.
Joint responsibility supersede individual responsibility; in accepting responsibility for joint decision, each member is entitled to an assurance that he will be held responsible not only for his own, but also as member if the whole Cabinet which made it; that he will be held responsible for maintaining secrecy of any different view which the others may have expressed.
The obvious and basic fact is that as part of the machinery of the Government, Cabinet secrecy is an essential part of the structure of the government.
Confidentiality and collective responsibility in that scenario are twins to effectuate the object of frank and open debate to augment efficiency of public service or effectivity of collective decision to elongate public interest.
To hamper and impair them without any compelling or at least strong reasons, would be detrimental to the efficacy of public administration.
It would tantamount to wanton rejection of the fruits of democratic governance, and abdication of an office of responsibility and dependability.
Maintaining of top secrecy of new taxation policies is a must but leaking budget proposals a day before presentation of the budget may be an exceptional occurrence as an instance.
Above compulsive constraints would give rise to an immediate question whether the minister is required to disclose in the affidavit the reasons or grounds for public interest immunity of disclosure and the oath of secrecy is thereby whether breached or whether it would be a shield for non production of unpub 837 lished state documents or an escape route to acts impugned as fondly pleaded and fervently argued by Attorney General.
It is already held that on issuance of rule nisi or discovery order nisi" every or, ,an of the State or the authority or a person is enjoined to act in aid of this court and pursuant thereto shall be required to produce the summoned documents.
But when a claim for public interest immunity has been laid for non disclosure of the state documents, it is the Minister 's "due discharge of duty" to state on oath in his affidavit the grounds on which and the reasons for which he has been persuaded to claim public interest immunity from disclosure of the state papers and produce them.
The oath of secrecy the Minister had taken does not absolve him from filing the affidavit.
It is his due discharge of constitutional duty to state in the affidavit of the grounds or reasons in support of public interest immunity from producing the state documents before the Court, In Attorney General vs Jonathan Cape Ltd. [1976] Queen 's Bench, 752, Lord Widgery, C.J., repelled the contention that publication of the diaries maintained by the Minister would be in breach of oath of secrecy.
In support of the plea of secrecy reliance was placed on the debates on cabinet secrecy, that took place on December 1, 1932 in the House of Lords.
An extract from the official report of House of Lords, at Column 520 Lord Hailsham 's speech emphasised the imperative to maintain secrecy and the limitation which rigidly hedged around the position of a Cabinet Minister thus: "having heard that oath read your Lordships will appreciate what a complete misconception it is.
to suppose, as some people seem inclined to suppose, that the only obligation that rests upon a Cabinet Minister is not to disclose what are described as the Cabinet 's minutes.
He is sworn to keep secret all matters committed and revealed unto him or that shall be treated secretrly in council".
He went on to point out that: "I have stressed that because, as my noble and learned friend Lord Halsbury suggested and the noble Marquis, Lord Salisbury, confirmed, Cabinet conclusions did not exist until 16 years ago.
The old practice is set out in a book which bears the name of the noble Earl 's father, Halsbury 's Laws of England, with which I have had the honour to be associated in the present edition.
" Then in column 532 of the speech Lord Hailsham, stated that the oath of secrecy should be maintained.
"Upon matters on which it is their shorn duty to express, their. opinions.
with complete frankness and to give all information, without any haunting fear that what happens may hereafter by publication create difficulties for themselves or, what is far more grave, may create complications for the king and country that they are trying to serve.
For those reasons I hope that the inflexible rule which has hitherto prevailed will be maintained in its integrity, and that if there has been any relaxation or misunderstanding, of which I say nothing, 838 the debate in this House will have done something to clarify the position and restate the old rule in all its rigour and all its inflexibility." As a Council of Minister, his duty is to maintain the sanctity of oath and to keep discussions and information he had during its course as secret.
Lord Widgery after considering the evidence of a former Minister examined in that case who did not support the view of Lord Hailsham, held thus: "that degree of protection, afforded to cabinet papers and discussions cannot be determined by single rule of thumb.
Some secrets require a high standard of protection for short time, other requires protection till a new political generation has taken over.
In the Present action against the literary executors, "the perpetual injunction against them restraining from their publication was not proper".
It was further held that the draconian remedy when public interest demands it would be relaxed.
In Sankey vs Whitlan 1979 153 Australian Law Journal Reports, 11, while considering the same question, Gibbs, A.,C.J., at p.23, held that the fact that members of the Executive Council are required to take a binding oath of secrecy does not assist the argument that the production of State papers cannot be compelled.
The plea of privilege was negatived and the Cabinet papers were directed to be produced.
The contention that the Minister is precluded to disclose in his affidavit the grounds or the reasons as to how he dealt with the matter as a part of the claim for public interest immunity is devoid of substance.
It is already held that it is the duty of the Minister to file an affidavit stating the grounds or the reasons in support of the claim from public interest immunity.
He takes grave risk on insistence of oath of secrecy to avoid filing an affidavit or production of State documents and the court may be constrained to draw such inference as are available at law.
Accordingly we hold that the oath of office of secrecy adumberated in Article 75(4) and Schedule III of the Constitution does not absolve the Minister either to state the reasons in support of the public interest immunity to produce the state documents or as to how the matter was dealt with or for their production when discovery order nisi or rule nisi was issued.
On the other hand it is his due discharge of the duty as a Minister to obey rule nisi or discovery order nisi and act in aid of the court.
The next limb of the argument is that the Cabinet Sub committee 's decision is a class document and the contents of state documents required to be kept in confidence for efficient functioning of public service including candid and objective expression of the views on the opinion by the Ministers or bureaucrats etc.
The prospects of later disclosure at a at a litigation would hamper and dampen 839 candour causing serious incursion into the efficacy of public service and result in deterioration in proper functioning of the public service.
This blanket shielding of disclosure was disfavoured right from Robinson vs State of South Australia [1931] Appeal Cases, (P.C.), p. 704 Lord Warrington speaking for the Board held that the privilege is a narrow, one and must sparingly be exercised.
This court in Raj Narain 's case considering green book, i.e., guidelines for protecting VVIPs on tour, though held to be confidential document and be wihheld from production, though part of its contents were already revealed, yet it was held that confidentiality itself is not a head of privilege.
In S.P. Gupta 's case, Bhagwati, J., speaking per majority, reviewing the case law and the privilege against disclosure of correspondence exchanged between the Chief Justice of the Delhi High Court, Chief Justice of India and the Law Minister of the Union concerning extension of term or appointment of Addl.
Judges of the Delhi High Court, which was not dissented, (but explained by Fazal Ali,J.) held that in a democracy, citizens are to know what their Govt.
is doing.
No democratic Govt.
can survive without accountability and the basic postulate of accountability is that the people should have information about the functioning of the Govt.
It is only if the people know how the Govt.
is functioning and that they can fulfill their own democratic rights given to them and make the democracy a really effective participatory democracy.
There can be little doubt that exposure to public scrutiny is one of the surest means of running a clean and healthy administration.
Disclosure of information in regard to the functioning of the Govt.
must be the rule and secrecy can be exceptionally justified only where strict requirements of public information was assumed.
The approach of the court must be to alleviate the area of secrecy as much as possible constantly with the requirement of public interest bearing in mind all the time that the disclosure also serves an important ' aspect of public interest.
In that case the correspondence between the constitutional functionaries was inspected by this court and disclosed to the opposite parties to formulate their contentions.
In Conway 's case, the speech of Lord Reid is the sole votery to support the plea of confidentiality emphasising that, "the business of Govt.
is difficult enough as it is no Govt.
could contemplate with equanimity the inner workings of the Govt.
machine being exposed to the gazes of those ready to criticise without adequate knowledge of the background and perhaps with some axe to grind".
Other Law Lords negated it.
Lord Morris of Borth y Gest referred it as "being doubtful validity".
Lord Hodson thought it "impossible to justify the doctrine in its widest term.
Lord Pearce considered that "a general blanket protection of wide classes 840 led to a 0complete lack of common sense".
Lord Upjohn found it difficult to justify the doctrine "when those in other walks of life which give rise to equally important matters of confidence in relation to security and personal matters as in the public service can claim no such privilege".
In Burmah Oil Co 'section case House of Lords dealing with the cabinet discussion laid that the claim for blanket immunity "must now be treated as having little weight, if any".
It was further stated that the notion that "any competent and conscientious public servant would be inhibited at all in the candour of his writings by consideration of the off chance that they might have to be produced in a litigation as grotesque".
The plea of impairment of public service was also held not available stating "now a days the state in multifarious manifestations impinges closely upon the lives and activities of individual citizens.
Where this was involved a citizen in litigation with the state or one of its agencies, the candour argument is an utterly insubstantial ground for denying his access to relevant document".
The candour doctrine stands in a different category from that aspect of public interest which in appropriate circumstances may require that the "Sources and nature of information confidentially tendered" should be with held from disclosure.
In Reg vs, Lewes Justices, Ex Parte Secretary of state for the Home Department [1973] A.C. 388 and D.V National Society ,for the Prevention of Cruelty to Children ; , are cases in point on that matter and needs no reiteration.
It would, therefore, be concluded that it would be going too far to lay down that no document in any particular class or one of the categories of cabinet papers or decisions or contents thereof should never, in any circumstances, be ordered to be produced.
Lord Keith in Burnnah Oil 's case considered that it would be going too far to lay down a total protection to cabinet minutes.
The learned Law Lord at p. 1134 stated that "something must turn upon the subject matter, the persons who dealt with it, and the manner in which they did so.
In so far as a matter of government policy is concerned, it may be relevant to know the extent to which the policy remains unfulfilled, so that its success might be prejudiced by disclosure of the considerations which led to it.
In that context the time element enters into the equation.
Details of an affair which is stale and no longer of topical significance might be capable of disclosure without risk of damage to the public interest. .
The nature of the litigation and the apparent importance to it of the documents in question may in extreme cases demand production even of the most sensitive communications to the highest level." Lord Scarman also objected total immunity to Cabinet documents on the plea of candour.
In Air Canada 's case, Lord Fraser lifted Cabinet minutes front the total immunity to disclose, although same were entitled to a hi oh degree of protection . ." 841 In Jonathan Cape Ltd. 's case, it was held that, "it seen is that the degree of protection afforded to Cabinet papers and discussions cannot be determined by a single rule of thumb.
Some secrets require a high standard of protection for a short time.
Others require protection until new political generation has taken over.
Lord Redcliff Committee, appointed pursuant to this decision, recommended time gap of 15 years to withhold disclosure of the cabinet proceedings and the Govt.
accepted the same.
Shanky 's case ratio too discounted total immunity to the Cabinet document as a class and the plea of hampering, freedom and candid advice or exchange of views and opinions was also rejected.
It was held that the need for protection depends on the facts in each case.
The object of the protection is to ensure the proper working of the Govt.
and not to shield the Ministers and servants of the crown from criticism however, intemperate and unfairly based.
Pincus J. in Harbour Corp. of Queensland vs Vessey Chemicals Ply Ltd. ; Wilcox J. in Manthal Australia Pty Ltd. vs Minister for industry, Technology and commerce 11987171 ALR 109; Koowarta vs Bjelke Petersen [1988] and took the same view.
In Australia, the recognised rule thus is that the blanket immunity of all Cabinet documents was given a go bye.
In United States vs Richard M. Nixon ; = 41 Lawyers Ed., 2nd Ed., 1039, a grand jury of the United States District Court for the District of Columbia indicted named individuals, charging them with various offences, including conspiracy to defraud the United States and to obstruct justice; and Mr Nixon, the President of United States was also named as an unindicted coconspirator.
The special prosecutor issued a third party subpoena duces tecum directing the President to produce at the trial certain tape recordings and documents relating to his conversations with aides and advisors known as Watergate rapes.
The President 's executive privilege again st disclosure of confidential communications was negatived holding that the right to the production of all evidence at a criminal trial has constitutional dimensions under sixth amendment.
The fifth amendment guarantees that no person shall be deprived of liberty without due process of law.
It was, therefore, held that it is the manifest duty of the court to vindicate those guarantees, and to accomplish that, it is essential that all relevant and admissible evidence be produced.
Though the court must weigh the importance of the general privilege of confidentiality of Presidential communications in performance of his responsibilities, it is an inroad on the fair administration of criminal justice.
In balancing between the President 's generalised interest in confidentiality and the need for relevant evidence in the litigation, civil or criminal and though the interest in preserving confidentiality is weighty indeed "and entitled to great respect.
" Allowing privilege to withhold evidence that is demonstrably relevant in a criminal trial would cut deeply into the guarantee of due process of law and gravely impair the basic function of the courts.
A President 's acknowledged need for 842 confidentiality in the communications of his office is general in nature, whereas constitutional need for production of relevant evidence in a criminal proceeding is specific, and central to the fair adjudication of a particular criminal case in the administration of justice.
Without access to specific facts a criminal prosecution may be totally frustrated.
The President 's broad interest in confidentiality of communications will not be vitiated by disclosure of a limited number of conversations preliminarily shown to have some bearing on the pending criminal cases.
If the privilege is based only on the generalized interest in confidentiality, it cannot prevail over the fundamental demands of due process of law in the fair administration of criminal justice.
The generalized assertion of privilege must yield to the demonstrated, specific need for evidence in a pending criminal trial.
Exemptions were engrafted only to the evidence relating to "the security of the State, diplomatic relations and defence".
It was held that "the importance of this confidentiality is too plain to require further discussion.
Human experience teaches that those who expect public dissemination of their remarks may well temper candor with a concern for appearances and for their own interest to the detriment of the decision making process.
Whatever the nature of the privilege of confidentiality of Presidential communications in the exercise of article 11 powers, the privilege can be said to derive from the supremacy of each branch within its own assigned area of constitutional duties.
Certain powers and privileges flow from the nature of enumerated powers, the protection of the confidentiality of Presidential communications has similar constitutional underpinnings.
However, neither the doctrine of separation of powers, nor the need for confidentiality of high level communications, without more, can sustain an absolute, unqualified Presidential privilege of immunity from judicial process under all circumstances.
The President 's need for complete candor and objectivity from advisers calls for great deference from the courts.
However, when the privilege depends solely on the broad, undifferentiated claim of public interest in the confidentiality of such conversations, a confrontation with other values arises.
Absent a claim of need to protect military, diplomatic, or sensitive national security secrets, we find it difficult to accept the argument that even the very important interest in confidentiality of Presidential communications is significantly diminished by production of such material for in camera inspection with all the protection that a district court will be obliged to provide.
In a clash of public interest that harm shall be done to the nation or the public service by disclosure of certain documents and the administration of justice shall not be frustrated by withholding the document which must be produced if justice is to be done, it is the courts duty to balance the competing interests by weighing in scales, the effect of disclosure on the public interest or injury to administration 843 of justice, which would do greater harm.
Some of the important considerations in the balancing act are thus: "in the interest of national security some information which is so secret that it cannot be disclosed except to a very few for instance the state or its own spies or agents just as other counters have.
Their very lives may be endangered if there is the slighest hint of what they are doing.
In Mark Hosenball.
R. vs Home Secretary.
ex parte Hosenball , in the interest of national security Lord Denning, M.R. did not permit disclosure of the information furnished by the security service to the Home Secretary holding it highly confidence The public interest in the security of the realm was held so great that the sources of the information must not be disclosed nor should the nature of the information itself be disclosed.
There is a natural temptation for people in executive position to regard the interest of the department as paramount forgetting that there is yet another Greater interest to be considered, namely, the interest of justice itself.
Inconvenience and justice are often not on speaking terms.
No one can suppose that the executive will never be guilty of the sins common to all people.
Sometimes they may do things which they on which they on ought not to do or will not do things they ought to do.
The court must be alive to that possibility of the executive committing illegality in its process, exercising its powers, reaching a decision which no reasonable authority would have reached or otherwise abuse its powers, etc.
If and when such wrongs are suffered or encountered injustice by an individual what would be the remedy? Just as shawl is not suitable for winning the cold, so also mere remedy of writ of mandamus, certiorari, etc.
or such action as is warranted are not enough, unless necessary foundation with factual material, in support thereof, are laid.
Judicial review aims to protect a citizen from such breaches of power, non exercise of power or lack of power etc.
The functionary must be guided by relevant and germane considerations.
If the proceeding, decision or order is influenced by extraneous considerations which ought not to have been taken into account, it cannot stand and needs correction, no matter of the nature of the statutory body or status or stature of the constitutional functionary though might have acted in good faith.
Here the court in its judicial review, is not concerned with the merits of the decisions, but its legality.
It is, therefore, the function of the court to see that lawful authority is not abused.
Every communication that passes between different departments of the Govt.
or between the members of the same department interse and every order made by a Minister or Head of the Department cannot, therefore, be deemed to relate to the affairs of the state, unless it related to a matter of vital importance, the disclosure of which is likely to prejudice the interest of the state.
Confidentiality, candour and efficient public service often bear common 844 mask.
Lord Keath in Burmah Oil 's case, observed that the notion that any ' competent or conscientious public servant would be inhibited in the candour of his writings by consideration of the off chance that they might have to be produced inlitigationisgrotesque.
The possibility that it impairs the public service was also nailed.
This court in section P. Gupta 's case also rejected the plea of hampering candid expression of views or opinion by constitutional functionaries and bureaucrats.
In Whitlam vs Australian Consolidated Press [1985] 60 ALR p. 7, the Supreme Court of Australia Capital territory in a suit for damages for defamation, the plaintiff, the former Prime Minister of Australia was called upon to answer certain interrogatories to disclose discussions and words uttered at the meeting of the Cabinet or of the Executive Council at which the plaintiff had been present.
The commonwealth intervened and claimed privilege prohibiting the plaintiff to disclose by answering those interrogatories.
The claim was based on two grounds: (i) the oath taken by the plaintiff as a member of the Executive Council; and also immunity from disclosing of the Cabinet meetings and both were public policies.
It was also contended that it would be in breach of the principle of collective Cabinet responsibility.
The court held that the oath taken by the plaintiff did not in itself provide a reason for refusing to answer the interrogatories whether immunity from disclosure would be granted depends upon the balancing of two competing aspects, both of public policy, on the one hand the need to protect a public interest which might be endangered by disclosure, and on the other the need to ensure that the private rights of individual litigants are not unduly restricted.
The disclosure of the meeting of the Cabinet or of the Executive Council would not be a breach of the principle of other two responsibilities.
Bagehot stated, protection from disclosure is not for the purpose of shielding them from criticism, but of preventing the attribution to them of personal responsibility.
It was stated that "I am not required to lay down a precise test of when an individual opinion expressed in Cabinet becomes of merely historical interest".
The Cabinet minutes and minutes of discussion are a class.
They might in very special circumstances be examined.
Public interest in maintaining Cabinet secrecy easily outweighs the contrary public interest in ensuring that the defendant has proper facilities for conducting its case, principally because of the enormous importance of Cabinet secrecy by comparison with the private rights of an individual and also because of the relative unimportance of these answers to the defendant 's case.
Answers to interrogatories 87 (vii), (viii) and (ix) were restrained to be disclosed which relates to the members of the Council who expressed doubts as to whether the borrowing was wholly for temporary purpose and to identify such purpose.
In Jonathan Cape Ltd. case, Lord Widgery CJ.
held that publication of the Cabinet discussion after certain lapse of time would not inhibit free discussion in the Cabinet of today, even though the individuals involved are the same, and the national problems have a distressing similarity with those of a decade ago.
It is difficult to say at what point the material 845 loses its confidential character.
on the ground that publication will no longer undermine the doctrine of joint Cabinet responsibility.
The doctrine of ' joint Cabinet responsibility is not undermined so long as the publication would not "inhibit free discussion in the Cabinet and the court decides the issue '.
In Minister for Arts Heritage and Environment and Ors.
vs Peko Wallsend Ltd. and Ors.
11987175 ALR 218, Federal Court of Australia General Division, the respondent had mining lease under the existing law.
In 1986 the Cabinet decided that portion of the same land covered by KNP Kakadu National Park in the Northern Territory (State 2) was earmarked for inclusion in the World Heritage List (the List) which had been established under the World Heritage Convention (the Convention) and to submit to Parliament aplan of management for the national park which differed from a previous plan "which enabled exploration and mining to take place outside pre existing leases with the approval of the Governor General".
Under the Convention on listing, could be made without the "consent" of the State party concerned.
The respondents laid the proceedings to restrain the appellants from taking further steps to have Stage 2 nominated for inclusion on the list on the basis that Cabinet was bound by tile rules of natural justice to afford the man opportunity to be heard and that it failed to do so.
The Single Judge declared the action as void.
Thereafter the National Park and Wildlife conservation Amendment Act, 1987 came into force adding sub section
(IA) to section 10 of that Act which provides that "No operations for the recovery of ' minerals shall be carried on in Kakadu National Park".
While allowing the appeal, the full court held that the Executive action was not immune from judicial review merely because it was carried out in pursuance of a power derived from the prerogative rather than a statutory source.
The decision taken for the prerogative of the Cabinet is subject to judicial review.
In Commonwealth of Australia vs Northern Land Council and Anr.
[1991] 103 ALR p.267, in a suit for injunction for Northern Land Council (NLC) against the Commonwealth sought production of certain documents including 126 Cabinet notebooks.
A Judge of the Federal Court ordered the Commonwealth to produce the notebooks for confidential inspection on behalf of NLC.
On appeal it was held that information which may either directly or indirectly enable the party requiring them either to advance his own case or to damage the case of his advisory are necessary.
The class of Cabinet papers do not afford absolute protection against disclosure and is not a basis for otherwise unqualified immunity from production.
The Commonwealth cannot claim any immunity for public interest immunity from production.
The court should decide at the threshold balancing of the public interest in the administration of justice.
The court does not have to be satisfied that, as a matter of likelihood rather than mere speculation, the materials would contain evidence for tender at trial.
846 In a democracy it is inherently difficult to function at high governmental level without some degree of secrecy.
No Minister, nor it Senior Officer would effectively discharge his official responsibilities if every document prepared to formulates sensitive policy decisions or to make assessment of character rolls of coordinate officers at that level if they were to be made public.
Generally assessment of honesty and integrity is a high responsibility.
At high co ordinate level it would be a delegate one which would furthered compounded when it is not backed up with material.
Seldom material will be available in sensitive areas.
Reputation gathered by an officer around him would form the base.
If the reports are made known, or if the disclosure is routine, public interest grievously would suffer.
On the other hand, confidentiality would augment honest assessment it) improve efficiency and integrity in the officers.
The business of the Govt.
, when transacted by bureaucrats, even in personal level, it would be difficult to have equanimity if the inner working of the Govt.
machinery is needlessly exposed to the public.
On such sensitive issues it would hamper the expression of frank and forthright views or opinions.
Therefore, it may be that at that level the deliberations and in exceptional cases that class or category of documents get protection in particular, on policy matters.
Therefore.
the court would he willing to respond to the executive public interest immunity to disclose certain documents where national security or high policy, high sensitivity is involved.
In Asiatic Petroleium vs Anglo Persian Oil , the court refused production of the letter concerning the Govt.
plans relating to Middle Estern campaigns of the First World was.
as claimed by the Board of Admiralty.
Similarly, in Duncan vs Cammell Laired, ; , tile House of lords refused disclosure of the design of sub marine.
The national defence as a class needs protection in the interest of security of the State.
Similarly to keep good diplomatic relations the state documents or official or confidential documents between the Govt.
and its agencies need immunity from production.
In Council of Civil Service Union vs Minster for Civil Service the Govt.
Communications headquarters (GCHQ) functions were to ensure the security of military and official communications and to provide the Govt.
with signals intelligence.
They have to handle secret information vital to national security.
The staff of CCHQ was permitted to be members of the trade union, but litter on instructions were issued, without prior consultation, amending the Staff rules and directed them to dissociate from tile trade union activities.
The Previous practice of prior consultation before amendment was not followed.
Judicial review 847 was sought of the amended rules pleading that failure to consult the union before amendment amounts to unfair act and summoned the records relating to it.
An affidavit of the cabinet Secretary was filed explaining the disruptive activities, the national security, and the union actions designed to damage Govt.
agencies.
Explaining the risk of participation by the members in further disruption, the House held that executive action was not immune from judicial review merely because it was carried out in pursuance of a power derived from a common law, or prerogative, rather than a statutory source and a minister acting under a prerogative power might, depending upon its subject matter, whether under the same duty to act fairly as in the case of action under a statutory power.
But, however, certain information.
on consideration of national security, was withheld and the failure of prior consultation of the trade union or its members before issue the amended instruction or amending the rules was held not infracted.
In Burmah Oil Co 'section case.
at an action by the Oil Company against the Bank for declaration that the sale of units in British Petroleum held by the company at 2.30 Pounds per unit was unconscionable and inequitable.
The oil company sought production of the cabinet decision and 62 documents in possession and control of the bank.
The state claimed privilege on the basis of the certificate issued by the Minister.
House of Lords per majority directed to disclose certain documents which were necessary to dispose of the case fairly.
Lord Scarman laid that they were relevant, but their significance was not such a:, to override the public interest objections to their production.
Lords Wilberforce dissented and held that public interest demands protection of them.
In The Australian Communist Party & Ors.
vs Commonwealth & Ors.
[1950 51] 83 C.L.R. p. 1, at p. 179, Dixon, J. while considering the claim of secrecy and non availability of the proclamation or declaration of the Governor General in Council based on the advice tendered by the Minister rejected the privilege and held that the court would go into the question whether the satisfaction reached by the Governor General in Council was justified.
The court has ,one into the question of competence to dissolve a voluntary or corporate association i.e. Communist Party as unlawful within the meaning of Sec.
5(2) of the Constitutional Law of the Commonwealth.
In The Queen vs Toohey ; , the Northern Territory (Self Government) Act, 1978 provides appointment of an Administrator to exercise and perform the functions conferred under the Act.
The Town Planning Act, 1979 regulates the area of land to be treated as towns.
The Commissioner exercising powers under the Act held that part of the peninsula specified in the schedule was not available for town Planning Act.
When it was challenged.
there was a change in the law and the Minister filed an affidavit 848 claiming the privilege of certain documents stating that with a view to preserve the land to the original, the Govt. have decided to treat that the land will continue to be held by or on behalf of the originals.
Gibbs,.
held that under modern conditions, a responsible Govt., Parliament could not always be relied on to check excesses of power by the Crown or its Ministers.
The court could ensure that the statutory power is exercised only for the purpose it is granted.
The secrecy of the counsel of the Crown is by no means complete and if evidence is available to show that the Crown acted for an ulterior purpose, it is difficult to see why it should not be acted upon.
It was concluded thus: "In my opinion no convincing reason can be suggested for limiting the ordinary power of the courts to inquire whether there has been a proper exercise of a statutory power by giving to the Crown a special immunity from review.
If the statutory power is granted to the Crown for one purpose, it is clear that it is not lawfully exercised if it is used for another.
The courts have the power and duty to ensure that statutory powers are exercised only in accordance with law".
The factors to decide the "public interest immunity would include" (a) where the contents of the documents are relied upon, the interests affected by their disclosure; (b) where the class of documents is invoked, where the public interest immunity for the class is said to protect; (c) the extent to which the interests referred to have become attenuated by the passage of time or the occurrence of intervening events since the matters contained in the documents themselves came into existence; (d) the seriousness of the issues in relation to which production is sought; (e) the likelihood that production of the documents will affect the outcome of the case; (f) the likelihood of injustice if the documents are not produced.
In President Nixon 's case, the Supreme Court of the United States held that it is the court 's duty to construe and delineate claims arising under express powers, to interpret claims with respect to powers alleged to derive from enumerated powers of the Constitution.
In deciding whether the matter has in any measure been committed by the Constitution to another branch of Government, or whether the action of that branch exceeds whatever authority has been committed, is itself a delicate exercise in constitutional interpretation, and is the responsibility of the court as ultimate interpreter of the Constitution.
Neither the doctrine of separation of powers, nor the need for confidentiality of high level communications, without more, can sustain an absolute, unqualified Presidential privilege of immunity from judicial process under all circumstances.
The separation of powers given in the Constitution were not intended to operate with absolute independence when essential criminal statute would upset the constitutional balance of "a workable government" and gravely impair the role of the courts under article III.
The very integrity of the judicial system and public confidence in the system depend on full 849 disclosure of all the facts, within the framework of the rules of evidence.
To ensure that justice is done, it is imperative to the function of courts that compulsory process be available for the production of needed evidence.
The afore discussion lead to the following conclusions.
The President while exercising the Executive power under Art.73 read with article 53, discharges such of those Powers which are exclusively conferred to his individual discretion like appointing the Prime Minister under article 75 which are not open to judicial review.
The President exercises his power with the aid and advice of the Council of Ministers with the Prime Minister at the head under article 74 (1).
They exercise the power not as his delegates but as officers subordinate to him by constitutional mechanism envisaged under article 77 and express in the name of President as per Rules of Business made under Art.77(3).
They bear two different facets (i) the President exercise his power on the aid and advice; (ii) the individual minister or Council of Minister with the Prime Minister at the head discharge the functions without reference to the President.
Undoubtedly the Prime Minister is enjoined under article 78 to communicate to the President all decisions of the Council of Minister relating to the administration of the affairs of the Union and proposals for legislation and to furnish such information relating to the administration or reconsideration by the Council of Ministers if the President so requires and submit its decisions thereafter to the President.
That by itself is not conclusive and does not get blanket public interest immunity from disclosure.
The Council of Ministers though shall be collectively responsible to the House of the People, their acts are subject to the Constitution, Rule of law and judicial review are parts of the scheme of the Constitution as basic structure and judicial review is entrusted to this Court (High Court under Art.226).
When public interest immunity against disclosure of the state documents in the transaction of business by Council of Ministers of the affairs of State is made, in the clash of those interests, it is the right and duty of the court to weigh the balance in the scales that the harm shall not be done to the nation or the public service and equally of the administration of justice.
Each case must be considered on its backdrop.
The President has no implied authority under the Constitution to withhold the documents.
On the other hand it is his solemn constitutional duty to act in aid of the court to effectuate judicial review.
The Cabinet as a narrow centre of the national affairs must be in a possession of all relevant information which is secret or confidential.
At the cost of repetition it is reiterated that information relating to national security, diplomatic relations.
internal security or sensitive diplomatic correspondence per se are class documents and that public interest demands total immunity from disclosure.
Even the slightest divulgence would endanger the lives of the personnel engaged in the services etc.
The maxim Salus Popules Cast Supreme Lax which means that regard 850 for public welfare is the highest law, is the basic postulate for this immunity.
Political decisions like declaration of emergency under article 356 are not open to judicial review but it is for the electorate at the polls to decide the executive wisdom.
In other areas every communication which preceded from one officer of the State to another or the officers inter se does not necessarily per se relate, to the affairs of the State.
Whether they so relate has got to be determined by reference to the nature of the consideration, the level at which it was considered, the contents of the document or class to which it relates to and their indelible impact on public administration or public service and administration of justice itself.
Article 74(2) is not a total bar for production of the records.
Only the actual advice tendered by the Minister or Council or Ministers to the President and the question whether any, and if so, what ad ice was tendered by the Minister or Council of ministers to the President, shall not be enquired into by the court.
In other words the bar of judicial review is confined to the factum of advice, its extent, ambit and scope but not the record i.e. the material on which the advice is founded.
In S.P. Gupta 's case (his court held that only the actual advice tendered to the President is immuned from enquiry and the immunity does not extend to other documents or records which form part of the advice tendered to the President.
There is discernible modern trends towards more open government than was prevalent in the past.
In its judicial review the court would adopt in camera procedure to inspect the record and evaluate the balancing act between the competing public interest and administration of justice.
It is equally the paramount consideration that justice should not only be done but also would be publicly recognised as having been done.
Under modern conditions of responsible government, Parliament should not always he relied on as a check on excess of power by the Council of Ministers or Minister.
Though the court would not substitute its views to that of the executive on matters of policy, it is its undoubted power and duty to see that the executive exercises its power only for the purpose for which it is granted.
Secrecy of the advice or opinion is by no means conclusive.
Candour, frankness and confidentiality though are integral facets of the common genus i.e. efficient governmental functioning, per se by no means conclusive but be kept in view in weighing the balancing act.
Decided cases how that power often was exercised in excess thereof or for an ulterior purpose etc.
Sometimes the public service reasons will be decisive of the issue, but they should never prevent the court from weighing them against the injury which would be suffered in the administration of justice if the documents was not to be disclosed, and the likely injury to the cause of justice must also be assessed and weighed.
Its weight will very according to the nature of the proceedings in which disclosure is sought, level at which the matter was considered , the subject matter of ' consideration, the 851 relevance of the documents and the degree of likelihood that the document will be of importance in the litigation.
it striking the balance, the court may always, if it thinks it necessary, itself inspect the documents.
It is therefore the constitutional, legitimate and lawful power and duty of this court to ensure that powers constitutional statutory or executive are exercised in accordance with the constitution and the law.
This may demand though no doubt only in limited number of cases yet the inner workings of government may be exposed to public gaze.
The contentions of Attorney General and Solicitor General that the inner workings of the government would be exposed to public gaze, and that some one who would regard this as an occasion without sufficient material to ill informed criticism is no longer relevant.
Criticism, calculated to improve teh nature of that working as affecting the individual citizen is welcome.
In so far as unpublished government policy is concerned, it may be relevant to know the extent to which the policy remains unfulfilled, so that its success might be prejudiced by disclosure of the considerations which led to it.
In that context the time element becomes relevant.
Details of affairs which are stale and no longer of significance might be capable of disclosure without risk of damage to the public interest .But depending on teh nature of he litigation and the apparent importance to it of the documents in question may in extreme case demand production even of the most be considered on its backdrop.
President has no implied authority to withhold the document.
On the other hand it is his solemn constitutional duty to act in aid of the court to effectuate judicial review.
The Cabinet as a narrow centre of the national affairs must be in possession of all relevant information which is secret or confidential.
Decided cases on comparable jurisdiction referred to earlier did held that executive had no blanket immunity to withhold cabinet proceedings or decisions.
We therefore hold that the communication decisions or policy to teh President under article 74(1) gives only protection by article 74(2) of judicial review of the actual advice tendered to the president of India.
The rest of the file and all the records forming part thereof are open to in camera inspection by this court.
Each case must be considered on its own facts and surrounding scenario and decision taken thereon.
In Jyoti Prokash Mitter vs Chief Justice Calcutta High Court ; the question was whether the President exercised the powers under article 217(3) of the Constitution was his discretionary one or acts with the aid and advice of Council of Ministers.
The Constitution Bench held that the dispute as be decided by the President.
The satisfaction on the correctness of age is that of he President.
Therefore the matter has to be placed before the President.
The 852 President has to give an opportunity to the judge to place his version, before teh President considers and decides the age of the judge.
Accordingly it would be the personal satisfaction of the President and not that of the Council of Ministers.
In the latter judgement sequential to this judgement in Union of India vs Jyoti Prakash [1971] 3SCR 4831, it was held that the mere fact that the President was assisted by teh machinery of Home Affaris Ministry in serving notices or receiving communications addressed to the learned judge cannot lead to an inference that he was guided review, this court upheld the decision of the President.
In this context it was held that the orders of the president, even though made final can be set aside by court in an appropriate case though the Court will not sit in appeal over order and will not substitute its own opinion to that of the president by weighing the evidence placed before the president.
The third category of case namely the decision taken at level of the minister or by the authorised Secretary at the Secretary level though expressed in the name of the President is not immured from judicial scrutiny and are to be produced and inspected by the court.
If public interest immunity under article 74(2) or Sec 123 of Evidence ACt is claimed, the court would first consider it in camera and decide the issue as indicated above.
Teh immunity must not be claimed on administrative route and it must be for valid, relevant and strong grounds or reasons stated in the affidavit filed in that behalf.
Having perused the file and given our anxious considerations.
We are of the view that on th facts of the case and in the light of the view we have taken, it is not necessary to disclose the contents of the records to the petitioner or his counsel.
The first schedule of the business rules provide constitution of Cabinet Standing committees with function specified therein.
Item 2 is "Cabinet Committee on appointments".
Which is empowered to consider in item 1 all recommendations and to take decisions on appointments specified in the Annexure to the first Schedule.
Therein under the residuary heading all other appointments item 4 provides that all other appointments which are made by the Govt.
of India or which required the approval of the Govt.
of India carrying a salary excluding allowances or a maximum salary excluding allowances of less than Rs. 5, 300 require the approval of the Cabinet Sub Committee.
As per item 37 of the Third Schedule read with Rule 8 of the business Rules it shall be submitted to the Prime Minister for appointment.
Mr. Harish Chander was appointed as judicial Member on October 29, 1982.
He was later on appointed on january 15, 1991 as Senior Vice President of 853 CEGAT after the direction were issued by this Court, he was appinted as the President Mr. Jain assailed the validity of his appointment on diverse grounds.
It was pleaded and Sri Thakur, his learned senior counsel, argued that as per the convention, a sitting or a retired judge of the High JCourt should have beenappointed as president of the CEGAT in consultation with the Chief Jusftice ofIndia and Harish Chander has been appointed in disregafrd of the express directions of this Court, It was, therefore, contended that it was in breach jof the judicial orderpassed by this Court.
It was therefore, contended that it was in breach of the judicial orderpassed by this Court under Art, 32 Secondly it was contended that before the Actwas made a positive commitment was made time and again by the Govt.
on the floor of the House that judicial independence of CEGAT is sifne qua non to sustain the confidence of the litigant public.
The appointment of any person other thansitting or a retired judge of the High Court as President would be in its breach.
Inits support it was cited the instance of Mr. Kalyansundaram as being the seniormost member, his claim should have been considered before Harish Chander was appointed.
Sri Thakur further argued that when recommendations of HarishChander for appointment as a Judge of the Delhi High Court was turned down by the Chief Justice of India doubting his integrity, the appointment of such personof doubtful integrity as President would erode the independence of the judiciary and undermine the confidence of the litigant public in the efficacy of judicial adjudication, even though the rules may permit such an appointment.
The rules are ultra vires of the basic structure, namely, independence of judiciary, Sri Thakur, to elaborate these conditions, sought permission to peruse the record.
Sri Venugopal , the learned Senior Counsel for Harish Chander argued that his client being the senior Vice President was fvalidly appointed as President of the CEGET.
Harish Chander has an excellent and impeccable record of service without any adverse remarks.
His recommendation for appointment as a judge of the Delhi High Court, was "apparently dropped" which would not be construed to be adverse to Harish Chander.
On behalf ofCentral Govt.
it was admitted in thecounter affidavit that since rules do not envisage consultation with the Chidf Justice consultation was not done.
It was argued that the Govt.
have prerogative to appoint any member or Vice Chairman or Senior Vice President as President of CEGAT.
Harish Chander being the senior Vice President, his case was considered and was recommended by the cabinet sub Committee for appointment.
Accordingly he was appointed.
Under section 129 of the Customs Act 52 of 1962 for short the Act.
The Central Govt.
shall constitute the CEGAT consisfting of as many judicial and technical members as it thinks fit to exercise the powers and discharge the functions conferred by the Act.
Subject to making the statement of the case for 854 decision on any question of law arising out of orders of the CEGAT by the High Court under section 130: it) resolve conflict of decisions by this Court under section 130A, the orders of the CEGAT by operation of sub sectiton (4) of Section 129B. "shall be final".
The President of CEGAT is the controlling authority as well as Presiding authority of the tribunals constituted at different places.
Constitution of the CEGAT came to be made pursuant to the 5th Schedule of the Finance Act 2 of 1980 with effect from October 11, 1982.
The President of India exercising the power under proviso it) article 309 of the Constitution made the Rules.
Rule 2(c) defined "member" means a member of the Tribunal and unless the context otherwise requires, includes the President, the Senior Vice President, a Vice President, a judicial member and a technical member.
2(d) defines "President" means the President of the Tribunal.
Rule 6 prescribes Method of Recruitment.
Under Sub rule (1) thereof for the purpose of recruitment to the Post of member, there shall be a Selection Committee consisting of (i) a judge of the Supreme Court of India as nominated by the Chief Justice of India to preside over as Chairman; (ii) the Secretary to the Govt.
of India in the Ministry of Finance, (Department of Revenue); (iii) the Secretary to the Govt.
of India in the Ministry of Law (Department of legal Affairs); (iv) the President; (v) such other persons, not exceeding two, as the Central Govt.
may nominate.
Sub Rule (4) Subject to the provisions of Section 10, the Central Govt.
shall, after taking into consideration the recommendations of the Selection Committee.
make a list of persons selected for appointment as members.
Rule 10 provides thus: (1) The Central Govt.
shall appoint one of the member to be the President.
(2) Notwithstanding anything contained in rule 6 a sitting, or retired judge of a High Court may also be appointed by the Central Government use member and President simultaneously.
(3) Where a member (other than a sitting or retired judge of a High Court is appointed as President, he shall hold the office of the President for a period of three years or till he attains the age of 67 years, whichever is earlier.
(4) Where a serving judge of a High Court is appointed as a member and President, he shall hold office as President for a period of three years from the date of his appointment or till he attains the age of 62 years.
whichever is earlier.
Provided that where a retired judge of a High Court above the age of 62 years is appointed as President.
he shall hold office for such period not exceeding, three 855 years as may he determined by the Central Govt.
At the time of appointment or reappointment.
The Jha Committee in its report in para 16(22) recommended to constitute an independent Tribunal for excise or customs taking away the appellate powers from the Board.
The Administrative Inquiry Committee in its report 1958 59 in para 4.15 also recommended that every effort should be made to enhance the prestige of the appellate tribunal in the eyes of the public which could be achieved by the appointment of a High Court Judge as the President.
They, therefore, recommended to appoint the serving or retired High Court Judge as President of the Tribunal for a fixed tenure.
In Union of India vs Pares Laminates Pvt.
Ltd. Court), this Court held that GEGAT is a judicial body and functions as court within the limits of its jurisdiction.
As a fact the Minister time and again during the debates when the Bill was under discussion assured both the Houses of Parliament that the CEGAT would be a judicial body presided over by a High Court Judge.
In Keshwa nand Bharti vs Union of India [1973] Supp.
SCR 1, Mathew and Chandrachud, JJ.
held that rule of law and judicial review are basic features of the Constitution.
It was reiterated in Waman Rao vs Union of India ; , As per directions therein the Constitution Bench reiterated in Sri Raghunathrao Ganpatrao vs Union of India ; In Krishna Swami vs Union of India at 649 para 66 one of us (K.R.S.J.) held that judicial review is the touchstone and repository of the supreme law of the land.
Rule of law as basic feature permeates the entire constitutional structure Independence of Judiciary is sine quo non for the efficacy, of the rule of law.
This court is the final arbiter of the interpretation of the constitution and the law.
In S.P. Sampat Kumar vs Union of India & Ors.[1987] 1 SCR 435.
this Court held that the primary duty of the judiciary is to interpret the Constitution and the laws and this would preeminently be a matter fit to be decided by the judiciary, as judiciary alone would be possessed of expertise in this field and secondly the constitutional and legal protection afforded to the citizen would become illusory, if it were left to the executive to determine the legality of its own action.
The Constitution has, therefore created an independent machinery i.e. judiciary to resolve the disputes which is vested with the power of judicial review to determine the legality of the legislative and executive actions and to ensure compliance with the requirements of law on the part of the executive and other authorities.
This function is discharged by the judiciary by exercising the power of judicial review which is a most potent weapon in the hands of the judiciary for maintenance of the rule of law.
The power of judicial review is an integral part of our constitutional system and without it, there will be no government of laws and the rule of law would become a teasing illusion and a promise of unreality.
The judicial review, therefore, is a basic and essential feature of the Constitution and it cannot be 856 abrogated without affecting the basic structure of the Constitution.
The basic and essential feature of judicial review cannot be dispensed with but it would be within the competence of Parliament to amend the Constitution and to provide alternative institutional mechanism or arrangement forjudicial review, provided it is no less efficacious than the High Court.
It must, therefore, be read as implicit in the constitutional scheme that the law excluding the jurisdiction of the High Court under articles 226 and 227 perrmissible under it, must not leave a void but it must set up another effective institutional mechanism or authority and vest the power of judicial review in it which must be equally effective and efficacious in exercising the power of judicial review.
The Tribunal set up under the Administrative Tribunal Act, 1985 was required to interpret and apply articles 14, 15, 16 and 311 in quite an large number of cases.
Therefore, the personnel manning the administra tive tribunal in their determinations not only require judicial approach but also knowledge and expertise in that particular branch of constitutional and administrative law.
The efficacy of the administrative tribunal and the legal input would undeniably be more important and sacrificing the legal input and not givino it sufficient weityhtage would definitely impair the efficacy and effectiveness of the Administrative Tribunal.
Therefore, it was held that the appropriate rule should be made to recruit the members; and consult the Chief Justice of India in recommending appointment of the Chairman, Vice Chairman and Members of the Tribunal and to constitute a committee presided over by judge of the Supreme Court to recruit the members for appointment.
In M.B. Majiundar vs Union of lndia ; , when the members of CAT claimed parity of pay and superannuation as is available to the Judges of the High Court, this court held that they are not on par with the judges but a separate mechanism created for their appointment pursuant to article 323 A of the Constitution.
Therefore, whatwas meant by this court in Sampath Kumar 's ration is that the Tribunals when exercise the power and function, the Act created institutional alternative mechanism or authority to adjudicate the service disputations.
It must be effective and efficacious to exercise the power of judicial review.
This court did not appear to have meant that the Tribunals are substitutes of ' the High Court under articles 226 and 227 of the Constitution.
J.B. chopra vs Union of lndia , merely followed the ratio of Sampath Kumar.
The Tribunals set up under articles 323A and 323B of the Constitution or under an Act of legislature are creatures of the Statute and in no case can claim the status as Judges of the High Court or parity or as substitutes.
However, the personnel appointed to hold those oft7ices under the State are called upon to dischargee judicial or quasi judicial power.
So they must have judicial approach and also knowledge 857 and expertise in that particular branch of constitutional, administrative and tax laws.
The legal input would undeniably be more important and sacrificing the legal input and not giving it sufficient weightage and teeth would definitely impair the efficacy and effectiveness of the judicial adjudication.
It is, therefore, necessary that those who adjudicate upon these matters should have legal expertise, judicial experience and modicum of legal training as on many an occasion different and complex questions of law which baffle the minds of even trained judges in the High Court and Supreme Court would arise for discussion and decision.
In Union of India vs Sankal Chand Himatlal Sheth & Anr. ; at 442, this court at p. 463 laid emphasis that, "independence of the judiciary is a fighting faith of our Constitution.
Fearless justice is the cardinal creed of our founding document.
It is indeed a part of our ancient tradition which has produced great judges in the past.
In England too, judicial independence is prized as a basic value and so natural and inevitable it has come to be reorded and so ingrained it has become in the life and thought of the people that it would be regarded an act of insanity for any one to think otherwise.
" At page 471 it was further held that if the beacon of the judiciary is to remain bright, court must be above reproach, free from coercion and from political influence.
At page 491 it was held that the independence of the judiciary is itself a necessitous desideratum of public interest and so interference with it is impermissible except where other considerations of public interest are so strong, and so exercised as not to militate seriously against the free flow of public justice.
Such a balanced blend is the happy solution of a delicate, complex, subtle, yet challenging issue which bears on human rights and human justice.
The nature of the judicial process is such that under coercive winds the flame of justice flickers, faints and fades.
The true judge is one who should be beyond purchase by threat or temptation, popularity or prospects.
To float with the tide is easy, to counter the counterfeit current is uneasy and yet the Judge must be ready for it.
By ordinary obligation for written reasoning, by the moral fibre of his peers and elevating tradition of his profession, the judge develops a stream of tendency to function 'without fear or favour, affection or ill will ', taking care, of course, to outgrow his prejudices and weaknesses, to read the eternal verities and enduring values and to project and promote the economic, political and social philosophy of the Constitution to uphold which his oath enjoins him.
In Krishnaswaini 's case in para 67 at p. 650, it was observed that "to keep the stream of justice clean and pure the judge must be endowed with sterling character, impeccable integrity and upright behaviour.
Erosion thereof would undermine the efficacy of rule of law and the working of the constitution itself.
In Krishna Sahai & Ors.v.
State of U.P. & Ors.[1990] 2 SCC 673, this court 858 emphasised its need in constitution the U.P. Service Tribunal that it would he appropriate for the State of Uttar Pradesh to change it manning and a sufficient number of people qualified in law should he on the Tribunal to ensure adequate dispensation of justice and to maintain judicial temper in the functioning of the Tribunal".
In Rajendra Singh Yadav & Ors vs State of U.P. & Ors.
[1990] 2 SCC 763, it was further reiterated that the Services Tribunal mostly consist of Administrative Officers and the judicial element in the manning part of the Tribunal is very small.
The disputes require judicial handling and the adjudication being, essentially judicial in character it is necessary that adequate number of judges of the appropriate level should man the Services Tribunals.
This would create appropriate temper and generate the atmosphere suitable in an adjudicatory Tribunals and the institution as well would command the requisite confidence of the disputants.
In Shri Kumar Padma Prasad vs Union of India & Ors. , this court emphasised that, "Needless to say that the independence, efficiency and integrity of the judiciary can only he maintained by selecting the best persons in accordance with the procedure provided under the Constitution.
The objectives enshrined in the constitution cannot be achieved unless the functionaries accountable for making appointments act with meticulous care and utmost responsibility".
In a democracy governed by rule of law surely the only acceptable repository of absolute discretion should be the courts.
Judicial is the basic and essential feature of the Indian constitutional scheme entrusted to the judiciary.
It cannot he dispensed with by creating tribunal under article 323A and 323B of the Constitution.
Any institutional mechanism or authority in negation of judicial review is destructive of basic structure.
So long as a the alternative institutional mechanism or authority set up by an Act is not less effective than the High court, it is consistent with constitutional scheme.
The faith of the people is the bed rock on which the edifice of judicial review and efficacy of the adjudication are founded.
The alternative arrangement must, therefore, be effective and efficient.
For inspiring confidence and trust in the litigant public they must have an assurance that the person deciding their causes is totally and completely free from the influence or pressure from the Govt.
To maintain independence and imperativity it,is necessary that the personnel should have at least modicum of legal training, learning and experience.
Selection of competent and proper people instill people 's faith and trust in the office and help to build up reputation and acceptability.
Judicial independence which is essential and imperative is secured and independent and impartial administration of justice is assured.
Absence thereof only may get both law and procedure wronged and wrong headed views of the facts and may likely to give rise to nursing grievance of injustice.
Therefore, functional fitness, 859 experience at the liar and aptitudinal approach are fundamental for efficient judicial adjudication.
Then only as a repository of the confidence.
as its duty, the tribunal would properly and efficiently interpret the law and apply the law to the given set of facts.
Absence thereof would be repugnant or derogatory to the constitution.
The daily practice in the courts not only gives training to Advocates to interrect the rules but also adopt the conventions of courts.
In built experience would play vital role in the administration of justice and strengthen and develop the qualities, of intellect and character, forbearance and patience, temper and resilience which are very important in the practice of law.
Practising Advocates from the Bar generally do endow with those qualities to discharge judicial functions.
Specialised nature of work gives them added advantage and gives benefit to broaden the perspectives.
"Judges " by David Pannick (1987 Edition), at page 50, stated that, "we would not allow a man to perform a surgical operation without a thorough training and certification of fitness.
Why not require as much of a trial judge who daily operates on the lives and fortunes of others".
This could be secured with the initial training given at the Bar and later experience in judicial adjudication.
No one should expect expertise in such a vast range of subjects, but famliarity with the basic terminology and concept coupled with knowledge of trends is essential.
A premature approach would hinder the effective performance of judicial functions.
Law is a serious matter to be left exclusively to the judges, because judges necessarily have an important role to play in making and applying the law There is every reason for ensuring that their selection, training and working practice facilitate them to render their ability to decide the cases wisely on behalf of the community.
If judges acts in injudicious manner, it would often lead to miscarriage of justice and a brooding sense of injustice rankles in an agrieved person.
The CEGAT is a creature of the statute.
yet intended to have all the flavour of judicial dispensation by independent members and President.
Sri Justice Y.V. Chandrachud, Chief Justice of India, in his letter dated October 5, 1982 stated that "Govt. had Created a healthy convention of providing that the Tribunals will be headed by a President who will be a sitting or a retired judge of the High Court.
Added to that is the fact that selection of the members of the Tribunal is made by a Committee headed by a judge of the Supreme Court.
I am sure that the Tribunal will acquire higher reputation in the matter of its decision and that the litigants would look upon it as an independent forum to which they can turn in trust and confidence".
This court to elongate the above objective directed the Govt.
to show whether the convention is being followed in appointment of the President of 860 CEGAT and further directed to consider appointment of a Sr. Judge or a retired Chief Justice of the High Court as its President.
Admittedly Chief justice of India was not consulted before appointing Sri harish Chander as President.
Several affidavits filed on behalf of the Govt.
do not also bear out whether the directions issued by this court were even brought to the notice of the Hon 'ble Prime Minister before finalising the appointment of Sri Harish Chander.
The solemn assurance given to the Parliament that the Tribunal bears a judicious blend by appointment of a High Court Judge as President was given a go bye.
While making statutory rules the executive appears to have made the appointment of it sitting or retired High Court Judge as President unattractive and directory frustrating the legislature animation.
A sitting Judge when is entitled to continue in his office upto 62 years would he he willing to opt to serve as President, if his superannuation as President is conterminous with 62 years.
He would be attracted only it he is given extended three years more tenure after his superannuation.
But Rule 10(3) says that the total period of the tenure of the President by a sitting, or retired judge is "a period of three years or till he attains the age of 62 years, whichever is earlier", i.e. coterminus with superannuation as a Judge of the High Court.
The proviso is only discretionary at the whim of the executive depleting independence and as an exception to the rule.
Thereby practically tile spirit of the Act, the solemn assurance given by the Govt.
to the Parliament kindling hope in the litigant public to have a sitting or a retired judge appointed as President has been frustrated deflecting the appointment of a judicially trained judge to exercise judicial review.
We are constrained to observe that the rules, though statutory, were so made as to defeat the object of the Act.
The question then is: can and if yes, whether this court would interfere with the appointment made of Flarish Chander as President following the existing, rules.
Judicial review is concerned with whether the incumbent possessed of qualification for appointment and the manner in which the appointment came to be made or the procedure adopted whether fair, just and reasonable.
Exercise of judicial review is to protect the citizen from the abuse of the power etc.
by an appropriate Govt.
or department etc.
In our considered view granitic the compliance of the above power of appointment was conferred on the executive and confided to be exercised wisely.
When a candidate was found qualified and eligible and was accordingly appointed by the executive to hold an office as a Member or Vice President or President of a tribunal.
we cannot sit over the choice of the selection, but it be left to tile executive to select the personnel as per law or procedure in this behalf.
In Sri Kumar Prasad case K.N. Srivastava, M.J.S., Legal Remembrance, Secretary to law and Justice.
of Mozoram did not possess the requisite qualifications for appointment as a Judge of the High Court prescribed under Art.217 of the Constitution, namely, that he was not a District Judge for 10 years in State Higher Judicial Service, which is a mandatory 861 requirement for a valid appointment.
Therefore, this Court declared that he was not qualified to be appointed as a judge of the High Court and quashed his appointment accordingly.
The facts therein are clearly glaring and so the ratio is distinguishable.
Sri Harish Chander, admittedly was the Sr. Vice President at the relevant time.
The contention of Sri Thakur of the need to evaluate the comparative merits of Mr. Harish Chander and Mr. Kalyansundaram a senior most Member for appointment as President would not be one into in a public interest litigation.
Only in a proceedings initiated by an aggrieved person it may be open to be considered.
This writ petition is also not a writ of quo warranto.
In service jurisprudence it is settled law that it is for the aggrieved person i.e. non appointee it) assail the legality of the offending action.
Third party has no locus stand it to canvass the legality or correctness of the action.
Only public law declaration would be made at the behest of the petitioner, a public spirited person.
But this conclusion does not give quietus at the journey 's end.
There are persistent allegations against malfunctioning of the CEGAT and against Harish Chander himself.
Though we exercised self restraint to assume the role of an Investigator to charter out the ills surfaced, suffice to say that the union Govt.
cannot turn a blind eye to the persistent public demands and we direct to swing into action, an indepth enquiry made expeditiously by an officer or team of officers to control the mal functioning of the institution.
It is expedient that the Govt.
should immediately take action in the matter and have fresh look.
It is also expedient to have a sitting or retired senior Judge or retired Chief Justice of a High Court to be the President.
The rules need amendment immediately.
A report on the actions taken in this behalf be submitted to this court.
Before parting with the case it is necessary to express our anguish over the ineffectivity of the alternative mechanism devised for judicial reviews.
The Judicial review and remedy are fundamental rights of the citizens.
The dispensation of justice by the tribunals is much to be desired.
We are not doubting the ability of the members or Vice Chairmen (non Judges) who may be experts in their regular service.
But judicial adjudication is a special process and would efficiently be administered by advocate Judges.
The remedy of appeal by special leave under article 136 to this Court also proves to be costly and prohibitive and far flung distance too is working as constant constraint to litigant public who could ill afford to reach this court.
An appeal to a Bench of two Judges of the respective High Courts over the orders of the tribunals within its territorial jurisdiction on questions of law would as usage a growing feeling of injustice of those who can ill effort to approach the Supreme Court.
Equally the need for recruitment of members of the Bar to man 862 the Tribunals as well as the working system by the tribunals need fresh look and regular monitoring is necessary.
An expert body like the Law Commission of India would make an indepth study in this behalf including the desirability to bring CEGAT under the control of Law and Justice Department in line with Income tax Appellate Tribunal and to make appropriate urgent recommendations to the Govt.
of India who should take remedial steps by an appropriate legislation to overcome the handicaps and difficulties and make the tribunals effective and efficient instruments for making Judicial review efficacious, inexpensive and satisfactory.
The writ petitions are disposed of with the above direction, but in the circumstances with no order as to costs.
T.N.A. Petitions disposed of.
| By a letter dated December 26, 1991 addressed to the Chief Justice of India, the petitioner, Editor, Excise Law Times, complained that ever since the retirement of president of the Customs, Excise and Gold control Appellate Tribunal (CEGAT) in 1985 no appointment of President was made as a result of which the functioning of the Tribunal was adversely affected.
He also alleged malfunctioning in the CEGAT and sought directions for immediate appointment of the President as well as an enquiry into the mal functioning of CEGAT.
The letter was treated as a Writ Petition in public interest litigation and on February 25,1992, this Court issued Rule Nisi to Union of India to make immediate appointment of the President of CEGAT, preferably a senior High Court Judge.
After the directions were issued by this Court, Respondent No. 3, who was initially appointed as judicial Member and subsequently as Senior Vice President of the Tribunal, was appointed as President.
The petitioner filed another petition challenging the appointment of President and sought to quash the same on the grounds that (1) the appointment was in breach of judicial order passed by this Court on February 25, 1992 because as per the convention a sitting or retired Judge of the High Court should have been appointed as President in consultation with the Chief Justice of India; even though High Court Judges were available no serious attempt was made to requisition the services of one of them for appointment as President; (2) before the Act was made a positive commitment was made time and again by the Government on the floor of the House that judicial independence of CEGAT is sine qua non to sustain the confidence of the 804 litigant public.
The appointment of any person other than sitting or a retired judge of the High Court as President would be in its breach; and (3) the appointment of Respondent No. 3 as a Judge of the Delhi High Court was turned down by Chief Justice of India doubting his integrity, therefore appointment (of such a person as President of CEGAT would undermine the confidence of the litigant public in the efficacy of judicial adjudication.
even though Rules may permit such appointment.
The petitioner also prayed that Rules 10(1)(3) and (4) of the CEGAT Members (Recruitment and Conditions of Service) Rules, 1987 should be struck down as violative of Article 43 of the Constitution.
the rules were ultra vires of the basic structure of the Constitution, namely independence of Judiciary.
On May 4,1992 this Court issued Rule Nisi and on the next date of bearing the relevant rile on which decision regarding the appointment of President was made produced in the Court but on behalf of the Union of India an objection was taken by the Additional Solicitor General that this Court cannot inspect the rile as he intended to claim privilege`.
Accordingly, pursuant to the directions given by this Court that a formal application may be made setting out the grounds on which the claim for privilege was founded, the Finance Secretary and the Minister of State for Finance filed affidavits claiming privilege under Sections 123 and 124 of the and Article 74 (2) of the Constitution stating that the Government had no (objection for the Court to peruse the rile but claimed privilege to disclose the contents of the rile to the petitioner.
On behalf of the Union of India it was contended that a Cabinet SubCommittee approved the appointment of Respondent No. 3 as President of CEGAT and by operation of Article 77(3) and 74(1), the appointment was made by the President.
The rile constitutes Cabinet documents forming part of the preparation (if the documents leading to the formation of the advice tendered to the President.
Section '123 of the Evidence Act and Article 74 (2) precluded this Court from enquiring into the nature of the advice tendered to the President and the documents were, therefore, immune from disclosure.
The disclosure would cause public injury preventing candid and frank discussion and expression of views by the bureaucrats at higher level and by the Minister/Cabinet Sub Committee causing serious injury to public service.
On behalf of Respondent No.3 it was contended that (1) he had an excellent and impeccable record of service without any adverse remarks and dropping of his recommendation for appointment as a Judge of Delhi High 805 Court could not be construed adverse 'to him; (2) the Government had prerogative to appoint any member, or Vice Chairman or Senior Vice President as President and Respondent No.3 being the Senior Vice President, was considered and recommended by the Cabinet Committee for appointment.
Hence he was validly appointed as President.
Disposing the petitions, this Court, HELD: Per Ramaswamy, J. 1.The claim in the affidavits of the State Minister for Finance and the Secretary for immunity of state documents from disclosure is unsustainable.
However, having perused the file and given anxious considerations,the Court is of the view that on the facts and circumstances of the case and in the light of the view taken, it is not necessary to disclose the contents of the records to the petitioner or his counsel.
1.1.Section 123 of the Evidence Act gives right to the Government to claim privilege, in other words immunity from disclosure of the unpublished official state documents in public interest.
The initial claim for immunity should be made through an affidavit generally by the Minister concerned, in his absence by the Secretary of the department or head of the Department indicating that the documents in question have been carefully read and considered and the deponent has been satisfied, supported by reasons or grounds valid and germance, as to why it is apprehended that public interest would be injured by disclosure of the document summoned or called for.
The claim for immunity should never he on administrative routine nor be a garb to avoid in convenience, embarrassment or adverse to its defence in the action, the latter themselves a ground for disclosure.
1.2.When a claim for public interest immunity has been laid for nondisclosure of the State documents, it is the Minister 's due discharge of duty to state on oath in his affidavit the grounds on which and the reasons for which he has been persuaded to claim public interest immunity from disclosure of the State papers and produce them.
He takes grave risk on insistence of oath of secrecy to avoid filing an affidavit or production of State documents and the Court may be constrained to draw such inferences as are available at law.
Accordingly the oath of office of secrecy adumbrated in Article 75(4) and Schedule III of the Constitution does not absolve the Minister either to state the reasons in support of the public interest immunity to produce the State documents or as to how the matter was dealt with or for their production when discovery order nisi or rule nisi was issued.
On the other hand it is his due 806 discharge of the duty as a Minister to obey rule nisi or discovery order nisi and act in aid of the Government.
Attorney General vs Jonathan Cape Ltd., ; Sankey vs Whitlan, and Whitlam vs Australian Consolidated Press, , referred to.
If the Court is satisfied from the affidavit and the reasons assigned for withholding production or disclosure, the Court may pass an appropriate order in that behalf If the Court still desired to peruse the record for satisfying itself whether the reasons assigned in the affidavit would justify withholding disclosure, the court would, in camera, examine the record and satisfy itself whether the public interest subserves withholding production or disclosure or making the documents as part of the record.
By operation of Section 162 of Evidence Act the final decision in regard to the validity of an objection against disclosure raised under Section 123 would always be with the Court.
The Court is not bound by the statement made by the Minister or the Head of the Department in the affidavit and it retains the power to balance the injury to the State or the public service against the risk of injustice.
The real question which the Court is required to consider is whether public interest is so strong to override the ordinary right and interest of the litigant that he shall he able to lay before a Court of justice the relevant evidence.
In balancing the competing interests it is the duty of the court to see that there is the public interest that harm shall not be done to the nation or the public service by disclosure of the document and there is a public interest that the administration of justice shall not be frustrated by withholding documents which must he produced if justice is to be done.
The basic question to which the court would, therefore, have to address itself for the purpose of deciding the validity of the objection would be, whether the document relates to affairs of State or the public service and if so, whether the public interest in its non disclosure is so strong that it must prevail over the private interest in the administration of justice and on that account, it should not be allowed to be disclosed.
State of U.P. vs Raj Narain & Ors., ; S.P. Gupta Ors.
807 etc.
vs Union of India & Ors. etc.
etc., 1982 (2) S.C.R. 365; relied on.
Conway vs Rimmer, ; ; D. vs National Society for the Prevention of Cruelty to Children, 1978 A.C. 171 (H.L.); Burmah Oil Co. Ltd. vs Governor and Company of the Bank of England, ; ; Butters Gas and Oil Co. vs Hammer, ; Air Canada vs Secretary of State for Trade, ; Council of Civil Service Unions vs Minister for the Civil Service, ; United State vs Reynolds, ; ; Environmental Agency, vs Pats), T Mink, ; (35) L. Ed.
2nd 11 9; Newyond Times vs U.S., ; ; U.S. vs Richard M. Nixon, ; = ; 1035; Robindon vs State of South Australia, ; Shankey vs Whitlan, ; ; FAI Insurances Ltd. vs The Hon Sir, Henn, Arthur Winneke and Ors., ; ; Whitlan vs Australian Consolidated Press Ltd., ; Minister for Arts Heritage and Environment and Ors.
vs Peko Wallsend Ltd. and Ors.
; Commonwealth of Australia vs Northern Land Council and Anr. ; R. vs Shinder, Gagnon vs Ouebec Securities Commission, ; Bruce vs Waldron, ; Re Tunstall, exhibit
P. Brown, [19661 84 W.N. (Pt2) (N.S.W.); Corbett vs Social Security Commission, ; Greednz Inc. vs Governor General, Apponhamy vs Illangarutute, [1964] 66 C.L.W. 17; Jamaica in Allen vs Byfields (No.2) [1964] 7 W.I.R.69 and Scotland in Glasgow Corporation vs Central Land Board, [1956] Scotland Law Time 4, referred to.
Mecormic on Evidence, 4th Edn.
by John w. Strong, referred to.
1.7.Every communication which proceeded from one of ricer of the State to another or the officers inter se does not necessarily per se relate, to the affairs of the State.
Whether they so relate has got to be determined by reference to the nature of the consideration, the level at which it was considered, the contents of the document or class to which it relates to and their indelible impact on public administration or public service and administration of justice itself.
The power to issue 'discovery order nisi ' is express as well as inherent as an integral power of judicial review and process in the Court to secure the attendance of any person or discovery or production of any document or to order investigation in that behalf.
However, in an appropriate case, depend 808 ing on facts on hand.
Court may adopt such other procedure as would be warranted.
The petitioner must make a strong prima facie case to order discovery order nisi, etc.
and it must not be a haunting expedition to fish out some facts or an attempt to cause embarrassment to the respondents nor for publicity.
But on issuance of rule nisi by this Court under Article 32 or a discovery order nisi the Government or any authority, constitutional, civil, judicial, statutory or otherwise or any person, must produce the record in their custody and disobedience thereof would be at the pain of contempt.
The Cabinet known as Council of Ministers headed by Prime Minister under Article 75 (3) is the driving and steering body responsible for the governance of the country.
Collective responsibility under Article 75(3) of the Constitution inheres maintenance of confidentiality as enjoined in oaths of office and of secrecy set forth in Schedule III of the Constitution that the Minister will not directly or indirectly communicate or reveal to any person or persons any matter which shall be brought under his consideration or shall become known to him as Minister except as may be required for the 'due discharge of his duty as Minister '.
The base and basic postulate of its significance is unexceptionable.
But the need for and effect of confidentiality has to be nurtured not merely from political imperatives of collective responsibility envisaged by Article 75(3) but also from its pragmatism.
Satwant Singh Sawhney vs D. Ramarathnam Asstt.
Passport Officer, ; Magnbhai Ishwarbhai Patel vs Union of India and Anr., ; ; Shamsher Singh vs State of Punjab, ; ; Rai Sabhib Ram Jawaya Kapur & Ors.
vs State of Punjab, and Commonwealth of Australia vs Northern Land Council & Anr., , referred to.
Sir Ivor Jennings, Cabinet Government; Patrick Gordon Walker, The Cabinet, 1973 Revised Ed.
P. 178; John P. Mackintosh, The British Cabinet, 2nd Edn. p.1 1; 0 Hood Phillips and Paul Jackson, Constitutional and Administrative Law, 7th Edn.
P. 301; Walker, The Cabinet, p. 183; Halsbury Laws of England, 4th Edn.
8 para 820; Bagehot and The English Constitution, 1964 Edn., referred to.
The Court would be willing to respond to the executive public interest immunity to disclose certain documents where national security or high policy, high sensitivity is involved.
Information relating to national security, diplomatic relations, internal security or sensitive diplomatic corre 809 spondence per se are class documents and that public interest demands total immunity from disclosure.
Even the slightest divulgence would endanger the lives of the personnel engaged in the services etc.
The maxim Salvs Populs Cast Suprema Lax which means that regard for public welfare is the highest law, is the basic postulate for this immunity.
Asiatic Petroleum vs Anglo Persian oil, ; Duncan vs Cammell Laird, 1942 A.C. 624; Council of Civil Service Union vs Minister for Civil Service, and Mark Hosemball R. vs Home Secretary exparte Hosenball, , referred to.
But it would be going too far to lay down that no document in any particular class or one of the categories of Cabinet papers or decisions or contents thereof should never, in any circumstances, be ordered to he produced.
Robinson vs State of South Australia, ; S.P. Gupta vs Union of India & Ors., [1982] 2 S.C.R. 365; State of U. P. vs Raj Narain & Ors., [1975] 2 S.C.R.333; Conway vs Rimmerl968A.C.910 (HL);Burmah Oil Co. Ltd. vs Governor and Company of the Bank of England, ; ; Reg.
vs Lewes Justices, Ex Parte Secretary of State for the Home Department, and D. V. National Society for the Prevention of Cruelty to Children; , ; Air Canada vs Secretary of State for Trade, [1983] 2 A.C. 394 (HL); Shankey vs Whitlan, [1979] 53 A.L.R. 1; Harbour Corp of Queensland vs Vessey Chemicals Pvt. Ltd., ; Manthal Australia Pvt. Ltd. vs Minister for Industry, Technology and Commerce, ; Koowarta vs Bjelke Petersen, ; United States vs Richard M. Nixon, ; Lawyers Ed.
2nd Ed. 1039; Attorney General vs Jonathan Cape Ltd. ; Minister for Arts Heritage and Environment and Ors.
vs Pekowallsend Ltd. and Ors., (1987) 75 A.L.R. 218; Commonwealth of Australia, vs Northern Land Council and Anr., ; Australian Community Party & Ors.
vs Commonwealth & Ors.
, ; and Queen vs Tohey, ; , referred to.
Undoubtedly, the Prime Minister is enjoined under Article 78 to communicate to the President all decisions of the Council of Minister relating to the administration of the affairs of the Union and proposals for legislation and to furnish such information relating to the administration or reconsideration by the Council of Minister if the President so requires and submit its 810 decisions thereafter to the President.
That by itself is not conclusive and does not get blanket public interest immunity from disclosure.
The Council of Ministers though shall be collectively responsible to the House of the people, their acts are subject to the Constitution; Rule of law and judicial review are parts of the scheme of the Constitution as basic structure and judicial review is entrusted to this Court (High court under Article 226).
3.3.1.The communication of cabinet decisions or policy to the President under Article 74(1) gives only limited protection by Article 74(2) of judicial review of the actual tendered to the President of India.
The rest of the file and all the records forming part thereof are open to in camera inspection by this Court.
Each case must be considered on its own facts and surrounding scenario and decision taken thereon.
Jyoti Prakash Mitter vs Chief Justice Calcutta High Court, ; and Union of India vs Jyoti Prakash, ; , referred to.
3.3.2.Article 74(2) is not a total bar for production of the records.
Only the actual advice tendered by the Minister or Council of Ministers to the President and the question whether any, and if so, what advice was tendered by the Minister or Council of Ministers to the President, shall not be enquired into by the Court.
In other words, the bar of judicial review is confined to the factum of advice, its extent, ambit and scope, but not the record i.e. the material on which the advice is founded.
S.P. Gupta vs Union of India & Ors., [1982] 2 S.C.R. 365, referred to.
4.Judicial review is concerned with whether the incumbent possessed of qualification for appointment and the manner in which the appointment came to made or the procedure adopted whether fair, just and reasonable.
Exercise of Judicial Review is to protect the citizen from the abuse of the power etc.
by an appropriate Government or department etc.
In Court 's considered view granting the compliance of the above power of appointment was conferred on the executive and confided to be exercised wisely.
When a candidate was found qualified and eligible and was accordingly appointed by the executive to hold an office as a Member or Vice President or President of Tribunal, this Court cannot sit over the choice of the selection, but it be left to the executive to select the personnel as per law or procedure in this behalf.
Shri Kumar Padma Prasad vs Union of India & Ors., , 811 distinguished.
In service jurisprudence it is settled law that it is for the aggrieved person i.e. non appointee to assail the legality of the offending action.
Third party has not locus standi to canvass the legality or correctness of the action.
Only public law declaration would be made at the behest of the petitioner, a public spirited person.
Therefore, the contention that there was need to evaluate the comparative merits of Respondent and the senior most Member for appointment as President would not be gone into in a public interest litigation.
Only in a proceedings initiated by an aggrieved person it may be open to be considered.
It is expedient to have a sitting or retired senior Judge or retired Chief Justice of a High Court to be the President.
The rules need amendment immediately.
Government had created a healthy convention of providing that the Tribunals will be headed by a President who will be a sitting or a retired judge of the High Court This Court to elongate the above objective directed the Government to show whether the convention is being followed in appointment of the President of CEGAT and further directed to consider appointment of a Senior Judge or a retired Chief Justice of the High Court as it President Admittedly Chief Justice of India was not consulted before appointing Respondent No.3 as President of CEGAT The solemn assurance given to the Parliament that the Tribunal bears a judicious blend by appointment of a High Court Judge as President was given a go bye.
6.1.While making statutory rules the executive appears to have made the appointment of a sitting or retired High Court Judge as President unattractive and Directly frustrating the legislative animation.
A sitting Judge, when he is entitled to continue in his office upto 62 years, would not he willing to opt to serve as President, if his superannuation as President is co terminus with 62 years.
He would he attracted only if he is given extended three years more tenure after his superannuation.
But Rule 10 (3) says that the total period of the enure of the President by a sitting or retired Judge is 'a period of three years or till he attains the age of 62 years, whichever is earlier ', i.e. co terminus with superannuation as a Judge of the High Court.
The, proviso is only discretionary at the whim of the executive depleting independence and is an exception to the rule.
Thereby, practically the spirit of the Act, the solemn assurance given by the Government to the Parliament kindling hope in the litigant public to have a sitting or a retired Judge appointed as President has been frustrated deflecting the appointment of a 812 judicially trained judge to exercise judicial review.
Court is constrained to observe that the rules, though statutory, were so made as to defeat the object of the Act.
7.There are persistent allegations against mal functioning of the CEGAT and against Respondent No. 3 himself.
Though this Court exercised self restraint to assume the role of an investigator to charter out the ills surfaced, suffice to say that the Union Government cannot turn a blind eve to the persistent public demands and 'the Court directs to swing into action, an indepth enquiry made expeditiously by an officer or team of officers to control the malfunctioning of the institution.
It is expedient that the Government should immediately take action in the matter and have fresh look.
The Tribunals set up under Articles 323A and 323B of the Constitution or under an Act of legislature are creatures of the Statute and in no case can claim the status as Judges of the High Court or parity or as substitutes.
However, the personnel appointed to hold the office under the State are called upon to discharge judicial or quasi judicial powers.
So they must have judicial approach and also knowledge and expertise in that particular branch of constitutional, administrative and tax laws.
The legal input would undeniably be more important and sacrificing the legal input and not giving it sufficient weightage and teeth would definitely impair the efficacy and effectiveness of the judicial adjudication.
It is, therefore, necessary that those who adjudicate upon these matters should have legal expertise, judicial experience and modicum of legal training as on many an occasion different and complex questions of law which baffle the minds of even trained judges in the High Court and Supreme Court would arise for discussion and decision.
M.B. Majumdar vs Union of India, ; ; Union of India vs Paras Laminates Ltd., ; Krishna Sahai & Ors.
vs State of U. P. & Ors.
, ; , and Rajendra Singh Yadav & Ors.v.
State of U.P. & Ors. [1990] 2 S.C.C. 763, referred to.
8.1.Equally the need for recruitment of members of the Bar to man the Tribunals as well as the working system by the Tribunals need fresh look and regular monitoring is necessary.
An expert body like the Law Commission of India should make an in depth study in this behalf including the desirability of bringing CEGAT under the control of Law and Justice Department in line with Income tax Appellate Tribunal and make appropriate urgent recommendations to the Government of India who should take remedial steps by an 813 appropriate legislation to overcome the handicaps and difficulties and make the Tribunals effective and efficient instruments for making judicial review efficacious, inexpensive and satisfactory.
For inspiring confidence and trust in the litigant public they must have an assurance that the person deciding their causes is totally and completely free from the influence or pressure from the Government.
To maintain independence imperativity it is necessary that the personnel should have at least modicum of legal training, learning and experience.
Selection of competent and proper people instill people 's faith and trust in the office and help to build up reputation and acceptability.
Judicial independence which is essential and imperative is secured and independent and impartial administration of justice is assured.
Absence thereof only may get both law and procedure wronged and wrong headed views of the facts and may likely to give rise to nursing grievance of injustice Therefore, functional fitness, experience at the Bar and aptitudinal approach are fundamental for efficient judicial adjudication.
Then only as repository of the confidence, as its duty, the Tribunal would properly and efficiently interpret the law and apply the law to the given set of facts.
Absence thereof would be repugnant or derogatory to the Constitution.
Union of India vs Sankal Chand Himatlal Sheth & Anr. ; , referred to.
Judicial review is the basic and essential feature of the Indian constitutional scheme entrusted to the judiciary.
It cannot be dispensed with by creating Tribunal under Articles 323A and 323B of the Constitution.
Any institutional mechanism or authority in negation of judicial review is destructive of basic structure, So long as the alternative institutional mechanism or authority set up by an Act is not less effective than the High Court, it Ls consistent with constitutional scheme.
The faith of the people is the bed rock on which the edifice of judicial review and efficacy of the adjudication are founded.
The alternative arrangement must, therefore, be effective and efficient.
Keshwanand Bharati vs Union of India, ; Waman Rao vs Union of India, ; Raghunathrao Ganpatrao vs Union of India ; ; Krishna Swathi vs Union of India, 1199214 S.C.C. 605; S.P. Sampat Kumar vs Union of India & Ors., ; and J.B. Chopra vs Union of India, , referred to.
814 9.1.
It is necessary tip express Court 's anguish over the ineffectivity of the alternative mechanism devised for judicial review.
The judicial review and remedy are fundamental rights of the citizens.
The dispensation of justice by the Tribunals is much to be desires.
Court is not doubting the ability of the members or Vice Chairman (non judges) who may be experts in their regular service.
But judicial adjudication is a special process and would efficiency be administered by advocate Judges.
The remedy of appeal by special leave under Article 136 to this Court also proves to be costly and prohibitive and far flung distance too is working as a constant constraint to litigant public who could ill afford to reach this Court.
An appeal to a Bench of two Judges of the respective High Courts over the orders of the Tribunals within its territorial jurisdiction on questions of law would assuage a growing feeling of iNjustice of those who can ill afford to approach the Supreme Court.
No one can suppose that the executive will never be guilty of the sins common to all people.
Sometimes they may do things which they ought not to do or will not do things they ought to do.
The Court must be alive to that possibility of the executive committing illegality in its process, exercising its powers, reaching a decision which no reasonable authority would have reached or otherwise abuse its powers, etc.
If the proceeding, decision (or order is influenced extraneous considerations which ought not to have been taken into account, it cannot stand and needs correction, no matter of the nature of the statutory body or status or stature of the constitutional functionary though might have acted in good faith.
It is, therefore, the function of the Court to see that lawful authority is not abused.
Under modern conditions of responsible Government, Parliament should not always be relied on as a check on excess of power by the Council (of Ministers or Minister.
Though the Court would not substitute its views to that of the executive on matters of policy, it is its undoubted power and duty to see that the executive exercises its power only for the purpose for which it is granted.
It is the constitutional, legitimate and lawful power and duty of this Court to ensure that powers, constitutional statutory or executive are exercised in accordance with the Constitution and the law.
This may demand, though no doubt only in limited number of cases, Yet the in networkings of government may be exposed to public gaze.
Per Ahmadi J. (For himself and Punchhi J.) (Concurring) 1.
This Court cannot sit in judgment over the wisdom of the Central 815 Government in the choice of the person to be appointed as a President so long as the person chosen possesses the prescribed qualification and is otherwise eligible for appointment.
Respondent No. 3 was a Senior Vice President when the question of filling up the vacancy of the President came up for consideration.
He was fully qualified for the post under the Rules.
No challenge is made on that count.
Under Rule 10 (1), the Central Government is conferred the power to appoint one of the Members to be the President.
Since the validity of the Rule is not questioned there can be no doubt that the Central Government was entitled to appoint Respondent No. 3 as President.
This Court cannot interfere with the appointment of Respondent No. 3 on the ground that his track record was poor or because of adverse reports on which account his appointment as a High Court Judge had not materialised.
Assuming that the allegations against Respondent No. 3 are factually accurate, this Court cannot sit in judgment over the choice of the person made by the Central Government over the choice of the person made by the Central Government for appointment as a President if the person chosen is qualified and eligible for appointment under the Rules.
However, to instill the confidence of the litigating public in the CEGAT, the Government must make a sincere effort to appoint a sitting Judge of the High Court as a President of the CEGAT in consultation with the Chief justice of India and if a sitting Judge is not available the choice must fall on a retired Judge as far as possible.
Sub rule (4) of Rule 10 of the CEGAT Members (Recruitment and Conditions of Service) Rules, 1987 needs a suitable change to make it sufficiently attractive for sitting High Court judges to accept appointment as the President of the CEGAT.
The rules empower the Central Government to appoint any member as the President of the CEGAT.
It is true that under subrule (4), a serving Judge and under the proviso thereto, a retired Judge, can also be appointed a Member and President simultaneously.
In the case of a serving Judge his age of superannuation is fixed at 62 years but in the case of the retired Judge he may be appointed for a period of three years at the most.
Insofar as a service High Court Judge is concerned, he holds office until he attains the age of 62 years, vide Article 217 of Constitution.
It, therefore, beats common sense why a sifting Judge of tile High Court would opt to serve as the President of the CEGAT if he is to retire at the same age without any benefit.
On the contrary, he would lose certain 816 perks which are attached to the office of a High Court Judge.
Even status wise he would suffer as his decisions would he subject to the writ jurisdiction of the High Court under Article 226,227 of the Constitution.
He may agree to accept the offer only if he had an extended tenure of at least three years.
The allegations made by Petitioner in regard to the working the CEGAT are grave and the authorities can ill aford to turn a Nelson 's eye to those allegations made by a person who is fairly well conversant with the internal working of the Tribunal.
Refusal to inquire into such grave allegations, some of which are capable of verification, can only betrays indifference and lack of a sense of urgency to tone up the working of the Tribunal.
It is high time that the administrative machinery which is charged with the duty to supervise the working of the CEGAT wakes up from its slumber and initiates prompt action to examine the allegations by appointing a high level team which would immediately inspect the CEGAT, identify the causes for the crises and suggest remedial measures.
This cannot brook delay.
The time is ripe for taking stock of the working of the various Tribunals set up in the country after the insertion of Articles 323A and 323B in the Constitution.
A sound justice delivery system is a sine qua non for the efficient governance of a country wedded to the rule of law.
An independent and impartial justice delivery system in which the litigating public has faith and confidence alone can deliver the goods.
After the incorporation of these two articles, Acts have been enacted where under Tribunals have been constituted for dispensation of justice.
Sufficient time has passed and experience gained in these last few years for taking stock of the situation with a view to finding out if they have served the purpose and objectives for which they were constituted.
Complaints have been heard in regard to the functioning of other Tribunals as well and it is time that a body like the Law Commission of India ha, a comprehensive look in with a view to suggesting measures for their improved functioning.
That body can also suggest changes in the different statutes and evolve a model on the basis where of Tribunals may be constituted or reconstituted with a view to ensuring greater independence.
An intensive and extensive study needs to be undertaken by the Law Commission in regard to the constitution of Tribunals under various statutes with a view to ensuring their independence so that the public confidence in such Tribunals may increase and the quality of their performance may improve.
It is strongly recommended to the Commission of India to undertake such an exercise 817 on priority basis.
On the facts of the case it is not necessary to disclose the contents of the records to the petitioner or his counsel.
|
Appeal Nos.
2653 54 of 1991.
From the Judgment and Order dated 15.2.91 of the Punjab and Haryana High Court in Civil Revision Nos. 2998 and 2919 of 1990.
D.V. Sehgal and N.K. Aggarwal for the Appellant.
G.L, Saghi, P.P. Tripathi and Suchinto Chatterji for the Respondent.
The Judgment of the Court was delivered by PUNCHHI, J.
The point which requires determination in these two appeals, arising from a common judgment and order dated February 15, 1991 of a Division Bench of the Punjab and Haryana High Court at Chandigarh, in Civil Revision Nos.
2918 and 2919 of 1990 is, whether the payment of alimony is admissible 957 without the relationship between the spouses being terminated.
The wife appellant was married to the husband respondent on September 19,1972 at Amritsar, in the State of Punjab.
Three children were born from the wed lock and are at present living with their father.
Out of them two are males, their respective years of birth being 1973 and 1980 and the third is a female born in the year 1976.
On 28 8 1985 a petition under section 13 B of (hereafter referred to as the Act ') seeking divorce by mutual consent was received by the court of the Additional District Judge, Amritsar purported to have been failed jointly by the two spouses.
It was stated therein that the parties had been living separately for over a year due to incompatibility of temperament and their effort to settle their differences amongst themselves, or with the aid of friends and relatives, had been futile.
On receipt the petition was kept pending, as was the requirement of section 13 B of the Act.
According to the wife she was not a consenting party to the filing of such petition at all.
Her version was that the husband had duped her in obtaining her signatures on blank papers on a false pretext and in turn had employed those papers in the said petition for divorce.
On coming to know of the pendency of the petition, she immediately filed objections before the court, obstructing the grant of petition.
The respective pleas of the parties were put to issue and evidence was led.
According to the wife some understanding later was reached between the parties on the basis of which she was to be put back in the matrimonial home and thus the petition was got dismissed on 19 8 1987, on the basis of the joint statement of the parties before the Additional District Judge, Amritsar which was to the following effect: "We agree that applications under sections 24 and 25 of may be dismissed.
We also agree that since the parties have not been able to make a joint statement within a period of six months of the original petition, the main petition under section 13B of the may be dismissed.
Otherwise too, the parties to the marriage do not want to proceed with their main application under section 13 of the and the same be also dismissed and the parties may be left to bear their own costs.
On the basis of the above statement, the court passed the following order, the same day: "The applicant and counsel for the parties have made their statements recorded separately the main petition under section 13 and 958 also applications under sections 24 and 25 of the Hindu marriage Act are dismissed as withdrawn.
The parties are left to bear their own costs.
The file be consigned.
" It appears that the dismissal of the petition under section 13 B led only to a temporary truce, and not peace as hoped.
Rehabilitation in the matrimonial home evaded the wife.
The husband, who in the meantime had established his business at Ghazibad in Utter Pradesh, barely three months after the dismissal of the petition under section 13 B. approached the District Court at Ghaziabad in a regular petition for divorce under section 13 of the Act levelling, amongst others, allegations of adultery against the wife.
To meet the offensive the wife refuted the charge of adultery and prayed to the Ghaziabad Court grant of maintenance pendente lite, which the Court fixed at Rs. 1000 per month.
It appears since the husband had obstacled payment of maintenance pendente lite, divorce proceedings stand stayed under orders of the High Court of Allahabad, until the order of grant of maintenance pendente lite was obeyed.
The matter thus stands stagnated there.
The wife then went in an offensive.
She moved the court of Additional District Judge, Amritsar on 22 3 1990, under section 15 of the for the grant of permanent alimony on the plea that she was facing starvation, when her husband was a multi millionaire, having cars, telephone facilities and other amenities of life.
Simultaneously she moved the court under section 24 of the for maintenance pendente lite and litigation expenses.
After a grim contest between the parties the Additional District Judge, Amritsar on September 20, 1990 allowed the petition under section 24 of the Act granting her a sum of Rs. 6000 as litigation expenses and Rs. 2000 per month as maintenance pendente lite, from the date of application.
The husband challenged the said order of grant in revision before the High Court of Punjab and Haryana at Chandigarh.
The wife too approached the High Court in revision seeking enhancement of sums under both counts.
Both the revision petitions being referred to a larger bench were disposed of by the common judgment under appeal sustaining the objection of the husband that an application under section 25 of the Act was, in the facts and circumstances, not maintainable; the Matrimonial Court at Amritsar, in the earlier litigation, having not passed any decree of the variables known as Restitution of Conjugal Rights, Judicial Separation, Nullity of Marriage, or Divorce, so as to quash proceedings under section 25 and sequally quashing the order under section 24 of the Act granting litigation expenses and maintenance pendente lite.
Hence these appeals.
959 Section 25 of the Act, as it now stands, after amendment by Act 68 of 1976 is reproduced hereunder: "25 PERMANENT ALIMONY AND MAINTENANCE (1) Any court exercising jurisdiction under this Act may, at the time of passing any decree or at any time subsequent thereto, on application made to it for purpose by either the wife o r the husband, as the case may be, order that the respondent shall pay to the applicant for her or his maintenance and support such cross sum or such monthly or periodical sum for a term not exceeding the life of the applicant as, having regard to the respondent 's own income and other property, if any, the income and other property of the applicant, [the conduct of the parties and other circumstances of the case], it may seem to the court to be just, and any such payment may be secured, if necessary, by a charge on the immovable property of the respondent.
(2)If the court is satisfied that there is, a change in the circumstances of either party at any time after it has made an order under sub section (1), it may at the instance of either party, very, modify or rescind any such order in such manner as the court may deem just.
(3)If the court is satisfied that the party in whose favour an order has been made under this section has remarried or, if such party is the wife, that she has not remained chaste, or, if such party is the husband, that he has had sexual intercourse with any woman outside wedlock, [it may at the instance of the other party very, modify or rescind any such order in such manner as the court may deem just].
" It is relevant to reproduce Section 28 as well: "28 APPEAL FROM DECREES AND ORDERS (1) All decrees made by the court in any proceeding under this Act shall, subject to the provisions of sub section (3) be appealable as decrees of the court made in the exercise of its original civil jurisdiction, and every such appeal shall lie to the court to which appeals ordinarily lie from the decisions of the court given in the exercise of its original civil jurisdiction.
(2) Orders made by the court in any proceeding under this Act, under 960 section 25 or Section 26 shall, subject to the provisions of sub section (3), be appealable if they are not interim orders and every such appeal shall lie to the court to which appeals ordinarily lie from the decisions of the court given in exercise of its original civil jurisdiction.
(3) There shall be no appeal under this section on the subject of costs only.
(4) Every appeal under this section shall be preferred within a period of thirty days from the date of the decree or order." Right from its inception, at the unamended stage, the words "at the time of passing any decree or any time subsequent thereto" posed difficulty.
The majority of the High Courts in the country took the view that those words indicated that an order for permanent alimony or maintenance in favour of the wife or the husband could only be made when a decree is passed granting any substantive relief and not where the main petition itself is dismissed or withdrawn.
It was also gathered that if no request for alimony was made at the time of passing the decree the same relief could be sought subsequently on an application.
The relief of permanent alimony was deduced to be ancilliary or incidental to the substantive relief, and it was given to the party to whom such relief was due.
The expression "any decree" was viewed to have been used having regard to the various kinds of decrees such as decree for Restitution of Conjugal Rights, Judicial Separation, Nullity of Marriage, and Divorce, which could be passed either on contest or consent.
Some of the High Courts also had occasion to distinguish between the expression "passing any decree" referred to in section 25 (1) with "decrees made" referred to in section 28 providing for appeals from decrees and orders made by the Court in any proceeding under the Act, and such decrees being appealable, as decrees of the Court made in exercise of its original civil jurisdiction.
It led to the determination of the question whether the denial of relief under the Act, when making a decree in the sense appealable under section 28, could be it a decree passed within the meaning of Section 25 entitling the respective spouses to claim permanent alimony thereunder.
On this question too there has been rife a difference of opinion.
A Division Bench of the Gujarat High Court in Kadia Harilal Purshottam vs Kadia Lilavati Gokaldas AIR [1961] Gujarat 202; ruled that the words "at the time of passing any decree or any time subsequent thereto" occurring in section 25 meant passing of any decrees of the kind referred to in the earlier provisions of the Act and not at the time of dismissing the petition for any relief provided in those 961 sections, or any time subsequent thereto.
It was viewed that the expression "any decree" did not include an order of dismissal and that the passing of an order of dismissal of the petition could not be regarded as the passing of decree within the meaning of section 25.
On that view a petition for permanent alimony preferred by the wife was dismissed when the petition of the husband for restitution of conjugal rights had been dismissed.
In Shantaram Gopalshet Narkar vs Hirabai, AIR [1962] Bombay 27 Vol.
49, a learned Single Judge of the Bombay High Court took the view that in order to confer jurisdiction upon the court to proceed under section 25(1) there must be a decree as contemplated under the and one of the decrees can.
be under section 10(1) (B).
And when the petition was allowed to be withdrawn, there was no decree passed in favour of the husband, and if there was no decree, the court had no jurisdiction to pass any order granting permanent alimony to the wife under section 25(1).
In Minarani Majumdar vs Dasarath Majumdar AIR [1963] Calcutta 428 Vol.
50, a Division Bench of the Calcutta High Court ruled that an order dismissing a petition by the husband for divorce under section 13 is not a decree within the meaning of section 25 and as such when no substantive relief is granted under sections 9 to 14, there is no passing of a decree as contemplated by section 25 and hence no jurisdiction to make an order for maintenance under the said section.
Harilal 's case (supra) of the Gujarat High Court was noticed and relied upon.
A learned Single Judge of the Bombay High Court in Shantaram Dinkar Karnik vs Malti Shantaram Karnik, AIR [1964] Bombay 83 vol.
51 relying on the earlier decision of that court in Shantaram Gopalshet 's case (supra) and kadia Hiralal 's case (supra) reaffirmed the view that the expression "passing of any decree" only referred to passing of any decrees provided for in section 9 to 13 of the Act, even though technically speaking dismissal of a suit or a petition may be called a decree but not for the purpose of section 25 confering jurisdiction on the Matrimonial Court to grant permanent alimony.
A Division Bench of the Orissa High Court in Akasam Chinna Babu vs Akasam Parbati & Another AIR [1967] Orissa 163 Vol.
54 denied the relief of permanent alimony when the petition for divorce of the husband had been dismissed.
The views of the Bombay High Court and the, Gujarat High Court above referred to were taken in aid to get to that view.
A three Judge full bench of the Punjab and Haryana High Court in Durga 962 as vs Smt.
Tara Rani,AIR (1971) Punjab and Haryana 141 Vol.
58, in a different context, while determining the question whether a party to a decree or divorce could apply for maintenance under sub section (1) of section 25 of the Act after which decree has been granted, ruled that the proceedings for grant of permanent alimony were incidental to the main proceeding and as such an application for alimony could be made even after the grant of the decree for divorce.
A learned Single Judge of that Court, however, in Gurcharan Kaur vs Ram chand AIR 1979 Punjab and Haryana 206 Vol.
66 even while relying, on the full bench decision afore referred went on to deny permanent alimony to the wife hose claim for decree of Nullity of Marriage stood dismissed and on that basis the petition for alimony was held not maintainable.
In Darshan Singh vs Mst.
Daso AIR Vol.
67 a learned single Judge of the Rajasthan High Court made a distinction between the expression "passing any decree" occurring in section 25 and the expression decree made" under section 28.
He viewed that the former expression meant granting any relief of the nature stated in sections 9 to 13 while the later meant granting or refusing the relief.
In other words, it meant that passing of any decree as to mean granting any relief, and the making of any decree was to mean granting or refusing any relief.
A Division Bench of the Delhi High court too in Smt.
Sushma vs Shri Satish Chander AIR 1984 Delhi 1 Vol.
71 taking stock of the above referred to views of the Rajasthan, Orissa.
Bombay, Calcutta and Gujarat High Courts affirmedly took the view that the passing of the decree in section 25 meant the passing of a decree of divorce, Nullity, Restitution of Conjugal Rights or Judicial Separation and not the passing of a decree dismissing the petition.
It was further held that if the petition fails then no decree is passed, i.e., the decree is denied to the applicant and therefore alimony cannot be granted in a case where a decree is refused because in such a case the marriage subsists.
The word "decree" in matrimonial cases was held to have been used in a special sense different from that in which it is used in the Civil Procedure Code.
Following Delhi High Court 's decision in Sushma 's case (supra), a learned Single Judge of the Allahabad High Court in Vinod Chandra Sharma vs Smt.
Rajesh Pathak AIR 1988 Allahahad 150 Vol.
75 opined that when an application for divorce is dismissed, there is no decree passed and obviously therefore alimony cannot he granted because in such a case the marriage subsists.
963 A learned Single Judge of the Madras High Court in Ranganatham vs Shyamla AIR 1990 Madras 1 Vol. 77 too following the above decisions held that the existence of any of the decrees referred to in sections 9 to 13 is a condition precedent to the exercise of jurisdiction under section 25 (1) of the Act and the granting of ancilliary relief for permanent alimony and maintenance, when the main petition was dismissed, was not permissible.
A divergent view, however, was struck by a learned Single Judge of the Punjab and Haryana High Court in Smt.
Swaran Lata vs Sukhvinder Kumar(1986) 1 Hindu Law Reporter 363 taking the view that when the rights of the parties stand determined conclusively with regard to matters in controversy, irrespective as to whether relief is granted or not, it culminates in a decree and on the basis of that decree, the wife would be entitled to claim maintenance or permanent alimony under section 25 of the Act.
Not only was on such interpretation of sections 25 and 28 the view taken but liberality of interpretation was injected to justify the view.
It was expressed that when the right of the wife to maintenance was assured under section 125 of the Code of Criminal Procedure, 1973 and section 18 of the and when that right of the wife was not being disputed, the court, in order to avoid multiplicity of proceedings could give effect to that right, wherever possible, in a proceeding under section 25 of the Act itself.
There the objection of the husband to the jurisdiction was termed as technical and the maintainability of claim under section 25 was upheld.
A learned Single Judge of the Bombay High Court in Sadanand Sahadeo Rawool vs Sulochana Sadanand Rawool, AIR 1989 Bombay 220 Vol.
76 also took a similar view and based his decision on "necessity of the times" expressing that technicalities should not be allowed to away any court.
In the situation, the dismissal of petition for divorce was held to be no bar to grant maintenance under section 25 to the successful spouse.
Then in Surendra Singh Chaudan vs Mamta Chauhan II(1990) Divorce & Matrimonial Cases 208 a learned Single Judge of the Madhya Pradesh High Court taking the view that the dismissal of a petition amounts to passing of a decree for the purposes of Section 25 of the Act held that claim for permanent alimony was maintainable.
The learned Judge ruled that there appeared to be no justification for curtailing the ambit of the words to go on to hold that a decree is not a "decree" for the purposes of section 25 of the Act, though a "decree" for the purposes of section 28 of the Act.
Here again the intention of the legislature was gathered avoiding multiplicity of proceedings.
so that every dispute between the parties, particularly connected with matters like maintenance etc. should be settled in the 964 same proceedings.
A learned Single Judge of the Bombay High Court in Modilal Kalaramji Jain vs Lakshmi Modilal Jain AIR 1991 Bombay 440 Vol.
78 omitting the word "passing" from the expression, interpreted the expression "any decree" to include an order refusing to grant matrimonial relief and on that basis held adjudication of claim of permanent maintenance to be within the jurisdiction of the matrimonial court.
Same is the view of the Andhra Pradesh High Court in Shilla Jagannadha Prasad alias Ram vs Smt.
Shilla Lalitha Kumari [1988] 1 Hindu Law Reporter 26 and some other cases which need not be multiplied.
The preamble to the suggests that it is an Act to amend and codify the law relating to marriage among Hindus.
Though it speaks only of the law relating to marriage, yet the Act itself lays down rules relating to the solemnization and requirements of a valid Hindu marriage as well as Restitution of Conjugal Rights, Judicial Separation, Nullity of Marriage, Divorce, legitimacy of children and other allied matters.
Where the statute expressly codifies the law, the court as a general rule, is not at liberty to go outside the law so created, just on the basis that before its enactment another law prevailed.
Now the other law in the context which prevailed prior to that was the unmodified Hindu law on the subject.
Prior to the year 1955 or 1956 maintenance could be claimed by a Hindu wife through court intervention and with the aid of the case law developed.
Now with effect from December 21, 1956, the is in force and that too in a codified form.
Its preamble too suggests that it is an Act to amend and codify the law relating to adoptions and maintenance among Hindus.
Section 18 (1) of the entitles a Hindu wife to claim maintenance from her husband during her life time.
Sub section (2) of section 18 grants her the right to live separately, without forfeiting her claim to maintenance, if he is guilty of any of the misbehaviours enumerated therein or on account of his being in one of objectionable conditions as mentioned therein.
So while sustaining her marriage and preserving her marital status, the wife is entitled to claim maintenance from her husband.
On the other hand, under the , in contrast, her claim for maintenance pendente lite is durated on the pendency of a litigation of the kind envisaged under sections 9 to 14 of the , and her claim to permanent maintenance or alimony is based on the supposition that either her marital status has been strained or affected by passing a decree for restitution of conjugal rights or judicial separation in favour or against her, or her marriage stands dissolved by a decree of nullity or divorce, 965 with or without her consent.
Thus when her marital status is to be affected or disrupted the court does so by passing a decree for or against her.
On or at the time of the happening of that event, the court being siezen of the matter, invokes its ancilliary or incidental power to grant permanent alimony.
Not only that, the court retains the jurisdiction at subsequent stages to fulfil this incidental or ancilliary obligation when moved by an application on that behalf by a party entitled to relief.
The court further retains the power to chance or alter the order in view of the changed circumstances.
Thus the whole exercise is within the gammit of a diseased of a broken marriage.
And in order to avoid conflict of perceptions the legislature while codifying the Hindu 'Marriage Act preserved the right of permanent maintenance in favour of the husband or the wife, as the case may be, dependent on the court passing a decree of the kind as envisaged under sections 9 to 14 of the Act.
In other words without the marital status being affected or disrupted by the matrimonial court under the the claim of permanent alimony was not to be valid as ancilliary or incidental to such affectation or disruption.
The wife 's claim to maintenance necessarily has then to be agitated under the which is a legislative measure later in point of time than the , though part of the same socio legal scheme revolutionizing the law applicable to Hindus.
Section 41 of the Evidence Act inter alia provides that a final judgment, order or decree of a competent court in the exercise of matrimonial jurisdiction, which confers upon or takes away from any person any legal character, or which declares any person to be entitled to such character, is relevant.
And that such judgment, order or decree is conclusive proof as to the conferral, accrual,or taking away of such.
legal character from a point of time as declared by the court.
Such judgments are known as judgments in rem, binding the whole world.
But the judgment of that kind must have done something positive, onwards.
This provision is indicative of the quality of matrimonial jurisdiction.
We have thus, in this light, no hesitation in coming to the view that when by court intervention under the , affection or disruption to the marital status has come by, at that juncture, while passing the decree, it undoubtedly has the power to grant permanent alimony or maintenance, if that power is invoked at that time.
It also retains the power subsequently to be invoked on application by a party entitled to relief.
And such order, in all events, remains within the jurisdiction of that court, to be altered or modified as future situations may warrant.
In contrast, without affectation or disruption of the marital status, a Hindu wife sustaining` that status can live in separation from her husband, and 966 whether she is living in that state or not, her claim to maintenance stands preserved in codification under section 18 (1) of the .
The court is not at liberty to grant relief of maintenance simplicitor obtainable under one Act in proceedings under the other.
As is evident, both the statutes are codified as such and are clear on their subjects and by liberality of interpretation inter changeability cannot be permitted so as to destroy the distinction on the subject of maintenance.
Relief to the wife may also be due under section 125 of the Code of Criminal Procedure whereunder an order of maintenance can be granted after contest, and an order of interim maintenance can be made at the outset, without much contest.
This provision however has two peculiar features: (i) the provision applies to all and not only to Hindus; and (ii) maintenance allowance cannot exceed a sum of Rs. 500 per mensem.
But this is a measure in the alternative to provide destitute wives.
This court has ruled that if the language used in a statute can be construed widely so as to salvage the remedial intendment, the court must adopt it.
Of course, if the language of a statute does not admit of the construction sought, wishful thinking is no substitute, and then, not the court but the legislature is to blame for enacting a damp squib statute.
These are the observations of V.K. Krishna Iyer, J. in Carew and Company vs Union of India ; at pages 803 804.
Towards interpreting statutes, the court must endeavour to see its legislative intendment.
Where the language is ambiguous or capable of more than one meaning, the court must sympathetically and imaginatively discover the true purpose and object of the Provision by filling gaps, clearing doubts, and mitigating hardships, harshness or unfair consequences.
See Motor Owners ' Insurance Company, Limited vs Jadavji Keshavji Modi and others [1981] 4 SCC 660 paras 14.
15 and 16.
These principles were pressed into service by learned counsel for the appellant contending that if the claim of the wife for maintenance was otherwise justified on fact and law, the procedures and the for a should not stand in her way and let her cash on her claim over ruling all objections.
It was asserted that the Amritsar court had jurisdiction to grant relief, as asked for, because once upon a time it was seisin of the petition for dissolution of marriage by mutual consent, though such petition was withdrawn.
On the afore analysis and distinction drawn between the fora and perceptives, 967 it is difficult to come to the view that a claim which is ancilliary or incidental in a matrimonial court under the could be tried as an original claim in that court; a claim which may for the moment be assumed as valid, otherwise agitable in the civil court under the .
As said before, these two enactments keeping apart, the remaining two, i.e., and Hindu Minority and and Guardianship Act, 1956 are a package of enactments, being part of one socio legal scheme applicable to Hindus.
When distinctive claims are covered distinctly under two different statutes and agitable in the courts conceived of thereunder, it is difficult to sustain the plea that when a claim is otherwise valid, choosing of one forum or the other should be of no consequence.
These are not mere procedural technicalities or irregularities, as termed by one line of reasoning by some of the High Courts.
These are matters which go to the root of the jurisdiction.
The matrimonial court, a court of special jurisdiction, is not meant to pronounce upon a claim of maintenance without having to go into the exercise of passing a decree, which implies that unless it goes onwards, moves or leads through, to affect or disrupt the marital status between the parties.
By rejecting a claim, the matrimonial court does make an appealable degree in terms of section 28, but neither affects nor disrupts the marriage.
It certainly does not pass a decree in terms of section 25 for its decision has not moved or done anything towards, or led through, to disturb the marriage, or to confer or take away any legal character or status.
Like a surgeon, the matrimonial court, if operating, assumes the obligation of the post operatives, and when not, leaves the patient to the physician.
On the afore analysis we have been led to the conclusion that the step of the wife to move the court of Additional District Judge, Amritsar for (,rant of maintenance under section 25 of the was ill advised.
The judgment of the High Court under appeal could be no other than the one that it was in the present state of law and the facts and circumstances.
It is still open to the wife to stake her claim to maintenance in other fora.
The judgments of the High Courts earlier quoted, and others which have been left out, which are not in line with our view are over ruled.
The earlier and predominant view was the correct one and the later an aberration; something unfortunate from the precedential point of view.
The appeals thus inevitably have to and are hereby dismissed, but without any order as to costs.
Before we part with this judgment, we need to mention that while this judgment was reserved, an Interlocutory Application was received by the Registry, which unnumbered Interlocutory Application was duly transmitted to us.
It is for directing the appellant to pay arrears of maintenance.
While granting leave 968 this Court on 8th July, 1991 had ordered that during the pendency of the appeal, but without prejudice to the respective stands of the spouses, the husband shall pay a sum of Rs. 1000 per mensem by way of maintenance to the wife month to month by bank draft.
In the Interlocutory Application there is an allegation that this Court 's orders have not been complied with.
Let notice on the application separately be issued to the respondent returnable within six weeks to show cause why payment of arrears of maintenance be not secured to the wife forthwith.
U.R. Appeal dismissed.
| The parties were married in 1972 in Punjab.
In 1985, a petition for divorce by mutual consent was filed in court at Amritsar The appellant wife alleged that she was not a consenting party, and the petition was dismissed in 1987 following an agreement on the basis of which she would be put back in the matrimonial home.
However, barely three months later, the respondent husband filed a regular petition for divorce at Ghaziabad inter alia alleging adultery against his wife.
The appellant wife refuted the charge.
The Court granted her maintenance pendente lite at Rs. 1,000 p.m.
The husband not paving this amount, the divorce proceedings stand stayed.
On 22nd March, 1990 the appellant moved the District judge, Amritsar and was granted Rs. 6,000as litigation expenses and Rs. 2,000as maintenance pendente lite from the date of application under section 24.
She also claimed permanent alimony and maintenance under section 25 of the .
On appeal, the High Court held that an application under section 25 was not 955 maintainable as the matrimonial court at amritsar had not passed any decree for restitution of conjugal rights, judicial separation, nullity or divorce.
Sequelly it quashed the order under section 24 of the Act.
Dismissing the appeal, this Court HELD:The right of permanent maintenance in favour of the husband or the wife is dependent (in the Court passing a degree of the kind envisaged under Ss.
9to 14 of the Act.
In (other words, without the marital status being affected or disrupted by the matrimonial court under the the claim (of permanent alimony was not to be valid as ancilliary or incidental to such affectation or disruption.
Kadia Martial Purshotham vs Kadia Lilavati Gokaldas AIR 1961 Guj 202; Shantaram Gopalshet Narkar vs Hirabai, AIR 1962 Bom 27 Minarani Majumdar vs Dasarath Majumdar AIR 1963 Cal 428; Shantaram Dinkar Karnik vs Malti Shantaram Karnik AIR 1964 Bom 83; Akasam Chinna Babu vs
Akasam Parbati, AIR 1967 Ori 163; Gurcharan Kaur vs Ram Chand, AIR 1979 P & H 206; Darshan Singh vs Mst.
, AIR 1980 Raj 102; Smt.
Sushama vs Satish Chander, AIR 1984 Del 1; Vinod Chandra Sharma vs Smt.
Rajesh Pathak, AIR 1988 All 150 and Ranganatham vs Shyamala AIR 1990 Mad 1, affirmed.
Swaran Lata vs
Sukhvinder Kumar (1986) 1 Hindu LR 363; Sadanand Sahadeo Rawool vs Sulochana Sadanand Rawool, AIR 1989 Bom 220; Surendra Singh Chauhan vs Mamta Chauhan, 11 1990 Divorce & Matrimonial Cases 208; Modilal kalaramji Jain vs Lakshmi Modilal Jain AlR ; and Shilla Jagannadha Prasad vs Smt.
Shilla Lalitha Kumari 1988 Hindu LR 26, overruled.
Durga Das vs Smt.
Tara Rani, AIR & H 141, referred to.
2.A Court intervening under the undoubtedly has the power to grant permanent alimony or maintenance, if that power is invoked at the juncture when the marital status is affected or disrupted.
It also retains the power subsequently to be invoked on application by a party entitled to relief.
A nd such order, in all events, remains within the jurisdiction of that court, to be altered or modified as future situations may warrant.
3.While sustaining her marriage and preserving her marital status, a Hindu wife 's claim to maintenance is codified is S.18 of the Hindu Adoptions 956 and Maintenance Act, 1956 and must necessarily be agitated thereunder.
4.The court is not at liberty to grant relief of maintenance simplicitor obtainable under one Act in proceedings under the other.
As is evident, both the statutes are codified as such and are clear on their subjects and by liberality of interpretation inter changeability cannot be permitted so as to destroy the distinction on the subject of maintenance.
Carew, & Co. vs Union of India ; and Motor Owners ' Insurance Co. Ltd. vs Jadavjit Keshavji Modi [1981] 4 SCC 660, referred to.
5.When distinctive claims are covered distinctly under two different statutes, choosing of one forum or the other, are not mere procedural technicalities or irregularities.
These are matters which go to the root of the jurisdiction.
The matrimonial court, a court of special jurisdiction.
is not meant to pronounce upon a claim of maintenance without having to go into the exercise of passing a decree which implies that unless it goes onwards, Moves or leads through, to affect or disrupt the marital status between the parties.
By rejecting a claim, the matrimonial court does make an appealable decree.
in terms of section 28, but neither affects nor disrupts the marriage.
It certainly does not pass a decree in terms of section 25 for its decision has not moved or done anything towards, or led through, to disturb the marriage, or to confer or to take away any legal character or status.
|
Appeal No. 2854 of 1993.
From the Judgment and Order dated 6.4.1992 of the Karnataka High Court in R.S.A. No. 534 of 1990.
S.D. Bajaj, and P. Mahale for the Appellants.
Ms. Kiran Suri for the Respondent.
The Judgment of the Court was delivered by VENKATACHALA, J.
We grant Special Leave.
Since we heard learned counsel for parties on the merits of the appeal.
we are finally deciding it.
An extent of 4 acres and another extent of 6 acres 26 guntas are agricultural lands comprised in Survey No. 24/2A and Survey No. 34/2B of Kubihal Village in Kundgol Taluk of Dharwad District.
They are the disputed lands in this appeal.
The disputed lands were Watans appertaining to hereditary village offices under the Bombay Hereditary Offices Act, 1874 known as Watan Act.
Basappa Bheemappa, who was the Watandar of the disputed lands, leased them in the year 1950 in favour of appellant 1 and father of appellant 2, for their personal cultivation.
With the coming into force on 25th January, 1951 of the Bombay Paragana and Kulkarni Watans (Abolition) Act, 1950, known s the Watan (Abolition) Act, all the Watans were resumed by the State of Bombay resulting in extinguishment of all the rights held by Watandars in such Watans.
But, there was a right conferred under the Watan Act on every Watandar the holder of the 782 Watan land, to obtain its regrant subject to payment of occupancy price.
After the resumption of the disputed lands by the State of Bombay under the Watan (Abolition) Act, Basappa Bheemappa, claiming to be their former holder applied for the irregrant before the Assistant Commissioner.
Savannah, as by then, Dharwad District where the disputed lands were located, had come to Karnataka State from Bombay State by reason of the reorganisation of States under the .
Thereafter, by his Order dated 30th November, 1968, the Deputy Commissioner of Dharwad District made the regrant of disputed lands (resumed Watan lands) in favour of their former Watandar, Basappa Bheemappa.
The tenancy of the disputed lands had since been regulated by the provisions of the Bombay Tenancy and Agricultural lands Act, 1948 (the BT & Al, Act) from the time Bassppa Bheemappa as their Watandar, had leased them in favour of appellant 1 and father of appellant 2 in the year 1950, the regrant of the disputed lands in favour of Basappa Bheemappa under the Watan (Abolition) Act, did not entitle him to obtain possession of them except under the BT & AL, Act.
Although, the Karnataka Land Reforms Act, 1961 (the KLR Act) which came into force in Karnataka on 2.10.1965, repealed by its section 141 the Watan (Abolition) Act and by its section 143 the BT & A L Act, 1948, nothing thereunder adversely affected the rights of the appellants ' tenancy in the disputed lands.
However, the said Basappa Bheemappa sold the disputed lands in favour of their tenants (the appellant 1 and father of appellant 2 on 3 1st March, 1969 under a registered sale deed.
The land Tribunal under the KLR Act, before which the appellants sought registration of their occupancy rights in the disputed lands, found it unnecessary to so register them because of its view that the disputed lands had been sold to them by the landlord regrade, Basappa Bheemappa.
But, on 8th December, 1976, the respondent filed a suit in the Court of Munsiff at Kundogol against his eldest brother, Basappa Beemappa (the seller of the disputed lands) and two other brothers arraying them as defendants 1 to 3.
That was a suit for partition of 1/4th share in the disputed lands and putting him ink separate possession of that share.
His claim for partition and separate possession of `his share in the disputed lands was based on the plea that the sale deed dated 31st March, 1969 by which defendant 1, his eldest brother, had sold the disputed lands (joint family lands) in favour of the tenants, without the prior consent of his brothers and for no legal necessity of the family, was void ab initio.
The impleaded in that suit appellants 1 and 2 as defendants 4 and 5, since they were in possession of the disputed lands.
Defendants 1, 4 and 5, resisted the plaintiff 's claim for 783 partition and separate possession of his 1/4th share in the disputed lands urging, inter alia, that he had no right to get any share in them.
After trial of the suit, the Munsiff Court ranted a decree in favour of the respondent.
That decree of the Munsiff Court was based on its findings (i) that the disputed lands were Hindu joint family properties of the plaintiff and defendants 1 to 3; (ii) that the sale of the disputed lands in favour of defendant 4 and father of defendant 5 had since been made by defendant 1 without the consent of his brothers, the plaintiff and defendants 2 and 3 and without legal necessity of the family, the same was void ab initio; (iii) that the plea of defendants 1, 4 and 5 that the tenancy revived, if the sale by defendant 1 in favour of defendant 4 and father of defendant 5 was found to be vs ' d, was unacceptable ', and (iv) that the sale by defendant ] in favour of defendant 4 and father of defendant 5 of the disputed lands was also void since sale of them (Fragments) was prohibited under the provision.
1 of the Karnataka (Prevention of Fragmentation and Consolidation of Holdings) Act, 1966 the Karnataka Prevention of Fragmentation Act.
However, defendants 4 and 5 challenged the correctness of the decree of the Munsiff Court, by filing an appeal before the Court of the Civil Judge at Hubli.
In that appeal, the Court of the Civil Judge, held that the sale deed date 3 1st March, 1969 by which defendants had sold the disputed lands, was void because of the provisions of the Karnataka Prevention of Fragmentation Act, prohibiting such sale and this situation itself enabled the plaintiff to ignore the sale effected by defendant 1 and claim his share in the disputed lands.
Accordingly, it dismissed the appeal.
A Regular Second Appeal filed by defendants 4and 5 before the High Court of Karnataka against the decree of the Civil Judge 's Court affirming the decree of the Munsiff 's Court, was dismissed in limine.
It is those decrees which are impugnned by defendants 4 and 5 in the present appeal by Special Leave.
Shri Padmanabha Mahale, the learned counsel for the appellants, contended that the Courts below ought to have held that the agricultural tenancy of the appellants in respect of the disputed lands revived when, according to them, sale of the disputed lands by defendant 1 in favour of defendants 4 and 5 (appellants 1 and 2) was ab initio void either (i) because the sale was of the joint family lands effected by the eldest brother in the family without the consent of the other brothers and for no legal necessity, or (ii) because the sale was effected when such a sale was prohibited under the provisions of the Karnataka Prevention of Fragmentation Act.
Had it been so held, it was argued, there would not have been scope for the 784 Munsiff Court to have made a decree in favour of the respondent for partition of his 1/4th share in the disputed lands and putting him in possession thereof to the extent of such share and granting him mesne profits, and that decree to have been affirmed by the Appellate Court.
On the other hand, Mrs, Kiran Surj, the learned counsel for the respondent, submitted that the tenancy or lease hold rights in the disputed lands held by the appellants got merged in the sale effected in their favour by defendant 1 on 31st March, 1969.
That sale, when was found to be void by the Courts below, such finding did not have the effect of reviving the marked tenancy of the appellants, as would restore their tenancy rights in the disputed lands.
This appeal was, therefore, liable to be dismissed.
The Court of Munsiff the Trial Court and the Court of Civil Judge the First Appellant Court, have recorded a concurrent finding that the sale by defendant 1 in favour of defendant 4 and father of defendant 5 of the disputed lands by registered sale deed dated 3 1 st March, 1969, was void ab initio that being a sale prohibited under the provisions of the Karnataka Prevention of Fragmentation Act.
Besides, the Trial Court has recorded a finding that the said sale deed was void, on its view that the 3/4th share of the plaintiff and defendants 2 and 3 in the disputed lands belonging to there joint family had been sold by their eldest brother defendant 1 without their consent and when there was no legal necessity of the family for such sale.
The Trial Court has accordingly, made the decree in the suit in favour of the plaintiff and that decree is affirmed by the Appellate Court, because of the said findings recorded by them.
The Second Appeal filed before the High Court by defendants 4 and 5, has been dismissed in limine.
That the sale deed dated3 1st March, 1969 if is void, being a prohibited sale under the provisions of the Karnataka Prevention of Fragmentation Act, as is held by the Court of Munsiff and also the Court of Civil Judge, the consequence contained in sub section (3) of section 39 of that Act should have followed, that is "Any person unauthorisedly occupying or wrongfully in possession of any land, the transfer or partition of which is void under the provisions of this Act, may be summarily evicted by the Deputy Commissioner, and after such eviction such land shall be deemed to 785 be in the possession of the person lawfully entitled to such possession".
In the instant case, the tenants on the lands (defendants 4 and 5) being the persons deemed to be in possession of the disputed lands and entitled to continue in possession thereof, the Court below ought to have seen that the partition decree sought for by the plaintiff (respondent here) could have been ranted in respect of such tenanted lands, only if the same was permissible in law, and not otherwise.
The other finding of the Courts below is, that the sale deed dated 31st March, 1969 was void because defendant 1 could not have sold the undivided interest of his brothers the plaintiff (respondent here) and defendants 2 and 3 in the disputed lands, being their joint family properties, without their consent and without the legal necessity of the family.
If that be so, defendant 1 had to be regarded as having sold in favour of defendant 4 and father of defendant 5 under sale deed dated 31st March, 1969 only his 1/4th undivided interest in the disputed lands and not.
3/4th of the undivided interest of the plaintiff and defendants 2 and 3.
That means that the lessors ' entire interest or entire reversion in the disputed lands cannot be regarded as having been sold under the sale deed of 31st March, 1969.
From this, it following that the lease hold interests of defendant 4 and father of defendant 5 in the disputed lands and lessors ' entire reversion could not have merged in one and some person.
so as to constitute merger envisaged under section 111 (d) of the , in that, for constituting merger under that provision, the interests of the lessee and the interests of the lessor in the whole of the property.
had to vest at the same time in one person in the same right.
Thus, on the basis of the finding of the Courts below, if it has to be held that defendant 1 had not sold the undivided interest of the plaintiff and defendants 2 and 3 in the disputed lands to the extent of their 3/4th share there could not have been any merger of tenancy rights of defendant 4 and father of defendant 5 in the disputed lands with that of lessors (landlords) whole rights.
If so, tenancy rights of the appellants in the disputed lands ought to be regarded as not affected or disturbed by the sale deed of 31st March, 1969.
Hence, consideration of the question whether there arose revival of the right of tenancy of the appellants in the disputed lands, is unnecessary In the result, we allow this appeal, set aside the judgments and decrees of the Courts below and remit the case to the Court of Munsiff at Kundgol, Dharwad 786 District of Karnataka State with a direction to it to take back the suit on to its file and decide after affording the parties an opportunity of hearing, the question whether the plaintiff would be entitled to the decree sought for in the suit, if the disputed lands had continued as tenanted lands, as found by us.
No costs.
U.R. Appeal allowed.
| Basappa Bheemappa K,as the Watandar of the disputed agricultural lands admeasuring 4 acres, and 6 acres 26 guntts, in Kubihal Village in Kundgol Taluk of Dhwarwad District which became a part of Karnataka State in 1956.
In 1950, he leased the disputed lands to appellant 1 and the father of appellant 2 for their personal cultivation.
With the coming into force of the Bombay paragana and Kulkarni Watans(Abolition) Act 1950 the lands were resumed by the State of Bombay, Bheemappa applied under this Act for regrant of the wattan land, and the Dy.
Commissioner of Dhawad District made the regrant in his favour on 30.11.1968.
On 31.3.1969, he sold the land to appellant No. 1 and the father of appellant No. 2 under a registered sale deed.
The land tribunal under the Karnataka land Reforms Act 1961 found it unnecessary to register the occupancy rights (of the appellants in view of the sale.
In 1976, respondent field a suit against Bheemappa and 2 other brothers for partition to the disputed property and separate possession.
He impleadcd appellants 1 and 2 as defendant,; in the suit since they were in possession of the disputed lands.
He contended that Bheemappa had sold the lands without the prior consent of his brothers, and for nor legal necessity.
of the family, and the sale was void ab initio.
780 The Munsiff Court granted a decree in favour of the respondent on its finding that the disputed funds were Hindu joint family properties, that the sale *%,as void ab initio for tile reasons stated . and that the plea (if the defendants appellants that if the sale was void the tenancy revived. ",as unacceptable.
The Munsiff Court, and in appeal, the Civil Judge concurrently held that the sale was void since sale (it ' fragments was prohibited under the Karnataka prevention of Fragmentation Act 1966.
A regular second appeal before the High Court was dismissed in limine.
The appellants contended before this Court that if the sale was ab initio void, the agricultural tenancy (of the appellant%; revived.
For the respondents it was submitted that the tenancy on lease hold rights in the disputed lands held by the appellant got merged in tile sale effected in their favour.
When that sale was found to be void it did not have the effect (if reviving the merged tenancy of the appellants,as would restore their tenancy right,; in the disputed lands.
Allowing the appeal, this Court, HELD: (1) Tile tenants being the persons deemed to be in possession of the disputed lands and entitled to continue in possession thereof a partition decree could have been granted, in respect of such tenanted lands only if permissible by law.
(784 H) (2) The courts below having found that the sale deed was void because Bheemappa could not having sold the undivided interest of his brother, only his 1/4 undivided interest, in the disputed lands had to be regarded as having been sold by him.
(784 H) The lessors ' entire interest (or entire reversion in the disputed lands cannot therefore be regarded us having been sold under the sale deed of 31 st March, 1969.
From this, it follows that the lease hold interests of the leases and the lessors entire reversion could not have merged in one and the same person, so as to constitute merger envisaged under section 111(d) of the Transfer of Property.
Act, 1982.
For constituting merger under that procession, the interests of the lessee and the interests of the lessor in the whole of the 781 property had to vest at the same time in one person in the same right.
(785 BC) The tenancy rights of the appellants in the disputed lands was not affected or disturbed by the sale deed of 31st March, 1969, and it is unnecessary to consider the question of revival of the right of tenancy of the appellants in the disputed lands.
(785 D) 3.
Case remitted to the Court of Munsiff at Kundgol Dharwad District to decide the claim for partition if the disputed lands had continued as tenanted lands, as found by this Court.
(785 E)
|
Appeal No. 2847 of 1993.
From the Judgment and Order dated 31.8.1990 of the Delhi High Court in C.W. 2617 of 1989.
Yogeshwar Prasad, U.S Prasad, A.K. Lal Sinha, V.S. Pandey, Mrs. Nidhi Pandey and S.M. Tripathi for the Appellant.
V.C. Mahajan, and S.N. Terdol for the Respondents.
The Judgment of the Court was delivered by K.RAMASWAMY, J.
Special leave granted.
In response to the advertisement No. 33 dated August 19, 1989 the appellant had applied for recruitment to the post of Examiner of Personnel in the Department of Civil Aviation.
He was unsuccessful in the selection.
He later on challenged paras 3(i) and 3(ii) of the advertisement on the ground that the qualifications prescribed are discriminatory and were tailor made.
He also contends that in 1969, for the said post the qualifications prescribed were 1st Class British or Indian Navigator or a British Flight Navigator licence with not less than 100 hours of air experience.
The method of recruitment was direct recruitment and the age prescribed was 45 years relaxable to Government Servants.
He claims that he is having the first Class licence with 100 hours of air navigation experience.
With a view to deprive him of the change, the offending rules have been amended in 1978 substituting 300 hours of instructional flying and experience of not less than 2500 hours as Flight Navigator with category A and endorsement to fly VIPs and VVIPs on all routes in I.A.F. air crafts or should hold or have held or Indian Flight Navigator Licence.
According to him this rule was made with a view to deprive him of his chance.
The Delhi High Court dismissed the writ petition summarily.
To appreciate the contention, it is necessary to read to rules.
As per the 1969 rules 774 which are statutory made under proviso to article 309 of the Constitution, the method of recruitment with qualification prescribed thereafter are thus: "Essential (i) First Class British or Indian Navigators ' Licence with not less than 100 hours air experience.
Desirable (i) Degree in Mathematics or in Engineering.
(ii) Experience of Goedetic Surveying.
In 1978 clause A was amended and in its place Clauses A(i) and (ii) were brought on the rules which reads thus : "A(i) Experience of an minimum of 300 hours of instructional flying as qualified Navigation Instructor.
(ii) Experience of not less than 2500 hours as Flight Navioator with category "A" and endorsement to fly VIPs VVIPs on all routes in I.A.F. aircraft.
OR "B" (i) Should hold or have held an Indian Flight Navigators ' licence.
(ii) Experience of 2000 hours as Flight Navigator on international Routes.
Desirable (i) Degree in Science with Physics and Mathematics as subject of recognised University or equivalent.
(ii) Experience as Navigation Instructor in a recognised Institution or in an Air Corporation.
(iii) Commercial Pilot 's licence.
Method of recruitment is direct recruitment through the Union Public Service 775 Commission.
When the candidates in required number did not apply for, the rules have been further amended in 1989 with the following modified qualifications Essential 1. 10+2 with Physics, Chemistry & Mathematics 2(i) should have held a senior Commercial Pilot 's Licence.
(ii) should have flying experience of not less than 2500 hours on multiengine aircraft of which not less than 250 hours should be as pilot in command.
OR (i) should hold or should have held an Indian Flight Navigator 's licence.
(ii) should have not less than 500 hours experience as Flight Navigator.
Desirable 1.
Degree in Science with Physics and Mathematics of a recognised University or its equivalent.
2. Experience as Navigation Instructor in a recognised institute/Flying Club or in an Airline.
Method of recruitment by direct recruitment failing which by transfer or deputation including short term contract).
Age: 50 years.
It is not in dispute that these rules have been made by the President exercising the power under proviso to article 309 of the Constitution which read thus : "309.
Recruitment and conditions of service of persons serving the Union or a State Subject to the provisions of this Constitution, Acts of the appropriate Legislature may regulate the recruitment, and conditions of service of persons appointed, to public services and posts in connection with the affairs of the Union or of any State: 776 Provided that it shall be competent for the President or such person as he may direct in the case of services and posts in connection with the affairs of the Union, and for the Governor of a State or such person as he may direct in the case of services and posts in connection with the affairs of the State to make rules regulating the recruitment, and the conditions of service of persons appointed, to such service and posts until provision in that behalf is made by or under an Act of the appropriate Legislature under this Article, and any rules so made shall have effect subject to the provisions of any such Act.
" It would thus clear that the rules made by the President or authorised person under proviso to article 309 are subject to any law made by the Parliament and the power includes rules regulating the recruitment and the conditions of service or post.
They are statutory and legislative in character.
The statutory rules thus made are subject to the law that may be made by the Parliament.
In B.S Vadera vs Union of India & Ors.
reported in ; , this Court held that the rules made under the proviso to article 309 of the Constitution shall have effect subject to the provisions of the Act i.e. if the appropriate legislature has passed an Act, In its absence the rules made by the president or by such person as he may direct are to have full effect.
In The General Manager, Southern Railway vs Rangachari reported in ; at 596 another Constitution Bench held that equality of opportunity need not be confused with absolute equality as such.
What is guaranteed is the equality of opportunity and nothing more.
Article 16(1) or 16(2) does not prohibit the prescription of reasonable rules for selection to any employment or appointment to any office or post.
Any provision as to the qualifications for the employment or appointment to an office or post reasonably fixed and applicable to all citizens would certainly he consistent with the doctrine of the equality of opportunity.
In State of Mysore, & Anr.
vs P. Narasing Rao report in ; at 411 this Court held that the provisions of article 14 or article 16 do not exclude the laying down of selective tests, nor do they preclude the Government from laying down qualifications for the post in question.
Such qualifications need not be only technical but they can also be general qualifications relating to the suitability of the candidate for such service as such.
The same was the view in another Constitution Bench decision reported in The State of Jamu and Kashmir vs Triloki Nath Khosa & Ors. ; In State of Orissa & Ant .
vs N.N. Swamy & Ors.
reported in [1977] 1 2 SCC 508 in paragraph 18, this Court held that 777 the eligibility must not be confused with the suitability of the candidate for appointment.
Thus it would be clear that, in the exercise of the rule making power, the president or authorised person is entitled to prescribe method of recruitment, qualifications both educational as well as technical for appointment or conditions of service to an office or a post under the State.
The rules thus having been made in exercise of ' the power under proviso to article 309 of the Constitution, being Statutory, cannot he impeached on the ground that the authorities have prescribed tailor made qualifications to suit the stated individuals whose names have been mentioned in the appeal.
Suffice to state that it is settled law that no motives can be attributed to the Legislature in making the law.
The rules prescribed qualifications for eligibility and the suitability of the appellant would be tested by the Union Public Service Commission.
It is next contended that several persons whose names have been copiously mentioned in the appeal were not qualified to hold the post of examiner and they were not capable even to set the test papers to the examiners nor capable to evaluate the papers.
We are not called upon to decide the legality of their appointments nor their credentials in this appeal as that question does not arise nor are they before the court.
It is next contended by Mr. Yogeshwar prasad, the learned Senior counsel that on account of inefficiency in the pilots ' operational Capability repeatedly air accidents have been occurring endangering the lives of innocent travellers and this Court should regulate the prescription of higher qualifications and strict standard to the navigators or to the pilots be instead on.
We are afraid that we cannot enter into nor undertake the responsibility in that behalf '.
It is for the expert body and this Court does not have the assistance of experts.
Moreover it is for the rule making authority or for the legislature to regulate the method of recruitment, prescribe qualifications etc.
It is open to the President or the authorized person to undertake such exercise and that necessary tests should be conducted by U.P.S.C. before giving, the certificates to them.
This is not the province of this Court to trench into and prescribe qualifications in particular when the matters are of the technical nature.
It is stated in the counter affidavit that due to advancement of technology of the flight aviations the navigators are no longer required and therefore they are not coming in large number.
Despite the repeated advertisements no suitable candidate is coming forward, We do not go into fault aspect also and it is not necessary for the purpose of this case.
Suffice to state that pursuant to another advertisement made in July 1992, the appellant is stated to have admittedly applied for and appeared before the 778 U.P.S.C. for selection and that he is awaiting the result thereof.
Under these circumstances.
we do not find any substance in this appeal.
The appeal is accordingly dismissed.
No costs.
U. R. Appeal dismissed.
| The appellant had applied for recruitment as Examiner of Personnel in the Department of Civil Aviation, but was unsuccessful.
He challenged the qualifications detailed in the advertisement as being discriminatory and tailor made, with a view to exclude him.
He contended that while he would have qualified under the 1969 Rules framed under the proviso to Article 309, the rules were amended in 1978 and 1989 with a view to deprive him of his chance.
He submitted that the court should regulate the prescription of higher qualifications and strict standards for navigators and pilots in view of the frequent air accidents.
Dismissing the appeal, this Court, HELD: (1) In exercise of rule making power under Proviso to article 309, the President or authorised person is entitled to prescribe the method (of recruitment, educational and technical qualifications or conditions of service for appointment to an office or post under the State.
These rules being statutory cannot be impeached as being tailor made to suit specific individuals.
(777 B) B.s.
Vadera vs Union of India & Ors., ; ; General manager, Southern Railway vs Rangachari ; at 596; State of Mysore vs P.Narasing Rao [19681 1 SCR 407 at 411; State of J & K vs Triloki Nath Khosa AIR 1974SCI and Sate of Orissa vs
N.N.Swamy ; , para 18, followed.
(2) No motives can he attributed to the Legislature in making the law.
(777 C) 773 (3) The prescribed qualifications and the suitability of the applicant would be tested by the UPSC.
(777 C) (4) It is for the rule making authority or for the Legislature to regulate the method of recruitment, prescribe qualifications etc.
It is not for this court to trench into and prescribe qualifications, in particular where the matters are of a technical nature (777 F)
|
Appeal Nos.
2914 16 of 1993 etc.
From the Judgment and Order dated 23.3.1993 and 29 3 93 of the Madras High Court in W.P. Nos 15081/91, 8002/92 and 16068/91.
WITH Civil Appeal Nos.
2937/93 3040 40A B/93 3026 27/93 3025/93 990 3015 24/93 3028/93 3084/93 3002/93 3032/93 2993 94/93 3003 04/93 3086 87/93 2995/93 3005 07/93 2987 89/93 3014/93 3008 10/93 3086 87/93 2940 41/93 3011 301 IA/93 2998 3000/93 2986/93 3101 07/93 2992/93 3108/93 2982 82A/93 2983 85/93 3029 31/93 3093 94/93 2943 44/93 991 2955 57/93 2996 97/03 3042 3080/93 3035/93 3039/93 3041/93 3095/93 3033 34/93 3090 92/93 3096 97/93 2981/93 3088 89/93 2979/93 2976 77/93 2960 61/93 2990/93 2968/93 2958 59/93 2971/93 2978/93 2972/93 2942/93 3082 83/93 2969 70/93 2965 67/93 2991/93 992 2973 75/93 3036 38/93 2962 64/93 3085/93 3127 29/93 3012 13/93 3018/93 2938 39/93 2990/93 2945 54/93 WITH Special Leave Petition (CIVIL) Nos. 7375, 8009 11, 8108, 7416, 7560 62 OF 1993.
Shanti Bhushan, K.K. Venugopal, Soli J. Sorabjee, N. Santosh Hegde, Shivasubramaniam.
K. Parasaran, P. Chidambaram, Mrs. Revathy Raghavan, M.A. Krishna Moorthy, Kailash Vasdev, Pawan Kumar, B. Rabu Manohar, Dr. A. Francis Julian (For M/s. Arputham, Aruna and Co.), P. Chandrasekhran, Aruneshwar Gupta, A. Chandrasekar, Pushpendra Singh Bhati, V. Ramajagadesan, V. Balachandran, V. Krishnamurthy, K.V. Vijaya Kumar, Ajit Kumar Sinha, Selvar thenave, Martin, K.V. Mohan, R. Mohan, R. Nedumaran, and P.D. Dinakaran for the Appellants.
P.R. Seetharaman for the Respondents.
The Judgment of the Court was delivered by KULDIP SINGH,J.
These bunch appeals are by the Teachers Training Institutes in the State of Tamil Nadu.
They claim to be the minority educational institutions in terms of Article 30(1) of the Constitution of India.
The State Government has declined to recognise these institutes on (lie ground that they have failed to satisfy the conditions for grant of recognition as provided under the Tamil Nadu Minor 993 ity Schools(Recognition and Payment of Grants) Rules, 1977 as amended by the Government Order No. 536 dated May 17, 1989 and Government Order No. 861 dated June 12, 1991.
(Recognition Rules) The appellants challenged, before the Madras High Court by way of writ petitions under Article 226 of the Constitution, the validity of the Recognition Rules.
inter alia, on the ,rounds that the said Rules are violative of Articles 30(1) and 14 of the Constitution of India.
A Division Bench of the High Court consisting of M. Srinivasan and Thangamani, JJ, dismissed the writ petitions.
M. Srinivasan J., who spoke for the Bench, has given a scholarly judgment.
The case law on the subject has been dealt with in detail and the conclusions culled out succinctly.
The High Court judgment has been of utmost assistance to us.
These appeals via special leave are by the Teachers Training Institutes against the judgment of the Division Bench of the High Court.
We announced our conclusions in these matters dismissing the appeals and special leave petitions on May 25, 1993.
Now we proceed to give our reasoned judgment.
The Recognition Rules provide for instructions and teaching practice to be followed, minimum qualifications for teaching and non teaching staff and the following additional Conditions to be satisfied by a teachers training institute to quality for grant of recognition 1.The Teachers Training Institute should have at least 10 acres of suitable land of its own to he used for construction of Building for Institution and Administration and for Hoste l accommodation and staff quarters and also for Play Ground purposes, 2.The Institution Building must consist of suitable rooms to provide for class rooms with roughly 60 sq.
feet of carpet area per inmate one Auditorium cum projection hall with an area of about 2000 Sq.
Laboratory and Special Rooms.
Library Staff rooms separately for Men and Women staff, Principal 's Room, Off ice Room, Store Room for Craft and Physical Education articles.
Toilet facili ties separately for men and women and women 's Common Room; 3.Bath rooms and toilets should be provided.
if the Institution is meant for both sexes separate Such facilities should be provided for 994 men and women teaching staff non teaching staff and men and women candidates.
As far as bath rooms and toilets are concerned arrangements should he made at the rate of one for ten inmates.
4.(a) Adequate furniture and office equipment including furnitures for class rooms, Library, Laboratory and other rooms should be provided to the value of at least a lakh of rupees, (b)Laboratory equipments worth at least a lakh of rupees should be provided for Science, Geography, Home; (c)Teaching appliances.
audio visual aids, charts, maps etc.
worth about Rs. 50,000 should be provided.
(d)Sports/Games/Arts/Music Equipments worth about Rs. should be provided.
(e)Equipment and Material for work experience worth about Rs. 50,000 should be provided.
5.A room with a space of approximately 1000 sq.
with sufficient storage space to keep the equipment furnishing to organise various learning situations, and provision to observe the trainees at work in the laboratory situations.
without being noticed has to be provided.
Sufficient furnitures such as, working tables and almirahs should be provided.
Each Teacher Training Institution should have a good library with at least 10,000 volumes of back and reference books worth at least a lakh of rupees: 7.
Play ground space for sports, gymnastics and other Physical Education activities with an area about 5 acres should be provided.
If the Institute is meant for both sexes, another 3 acres of and should he provided exclusively for women candidates.
The Play ground should he provided adjacent to the main Institution building within the campus and not in a remote place away from the Institution, 995 8.
At least one full fledged recognised Middle School with Standards I to VIII should be functioning under the same management of every Teacher Training Institute seeking recognition, for the purpose of providing teaching practice to the trainess.
This will be a precondition even at the time of sending in applications for recognition of Teachers Training Institutes.
The practical aspects of the Training will be assessed by a competent board to be constituted by the concerned authority.
(a) The need for the opening of the institution in that area will be assessed by a District Committee with a Joint Director nominated by Director of School Education as Chairman with Chief Educational Officer and District Educational Officer/Inspectors of Girls Schools as members as the case may.
This committee will submit a report about satisfaction of norms based on which the competent authority will consider Recognition for the institution, (b) The Authority competent to grant recognition shall take into account the need for granting such recognition to Teacher Training Institutes taking into consideration the trained teachers already available and waiting for appointment and potential to.
absorb the Teachers to be trained in future in the services of Government and Private Schools.
There should he economic strength as prescribed by the education department.
The teachers training institutes should not admit more than forty students in all for the course and should not exceed this limit either in the first or second year.
It was argued before the High Court that as the minorities have a fundamental right under Article 30(1) of the Constitution to establish and administer educational institutions of their choice, the conditions provided under the Recognition Rules are wholly arbitrary and have been designed to oust the appellants from the educational fieled and the provisions regarding, having a middle school '.
ten acres of land, play grounds, library with 10,000 books, laboratory, hostel, staff quarters, bathrooms for students etc.
are so onerous that it is difficult rather impossible to comply with the same.
996 While dealing with the argument based on Article 30(1) of the Constitution of India the High Court discussed in detail the judgments of this Court in Kerala Education Bill[1959] SCR 995, Rev,.
Sidhajbhai Sabhai & Ors.
vs State of Bombay and Anr [ ; S Azeez Basha vs Union of India ; , State of kerala etc, vs Very.
Rev. Mother Provincial etc, [ ; , Regina vs St. Aloysius Higher Elementary School and Anr, [19711 Supp.
SCR 6.
The Gandhi Faiz e am College, Shahjahanpur vs University of Agra and Anr.
[ 19751 2 SCC 283, Lilly,.
Kurian vs Sr.
Lewina and Ors, [ 1 979] 1 SCR 820,All Saints High School, Hyderabad etc.
vs Government of Andhra Pradesh & Ors.
etc ; ; The Managing Board of the Milli Talimi Mission, Bihar Ranchi & Ors.
vs The State of Bihar & Ors., ; , A.P. Christians Medical Educational Society vs Government ofAndhra Pradesh and Anr ; , Frank Anthony Public School Employees Association vs Union of India and ors,[1986]4 SCC 707,All Bihar Christion Schools Association andAnr.
vs State of Bihar and Ors [ 1 988] 1 SCC 206; St. Stephen 's College vs The University of DelhiJT [1991]4 SC 548; Unni Krishnan andAnr.
vs State ofAndhra Pradesh and Ors.
Writ Petition (C) No. 607/92 decided on February4,1993 and TheAhmedabad St Xaviers College Society & Anr.
vs State of Gujarat and Anr 1 975 ] 1 SCR 173.
On the analysis of the above judgments the High Court culled out the following principles 1)The fundamental right declared by Article 30(1) of the Constitution is absolute in terms, but subject to regulatory measures ', 2)There is no fundamental right under Article 19(1) (g) of the Constitution to establish or administer an educational institution, if recognition is sought therefor; 3) The institutions must be educational institutions of the minorities in truth and reality and not mere masked phantoms, 4) There is no fundamental right to recognition and any institution seeking recognition should abide by the regulations,prescribed by the State as conditions therefor; 5)The minority institutions must be fully equipped with educational excellence to keep in step with other institutions in the State; 6) The regulations framed by the State cannot abridge the fundamental right of the minorities and they should be in the interests of 997 the minority institutions themselves and not based on State necessity or general societal necessities; 7) The regulations should be with a view to promoting excellence of educational standards and ensuring security of the services of teachers and others employees of the institutions and in the true interests of efficiency of institutions, discipline, health, sanitation, morality, public order and the like, 8) Even unaided institutions are not immune from the operations of general laws of the land such as Contract Law, Tax measures, Economic Laws, Social Welfare Legislations Labour and Industrial Laws and similar other laws which are intended to meet the need of the Society, No fault can he found with the above quoted legal principles enunciated by the High Court.
Mrs. Kitty Kumar Manglam.
Mr. Shanti Bhushan, Mr. K.K. Venugopal.
Mr. K. Parasaran, Mr. P. Chindambram and other learned counsel appearing for the appellants fairly conceded that the High Court has correctly summed upthe conclusions arising out of the interpretation of Article 30(1) of the Constitution of India.
Before dealing with the Recognition Rules the High Court referred to the Guidelines framed pursuant to the National Educational Policy introduced in the year 1986, the recommendations of the Education Commission (1964 1966), the role of the National Council for Teacher Education under the National Council of Educational Research and Training, the views of various eminent educationists and came to the conclusion that there is a need for drastic change in the basic concept of teachers training in the country.
Comprehensive overhauling of administrative structure of these institutions was urgently needed.
The High Court dealt with in detail the revised syllabus for the diploma in teacher education course and also the curriculum of the institutes of Education Training set up by the Tamil Nadu Government which shows that the State.of Tamil Nadu is in the process of overhauling the methodology of teaching and administration of the teachers training institutes in the State of Tamil Nadu.
The High Court referred to various judgments of this Court wherein the importance of teacher training and need to uplift the standard of such institutions was repeatedly highlighted.
The High Court rightly emphasised the need for maintaining very high standards of Education, Sports, administration and maintenance of the Teachers 998 Training Institutes.
These Institutions are established with the avowed object of training teachers and educationists who have to shoulder the responsibility of moulding the nation.
This Court in N.M. Nageshwaramma vs State of Andhra Pradesh & Anr.
[1986] Supp SCC 166 observed as under: "The Teachers Training Institutes are meant to teach children of impressionable age and we cannot let loose.
on the innocent and unwary children, teachers who have not received proper and adequate training.
True they will be required to pass the examination but that may not be enough.
Training for a certain minimum period in a properly organised and equipped Training Institute is probably essential before a teacher may be duly launched." Jagannatha Shetty, J. speaking for this Court in Andhra Kesari Education Society vs Director of School Education & Ors. J.T.(1988) 4 S.C. 431 observed as under: "Though teaching is the last choice in the job market, the role of teacher is central to all processes of formal education.
The teacher alone could bring out the skills and intellectual capabilities of students.
He is the 'engine ' of the educational system.
He is a principal instrument in awakening the child to cultural values.
He needs to be endowed and energised with needed potential to deliver enlightened service expected of him.
His quality should be such as would inspire and motivate into action the benefitter.
He must keep himself abreast of ever changing conditions.
He is not to perform in a wooden and unimaginative way.
He must eliminate fissipasrous tendencies and attitudes and infuse nobler and national ideas in younger minds.
His involvement in national integration is more important, indeed indispensable.
It is, therefore.
needless to state that teachers should be subjected to rigorous training with rigid scrutiny of efficiency.
It has greater relevance to the needs of the day.
The ill trained or sub standard teachers would be detrimental to our educational system, if not a punishment on our children.
The Government and the University must, therefore, take care to see that inadequacy in the training of teachers is not compounded by any extraneous consideration.
" In State of Maharashtra vs Vikas.
Sahebrao Roundale & Ors.,.
J.T (1992) 5 999 S.C. 175, K. Ramaswamy, J. speaking for this Court observed as under: "The teacher plays pivotal role in moulding the career,character and moral fibres and aptitude for educational excellence in impressive young children.
The formal education needs proper equipment by the teachers to meet the challenges of the day to impart lessons with latest technics to the students on secular, scientific and rational outlook.
A well equipped teacher could bring the needed skills and intellectual capabilities of the students in their pursuits.
The teacher is adorned as Gurudevobhava, next after parents, as he is a Principal instrument to awakening the child to the cultural ethos, intellectual excellence and discipline.
The teachers, therefore, must keep abreast ever changing technics, the needs of the society and to cope up with the psychological approach to the aptitudes of the children to perform that pivotal role.
In short teachers need to he endowed and energised with needed potential to serve the needs of the society.
The qualitative training in the training colleges or schools would inspire and motivate them into action to the benefit of the students.
For equipping such trainee students in a school or a college all facilities and equipments are absolutely necessary and institutions bereft thereof have no place to exist nor entitled to recognition.
In that behalf compliance of the statutory requirement is insisted upon.
Slackening the standard and judicial fiat to control the mode of education and examining, system are detrimental to the efficient management of the education.
" The teacher education programme has to be redesigned to bring in a system of education which can prepare the student teacher to shoulder the responsibility of imparting, education with a living dynamism.
Education being closely interrelated to life the well trained teacher can instill anesthetic excellence in the life of his pupil.
The traditional, stereotyped.
lifeless and dull pattern of" 'chalk.
talk and teach" method has to be replaced by a more vibrant system with improved methods of teaching.
to achieve qualitative excellence in teacher education.
Keeping in view the National Policy of Education, the Government of Tamil Nadu has published, a revised syllabus for the diploma in teacher education course.
in the Government Gazette of August 15, 1990.
The aims and objectives of the said syallbus and curriculum as given by the State of Tamil Nadu are as under: 1000 .LM15 "A sound Programme of Elementary Teacher Education is inevi table for the qualitative improvement of Education.
Education must become all effective instrument of social change and the part played by the teacher should be suitable and significant for this purpose.
The gap between the Teacher Education curriculum and the school curriculum has to he minimized for enabling the teachers to act as agents of social change which necessitates that the education imparted in schools has relevance to the personal as well as social life of individuals and to "the needs and aspirations of the people.
In order to be a catalyst in the process of developing a citizen who is productive and who believes in social justice and national integration, tile teacher himself needs to become such a citizen through appropriate learning experience.
" The High Court has examined the legality of the impugned Recognition Rules in the above background.
It has discussed in detail the object and utility of laying down the impugned conditions for recognition.
The High Court has found that none of the conditions infract Articles 14 and Article 30(1) of the Constitution of India.
We agree with the reasoning and the conclusions reached by the High Court.
This Court cannot go into the question as to whether a Teachers Training Institute should be set up on a campus consisting of 10 acres or 5 acres.
It is also not for this Court to lay down the sizes of the class rooms.
laboratories, number of ' toilets or the number of books to he kept in the library.
It is entirely for the State Government to lay down tile requirements of a teachers training institute campus.
The learned Advocate General appearing for the State of Tamil Nadu has contended that the Recognition Rules are also applicable to Government run teachers training, institutes and also to the institutes which are Government aided.
According to him the new Recognition Policy of the Government has been designed with the object of closing the "teaching shops" and encouraging the genuine institutions.
According, to him the policy is based on the Guidelines issued by the Central Government from time to time.
He further stated that the condition of having an area of 10 acres for the campus has now been reduced to five acres in case of the institutions which are set up within the area of Municipal Corporation.
He has clarified that the only requirement for setting up the library is that it must have reference books worth at least a lakh of rupees.
According to him the number of toilets.
bathrooms etc.
and other conditions regarding the institute building are in the nature of guidelines and are to he substantially complied with.
On our suggestion the learned Advocate General has agreed to command to the State Government.
not to insist on additional 3 acres of land in case of ' co 1001 educational institutes in case these institutes are having 10 acres/5 acres of area as provided under the Recognition Rules.
Mr. Shanti Bhushan appearing in civil appeals arising out of Special Leave Petitions No. 6762 63/93 has contended that the appellants institutes started functioning in the year 1984.
They were refused recognition and as such they challenged the order by way of a writ petition before the High Court.
The learned counsel has invited our attention to the judgment of the High Court dated November 3, 1987 in the said writ petition wherein it is held as under "Consequently, the orders of the respondents 2 and 3 are set aside a writ of mandamus will issue directing the third respondent to grant recognition to the petitioner institute with effect from 27th September, 1984.
This writ petition is allowed with costs.
" Mr. Shanti Bhushan contended that the impugned Recognition Rules cannot be made applicable to the institutions which have already been established and given recognition by the State Government under directions of the Court.
Relying upon the above quoted judgment of the High Court learned counsel has contended that his clients were given recognition with effect from 1984 under the directions of the High Court and as such the impugned Recognition Rules which came into force in the year 1989 cannot be made applicable to them.
It is not disputed by Mr. Shanti Bhushan, that under the directions of the High Court temporary recognition was given to his clients, though according to him the order of the Government granting temporary recognition was challenged before the High Court and the said petition was also disposed of by the impugned judgment.
We see no force in the contention of the learned counsel.
All those institutes which did not have permanent recognition before the issue of the Recognition Rules are bound to comply with the said conditions before they are entitled to permanent recognition.
The High Court was justified in holding that the institutions which were operating on the basis of temporary recognitions, either under the orders of the Courts or otherwise, shall to comply with the recognition rules to enable them to earn recognition.
Mr. K.K. Venugopal contended that a distinction has to be made between the institutions which are functioning earlier to the coming into force of the recognition rules and those which have applied for recognition for the first time.
According to him change over period should be given to the existing institutes which are functioning on the basis of temporary recognition.
We do not agree with Mr. Venugopal.
The training institutes which are functioning on the basis of 1002 temporary recognitions are neither properly organised nor fully equipped to train the teachers.
These institutes have done more harm than good to the cause of education.
Mr. Venugopal and Mr. K. Parasaran have further argued that the students who have already taken the examinations, their results be directed to be declared and if successful, certificates be awarded to them.
Mr. Chindambram, appearing for some of the appellants, has argued that there are students who have already taken the examination and their results have also been declared but they have not been given certificates on the ground that the institutes which sponsored them have not been recognised.
It is no doubt correct that temporary recognitions have been granted to some of the institutions either under the orders of the Court or otherwise and the students of such institutions were permitted to write the examinations.
In number of cases under orders of the Court permission to the students to write the examinations have been given.
The High Court also directed in some cases to publish the results of the students who wrote the examination in April 1992.
All these situations were brought to the notice of the High Court in Writ Petition No. 3674 of 1992 and Writ Petition No. 5469 of 1993 which were heard together.
The High Court refused to grant relief to the students who had written the examination or who had passed the examination and were being denied the certificates.
The High Court observed as under "Based on the above orders, learned counsel for the petitioner contends that the students of the petitioner Institution have validly written the examination when the order of recognition was in force and the results of the examination have already been published, pursuant to the orders of this Court.
It is contended that the students of the petitioner are certainly entitled to the consequential relief of issue of certificates.
Another interlocutory application is now filed in WMP No. 5469 of, 1993 on 22.2.93 for a direction to the third respondent to publish the results of the students who wrote the examination held in July 1992.
In similar cases, we have given directions to the authorities to publish the results.
But, we have taken care to observe that such publication of results will not confer any right on the students as the Institutions have not complied with the rules framed in GOMS.
No. 536.
They cannot take advantage of the interim orders passed by this court directing the government to grant temporary recognition Orders of such temporary recognition 1003 are expressly made subject to the result of the main writ petitions.
Now, we have held that GO Ms. No. 536 is valid and the orders of temporary recognition will not confer any other remedies on the students of the petitioner.
So far as these institutions are concerned, they should be treated only as non recognised.
Just because the students have written the examinations and results are published, they are not entitled to any further relief.
The writ petition is dismissed with the above observations".
It has come to the notice of this Court that many institutions claiming themselves to be minority institutions within the meaning of Article 30(1) of the Constitution, invoke the jurisdiction of the High Court under Article 226 or of this Court under Article 32 for a writ of mandamus to recognise the institutions in question as minority institutions and pending the final disposal of such applica tions, an interim direction is sought to allow the students of such institutions to appear at the examinations concerned.
In connection with such interim prayer, this Court in the case of A. P. Christians Medical Educational Society vs Government of Andhra Pradesh (supra) said: "Shri K.K. Venugopal, learned counsel for the students who have been admitted into the MBBS course of this institution, pleaded that the interests of the students should not be sacrificed because of the conduct or folly of the management and that they should be permitted to appear at the University examination notwithstanding the circumstance that permission and affiliation had not been granted to the institution.
He invited our attention to the circumstance that students of the Medical college established by the Daru Salam Educational Trust were permitted to appear at the examination not with standing the fact that affiliation had not by then been granted by the University.
Shri Venugopal suggested that we might issue appropriate directions Lo the University to protect the interests of the students.
We do not think that we can possibly accede to the request made by shri Venugopal on behalf of the students.
Any direction of the nature sought by Shri Venugopal would be in clear transgression of the provisions of the University Act and the regulations of the University.
We cannot by our fiat direct the University to disobey the statute to which it owes its existence and the regulations made by the University itself.
We cannot imagine anything more destructive of the rule of law that a direction by the court to disobey the laws.
" 1004 In view of the aforesaid pronouncement of this Court, the High Court should not have passed, interim order directing the respondents to allow the teachers of unrecognised institutions to appear at the examinations in question.
Such teachers cannot derive any benefit on basis of such interim orders, when ultimately the main writ applications have been dismissed by the High Court, which order is being affirmed by this Court.
The same view has been expressed by this Court, in connection with the minority unrecognised teachers training institutions in the State of Tamil Nadu itself, in the case of State of Tamil Nadu and others vs St. Joseph Teachers Training Institute and another [1991] 3 SCC 87.
As such no equity or legal right can be pleaded on behalf of the Teachers admitted for training by such minority institutions, for publication of their results, because they were allowed to appear at the examinations concerned, during the pendency of the writ applications before the High Court, on basis of interim orders passed by the High Court, which were in conflict with the view expressed by this Court in the aforesaid cases.
We see no ground to differ with the view taken by the High Court.
This court in N.M. Nageshramma 's case (supra) has held that training in a properly organised and equipped training institute is essential before a candidate becomes qualified to receive teachers training certificate.
Simply passing the examination is not enough.
The future teachers of the country must pass through the institutions which have maintained standards of excellence at all levels.
We see so ground to interfere with the impugned judgment of the High Court.
We agree with the views expressed by the High Court on various aspects of teachers training institutes.
We also agree with the reasoning and the conclusions reached by the High Court.
Before we part with this judgment we consider it necessary to strike a note of caution in respect of passing of interim orders by Courts directing the students of unrecognised institutions, to appear at the examinations concerned.
In view of ' the series of judgments of this Court, the Courts should not issue fiat to allow the students of unrecognised institutions to appear at the different examinations pending the disposal of the writ applications.
Such interim orders affect the careers of several students and cause unnecessary embarrassment and harassment to the Authorities, who have to comply with such directions of the Court.
It is a matter of common knowledge that as a part of strategy, such writ applications for directions to recognise the institutions in question and in the meantime to allow the students to appear at the examinations are filed only when the dates for examinations are justified.
Many of such institutions are not only "masked phantoms" but are 1005 established as business ventures for admitting sub standard students, without any competitive tests, on basis of considerations which cannot serve even the interest of the minority.
There is no occasion for the Courts to be liberal or generous, while passing interim orders, when the main writ applications have been filed only when the dates for the examination have been announced.
In this process, students without knowing the design of the organisers of such institutions, become victim of their manipulations.
The appeals/special leave petitions are dismissed.
No costs.
R.P. Appeals dismissed.
| The respondent state, in the process of overhauling the methodology of teaching and administration of teachers training institutes in order to achieve qualitative excellence in teacher education , amended the Tamil Nadu Minority Schools (Recognition and Payment of Grant) Rules 1977 by G.O. No.536 dated 17 5 1989 and No. 661 dated 12 6 1991.
The Rules besides providing for instructions teaching practice to be followed and minimum qualification for the staff prescribed certain other conditions regarding land,building, hotel 986 furniture, library, teaching appliances, sports facilities, recognised middle school for providing teaching practice to trainees, etc.
to be satisfies by a teachers training institute to qualify for grant of recognition.
The appellant/petitioners are various Teachers Training Institute in the State of Tamil Nadu.
claiming to be minority educational institutions in terms of Article 30(1) of the Constitution of India The State Government declined to recognise these institutions on the ground that they failed to sutisfy the conditions for grant of recognition as provided under the Recognition Rules.
The appellants/petitioners filed writ petitions before the High Court challenging the validity of the Recognition Rules on the ground that the same were violative of Articles 30(1) and 14 of the Constitution.
It was contended that as the minorities have a fundamental right under r Article 30(1) of the Constitution to establish and administer educational institutions of their choice, the conditions provided under the recognitions Rules were wholly arbitrary and were designed to oust the appellants from the educational field and the the provisions were so onerous that it was difficult rather impossible to comply with the same.
The High Court dismissed the writ petitions.
The appellants/petitioners filed the appeals and the special leave petitions.
It was contended on behalf of the appellants that the Rules could not be made applicable to the institutions already established and given recognition by the State Government under the directions of the Court; and that the successful students of these institutions who had taken examinations be given certificates.
This Court dismissed the appeals and the special leave petitions by its order dated 25 5 1993 indicating that reasons therefor would follow.
Giving reasons for its order dated 25 5 1993, this Court HELD : 1.
The High Court was right in holding that none of the conditions for grant of recognition to teachers training institutes prescribed under the Tamil Nadu Minority Schools (Recognition and Payment of Grants) Rules, 1977, infracted Articles 14 & 30(1) of the Constitution.
It rightly culled out the following principles (i) The fundamental right declared by Article 30(1) of the Constitution is absolute in terms, but subject to regulatory measures; 987 (ii)There is no fundamental right under Article 19(1) (g)of the Constitution to establish or administer an educational institution, if recognition is sought therefore; (iii) The institutions must he educational institutions of the minorities in truth and reality and not mere masked phantoms; (iv) There is no fundamental right to recognition and an% institution seeking recognition should abide by the regulations prescribed by the State as conditions therefor, (v) The minority institutions must be fully equipped with educational excellence to keep in step with other institutions in the State; (vi) The regulations framed by the State cannot abridge the fundamental right of the minorities and they should be in the interests (if the minority institutions themselves and not based on State necessity or general societal necessities .
(vii) The regulations should be, with a view to promoting excellence (of educational standards and ensuring security of the services of teachers and other employees of the institutions and in the true interests of efficiency (if institutions, discipline, health, sanitation, morality public order and the like; (viii) Even unaided institutions are not immune from the operations of general laws of the land such as Contract Law Tax measures, Economic Laws and, Social Welfare legislations, Labour and Industrial Laws and similar other laws which are intended to meet the need of the Society.
Kerala education bill,[1959] SCR 995; Rev. Sidhajbai Sabhai section vs State of Bombay and Anr[1963] 3 SCR 837; section Azeesh Basha vs Union of India ; ; State o Kerala etc.
vs Very Rev. Mother Provincial etc ; ; Regina vs St. Alosius Higher Elementary School and Anr[1971] Supp.
SCR 6; The Ahmedabad St. Xaviers College Society and Anr etc vs State of Gujarat and Anr[1975] 1 SCR 173; The Gandhi Faiz e am College, Shajahanpur
University of Agra and Anr.[1975] 2 SCC 283; Lilly Kurian vs Sr.
Lewina and 988 Ors.[1979] 1 SCR 320; All Saints High School, Hyderabad etc.
vs Government of Andhra Pradesh & Ors.
etc ; ; The Managing Board of the Milli Talimi Mission, Bihar Ranchi & Ors vs The State of Bihar & Ors ; ; A.P. Christians Medical Educational Society vs Government of Andhra Pradesh and Anr.[1986] 2 SCC 667 Frank Anthony Public School Employees Association vs Union of India and Ors [1986]4 SCC 707 All Bihar Christian Schools Association and Anr.
vs State of Bihar and Ors. ; St. Stephon 's College vs The University of Delhi JT(1991) 4 SCC, 548 and Unni Krishnan and Anr.
vs State of Andhra Pradesh and Ors.
cited.
2.1 The teacher education programme has to he redesigned to bring in a system of education which can prepare the student teacher to shoulder the responsibility of imparting educating with a living dynamism and the traditional pattern of "chalk, talk and teach" method has to be replaced by more vibrant system with improved methods of reaching, to achieve qualitative excellence in teacher education.
N.M. Nageshwaramma vs State of Andhra Pradesh & Anr [1986] Supp SCC 166 Andhra Kesari Education Society vs Director of School Education & Ors and State of Maharashtra vs Vikas Sahebrao Roundale & Ors.
J.T.(1992) 5 SC 175, relied on.
2.2 It is entirely for the State Government and not for this Court, to lay down the requirements of a teachers training institute campus.
All those institutes which did not have permanent recognition before the issue of the Recognition Rules, 1977 are bound to comply with the said conditions before they are entitled to permanent recognition.
The High Court was Justified in holding that the institutions which were operating on the basis of temporary recognitions, either under the orders of the Courts or otherwise, shall have to comply with the recognition rules to enable them to earn recognition.
These institutions are neither properly, organised nor fully, equipped to train the teachers.
and have done more harm than good to the cause of education.
3.1 In view of the series of the judgments of this Court the Courts should not issue fiat to allow the students of unrecognised institutions to appear the different examinations pending the disposal of the writ applications.
Such interim orders affect the career of several students and cause unnecessary embarrassment and harassment to the authorities, who have to comply with such directions of the Courts.
989 A.P. Christians Medical Educational Society vs Government of Andhra Pradesh ; , relied on.
3.2 The High Court should not have passed interim orders directing authorities concerned to allow the teachers of unrecognised institutions to appear at the examinations.
It is a matter of common knowledge that many institutions claiming themselves to be minority institutions within the meaning of Article 30(1) of the Constitution invoke the jurisdiction of the High Court under Article 226 or of this Court under Article 32 for a writ of mandamus to recognise the institutions as minority institutions only when the dates for examinations are notified and, as a part of strategy, seek directions to allow, meanwhile, the students to appear at the examinations.
Many of such institutions are not only "masked phantoms" but are established as business ventures for admitting sub standard students without any competitive tests, on basis of considerations which cannot serve even the interest of the minority.
The teachers of such institutions cannot derive any benefit on basis of interim orders when ultimately the main writ applications have been dismissed.
As such no equity or legal right can be pleaded on behalf of the students admitted for traning by such minority institutions for publication of their results or award of certificates.
A.P. Christians Medical Educational Society vs Government of Andhra Pradesh, ; ; and State of Tamil Nadu and others vs St. Joseph Teachers Training Institute and another; , , relied on.
|
Petition (Civil) Nos.
7900 02 of 1982.
WITH Writ Petition Nos. 837 & 853 of 1982.
(Under Article 32 of the Constitution of India) WITH Civil Appeals Nos.
3137 38 of 1993.
1021 From the Judgment and Order dated 26.7.84 & 27.7.84 of the Rajasthan High Court in D.B.
Civil Special Appeal Nos. 182 & 184 of 1984.
WITH C.M.P. Nos.
19643 45 of 1988 & C.M.P. No.
8272 of 1986.
R.K. Garg, Aruneshwar Gupta, R.K. Kamal and S.K. Gupta for the Petitioners in W.P. Nos. 7900, 7902/82, SLPS.
12682/84,830/85.
and for the Respondent No. 4 in CA.No.
1649/78.
T. Sridharan for the Petitioner in WPs.
Nos. 837 & 853 of 1982.
M.K. Ramamurthi, and Parijat Sinha for the Appellants in CA.
No. 1649/78 and for the Respondent No, 4 in WPs.
7900 82/82.
R. F. Nariman and P.H. Parekh for the intervenor in WPs.
Nos. 7900 02/82.
V.R. Reddy, Additional Solicitor General, V.C. Mahajan, Ms.
B. Sunita Rao, V.K. Verma and Ms. A. Subhashini for the Respondent in U.O.I. C.V.S. Rao, (NP) for the Respondent in SLP Nos.
12682/84,830/85.
C.V. Rappai for the Respondent No. 14 in WP.
7900 02/82.
The Judgment of the Court was delivered by PUNCHHI, J.
These are a handful of writ petitions and special leave petitions which, on grant of leave hereby, and having become appeals, can conveniently be disposed of by a common judgment.
The fulcrum of the controversy herein, and the shadow in which it works is a three judge Bench decision of this Court in Katyani Dayal & Ors.
vs Union of India & Ors.
; decided on March 26, 1980.
Before adverting to the facts and circumstances in which this cause has been presented to this Court it would be fruitful to give a broad outline of Katyani Dayal 's case, in the immediately succeeding, paragraphs.
Connected with Katyani Dayal 's case were writ petitions filed in a represen 1022 tative capacity, purporting to represent all temporary Assistant Engineers (on a later point of time known as temporary Assistant Officers) appointed by the Railway Board, pursuant to the authority given by the President of India, on the recommendations of the Union Public Service Commission; selection based on interview alone.
There was a separate classification of such temporary Assistant.
Officers when compared with India Railway Service Engineers (Class 1).
Direct recruits to the Indian Railway Service of Engineers (Class 1) were subjected to competitive written and personality tests and in the nature of things only the very best could emerge out successfully.
On the other hand temporary Assistant Officers, (hereafter referred as 'Officers ' at places) were neither subjected to written nor to a personality test but, as said before, were selected on the basis of interview.
Besides the minimum educational qualification, which was the same for both the services three years experience as a Civil Engineer was.
additionally required for the aspirants to the Indian Railway Service of Engineers (Class 1) (hereafter referred to as the 'Engineers ' at places).
While the President was the appointing authority of the Engineers, the Railway Board was the appointing authority of the Officers.
Both the members of these services on selection were due for different courses of training earmarked separately.
There were a host of other factors which distinguished the quality and character of the personnel of the two parallel services as elaborately detailed in Katyani Dayal 's case (supra).
Between the years 1955 and 1964, as many as 553 officers (temporary Assistant Engineers) were appointed by the Railway Board through the Union Public Service Commission.
Though in the letters of appointment the officers (temporary Assistant Engineers) and others concerned were told that six of them, would be absorbed into the Indian Railway Service of Engineers (Class 1) every year, this figure in the subsequent years was increased from time to time when in 1975, the figure as increased stood at 25 per year.
The net result was that after absorption, 107 Officers were residually left unabsorbed in the year 1976 by the time of the filing of the connected writ petitions in Katyani Dayal 's case and they too were finally absorbed in 1979 by What was described as a "blanket order".
Before hand on September 17, 1965, the Railway Board had taken a decision to the effect that the Officers so absorbed into the Indian Service of Engineers would be given weightage in seniority "on the basis of half the total years of continuous service in working posts in Railways prior to their permanent absorption into Class. 1, subject to a maximum weightage of five years".
The then writ petitioners, describing themselves as members of the Federation of Temporary Officers Association, Indian Railways joining with them, their President, Vice President and Secretary of the aforesaid Federation as writ petitioners approached this Court 1023 in a representative capacity to seek relief in their seniority status.
The principal claim of the writ petitioners was that Officers were appointed to temporary posts on the cadre of Engineers and that their seniority had to be reckoned on the basis of their length of continuous service, though they conceded that in any given year, the candidates appointed as Engineers on the basis of the results of the competitive examinations were placed above those appointed on the basis of selection by the Union Public Service Commission.
The challenge was to the authority of the Railway Board to create such an unclassified parallel service, something outside the preview of the Indian Railway Establishment Board.
Notwithstanding the procedure of selection so adopted the writ petitioners contended that they were recruited in Class I service and supported their claim on diverse grounds so as to obtain the result that all Assistant Engineers formed one class under the Indian Railway Establishment Board.
Challenge was made to the classification of personnel into those that were recruited on the basis of the competitive examinations and those that were recruited by selection, but both by Union Public Service Commission, terming it as arbitrary and not permissible under the equality clause in the Constitution.
Grievance was voiced that the right of absorption of a handful of temporary Engineers (Officers) every year into the Service of Engineers was arbitrary and inequituous resulting in grave injustice rendering decades of service of the Officers to a mere waste.
Unfortunately the then writ petitioners did not sue the respondents across in a representative capacity.
In the fitness of things it would have been appropriate for the then writ petitioners to either involve all parties who could possibly have an interest or a likely affectation in the litigation, or to sue them in a representative capacity if not individually.
However some people did get impleaded as parties in that case to project their.
point of view and due to the nature of dispute those predominantly were members of the Indian Railways Service of Engineers Class 1.
This Court while dismissing the writ petitions held that the classification of temporary Assistant Officers separately from the Indian Railway Service Engineers of Class I was neither discriminatory nor violative of Articles 14 and 16 of the Constitution, for the reason that it had nexus to the object sought to be achieved, which mainly was efficiency of service, and that both the services had started separately and never became one.
This Court further viewed that the object of recruitment being different, the methods of recruitment dissimilar, the appointing authority being not the same, the training imparted to the two unlike, the tenure of temporary Assistant Officers being precarious, and their maximum aspiration being only to be absorbed into the Indian Railway Service of Engineers Class 1024 were distinctive features and, therefore, no question of their entitlement to equal rights arose until and unless the temporary Assistant Officers got absorbed into the Indian Railway Service of Engineers Class 1.
This court also ruled that the.
seniority of the.absorbed temporary Assistant Officers would ordinarily reckon from the date of their absorption into the Indian Railway Service of Engineers Class I as stipulated in their letters of appointments With regard to the time factor, this Court also took into account the long wait involved in the process but all the same approved of the measures of the Railway Board in lessening the Iona wait by giving them weightage of half of the length of service as temporary Assistant Officers subject to the maximum of five years.
And lastly this court rejected the claim of the temporary Assistant Officers asking for "equal status for equal pay and equal work" leaving a ray of hope that such goal might be achieved in the not too distant future.
The instant batch of matters is virtually on the same lines as of Katyani Dayal 's case claiming the same relief and this time by the Temporary Assistant Officers through a body styled as the Federation of Directly Appointed Officers (Suppressed) of Indian Railways and a few others, in a representative capacity across which stand arrayed the Union of India and the Railway Board as respondents.
When this matter came up for hearing on 15 March, 1990 before a three judge Bench in which one of us (Punchhi, J.) was a member, it was It that the affected parties should be impleaded in their representative capacity so as to make the decision of this Court binding on every member of both the classes of employees.
The requisite direction was thus made and carried out.
Pursuant thereto some private respondents on record represent the entire body of similarly placed Engineers, Thus both sides have sued and are being sued in their representative capacity.
Mr. R.K. Garg, learned counsel for the petitioners has spear headed the claim of the temporary Assistant Officers on the basis of the so called developing concept of Article 14 in the years gone by, especially in the field of the right to equality in matters relating to employment on appointment in service.
He asserts that the development of law has gone a long way so as to shed the views expressed in Katyani Dayal 's case justifying demolition of the demarcation between the two services made as it was in Katyani Dayal 's case examining the question afresh in the light of Raghunandan Prasad Singh vs Secretary, Home (Police) Department, Government of Bihar & Ors [1988] Supp.
SCC 519, Dr. O.Z Hussain vs Union of India [1990] Supp.
SCC 688 at 691, & Direct Recruit Class II Engineering of officers Association vs State of Maharashtra & Others ; and 1025 other cases.
It was contended that Katyani Dayal 's case upholding the creation of temporary posts outside the service was on the basis which has since been eroded and "equal pay for equal work" with equality in all other conditions of service including avenues of confirmation, absorption, promotion, pension and security have become inflexible postulates of service jurisprudence.
On the other hand, learned counsel for the respondents has opposed such method contending that what is being asked is a virtual review of Katyani Dayal 's case which is not permissible by means of successive writ petitions.
Addedly it is urged that principles of constructive res judicata would bar the re agitation of the issues decided in Katyani Dayal 's case, if not the strict principles of res judicata.
Lastly it was urged that when the matter has been settled in this particular service, its unsettling by means of a petition under Article 32 of the Constitution is impermissible.
We were taken through Katyani Dayal 's case extensively.
What we find is that the distinction and the classification of the temporary Assistant Officers and members of the Indian Railway Service of Engineers Class I fell clearly to be identified and marked.
The only method of fusion was by means of a phased absorption as noticed in paragraph 9 of the Report detailed above.
The scheme having met with approval of this Court cannot by mere passage of time be taken to have become vulnerable by subsequent exponence and dimension of Article 14 of the Constitution.
This Court in Katyani Dayal 's case specifically said that relief of equality was being denied to the then petitioners because of the history, origin, and structure of the Services.
No opinion was expressed however as to the validity of the given weightage of half the length of service to Temporary Assistant Officers.
subject to a maximum of five years, because of its being questioned elsewhere.
We are unable to make any headway or act in judicial indiscipline towards widening the scope of these matters in the face of the Constitution Bench decision of Direct Recruit 's case (supra).
Amongst the conclusions summed up by the Constitution Bench conclusion (J) and (K) seal the fate of these matters.
These are: "(J) The decision dealing with important questions concerning a particular service given after careful consideration should be respected rather than scrutinised for finding out any possible error.
It is not in the interest of service to unsettle a settled position.
(K)That a dispute raised by an application under Article 32 of the 1026 Constitution must be held to be barred by principles of res judicata including the rule of constructive res judicata if the same has been earlier decided by a competent court by a judgment which became final.
" The distinction between, the two services was well marked in Katyani Dayal 's case (supra) and the important question of equality was once for all settled.
To find fault with it, at this juncture again on the touch stone of equality dimension would be to unsettle a settled position.
That venture is neither in the interest of justice nor in the interest of service.
When there has been complete absorption of the personnel of one service into the other, and the seniority of the absorbers is to be reckoned from their date of absorption as stipulated in their appointment matters and as held by this Court with weightage of half the length of service subject to a maximum of five years, it would otherwise be imprudent now, at this point of time to dig up old issues.
The rule of weightage also appears to us to be reasonable and this is a pattern which has been noticed and approved in many a Service.
Similarly when the dispute raised between the Officers in a representative capacity and Engineers not so represented, in Katyani Dayal 's case (supra), still it was a dispute raised before this Court which has been decided finally.
A dispute now sought to be raised under Article 32 of the Constitution between the Officers in a representative capacity and Engineers across also in a representative capacity must be held to be barred by principles of res judicata as also in the rule of constructive res judicata.
The cases aforementioned relied upon by learned counsel for the petitioners/appellants do not remove this hurdle, however, broadly may Article 14 and 16 be viewed and expanded.
It is thus unnecessary to elaborate those cases and discover their ratio.
The are argument of learned counsel for the appellant that the State is prohibited to create separate channels of service and create discrimination by making one as an isolated one, and not providing for promotional avenues reasonably, falls to the ground in view of the bar of re agitation erected by Direct Recruit 's case (supra).
Equally when absorption had been made possible and its pace quickened with weightage, it is difficult to find fault with the scheme at this point of time to look for a substitution at our end, as that would unsettle a settled position, established more than a decade ago.
We also do not see any compelling reasons to deviate from the principles enunciated in the judgment.
At this point of time the bars erected by Direct Recruit 's case (supra) appear to us to have further thickened goading us to refrain from the exercise of any undoing.
We thus leave the matter as it is.
It needs mentioning that the appeals being decided instantly are against the judgments and orders of the High Court rejecting writ petitions of the petitioners 1027 before it on the basis of Katyani Dayal 's case (supra).
No details of these cases are necessary to dispose of these appeals for the reasons stated above.
As a result these petitions and appeals tail, but without any order as to costs.
In view of the dismissal of the main matters, no orders are necessary on all the C.M.Ps.
G.N. Matters dismissed.
| There were two parallel Services of Engineers in the Indian Railways.
One was the Indian Railways Service of Engineers (Class (I) who were subjected to competitive written and personality tests and appointed by the President of India.
The other Service was the temporary Assistant Engineers (later known as Temporary Assistant Officers) appointed by the Railway Board, on selection based (on interview alone.
In addition to the minimum educational qualifications which was the same for both the services three years experience as Civil Engineer was required for the Railway Service of Engineers.
The temporary Assistant Officers were gradually absorbed into the Indian Railway Service of Engineers and the Railway Board took a decision that they would be given weightage in seniority on the basis of half the total length of continuous service in working posts in Railways prior to their permanent absorption into Class I subject to a maximum weightage of five years.
Writ Petitions were filed in this Court by the Federation of Temporary Officers Association in a representative capacity seeking relief in their seniority status.
This Court dismissed the Writ Petitions holding that the classification of temporary, Assistant Officers separate from the Indian Railway Service 1019 Engineers Class I, was neither discriminatory nor violative of Articles 14 and 16 of the Constitution; and that the object of recruitment, methods of recruitment, appointing authority and training imparted being different, no question of their entitlement to equal rights arose fill they were absorbed into the Indian Railway Service of Engineers Class 1.
This Court also approved ,the measures of the Railway Board in regard to giving weightage of half the length of service as temporary Assistant Officers subject to a maximum of five years.
Their claim for equal status for equal pay and equal work was also rejected.
(Katyani Dayal & Ors.
vs U.0.1.
; In the present Writ Petitions and Civil Appeals filed in a representative capacity, the relief claimed were on the same lines as in Katyani Dayal,s case.
As directed by this Court the affected parties were impleaded in their representative capacity, so that the decision of this.
Court would he binding on every member of both the classes of employees.
On behalf of the Petitioners/Appellants, it was contended that equal pay for equal work with equality in all other conditions of service including avenues of confirmation, absorption, promotion, pension and security have become inflexible postulates of service jurisprudence.
The respondents contended that what was being asked was a virtual review of Katyani Dayal 's case which could not be permitted.
It was also contended that principles of constructive res judicata would bar the re agitation of the issues decided in Katyani Dayal 's case if not the strict principles of res judicata ; and that when the matter has been settled in this particular service, its unsettling by means of a petition under Article 32 of the Constitution was impermissible.
Dismissing the matters, this Court HELD: 1.
The distinction between the two services was well marked in Katyani Dayal 's case and the important question of equality was once for all settled.
To find fault with it, at this juncture again on the touch stone of equality dimension would be to unsettle a settled position.
That venture is neither in the interest of justice nor in the interest of service.
When there has been complete absorption of the personnel of one service into the other, and the seniority of the absorbers is to he reckoned from their date of absorption as stipulated in their appointment letters with weightage of half the length of 1020 service subject to a maximum (of give years, it would otherwise be imprudent now.
at this point of time to dig up old issues, The rule or weightage also appears to be reasonable and this is a pattern which has been noticed and approved In many a Service.
Similarly when the dispute raised between the Officers in a representative capacity and Engineers riot so represented, still it was a dispute raised before this Court which has been decided finally.
(1026 B D) Katyani Dayal Ors.
vs Union of India & Ors,[1980] 3 SCR 139 referred to.
The dispute now sought to he raised under Article 32 of the Constitution between the Officers in a representative capacity and Engineer.% across also in a representative capacity is barred by principles of res judicata as also by the rule of Constructive res judicata.
(1026 D E) 3.
It cannot he said that the State is prohibited from creating separate channels of service.
Equally when absorption had been made possible and its pace quickened with weight age, it is difficult to find fault with the scheme at this point of time to look for a substitution, as that would unsettle a settled position, established more than a decade ago.
(1026 E F) Direct Recruit Class II Engineering Officers Association vs State of Maharashtra & Others ; , followed.
Raghunandan Prasad Singh vs Secretary, Home (Police) Department Government of Bihar and Ors. & Dr. O.Z Hussain vs Union of India,[1990] Supp.
SCC 688, referred to.
|
Appeals Nos. 722 and 723 of 1993.
From the Judgment and Order dated 13.11.92 of the Allahabad High Court in W.P. Nos.
688 & 1246 of 1992.
WITH CIVIL APPEALS NOS.
386 and 387 of 1993 From the Judgment and Order dated 13.11.92 of the Allahabad High Court in W. P. Nos. 8 19 and 888 of 1992.
Rajiv Dhawan, P.K. Dey and Rakesh Gosian, Ms. Rani Jethmalani, (N.P.) for the Appellants in C.A. Nos.
722 23/93.
R.P. Saxena for the Appellants in C.A. Nos. 386 87/93.
Yogeshwar Prasad and Ms. Rachna Gupta for the Respondent.
J The appellants in Civil Appeals Nos.
722 & 723 of 1993 had been appointed as Assistant District Government Counsel (Criminal) to appear in different criminal cases, on behalf of the State, in different Courts in the District of Moradabad.
They filed the connected Writ Applications before the High Court against the decision of the State Government, refusing to extend their term for a farther period of three years, which were dismissed by the High Court.
It appears that the appellants.
except appellant No. 3, Gopal Sharma. had been appointed by Government Order dated 25.2.91.
as Assistant District Government Counsel (Criminal) in the District of Moradabad, in accordance with the provisions of Section 24 of the Criminal Procedure Code (hereinafter referred to as "the Code") and the Legal Remembrancer Manual (hereinafter referred to as "the Manual") against the substantive vacancies.
Appellant No. 3, however, had been appointed on 13.12.1990.
The last date of the tenure of the appellants, other than appellant No. 3, as mentioned in the aforesaid Government Order dated 25.
2.1991 was 31.12.199 1.
The tenure of appellant No. 3 was up to 13.12.199 1.
It is not in dispute that before the expiry of the term aforesaid, the District Judge, Moradabad, by his letter dated 27.12.1991 recommended the names of appellants for extension of their terms.
The District Judge prepared two lists i.e. 'A ' and 'B '.
List 'A ' contained the name of those lawyers "whose work and conduct has been approved for their extension as Government Counsel", whereas List `B ' contained the names of the remaining Government Counsel, who in the opinion of the District Judge were "average lawyers".
The names of the appellants are in List 'A ' The District Judge requested the District Magistrate.
Moradabad.
to send his recommendation to the State Government for extension of the term of tile Government Counsel, mentioned in List 'A '.
The District Magistrate.
after receipt of the recommendation of the District Judge aforesaid, by a communication dated 2.1.92, did not recommended the names of the appellants, for extension of their terms, saying that on the inquiry at his level, "reputation, professional work, behaviour and conduct of the above mentioned Government Counsel was not found in accordance with public interest".
It may be mentioned that on 28.12.9 1. tile State Government had extended the terms of the appellants till further orders.
Ultimately, without assigning any reason, the extension recommended by the District Judge was rejected by the State Government, which decision is the subject matter of the controversy in the present appeals.
In the State of U.P., the Manual is an authoritative compilation of the government orders and instructions for the conduct of legal affairs of the State Government.
Para 1.00 of Chapter VII gives the details of the Law Officers of the Government which includes the Government Counsel (Civil, Revenue, Criminal) 975 along with many others like Judicial Secretary and Legislative Secretary.
The Chapter VII of the contains the procedure in respect of appointment and conditions of engagements of District Government Counsel.
The District Officer is required it) consider all the applications received.
in consultation with the District Judge and to submit in order of preference the names of ' the legal practitioners, along with the opinion of the District Judge on tile suitability and merit of each candidate to the State Government giving due wightage to the claim of the existing incumbents, if any.
After the receipt of such recommendations, the Legal Remembrancer is required is required to submit the said recommendations with his own opinion for the orders of the State Government.
In Para 7.06 of the Manual, the procedure regarding the appointment and renewal has been prescribed "7.06.
Appointment and renewal (1) The legal practitioner finally selected by the Government may be appointed District Government Counsel for one year from the date of his taking over charge.
(2)At the end of the aforesaid periodic the District Officer after consulting the District Judge shall submit a report on his work and conduct to the legal Rememberancer together with the statement of work done in Form No. 9.
Should his work or conduct be found to he unsatisfactory the matter shall be reported to the Government for orders.
If the report in respect of his work and conduct is satisfac tory, he may be furnished with a deed of engagement in Form No. 1 for a term not exceeding three years.
On his first engagement a copy of Form No.2 shall he supplied to him and lie shall complete and return it to the legal Remembrancer for record.
(3)The appointment of any legal practitioner as a District Government Counsel is only professional engagement terminable at will on either side and is not appointment to a post under the government.
Accordingly the government reserves the power to terminate the appointment of any District Government Counsel at any time without assigning any cause.
" Para 7.08 contains the procedure for renewal after expiry of the original term: "7.08.
Renewal of term (1) At least three months before the expiry 976 of the term of a District Government Counsel, the District Officer shall after consulting tile District Judge and considering, his past record of work, conduct and age, report to the Legal Remembrancer together with the statement of work done by him in Form No.9 whether in his opinion the term of appointment of such counsel should be renewed or not.
A copy of the opinion of the District Judge should also he sent along with the recommendations of the District Officer.
(2)Where recommendation for the extension of the term of a District Government Counsel is made for a specified period only the reasons therefore shall also he stated by the District Officer.
(3) While forwarding, his recommendation for renewal of the term District Government Counsel (i) the District Judge shall give an estimate of the quality of the Counsel 's work from the judicial standpoint, keeping, in view the different aspects of a lawyers capacity as.
it is manifested before him in conducting, State cases, and specially his professional conduct.
(ii) the District Officer shall give his report about the suitability of the District Government Counsel from the administrative point of view, his public reputation in general his character.
integrity and professional conduct.
(4) If the Government agrees with the recommendations of the District Officer for the renewal of the term of the Government Counsel, it may pass orders for re appointing him for a period not exceeding three years.
(5) If the government decides not to re appoint a Government Counsel, the Legal Remembrancer may call upon the District Office r to forward fresh recommendations in the manner laid down in para 7.03.
(6) The procedure prescribed in this para shall be followed on the expiry of every successive period of renewed appointment of a 977 Dist Government Counsel.
Note : The renewal beyond 60 years of age shall depend upon continuous good work, sound integarity and physical fitness of the Counsel.
It was pointed out on behalf of the appellants, that any legal practitioner finally selected by the Government may be appointed as District Government Counsel for one year from the date of his taking over charge, but in view of Para 7.06 of the Manual at the end of the aforesaid period the District Magistrate after consulting the District Judge has to submit a report on his work and conduct to the Legal Remembrancer in the form prescribed.
If the report in respect of his workand conduct is satisfactory, then such Counsel shall be furnished with a deed of engagement in form No. 1 for a term not exceeding three years.
Para 7.08 of the Manual contains the procedure for renewal of the term of the District Government Counsel after the expiry of original term.
It requires the District Officer at least three months before the expity of the term of a District Government Counsel to report to the Legal Rmembrancer after consulting the District Judge and considering the past record of work conduct and age of such District Government Counsel.
If the Government agrees with the recommendation it may pass an Order re appointing him for a period not exceeding three years.
The stand of the appellants is that in view of Para 7.06(2), the appointment of any legal practitioner as a District Governemnt Counsel, does not automatically come to an end rather it indicates and element of continuity and that is why Para 7.06(2) requires the District Officer at the end of period of one year to submit a report after consulting the District Judge concerned in respect of the work and conduct of such District Government Counsel to the Legal Remembrancer in a form prescribed.
If the report in respect of work and conduct is satisfactory then such District Government Counsel shall be furnished with a deed of engagement in a form prescribed for a term not exceeding three years.
As such after the period of one year if the engagement for a further period upto three years is not given, it amounts to a stigma.
On behalf of the appellants attention of this Court was drawn to a letter addressed to the District Magistrate by Dr. Nepal Singh, M. L.C., the District President of the party then in power recommending the names of other Government Counsel for renewal/extension of their term.
It was pointed out that in respect of all those persons.
The District Magistrate has recommended for extension.
There is however, no material before us to show that the District 978 Magistrate was influenced by the said letter in any manner.
A part form that the persons so resommended by the District Magistrate were not impleded as respondents to the Writ applications.
As such we are not inclined to go into this aspect.
The different paragraphs of the Manual aforesaid were examined in detail in the case of Kumari Shrilekha Vidyarthi vs State of U. P. , in connection with an order dated February 6, 1990 issued by the State of U. P. terminating the appointments of all Government Counlsel ( Civil Criminal and Revenue) in all the districts of the State of U.P. with effect from February 28, 1990 and directing the preparation of fresh panels for making appointments in places of the existing incumbents.
while quashing such general order it was said: Viewed in any manner the impugned circular dated February 6, 1990 is arbitrary.
It terminates all the appointments of Government Counsel in the districts of the State of Uttar Pradesh by an omnibus order even though these appointments were all individual.
No common reason applicable to all of them justifying their termination in one stroke on a reasonable ground has been shown.
The submission on behalf of the State of UttarPradesh at the hearing that many of them were likely to be re appointed is by itself ample proof of the fact that there was total non application of mind to the individual cases before issuing the general order terminating all the appointments.
This was done in spite of the clear provisions in the L. R. manual lying down detailed procedure for appointment, termination and renewal of tenure and the requirement to first consider the existiong incumbent for renewal of his tenure and to take steps for a fresh appointment in his place only if the existing incumbent is notfound suitable in comparison to more suitable persons available for appointment at the time of renewal.
In the case of existing appointees a decision has to be first reached about their non suitability for renewal before deciding to take steps for making fresh appointments to replace them.
None of these steps were taken and no materialhas been produced to show that any existing incumbent was found unsuitable for the office on objective assessment before the decision to replace all by fresh appointees was taken.
The prescribed procedure laid down in the L.R. Manual which has to regulate exercise of this power was tatally igonered.
In the present case it appears to be an admitted position that appointments of the appellants as assistant District Government Counsel (Criminal) is governed 978 979 .LM0 by Section 24 of the Code, as well different paragraphs of Chapter VII of the Manual.
It was not disputed on behalf of the State, that appellants shall be deemed to be Additional Public Prosecutors within the meaning of Section 24 of the Code, although in the order of appointment they have been designated as Assistant District Government Counsel (Criminal).
The procedure prescribed in the Manual can be observed and followed as supplemental to the provisions of Section 24 of the Code.
Needless to say that, if there is any conflict, then Section 24 of the Code being statutory in nature will override the procedure prescribed in the Manual.
The relevant part of Section 24 is as such "24.
Public Prosecutors (1) For every High Court, the Central Government of the State shall, after consultation with the High Court, appoint a Public Prosecutor and may also appoint one or more Additional Public Prosecutors, for conducting in such Court, any prosecution,appeal or other proceedings on behalf of the Central Government or State Government, as the case may be.
(2). . . . (3) For every district, the State Government shall appoint a Public Prosecutor and may also appoint one or more Additional Public Prosecutors for the district: Provided that the Public Prosecutor or Additional Public Prosecutor appointed for one district may he appointed also to be a Public Prosecutor as the case may be for another district.
(4)The District Magistrate shall, in consultation with the Sessions Judge, prepare a panel of names of persons, who are.
in his opinion, fit to he appointed as Public Prosecutors or Additional Public Prosecutors for the district.
(5) No Person shall be appointed by the State Government as the Public Prosecutor or Additional Public Prosecutor for the district unless his name appears in the panel of names prepared by the District Magistrate under sub section (4).
" The Code prescribes the procedure for appointment of Public Prosecutor and Additional Public Prosecutor, for the High Court and the District Courts by the State Government.
The framers of the Code, were conscious of the fact, that the Public Prosecutor and the Additional Public Prosecutor have an important role, 980 while prosecuting on behalf of the State, accused persons, who are alleged to have committed one or the other offence.
Because of that, provisions have been made for their selection in the Code.
It is for the Sessions Judge to assessee the merit and professional conduct of the persons recommended for such appointments and the District Magistrate to express his opinion on the suitability of persons so recommended, from the administrative point of view.
Sub section (5) of Section 24 provides that no person shall be appointed by the State Government as the Public prosecutor or as an Additional Public Prosecutor "unless his name appears in the panel of names prepared by the District Magistrate under sub section (4)".
The aforesaid section requires an effective and real consultation between the Sessions Judge and the District Magistrate, about the merit and suitability of person it) he appointed as Public Prosecutor or as an Additional Public Prosecutor.
That is why it requires, a panel of names of persons, to be prepared by the District Magistrate in consultation with the Sessions Judge.
The same is the position so far the Manual is concerned.
It enumerates in detail, how for purpose of initial appointment extension or renewal, the District Judge who is also the Session Judge, is to give his estimate of the quality of the work of the Counsel from the judicial Standpoint and the District Officer i.e. the District Magistrate is to report about the suitability, of such person, from administrative point of view.
On behalf of the State, our attention was drawn to the expression "in his opinion" occurring in sub section (4) of Section 24 of the Code.
It was urged that as the Code vests power in the District Magistrate to consider the suitability of the person concerned, for appointment, according, to his opinion, there is not much scope of judicial review by Courts, unless a clear case of malice on the part of the District Magistrate is made out.
In view of the series of judgments of this Court in Barium Chemicals Ltd vs Company Law Board, ; ; State of Assam Bhatrai Kala Bhandar Ltd.
AIR , Rohtas Industries Ltd. vs S.D. Agarwal; , , The Purtapur Company Ltd. vs Cane Commissioner of Bihar AIR 1970 SC 1896 and M.A. Rasheed vs The State of Kerala; , , it is almost settled that, although power has been vested in a particular authority, in subjective term:, still judicial review is permissible.
In the present case the District & Session Judge strongly recommended extension for the appellants, saying that so far their work and conduct were concerned, the same had been approved.
But the District Magistrate, simply said that on the inquiry at his level "reputation, professional work, behaviour and conductor the appellants as government counsel was not found in accordance with the public interest".
The quality of the Counsel ' work has to be judged and assessed 981 by the District & Sessions Judge.
The District Magistrate is required to consider the suitability of such person, from the administrative point of view.
According to us, in view of the strong recommendation about the quality of the appellants ' professional work, the District Magistrate should have applied his mind in consultation with the Sessions Judge.
in respect of each individual case.
instead of making a general and identical comment against all the appellants.
Apart from that the mandate of sub section (4) of Section 24 is that "the District Magistrate shall, in constitution with the Session Judge, prepare a panel of names of persons".
Sub section (5) of Section 24 prescribes a statutory bar that no person shall be appointed by the State Government as the Public Prosecutor or Additional Public Prosecutor for the district "unless his name appears in the panel of names prepared by the District Magistrate under sub section (4)".
When sub section (4) and sub section (5) of Section 24 of the Code, speak about preparation of a panel, out of which appointments against the posts of Prosecutor or Additional Public Prosecutor have to he made.
then the Sessions Judge and the District Magistrate are required to consult and discuss the names of the persons fit to be included in the panel and to include such names in the panel.
The expressions "panel of names of persons", do not mean that some names are to be suggested by the Sessions Judge and some comments are to be made, in respect of those names by the District Magistrate, without proper consultation and discussion over such names.
The statutory mandate ought to have been complied with by the District Magistrate and the Sessions Judge in its true spirit.
In the facts of the present case, no such panel appears to have been prepared by the District Magistrate in terms of sub section (4) of Section 24.
As Section 24 of the Code does not speak about extension or renewal of the term of the person so appointed, the same procedure, as provided under sub section (4) of Section 24 of the Code, has to be followed.
In the present case the District Magistrate instead of having an effective and real consultation with the District & Sessions Judge simply made some vague and general comments against the appellants, which cannot be held to he the compliance of the requirement of subsection (4) of Section 24.
In the case of Kumari Shrilankha Vidyarthi (supra), this Court was not concerned with the question regarding the extension/renewal of the terms of the Government Counsel.
The primary question which was examined by this Court in that case, was as to whether it was open to the State Government by the impugned circular dated February 6, 1990.
to terminate appointments of all the Government Counsel in the different districts of the State, by an omnibus order, even though those appointments were all individual.
It was held that any such exercise of power by the State Government cannot satisfy the test of Article 14 of the Constitution 982 and as such was unreasonable and arbitrary.
In that connection reference was made to the Manual aforesaid and it was pointed out that the said Manual has laid down detailed procedure for appointment, termination and renewal of the tenure of the District Government Counsel.
It was pointed out, that different paragraphs of the Manual require, first to consider the existing incumbents for extension and renewal of their tenure and to take steps for fresh appointment in their place, if the existing incumbents were not found suitable in comparison to more suitable persons available for appointment at the time of the renewal.
As already mentioned above.
Section 24 of the Code does not speak about the extension or renewal of the term (if the Public Prosecutor or Additional Public Prosecutor.
But after the expiry of the term of the appointment of persons concerned.
it requires the same statutory exercise, in which either new persons are appointed or those who have been working as Public Prosecutor or Additional Public Prosecutor.
are again appointed by the State Government, for a fresh term.
The procedure prescribed in the Manual to the extant it is not in conflict with the provisions of Section 24.
shall he deemed to be supplementing the statutory provisions.
But merely because there is a provision for extension or renewal of the term, the same cannot he claimed as a matter of right.
It is true that none of the appellants can claim, as a matter of right, that their terms should have been extended or that they should be appointed against the existing vacancies but certainly they can make a grievance that either they have not received the Pair treatment by the appointing authority or that the procedure prescribed in the Code and in the Manual aforesaid.
have not been followed.
While exercising the power of judicial review even in respect of appointment of members of the legal profession as District Government Counsel the Court can examine whether there was any infirmity in the "decision making process.
" Of course, while doing so the Court cannot substitute its own judgment over the final decision taken in respect of selection of persons for those posts.
It was said in the case of Chief Constable of the North Wales Plice vs Evans.(1982) ; "The purpose of judicial review is to ensure that the individual receives fair treatment, and not to ensure that the authority, after according Pair treatment.
reaches on a matter which it is authorised or enjoined by law to decide for itself a conclusion which is correct in the eyes of the court.
" In the facts of the present case, the procedure prescribed by Section 24 of the Code have not been followed by the District Magistrate.
There is nothing on the 983 records of the case to show that any panel as required by sub section (4) of Section 24 was prepared by the District Magistrate in consultation with the District & Sessions Judge.
The District Magistrate simply made some general comment in respect of the appellants.
When the District & Sessions Judge had put them in List 'A ' of his recommendation.
According, to us, this shall not amount to either the compliance of 'sub section (4) of Section 24 of the Code or Para 7.06(2) of the Manual.
It appears there has been no effective or real consultation between the Sessions Judge and the District Magistrate for preparation of the panel, as contemplated.
by sub section (4) of Section 24 of the Code.
The members of the legal profession are required to maintain high standard of legal ethics and dignity of profession.
They are not supposed to solicit work or seek mandamus from courts in matters of professional engagements.
We have been persuaded to interfere in these matters to a limited extent, as we are satisfied that there is patent infraction of the statutory provisions of the Code.
As we are of the view that the District Magistrate has not performed his statutory duty as enjoined by law, the appeals of the appellants have to be allowed.
In the result, the appeals are allowed.
We direct the District Magistrate, Moradabad, to perform his statutory duty afresh.
in accordance with the requirement of Section 24 of the Code read with the relevant paragraphs of Chapter VII of the Manual, which are not inconsistent with Section 24 of the Code.
so far the appellants are concerned, if the vacancies are still there.
The necessary steps shall be taken preferably within four months from the date of this judgment.
the State Government shall thereafter perform its part in accordance with Section 24 and different paragraphs of the Manual which are applicable in the facts and circum stances of the case.
We make it clear that we are not expressing any opinion on the merit of the claim of the appellants to get extension or appointment against the posts of Assistant District Government Counsel (Criminal).
There will he no order as to costs.
CIVIL APPEALS NOS.
386 & 387 OF 1993 So far the appellants of these appeals are concerned, their names were put under List 'B ' by the District & Sessions Judge in his recommendation saying that they were "average lawyers".
Their case stands on a different footing.
The District & Sessions Judge.
who is required to express his opinion on the merit and the conduct of the persons recommended for appointment or extension of the period 984 as District Government Counsel, has expressed the opinion that appellants are "average lawyers" and has put them in List B.
In other words, neither the District & Sessions Judge has recommended the case of the appellants of these appeals for extension nor the District Magistrate.
Their case cannot be treated at par with the appellants of the other appeals.
In such as situation, no useful purpose will be served by directing the District Magistrate to perform his statutory duty as required by sub section (4)of Section 24 of the Code again, even the respect of these appellants.
Accordingly, these appeals are dismissed.
there will be no orders as to costs.
V.P.R, C.A. Nos. 722 and 723/93 allowed.
C.A. Nos. 386 and 387/93 dismissed.
| On 25.2.91 the appellants except appellant No. 3 were appointed as Assistant District Government Counsel (Criminal) in accordance with the provisions of Section 24 of the Criminal Procedure Code and the Legal Remembrancer Manual.
The appellant No.3 was appointed on 13.12.1990.
The last date of the tenure of the appellants, except appellant No.3, was 31.12.1991, where as the tenure of appellant No.3 was upto 13.12.1991.
Before 970 the expiry of their terms, the District Judge, preparing two lists, 'A ' and `B ' recommended the appellants ' names for extension of their tenures.
List `A ' contained the names of Lawyers (including the appellants), whose work and conduct was approved for their extension, whereas List 'B ' contained the remaining names of the lawyers (including appellants in C.A. Nos. 386, 387/ 1993) who were considered as 'average lawyers '.
The District Judge requested the District Magistrate to send his recommendation to the State Government.
The District Magistrate did not recommend the appellants ' names as their reputation, professional work, behaviour and conduct was not found in accordance with public interest.
On 28.12.1991 the State Government extended the terms of the appellants till further orders.
Later without assigning any reason, the extension recommended by the District Judge was rejected by the State Government.
The appellants filed writ petitions in the High Court against the Government 's decision.
The High Court dismissed their writ applications, against which the present appeals were filed by special leave before this Court.
C.A. Nos. 386 & 387 OF 1993.
The appellants ' names were included in the List 'B ' prepared by the District Judge.
The State Government rejected the recommendation of the District Judge, without assigning any reason.
The writ petitions preferred by them in the High Court were dismissed.
Hence these appeals by special leave.
As there was a common issue arose in these appeals, same were heard and decided together.
The appellants contended that in view of Para 7.06(2) of the Legal Remembrancer Manual the appointment of any legal practitioner as a District Government Counsel did not automatically come to an end.
The State submitted that as Section 24(4) of the Code of Criminal Procedure vested power in the District Magistrate to consider the suitability of the person concerned, for appointment, according to his opinion, as such there was not much scope of judicial review by Courts, unless a clear case of malice on the part of the District Magistrate was made out.
971 Allowing the Civil Appeals Nos. 722 and 723 of 1993 and dismissing the Civil Appeal Nos. 386 and 387 of 1993, this Court.
HELD:1.1.
When sub section (4) and sub section (5) of Section 24 of the Code of Criminal Procedure, speak about preparation of a panel, out of which appointments against the posts of Prosecutor or Additional Public Prosecutor have to be made, then the Sessions Judge and the District Magistrate are required to consult and discuss the names of the persons fit to be included in the panel and to include such names in the panel.
1.2.The expressions "panel of names of persons", do not mean that some names are to be suggested by the Sessions Judge and some comments are to be made, in respect of those names by the District Magistrate, without proper consultation and discussion over such names.
The statutory mandate ought to have been complied with by the District Magistrate and the Sessions Judge in its true spirit.
1.3.Section 24 of the Code does not speak about the extension or renewal of the terms of the Public Prosecutor or Additional Public Prosecutor.
But after the expiry of the term of the appointment of persons concerned, it requires the same statutory exercise, in which either new persons are appointed or those who have working as Public Prosecutor or Additional Public Prosecutor, are again appointed by the State Government, for a fresh term.
The procedure prescribed in the Manual to the extent it is not in conflict with the provisions of Section 24, shall be deemed to be supplementing the statutory provisions.
But merely because there is a provision for extension or renewal of the term, the same cannot be claimed as a matter of right.
1.4.While exercising the power of judicial review even_in respect of appointment of members of the legal profession as District Government Counsel, the Court can examine whether there was any infirmity in the "decision making process".
Of course, while doing so, the Court cannot substitute its own judgment over the final decision taken in respect of selection of persons for those posts.
Chief Constable of the North Wales Police vs Evans, [1982]3 All E.R. 141, referred to.
1.5.In the facts of the present case, the procedure prescribed by Section 24 of the Code have not been followed by the District Magistrate.
There is 972 nothing on the records of the case to show that any panel, as required by sub section (4) of Section 24, was prepared by the District Magistrate in consul"on with the District & Sessions Judge.
The District Magistrate simply made some general comment in respect of the appellants, when the District & Sessions Judge had put them in List 'A ' of his recommendation.
This shall not amount to either the compliance of sub section (4) of Section 24 of the Code or Para 7.06(2) of the Manual.
It appears there has been no effective or real consultation between the Sessions Judge and the District Magistrate for preparation of the panel, as contemplated by sub section (4) of Section 24 of the Code.
1.6.The members of the legal profession are required to maintain high standard of legal ethics and dignity of profession.
They are not supposed to solicit work or seek mandamus from courts in matters of professional engagements.
1.7.In view of the strong recommendation about the quality of the appellant 's professional work, the District Magistrate should have Applied his mind in consultation with the Sessions Judge, in respect of each individual case, instead of making a general and identical comment against all the appellants.
1.8.As the District Magistrate has not performed his statutory duty as enjoined by law, the appeals of the appellants have to allowed.
1.9.The District Magistrate is directed to perform his statutory duty afresh, in accordance with the requirement of Section 24 of the Code read with the relevant paragraphs of Chapter VII of the Manual, which are not inconsistent with Section 24 of the Code, so far the appellants are concerned, if the vacancies are still there.
The necessary steps shall be taken preferably within four months from the date of this judgment.
The State Government shall thereafter perform its part in accordance with Section 24 and different paragraphs of the Manual which are applicable in the facts and circum stances of the case.
Kumari Shrilekha Vidyarthi vs State of U.P., , referred to.
2.The District & Sessions Judge, who is required to express his opinion ton the merit and the conduct of the persons recommended for appointment or extension of the period as District Government Counsel, has expressed the 973 opinion that appellants (in C. As.
386 387 of 93) are "average lawyers", and has put them in List 'B '.
In other words, neither the District & Sessions Judge has recommended the case of the appellants of these appeals for extension nor the District Magistrate.
Their case cannot be treated at par with the appellants of the other appeals.
In such a situation, no useful purpose will be served by directing the District Magistrate to perform his statutory duty, as required by sub section (4) of Section 24 of the Code again, even in respect of these appellants.
3.Although power has been vested in a particular authority, in subjective terms still judicial review is permissible.
Barium Chemicals Ltd, vs Company Law Board, AIR ; State of Assam vs Bharat Kala Bhandar Ltd , AIR ; Rohtas Industries Ltd. vs S.D. Agarwal, AIR ; The Purtabpur Company Ltd. vs Call e Commissioner of Bihar, AIR [1970] SC 1989 and; M.A. Rasheed vs The State of Kerala, AIR , relied on.
|
Appeal No. 1690 of 1993.
From the Judgment and Order dated 14.2.1991 of the Central Administrative Tribunal Jabalpur in O.A. No. 217 of 1987.
M.K. Ramamurthi and V.J. Francis for the Appellants.
Narayan B. Shetye, K. Lahiri, Vineet Kumar, Ms. Sushma Suri, Ms. Kitty Kumar Mangalam, S.N. Terdo and B.K. Prasad for the Respondents.
The Judgment of the Court was delivered by KULDIP SINGH, J.
Special leave granted.
This appeal is a sequel to the checkered litigation, over a period of two decades, between members of the Indian Ordnance Factories Class III Service (the Service).
The first round of litigation was concluded in favour of K.K.M. Nair and others, the appellants, on July 28,1986 when the special leave petitions filed by the Union of India, against the judgment of Madhya Pradesh High Court, were dismissed by this court.
As a consequence the Director General Ordnance Factories (DG) issued an order dated February 20/25, 1987 granting benefits to the appellants towards seniority 909 in different grades of the Service.
S.K Chattopadhyay and others, the respondents, who were not parties to the earlier litigation, challenged the order dated February 20/25, 1987 before the Central Administrative Tribunal.
The Tribunal by its judgment dated February 14,1991 allowed the application of S.K Chattopadhyay and others and set aside the order dated February 20/25, 1987.
This appeal by K.K.M. Nair and others is against the judgment of the Central Administrative Tribunal Jabalpur.
The recruitment and seniority of the members of the Service are governed by the statutory rules called 'Indian Ordnance Factories (Recruitment and Conditions of Service of Class III Personnel) Rules, 1956" (the rules).
Rules 3(1), 8 and 12 of the rules which are relevant are reproduced hereunder: "3(1).
The Class III personnel service in the Indian Ordnance Factories to which these rules shall apply consists of the posts of the following grades, namely: Foreman (including Foreman/Design).
Storeholder Assistant Foreman Assistant Storeholder Chargeman, Grade I (including Chargeman, Grade I/Design) Chargeman, Grade II Supervisor, Grade 'A ' Supervisor, Grade 'B '.
8(1) Appointments by promotion shall be made by the Director General on the basis of selection lists prepared for the different grades by the duly constituted Depart mental Promotion Committees.
(2) Such Selection lists shall be prepared: 910 (a) In respect of appointment to the grade of Foreman, Storeholder, Assistant Foreman, Assistant Storeholder by the Departmental Promotion Committee 11 consisting of the Director General and two officers of the Directorate General, Ordnance Factories nominated by the Director General; (b) In respect of appointments to the grade of Chargeman, Grade I, and Chargeman, Grade 11, by the Departmental Promotion Committee III (Central) consisting of the Deputy Director General, Ordnance Factories and two officers of the Directorate General, Ordnance Factories nominated by the Director General after perusal of the recommendations of the Departmental Promotion Committee III (Factories) which shall be set up in each Factory and shall consist of the Superintendent of the Factory and two other gazetted officers of the Factory nominated by the Director General; and (c) In respect of appointments to the grades of Supervisor 'A ' and 'B ' Grades by the Departmental Promotion Committee III (Factories) consisting of the Superintendent of the Factory and two other gazetted officers of the Factory nominated by the Director General.
(3) The Departmental Promotion Committee shall meet periodically at least once a year and as more often as may be necessary and shall prepare for each grade and category in order of merit a list of names of persons considered at for promotion.
(4) A vacancy to be filled by promotion shall be filled by persons on the approved list strictly in the order in which names are arranged in that list provided that: (i) appointments to the grade of Supervisors, Grade 'A ' shall normally be confined to employees in the particular Factory in which the Vacancy has arisen; and (ii) in respect of appointment to other posts the next 911 person on the list working in the Factory in which the vacancy has arisen may be appointed out of turn if the vacancy is not likely to last for more than nine months.
No appointment to the posts to which these rules apply shall be made otherwise than as specified in these rules".
Appellants 1, 6, 11 and 12 were appointed Supervisor Grade 'B ' during the years 1961/62.
The remaining appellants were appointed Supervisor Grade 'A ' during the period 1964/65.
Appellants 1 to 11 were promoted as Chargeman, Grade II on different dates during 1972/77.
They were promoted to Chargeman Grade I during the years 1979/80.
They were further promoted to the post of Assistant Foreman during the period 1981 to 1984.
S.K. Chattopadhyay and others are respondents 4 to 9 in this appeal.
Respondents 4 and 5 joined as Chargeman Grade II in the year 1966, respondent 9 in the year 1967, respondent 6 in the year 1971 and respondents 7 and 8 in the year 1974.
They were promoted to Chargeman Grade I during the years 1978/1979.
Respondents 4 to 9 were further promoted to the post of Assistant Foreman during the period from 1980 to 1984.
It is not disputed that the recruitment and promotions of the appellants and respondents were made in accordance with the rules.
It is necessary to lay down the factual matrix which led to the passing of the order dated February 20/25, 1987 by the DG.
The DG issued circular dated November 6, 1962 (first circular) which is reproduced hereunder: "D.G.O.F. has decided that Diploma holders serving as Supervisor 'A ' (Tech)/Supervisor 'B '/(Tech) and in equivalent grades should be treated as follows: (i) All those Diploma holders who have been appointed as Supervisor 'B ' (Tech) (and in equivalent grades) should on completion of one year 's satisfactory service in ordnance factories be promoted to Supervisor 'A ' (Tech) and in equivalent grades.) (ii) All those Diploma holders who work satisfactorily as Supervisor 'A ' (Tech) or in equivalent grades for 2 years in Ordnance Factory should be promoted to Chargeman.
" 912 Subsequently the D.G. issued circular dated January 20, 1966 (second circular).
The operative part of the second circular is as under: "The question of promotion of Diploma holders in Mech/Elec.
Engineering and Ex apprentices serving as Supr. 'A ' Gr. or in equivalent grades has received further consideration of the D.G.O.F. who has decided that in future promotions of all such individuals will be effected in accordance with the normal rules i.e. on the basis of their listing by the relevant D.P.C. and not merely on completion of 2 years satisfactory continuous service as Super.
or equivalent grades. ' It is, thus, obvious that after the issue of second circular no Supervisor Grade 'A ' could claim to have become eligible for promotion merely on completion of two years satisfactory service and his promotion thereafter could be effected only in accordance with the rules.
In a nut shell the first circular was withdrawn by the second circular.
Seventy Five supervisors Grade 'A ' (other than the appellants and the respondents before us) filed a writ petition in the Allahabad High Court in the year 1972 claiming benefit of the first circular.
Their grievance was that they were not being promoted to the post of Chargeman Grade 11 on completion of two years satisfactory service even though large number of Supervisors Grade 'A ' had already been promoted in terms of the first circular.
The writ petition was contested by the Union of India, inter alia, on the ground that under rule 8 of the rules promotion from Supervisor Grade 'A ' to Chargeman Grade II was to be made on the basis of selection.
In the first instance the selection was to be made by the Departmental Promotion Committee at the Factory level and thereafter by the Departmental Committee at the central level.
The promotions were to be made by the DG on the basis of the select list prepared as a result of the selections made by the two committees.
It was further asserted that all the writ petitioners were considered for promotion in accordance with the rules but they were not found fit for promotion.
The learned Single Judge of the Allahabad High Court, however, did not go into the merits of the controversy and dismissed the writ petition on the ground of delay.
Against the judgment of the learned Single Judge appeal was preferred before a Division Bench of the High Court.
The Division Bench went into the merits 913 of the controversy and came to the conclusion that promotion from Supervisor Grade 'A ' to Chargeman Grade II could only be made in accordance with the procedure laid down under the rules.
The learned Judges further took the view that the first circular was to be interpreted in conformity with the rules.
It was further held that even if it was to be assumed that the DG promoted some Supervisors Grade 'A ' to the post of Chargeman Grade II immediately on the completion of two years service, without following rule 8 of the rules, no right would accrue in favour of the writ petitioners inasmuch as such promotions would be contrary to the rules and would confer no legal right on the writ petitioners for likewise promotion in breach of the rules.
The argument based on Article 16 was also rejected.
The Division Bench of the Allahabad High Court, thus, dismissed the writ petition on merits.
Against the judgment of the Allahabad High Court Civil Appeal No. 441 of 1981 was preferred in this Court.
Since the order dated February 2, 1981 passed in Virendra Kumar & Ors.
vs Union of India and Ors.
Civil Appeal No. 441/81 is the backbone of the appellants claim we reproduce the said order hereunder: "Heard counsel.
Special leave granted.
Our attention has been invited by learned counsel for both the sides to the relevant rules which govern promotion to the post of Chargeman Grade 11.
It appears that a large number of persons have been promoted to those posts though they have completed only two years of service.
The Government now appears to insist that in so far as the appellants are concerned they cannot be considered for promotion unless they complete three years of service.
We see no justification for any such differential treatment being given to the appellants.
If a large number of other persons similarly situated have been promoted as Chargeman Grade 11 after completing two years of service, there is no reason why the appellants should also not be similarly promoted after completing the same period of service.
We are not suggesting that the appellants are entitled to be promoted to the aforesaid posts even if they are found unfit to be promoted.
We therefore direct that the concerned authorities will 914 consider the cases of the appellants for promotion as Chargeman Grade 11 and promote them to the said posts unless they are found to be unfit.
If the appellants are promoted, they will naturally have to be promoted with effect from the date on which they ought to have been promoted.
This order will dispose of the appeal.
There will be no order as to costs.
" Thereafter K.K.M. Nair and 124 others, the appellants, filed six writ petitions before the Madhya Pradesh High Court during the period 1981 82.
It was contended before the High Court that the reasons which weighed with this Court in allowing Civil Appeal No. 441/81 applied to the six writ petitions also and it was prayed that the same relief be granted to the petitioners.
The Madhya Pradesh High Court, relying upon the judgment of this Court in Civil Appeal No. 441/81, allowed the writ petitions by its judgment dated April 4, 1983.
Against the aforesaid judgment of the Madhya Pradesh High Court special leave petitions (Civil) 'Nos. 5987 92/86 were filed in this Court by the Union of India and were dismissed on July 28, 1986.
Pursuant to the judgment of the Madhya Pradesh High Court dated April 4, 1983 the DG issued the order dated February 20/25, 1987 giving ante dated seniority to the appellants for the purposes of promotion to the next higher grades.
The appellants were, thus, given deemed dates of promotion to the post of Chargeman, Grade 11 from the date when they completed two years of service as Grade A and consequent seniority in the other higher grades.
S.K. Chattopadhyay and others who were senior to the appellants in the cadre of Chargeman, Grade 11 and other higher grades in the service were made junior to the appellants as a consequence of the order dated February 20/25, 1987.
At this stage we may notice the judgment of this Court in Palun Ramkrishnaiah & Others etc.
vs Union of India & Anr., ; delivered by a Three Judge Bench of this Court dismissing a bunch of nineteen writ petitions under Article 32 of the Constitution of, India.
The petitioners in the aforementioned writ petitions claimed to have been appointed as Supervisors, Grade 'A ' in various ordnance factories between 1962 to 1966 and had filed the writ petitions with the prayer that the same relief be granted to them as was given by this Court to seventy five 915 Supervisors, Grade A in Civil Appeal No. 441 of 1981.
This Court in Paluru 's case considered the rules, the first circular, the second circular and the order of this court in Civil Appeal No. 441/81 dated February 2, 1981.
Dismissing the writ petitions this Court held as under: 1.
The executive instruction could make a provision only with regard to a matter which was not covered by the rules and such executive instruction could not over ride any provisions of the rules.
Notwithstanding the issue of the instructions dated November 6, 1962 the procedure for making promotion as laid down in rule 8 of the Rules had to be followed, and the said procedure could not be abrogated by the executive instructions dated November 6, 1962.
The only effect of the circular dated November 6, 1962 was that Supervisors Grade 'A ' on completion of two years satisfactory service could be promoted by following the procedure contemplated by rule 8 of the Rules.
This circular had indeed the effect of accelerating the chance of promotion.
The right to promotion on the other hand, was to be governed by the rules.
This right of promotion as provided by the rules was neither affected nor could be affected by the circular.
After coming into force of the circular dated January 20, 1966 promotions could not be made just on completion of two years satisfactory service tinder the earlier circular dated November 6, 1962, the same having been superseded by the latter circular.
Supervisor, Grade A who had been promoted before the coming into force of the circular dated January 20, 1966 stood in a class separate from those whose promotions were to be made thereafter.
The fact that some Supervisors, Grade A had been promoted before the coming into force of the circular dated January 20, 1966 could not, therefore, constitute the basis for an argument that those Supervisors Grade A whose cases came up for consideration thereafter and who were promoted in due course in accordance with the rules were discriminated against.
There are sufficient indications that when Civil Appeal No. 441/81 was heard by this Court the circular dated January 20, 1966 and the legal consequences flowing therefrom were not brought to the notice of this Court by the learned counsel for the respondents or the same were not 916 properly emphasised.
It is thus obvious that the Three Judge Bench of this Court in Paluru 's case did not approve the order dated February 2, 1981 of Two Judge Bench in Civil Appeal No. 441/81.
Since the judgment of this Court in Civil Appeal No. 441/81 had become final inter partes, it had to be implemented.
While considering the extent of the relief to be given to the appellants in Civil Appeal No. 441/81 this Court in Paluru 's case observed as under: "As already noticed earlier certain writ petitions filed in Madhya Pradesh High Court were allowed by that Court were allowed by that Court on 4th April, 1983 relying on the judgment of this Court dated 2nd February, 1981 in Civil Appeal No. 441/81.
Against th e aforesaid judgment of the Madhya Pradesh High Court dated 4th April, 1983 Special Leave Petitions (Civil) Nos.
5987 92 of 1986 were filed in this Court by the Union of India and were dismissed on 28th July, 1986.
The findings of the Madhya Pradesh High Court in its judgment dated 4th April, 1983 thus stand approved by this Court.
In this view of the matter to put them at par it would be appropriate that the appellants in Civil Appeal No. 441 of 1981 may also be granted the same relief which was granted to the petitioners in the writ petitions before the Madhya Pradesh High Court.
" The appellants have raised an argument based on the above quoted observations of this Court in Paluru 's case which we shall consider at a later stage in this judgment.
We may come back to the point of time when the Director General issued the order dated February 20/25, 1987 giving ante dated seniority to the appellants in various grades of the service.
As mentioned above S.K. Chattopadhyay and others were not impleaded as parties at any stage of the litigation earlier to the issue of the said orders.
They were adversely affected in the matter of seniority for the first time by the order dated February 20/25, 1987.
S.K. Chattopadhyay and others challenged the said order before the Central Administrative Tribunal, Jabalpur Bench.
The 917 Tribunal by its judgment dated February 14, 1991 allowed the application of S.K. Chattopadhyay and others and set aside the order dated February 20/25, 1987 giving ante dated seniority to the appellants.
We agree with the conclusions reached by the Tribunal though we do not appreciate the reasoning adopted by the Tribunal in reaching the said conclusions.
This Court has authoritatively laid down in Paluru 's case that Civil Appeal No. 441/81 was not correctly decided by this Court.
The appellants have through out, been basing their claim on the order dated February 2,1981 in Civil Appeal No. 441/81.
Once the base is knocked out by the judgment of this court in Paluru 's case the appellants are left with no ground to sustain the order dated February 20/25, 1987 by which they were given ante dated seniority.
Following the judgment of this Court in Paluru 's case and the reasoning therein we uphold the impugned judgment of the Central Administrative Tribunal, Jabalpur.
Mr. M.K. Ramamurthy, learned counsel for the appellants, has vehemently argued that the judgment dated April 4, 1983 by the Madhya Pradesh High Court in favour of the appellants having been approved by this Court in Palunt 's case the Tribunal had no jurisdiction to negate the same.
We do not agree with the learned counsel.
We have reproduced above the paragraph from the judgment in Paluru 's case wherein this Court has observed, "findings of the Madhya Pradesh High Court in its judgment dated 4th April, 1983 thus stand approved by this Court".
It is not disputed that the said "approval" by this Court was by dismissing the special leave petitions against the judgment of the Madhya Pradesh High Court.
There is no reasoned judgment/order by this Court approving the judgment of the Madhya Pradesh High Court.
It is not necessary for us to go into the question whether in a situation like this any court below could have reversed the judgment by review or otherwise, because in this case we are faced with different situation.
S.K. Chattopadhyay and others were not parties to the proceedings before the Madhya Pradesh High Court which ended by the dismissal of the special leave petitions by this Court on July 28, 1986.
Till that date no action adverse to them had been taken by the DG or any other authority.
It was incumbent on the appellants to have impleaded all the persons who were likely to be adversely affected in the event of appellants success in the writ petition before the Madhya Pradesh High Court.
Under the circumstances 918 even if it is assumed that the Madhya Pradesh High Court judgment had 'become final and could not have been reviewed by the High Court or the Tribunal, it became final only between the parties inter se.
The first circular was issued in the year 1962.
The appellants filed writ petitions in the Madhya Pradesh High Court twenty years thereafter seeking enforcement of the first circular.
The petitioners wanted the clock to be put back by two decades through the process of the Court.
All those persons who were promoted in accordance with the rules during that long period and were not parties before the Madhya Pradesh High Court cannot be made to suffer for no fault of theirs.
On the other hand, S.K. Chattopadhyay and others challenged the order dated February 20/25, 1987 which affected them adversely within the period of limitation before the Central Ad ministrative Tribunal.
In any case the judgment of this Court in Civil Appeal No. 441 of 1981 having been over ruled by Three Judge Bench of this Court in Paluru 's case, the appellants have neither the law nor the equity on their side.
The judgment of the Tribunal being in conformity with the law laid down by this Court in Paluru 's case, we see no ground to interfere with the same.
Before parting with this judgment we may mention that because of contradictory judgments of various courts and Central Administrative Tribunals in the country the seniority position of the members of the service all over the country, numbering about twenty thousand could not be crystallised over a period of two decades.
We have been informed by the Union of India that the Central Administrative Tribunals all over the country have, by and large, taken uniform view following the judgment of this Court in Paluru 's case and the seniority lists have been issued in conformity therewith.
It has been a long drawn out battle in the court corridors causing lot of expense and suffering to the members of the service.
We hope that this judgment has finally drawn the curtains over the con troversy.
The appeal, is therefore, dismissed.
No costs.
G.N. Appeal dismissed.
| The Director General, Ordnance Factories (D.G.) issued a Circular dated 6.11.1962 to the effect that the Diploma holders who have been appointed as Supervisor Grade 'B ' (technical) or in equivalent grades, should on completion of one year 's satisfactory service be promoted the post of Supervisor Grade 'A ' (Tech.) and the Diploma holders who worked satisfactorily as Supervisor 'A ' (Tech.) or in equivalent grades for 2 years should be promoted as Chargeman.
Subsequently the D.G. issued another Circular dated 20.1.1966 according to which promotions were to be in accordance with normal rules,i.e.
on the basis of their listing by the relevant Departmental Promotion ' Committee and not merely on satisfactory completition of 2 years continuous service as Supervisor 'A ' Grade or equivalent grades.
In effect, the first Circular was withdrawn by the second Circular.
In 1973 some Supervisors Grade 'Al riled a Writ Petition before the High Court claiming benefit of the first circular.
Without going into the merits of the controvery, a Single Judge of the High Court dismissed the Writ Petition on the ground of delay.
On appeal, a Division Bench of the High Court dismissed the Writ Petition on merits.
On further appeal this Court directed that the cases of those appellants be considered for promo906 907 tion as Chargeman Gr.
II and they promoted them, unless they were found unfit, from the dates on which they ought to have been promoted.
(Virendra Kumar & Ors.
vs U.O.I, C.A. No. 441/1981 decided on 2.2.81).
Thereafter the present appellants riled Writ Petitions before the High Court praying for the same relief as was granted by this Court in Virendra Kumar 's case.
The High Court allowed the Writ Petitions.
The Special Leave Petitions filed by the Union of India against the Judgment came to be dismissed.
Consequently.
the D.G. issued an order giving antedated seniority to the appellants for the purposes of promotion.
The appellants were also given deemed dates of promotion to post of chargeman Gr.11 from the dates when they completed two years of service as Supervisor Gr. 'A ' and consequent seniority in the other higher grades.
This resulted in some employees who were senior to the appellants in the cadre of Chargeman Gr.
II and other higher grades becoming junior to the appellants.
These employees who were 'adversely affected by the order of the D.G. giving ante dated seniority to the appellants and were not impleaded as parties at any stage of the litigation, challenged the DG 's order before the Central Administrative Tribunal.
The Tribunal allowed the application and set aside the DG 's order giving ante dated seniority to the appellants.
Aggrieved by the Judgment of the Tribunal, the appellants preferred the present appeal.
Dismissing the appeal, this Court, HELD: 1.
This Court has authoritatively laid down in Paluru 's case that Civil Appeal No. 441/81 Virendra Kumar vs U.O.I, was not correctly decided.
The appellants have throughout been basing their claim on Virendra Kumar 's case.
Once the base is knocked out by the judgment of this Court in Paluru 's case the appellants are left with no ground to sustain the order dated February 20/25, 1987 issued by the D.G. by which they were given ante dated seniority.
[917 B C] 1.2.
Even if it is assumed that the High Court judgment had become final with the dismissal of the SLP against it, and could Rot have been reviewed by the High Court or the Tribunal, it became final only between the parties inter se.
The first circular was issued in the year 1962.
The appellants riled writ petitions in the High Court twenty years thereafter seeking enforcement of the first circular.
The petitioners wanted the clock to be put back by two decades through the process of the Court.
All those 908 persons who were promoted in accordance with the rules during that long period and were not parties before the High Court could not be made to suffer for no fault of theirs.
On the other hand some employees challenged the order dated February 20/25, 1987 which affected them adversely within the period of limitation before the Central Administrative Tribunal.
In any case the judgment of this Court in Virendra Kumar having been over ruled in Paluru 's case, the appellants have neither the law nor the equity on their side.
The judgment of the Tribunal being in conformity with the law laid down by this Court in Paluru 's case there is no ground to interfere with the same.
[918 A D] Paluru Ramkrishnaiah & Ors. etc.
vs Union of India & Anr., ; , followed.
Virendra Kumar & Ors.
vs Union of India & Ors.
, Civil Appeal No. 441/81 decided on 2.2.1981, referred to.
|
Appeal Nos.
2919 20 of 1981.
From the Judgment and Order dated 15.9.1981 of the Calcutta High Court in Civil Rule No.3567 (W) of 1981.
section Murlidhar, Rathin Das and R.F. Nariman for the Appellant.
S.S. Ray, S.M. Jain, A.P. Dhamija, Sudhanshu Atreya, B.K. Jain, S.K., Jain and P.K. Mukherjee for the Respondents.
The Judgment of the Court was delivered by KASLIWAL, J.
Both the above appeals by grant of special leave are directed against the common order of the High Court dated 15.9.1981 as such the same are disposed of by one single order.
The respondent Messrs Singel Tea and Agricultural Industries Limited, a private limited company incorporated under the (in short 'The Company ') filed a writ petition under Article 226 of the Constitution in the High Court on 22.4.1981 challenging the order dated 16.4.1981 issued by the Collector, Darjeeling whereby possession of the tea garden known as M/s. Singell Tea Estate were taken over with effect from 16.4.1981.
In view of the fact that the West Bengal Tea Development Corporation Limited, a Government Company (in short 'The Corporation ') had been handed over the possession of the tea garden on 21.4.1981; the said Corporation was also impleaded as a party respondent.
The State of West Bengal enacted The West Bengal Estates Acquisi 882 tion Act, 1953 (hereinafter referred to as 'The Act ') to provide for the State acquisition of estates, of rights of intermediaries therein and of certain rights of raiyats and under raiyats and of the rights of certain other persons in lands comprised in estates.
The State Government also issued a notification under Section 4 of the Act vesting all estates and rights of every intermediary in the State free from all encumbrances.
This notification also covered the land comprised in the tea garden know as M/s. Singell Tea Estate.
The Revenue Officer, Kurseong, Darjeeling issued notices to the Company initiating proceedings for assessment of rent of the said tea garden.
The Company appeared in the said proceedings and contended that it was not an intermediary within the meaning of the Act and the provisions of the Act were not applicable to the said tea garden as the same was a freehold land and the Revenue Officer had not jurisdiction to assess the rent under Section 42(2) of the Act.
The Revenue Officer rejected the contentions of the Company and passed two orders fixing the rent at Rs.2,375.94 per year.
The Government being not satisfied with the quantum of rent determined by the Revenue Officer took further proceedings for the revision of the entries in the record of rights in respect of the tea garden and in those proceedings the Revenue Officer by order dated 22.8.1968 redetermined the rent at Rs.8,769.24 per year.
The Company aggrieved against the aforesaid order of the Revenue Officer preferred two appeals before the District Judge, Darjeeling acting as Tribunal under sub section (3) of Section 44 of the Act.
Both the appeals were dismissed in default.
The company filed two applications for restora tion of the appeals under Order 41 Rule 19 of the Code of Civil Procedure, but both the applications were dismissed by the Learned District Judge by his order dated 16.8.1975.
The Company then filed two applications under Section 115 of the Code of Civil Procedure read with Article 227 of the Constitution in the High Court challenging the aforesaid orders of the District Judge dated 16.8.1975.
A Division Bench of the High Court by its order dated 1.10.1975 granted interim stay of the operation of the order of the Revenue Officer dated 22.8.1968.
During the pendency of the aforesaid cases in the High Court, the Additional Deputy Commissioner of Darjeeling by his letter dated 20.6.1979 informed the Manager of Singell Tea Estate that inspite of repeated reminders, the Company had not executed the long term lease for 30 years on prepayment of the requisite number of instalments of rent and cesses.
883 The above mentioned letter of the Additional Deputy Commissioner, Darjeeling was received by the Company on 8.&1979 and was replied by the Solicitor of the Company by letter dated 13.8.1979.
In the reply, it was pointed out that the High Court had granted the stay order and as such requested the Additional Deputy Commissioner to stay his hands till the disposal of the said cases.
Thereafter, the Collector of Darjeeling served upon the Company a notice under Section 106 of the determining the tenancy of the Company in respect of the tea garden on the expiry of 14.4.1981.
The Company was requested to hand over vacant and peaceful possession of the tea garden to the Junior Land Reforms Officer or the Sub Divisional Land Reforms Officer of the area or the Executive Magistrate immediately on the expiry of 14.4.1981, failing which it was directed that the Company would be deemed a trespasser and would also be liable to pay mesne profits till the Company was evicted in due course of law.
The above notice was received by the Company on 15.11.1980.
In reply to the said notice under Section 106 of the , the Solicitor of the Company replied by letter dated 15.12.1980 agains pointing out the issuance of the stay orders by the High Court and requested the Collector of Darjeeling to stay his hands until further order from the High Court.
Thereafter, the Collector, Darjeeling issued the order dated 16.4.1981 which reads as under: "To : The Proprietor, M/s. Singella Tea Estate, P.O. Kurseong, District : Darjeeling.
I do hereby take over the possession of your tea garden known as Singel Tea Estate with effect from 16th April, 1981 as you have failed to execute Long Term Lease/Summary Lease, by paying the government dues by 14th April 1981 as required in the notice served upon you section 106 of .
Sd/ Illegible Collector, Darjeeling.
" According to the Company, by the impugned order the Collector intimated the Company that he would take possession of the estate.
But the language of the order shows as if the Collector had taken possession of the tea estate on 16.4.1981 and he recorded the fact of taking possession 884 of the tea garden in the said order.
According to the Company, the said order did not mention as to how and in what manner the possession of the tea garden was taken by the Collector.
The stand of the State Government in this regard was that possession of the tea garden was taken by the Collector on 16.4.1981, as stated in the order.
The further case of the Government was that the possession of the tea garden was handed over to the Corporation on 21.4.1981.
As already stated above, the Corporation was subsequently added as a party and an affidavit was filed by Shri Aninda Mohan Bose, the Managing Director of the Corporation stating therein that possession of the tea garden was taken by one Shri R.B. Subba, Circle Inspector (Land Reforms) Kurseong, L.R. Circle on behalf of the Government on 21.4.1981 and handed over to the Corporation.
The High Court from the above circumstances concluded that the statement made by the Collector in the impugned order dated 16.4.1981 about his taking over the possession of the tea garden on that date was incorrect.
The High Court, however, observed that it was not disputed that tea garden was now in the possession of the West Bengal Tea Development Corporation Limited since 21.4.1981.
The High Court examined the question whether the tenancy of the Company in respect of the tea garden could be terminated and the possession of the same could be taken over by the Government.
The High Court in the circumstances mentioned above held that the Collector of Darjeeling was fully aware of the stay order dated 1.10.1975 passed by tile High Court against the order of the Revenue Officer dated 22.8.1968 fixing the rent at Rs.8,769.24 per year before issuing the notice under Section 106 of the as well as on the date of issuing the impugned order dated 16.4.1981.
According to the High Court, there was no question of granting a lease so long as the rent was not determined under Section 42 (2) of the Act.
As the order fixing the rent was stayed by the High Court, the question of granting on execution of the lease by the Company could not arise.
Thus, the action of the Collector in taking possession of the tea garden by the impugned order dated 16.4.1981 on the ground that the Company had failed to execute a long terms lease or summary lease by paying the Government dues by 14.4.1981 as required in the notice given under Section 106 of the , was not correct.
The High Court further held that the Collector did not make any order of summary settlement as required by paragraph 1 of Schedule F of The West Bengal Estates Acquisition Rules, 1954.
Thus, the Collector failed to 885 perform his statutory duty by not granting a summary settlement specifying the terms and conditions of the tenancy and violated the provisions of the Rules.
As regards the contention on behalf of the State Government that the Company should have paid at least the rent at the rate of Rs.2,375.94 per year initially determined by the Revenue Officer under Section 42 (2) of the Act, the High Court rejected the same on the ground that the Government had not accepted the same and had not made any demand for payment of rent at that rate.
The High Court took the view that the rent was fixed for the second time by order dated 22.8.1968 but the demand for payment of rent was made after a long time in 1979 and obviously such demand would be for the enhanced rent as fixed for the second time and the same having been stayed by the High Court, it was doubtful whether the tenancy could be terminated and possession could be recovered on the ground of non payment of rent.
The High Court, as such, held that the Collector had taken the law into his own hands and took over possession otherwise than in accordance with law and such action on the part of the responsible officer like the Collector cannot be approved.
As a result of the above findings, the High Court allowed the writ petition and issued a writ of mandamus commanding the State Government and other authorities to deliver the possession of the tea garden to the Company within a month from the date of the order.
Both the State of West Bengal as well as the Corporation have come in appeal challenging the order of the High Court.
We have heard learned counsel for the parties and have persued the record.
The two revisions filed under Section 115 of the Code of Civil Procedure read with Article 227 of the Constitution challenging the two orders passed by the District Judge dismissing the two applications filed under Order 41 Rule 19 of the Code of Civil Procedure for restoration of the two appeals filed against the determination of the rent for the second time at the rate of Rs.8,769.24 per year are still pending before the Calcutta High Court.
This Court on 13.12.1991 had passed the following order: "The Calcutta High Court is requested to dispose of finally within the three months from today Civil Rule Nos.3741 42 of 1975.
These appeals to be on board on 7th April, 1992.
The. order communicated to the Calcutta High Court forthwith." 886 However, inspite of the above order, we were informed by the learned counsel for the parties that the Civil Rule Nos.3741 42 of 1975 have not been disposed of by the High Court.
As the above mentioned two appeals directed against the order of the High Court dated 15.9.1981 are pending in this Court for the last more than 11 years, we do not consider it proper to further wait for the decision of the Civil Rule Nos.3741 42 of 1975 pending in the High Court and we propose to decide these appeals.
The West Bengal Estates Acquisition Act, 1953 abolished the intermediaries and upon the due publication of a notification under Section 4 of the Act, the estates and the rights of intermediaries in the estates vested in the State free from all intermediaries under Section 5 of the Act.
Section 6 provides for retaining certain lands by the intermediaries.
Section 42 provides for retaining possession of any land subject to the liability to pay rent as determined by the Revenue Officer.
Sub section (2) of Section 42 provides that when an intermediary is entitled to retain possession of any land comprised in a tea garden under Clause (f) of sub section (1) as read with sub section (3) of Section 6 of the Act, the Revenue Officer shall determine the rent payable in respect of such land in the manner provided in the said sub section.
In the present case, the Revenue Officer had initially determined the rent at the rate of Rs.2,375.94 per year and on the representation of the State Government the same was refixed at Rs.8,769.24 per year.
So far as the Company is concerned, it had taken a clear stand before the Revenue Officer that it was not an intermediary nor the provisions of the Act applied in the case as the land was claimed as freehold.
The admitted facts of the case are that the Revenue Officer had initially determined the rent at the rate of Rs.2,375.94 per year, but the same was not accepted by the Government and on a representation made by the State Government, the Revenue Officer had refixed the rent at Rs.8,769.24 per year by order dated 22.8.1968.
The Company had challenged the rent refixed at Rs.8,769.24 and the High Court in Civil Rule Nos.
3741 42 of 1975 had stayed the order of the Revenue Officer dated 22.8.1968 fixing the rent at the rate of Rs.8,769.24 in view these circumstances, it was necessary on the part of the Collector to have passed an order of summary settlement as contemplated under Form I Schedule F of The West Bengal Estates Acquisition Rules, 1954.
The High Court in these circumstances was right in holding that the Collector had no jurisdiction 887 to terminate the tenancy on the ground of non payment of rent or for not executing a lease deed inasmuch as the Collector had not mentioned in the notice terminating the tenancy under Section 106 of the that he was prepared to accept the rent at the rate of Rs.2,375.94 per year as determined initially by the Revenue Officer.
We agree with the reasoning and conclusion arrived at by the High Court.
Now, taking in the view the entire facts and circumstances of the case and in order to do complete justice between the parties, we deem it proper that the respondent Company should be given the possession of the tea garden provided the Company pays the entire areas of rent from 27.7.1965 to 21.4.1981, the date when the Company was dispossessed calculated at the rate of Rs.8,769.24 per year after adjusting any amount already paid within three months from today.
There would be no necessity for the Collector to make any order of summary settlement and a long term lease shall be executed as contemplated under sub section (3) of Section 6 of the Act.
As soon as the arrears of rent as mentioned above are paid by the Company, and a lease deed is executed, the Company shall be handed over the possession of the tea garden.
In case, any increase in the amount of rent is permissible under the law due to lapse of time, the State Government would be free to take the same into consideration while granting the long term lease.
The learned counsel appearing for the respondent Company had not objected for determining the arrears of the rent at the rate of Rs.8,769.24 per year, to put an end of this litigation.
These appeals are disposed of in the manner indicated above.
In the facts and circumstances of the case, we make no order as to costs.
G.N. Appeals disposed of.
| The appellant State issued a notification under section 4 of the West Bengal Estates Acquisition Act, 1953 covering the land comprised in the tea garden of the respondent company.
The Revenue Officer issued notices to the respondent company initiating proceedings for assessment of rent.
The Company objected stating that it was not an intermediary within the meaning of the Act and since its tea estate comprised of free hold land the Revenue Officer had no jurisdiction to assess the rent under Section 42(2) of the Act.
The Revenue Officer rejected the contention and fixed the rent at Rs.2,375.94 per year.
On revision preferred by the State, the Revenue Officer determined the rent at Rs.8,765.24 per year.
The Company preferred appeals before the Tribunal.
The appeals were dismissed in default and the restoration applications were also rejected.
Thereafter, the Company preferred applications before the High Court under Section 115 CPC read with Article 227 of the Constitution for restoration of the two appeals, and obtained stay of the operation of the Revenue Officer 's order.
During the pendency of the cases, the Additional Deputy Commissioner informed the respondent that inspite of the repeated reminders the company had not executed the long term lease for 30 years on prepayment of the requisite number of instalments or rent and cess.
The respondent company replied pointing out that the High Court had granted the stay order and therefore the matter stood stayed till the disposal of the said cases.
Thereafter, the Collector served upon the Company, a notice under section 106 of the Transfer of Property Act, 880 1882 determining the tenancy of the company In respect of the tea garden on the expiry of the specified date.
The company was required to hand over the vacant and peaceful possession of the tea garden.
In reply to the said notice, the company stated that in view of the stay order granted by the High Court no further proceedings be taken.
Thereafter the Collector took over the possession of the tea garden.
The applications before the High Court were still pending.
However, aggrieved by the order of the Collector taking over its tea garden, the Respondent preferred a Writ Petition before the High Court Allowing the writ petition, the High Court directed the appellant State Government and other authorities to deliver the possession of the tea garden to the Company within a month.
Aggrieved by the High Court 's order, the State as also the West Bengal Tea Development Corporation to whom the possession of the tea garden is transferred by the State, preferred appeals, before this Court.
Disposing of the appeals, this Court, HELD:1.
The Revenue Officer had initially determined the rent at the rate of Rs.2,371.94 per year, but the same was not accepted by the Government and on a representation made by the State Government, the Revenue Officer had refixed the rent at Rs.8,769.24 per year by order dated 22.8.1968.
The Company had challenged the rent refixed at Rs. 8.769.24 and the High Court had stayed the order of the Revenue Officer fixing the rent at the rate of Rs.8,769.24.
In view of these circumstances, it was necessary on the part of the Collector to have passed an order of summary settlement as contemplated under Form I Schedule F of the West Bengal Estates Acquisition Rules, 1954.
The High Court was, therefore, right in holding that the Collector had no jurisdiction to terminate the tenancy on the ground of non payment of rent for not executing a lease deed inasmuch as the Collector had not mentioned in the notice terminating the tenancy under Section 106 of the Transfer of Property Act, that he was prepared to accept the rent at the rate of Rs. 2,375.94 per year as determined initially by the Revenue Officer.
[886 F H; 887 A,B] 2.In order to do complete justice between the parties, it is proper that the respondent Company should be given the prosession of the tea garden provided the Company pays the entire arrears of rent from 27.7.1965to 21.4.1981, the date when the Company was dispossessed, 881 calculated at the rate of Rs. 8,769.24 per year after adjusting any amount already paid, within three months.
There would be no necessity for the Collector to make any order of summary settlement and a long term lease should be executed as contemplated under sub section (3) of Section 6 of the West Bengal Estates Acquisition Act, 1953.
As soon as the arrears of rent are paid by the Company and a lease deed is executed, the Company should be handed over the possession of the tea garden.
In case any increase in the amount of rent is permissible under the law due to lapse of time, the State Government would be free to take the same into consideration while granting the long term lease.
[887 B D]
|
Appeal No. 228 (NT) of 1987.
From the Judgment and Order dated 8.4.1982 of the Karnataka High Court in S.T.R.P.No. 100/81.
M. Veerappa and K.H. Nobin Singh for the Appellant.
The judgment of the Court was delivered by KULDIPSINGH,J.
The question for consideration in this appeal is whether the mandate, under Section 20 (3) of the Karnataka Sales Tax Act, 1957 (the Act), to pay the undisputed tax before the appeal is entertained, is also applicable to the additional tax payable under Section 6B of the Act.
In other words whether it is obligatory under the Act to deposit the tax and the additional tax before the appeal is entertained.
The respondent assessee challenged the best judgment assess ment made against him for the year 1972 73 before the First Appellate Authority which was dismissed in limine on the ground that the respondent failed to pay the tax "not disputed in appeal".
The second appeal filed by the assessee before the Karnataka Appellate Tribunal was also dismissed.
On a revision petition under the Act the Karnataka High Court reversed the findings of the authorities below on the ground that unpaid "not disputed ' tax was the additional tax which was different than the tax envisaged under Section 20 (3) of the Act.
The High Court allowed the revision petition of the assessee and remanded 83 the matter to the appellate authority to dispose of the appeal in accordance with law.
This appeal by way of special leave against the judgment of the High Court is by the State of Karnataka.
Before the appellate authority it was the admitted case of the parties that no part of the undisputed tax levied under Section 5 (1) of the Act had remained unpaid.
It was only the undisputed additional levy under Section 6B of the Act which had not been paid.
Section 20 (1) of the Act confers a right of appeal.
Sub section 2 of Section 20 refers to the period of limitation.
Sub Section 3 (A) of section 20 is as under: "No appeal against an order of assessment shall be entertained by the appellate authority unless it is accompanied by satisfactory proof of the payment of the tax and penalty not disputed in the appeal." The High court on the interpretation of various provisions of the Act came to the conclusion that the additional tax under Section 613 is a levy distinct from the impost under section 5 (1) of the Act.
The High Court thus came to the conclusion that the nonpayment of the additional tax would not bar the entertainment of the appeal under the Act.
The findings of the High Court are based on the following reasoning: "Though the tax under section 6B is and impost of a similar nature, it is a levy distinct from the impost under Section 5(1) or under Section 6.
This is the clear outcome of the scheme of Section 6B and the effect of Section 6B(2) of the Act.
Section 6B(2) by providing for the application of the provisions of the 'Act ' to the tax under Section 6B as they apply to the sales or purchase tax under the Act, recognises the distinction between the additional tax on the one hand and the other imposts under the 'Act ' on the other. .
Section 20(1) creates and confers a right of appeal.
Sub Section (3) of Section 20 seeks to restrict that right and subject it to certain conditions.
It appears us 84 that the "tax" in Section 20 (3) on the payment of which the right of appeal is mad e dependent should receive a construction which would advance that right and one which would not make that right dependent upon or subject to payment of a "tax" which is distinct from the tax constituting the subject matter of the appeal. . .
In the present case, the appeal is one directed against the main impost and no part of the assessment relating to the additional tax, is the subject matter of the appeal.
That being so, the view that non payment of the additional tax would bar the entertainment of the appeal is not unjustified.
" We are not inclined to agree with the view taken by the High Court, Section 6B of the Act as it stood at the relevant time reads as under: "6 B. Levy of additional tax.
(1) There shall be levied and collected from every dealer liable to pay tax under section 5 or under section 6 (and from every dealer liable to pay tax under Section 25 B) an additional tax at the rate of ten paise in the rupee on the sales tax or purchase tax or both payable by such dealer; Provided that in respect of the sale or purchase of any of the declared goods mentioned in the Fourth Schedule, the tax together with the additional tax shall not exceed four percent of the sale or purchase price thereof.
(2)The provisions of this Act and the rules made thereunder including those relating to refund or exemption from tax shall, so far as may be, apply in relation to the levy, assessment and collection of the additional sales tax or purchase tax or both, as they apply in relation to the levy assessment and collection of sales tax or purchase tax under this Act.
" 85 It is obvious that the additional tax is leviable at the rate of ten paise in the rupee on the sales tax or purchase tax or both, payable by such dealer.
The additional tax is computed with reference to the tax payable by the dealer.
When once the assessing authority determines the sales tax or purchase tax under the Act the additional tax is levied automatically and becomes part and parcel of the assessment order.
The expression "tax" has been defined to mean a tax leviable under the provisions of the Act and as such includes the additional tax levied under section 6B of the Act.
When Section 20(3) talks of "payment of the tax and penalty not disputed in the appeal" it obviously includes the additional tax.
On the plain language of Section 20(3) of the Act it is not possible to make any distinction between the tax and the addition tax and the only conclusion which can be drawn is that the undisputed "tax" which includes additional tax has to be deposited before the appeal is entertained.
The fact that the quantum of the additional tax is determined with reference to the sales tax/purchase tax impost would not alter its character.
The additional tax is nothing but an enhancement in the rate of the sales tax/purchase tax under the Act.
As soon as the assessing authority determines the levy of sales tax/purchase tax the additional tax under Section 6B become part of the assessment order.
Similarly if the main impost under Section 5 (1) is successfully challenged, the reasoning sustaining the challenge would also ipso facto affect the validity of the additional impost under Section 6B of the Act.
We are, therefore, of the view that the High court was not justified in holding that additional tax under Section 6B was not a tax for the purposes of Section 20 (3) of the Act.
We allow the appeal , set aside the judgment of the High court and dismiss the revision petition filed by the assessee before the High Court.
No costs.
U.R. Appeal allowed.
| The respondent assessee challenged the best judgment assess ment for the %,ear 1972 73.
The First Appellate Authority dismissed it its limine on the ground that the respondent had failed to pay the tax " not disputed In appeal".
A second appeal was dismissed by the Karnataka Appellate Tribunal.
The High Court allowed the revision petition of the assessee on the ground that the additional tax payable under section 6B was distinct from the tax in S.20 (3) on the payment of which the right of appeal is made dependent.
In the appeal by the State to this Court the question was whether the mandate unders.
20(3) to pay the undisputed tax before the appeal is entertained is also applicable to additional tax payable under s.6B of the Act.
Allowing the appeal, this Court, HELD: 1.
The expression 'tax ' has been defined to mean a tax leviable under the provisions of the Act and as such includes the additional tax levied under section 6B of the Act.
When Section 20 (3) talks of "payment of the tax and penalty not disputed in the appeal" it obviously includes the additional tax.
(85 B) On the plain language of section 20 (3), the only conclusion which can he drawn is that the undisputed 'tax ' which includes additional tax has to he deposited before the appeal is entertained.
(85 C) 82 2.
The fact that the quantum in of the additional tax is determined with reference to the sales tax, purchase tax imposts would not alter its character.
The additional tax is nothing but an enhancement in the rate of the sales tax/purchase tax under the Act.
As soon as the assessing authority determines the levy of sales tax/purchase tax the additional tax under Section 6B become .
part of the assessment order.
Similarly if the main impost under Section 5 (1) is successfully challenged, the reasoning sustaining the challenge would also ipso facto affect the validity (if the additional impost under Section 6B of the Act.
(85 D E)
|
Appeal No. 2881 of 1993.
From the Judgment are Order dated 16.1.85 of the Bombay High Court in W.P. No. 1755 of 1983 V.M. Tarkunde, R. Karanjawala, Rajesh Kumar and Ms. Suruchi Aggarwal for the Appellant.
S.B. Bhasme and A.S. Bhasme for the Respondent.
AHMADI, J. Special leave granted.
The appellant, landlord, filed an eviction suit No. 419 of 1968 for possession of the demised premises mainly on the ground of arrears of rent under section 12(3) of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 (hereinafter called 'the Act ').
That suit was settled between the parties, the relevant terms whereof read as under: (1) The possession of the suit premises is to be given by the defendant to the plaintiff by 10th October, 1970.
If the defendant does not give possession, then the plaintiff is to take possession by execution on the basis of this decree.
(2). . . . . (3)The defendant is given a concession that if the defendant paid the entire amount mentioned in clause (2) above, i.e., the amount involved in the suit, future mesne profits, electricity charges, water charges, the rent of the godown, expenses of the suit by 10th October, 1970, the plaintiff will not execute the decree for possession.
" Under clauses (2) and (4) of the compromise terms the rent in respect of the suit premises was to be calculated on the basis of standard rent of Rs. 30 per month, the rent of the store room (godown) was to be calculated at the standard rent of Rs. 9 per month and electricity and water charges at Rs. 3 per month and so calculated.
the entire arrears had to be paid on or before 10th October, 1970 to avail of the concession given in clause (3) of the compromise terms.
The Trial Court passed a decree in terms of the compromise.
733 The arrears so calculated worked out to Rs. 3353.
as on 10th October, 1970.
The tenant, however, paid a sum of Rs. 2040only on 9th February, 1970 and, therefore, did not comply with the terms regarding payment of entire arrears on or before 10th October, 1970.
Thereupon, the decree holder filed execution proceedings on 2nd November, 1970.
The tenant raised objections in regard to the executability of the decree.
The Executing Court rejected the objections raised by the tenant and issued a warrant for possession of the demised premises under order 21 Rule 35 of the Code of Civil Procedure, 1908 (hereinafter called 'the Code ').
The tenant preferred an appeal against the order of the Executing Court which came to be allowed.
The order of the Executing Court was set aside and the prayer for eviction was dismissed.
The decree holder moved the High Court under Article 227 of the Constitution.
The High Court set aside the order of the Appellate Court and remitted the matter to the Appellate Court with a direction to decide the character of the compromise terms on the basis of which eviction was sought.
After the matter went back to the Appellate Court that court reconsidered the matter and once again allowed the appeal setting aside the order of the Executing Court directing issuance of warrant under Order 21 Rule 35 of the Code.
The Appellate Court dismissed the execution proceedings altogether.
Against that order passed by the Appellate Court the decree holder once again moved the High Court under Article 227 of the Constitution.
The High Court considered the various submissions made before it by the rival parties and summarised the propositions emerging from the relevant provisions and the case law in paragraph 32 of the judgment as under "(1) If by a consent decree the status of a landlord and tenant is established between the plaintiff and the dependent, the Court in exercise of its equitable jurisdiction is not precluded from granting relief against forfeiture of a term contained in the consent decree.
(2)Where the question is not one of the creation of a tenancy or the continuation of a tenancy and where a decree passed either by consent or in invitum permits payment of the decrement amount in installments and provides that the decretal amount becomes payable at once in the event of failure in the payment of one or more installments, there is no question of granting relief.
The Courts are bound to execute the decree in accordance with its terms.
(3)Where.
however, the relationship of landlord and tenant is continued between the parties by a compromise decree.
the judo 734 ment debtor, who is a tenant.
would be entitled to relief against forfeiture resulting from his failure to pay the rent on the stipulated date.
(4)Where the consent decree provides for the continuance of the possession of the tenant up to a particular date beyond which he has no right to remain in possession at all and on which date the landlord is entitled to execute the decree for possession, the time given from the date of the decree till the other date is by way of concession and in such a case, there is no creation of new tenancy or continuation of the existing tenancy. ' ((5) If the consent decree provides possession for the continuation of ' the of the tenant on certain terms up to a particular date and also provides for the continuation of the tenant 's possession after the date if lie complies with certain conditions, then such a decree provides for the continuance of the possession of the tenant from the date of the consent decree itself.
In such a case, it cannot be said that the plaintiffs allowing the defendant to continue up to and beyond that specified date is by way of concession.
" The High Court, therefore, concluded that the refusal by the Appellate Court to exact the tenant on the basis of the consent decree was correct in law and hence it was not required to interfere with the order of the Appellate Court.
It came to the conclusion, on a true interpretation of the relevant clauses of the consent decree, that the clause by which eviction was permitted was penal in nature and, therefore, not enforceable.
Clause (3) of the compromise term was treated is granting relief ' against forfeiture.
In this view of the matter the judgment creditor, landlord, having failed to secure possession of the demised premises by putting the consent decree to execution, has approached this Court under Article 136 of the Constitution.
The Act was enacted to amend and consolidate the law relating to the control of rents and of evictions from demised premises.
It imposes certain restrictions on the right of the landlord from recovering possession so long as the tenant pays or is ready and willing to pay standard rent and permitted increases and observes and performs the other conditions of ' the tenancy which are consistent with the provisions of the Act.
If the tenant has failed to pay the rent and permitted increases due from him he can be evicted for that neglect in the manner set out in section 12 735 of the Act.
The other provision which confers a right of eviction is section 13 of the Act with which we are not concerned in this case.
The facts of the case clearly reveal that the landlord had sought eviction under section 12of the Act as the tenant had committed a breach of sub section ( 1) thereof, in that, he had failed to pay the rent to the landlord.
To comply with the requirement of sub section (2) of that provision the landlord had served the tenant with a notice prior to the institution of the suit seeking eviction under section 12(3) of the Act.
This sub section is in two parts and may be extracted for ready reference "12 (3) (a) Where the rent is payable by the month and there is no dispute regarding the amount of standard rent or permitted in creases, if such rent or increases are in arrears for a period of six months or more and the tenant neglects to make payment thereof until the expiration of the period of one month after notice referred to in sub section (2), the court may pass a decree for eviction in any such suit for recovery of possession.
12(3) (b) In any other case no decree for eviction shall be passed in any such suit if on the day of hearing of the suit or on or before such other date as the court may fix, the tenant pays or tenders in court the standard rent and permitted increases then due and thereafter continues to pay or tender in court regularly such rent and permitted increases till the suit is finally decided and also pays costs of the suit as directed by the court.
" Clause (a) sets out the circumstances in which the tenant forfeits the protection of the statute and entitles and landlord to evict him.
If the case does not fall within the scope of clause (a) the question to be considered is whether eviction should be ordered under clause (b).
This is clear from the opening words, "in any other case," If, however, the tenant satisfies the conditions of the said clause, the law protects him from eviction as is clear from the words, "no decree of eviction shall be passed in any such suit".
The suit in the present case was filed under section 12(3) of the Act but before the court could adjudicate whether clause (a) or clause (b) was attracted the parties arrived at a settlement, the relevant terms hereof have been extracted hereinbefore.
It is well settled that a decree passed on the basis of a cc, promise by and between the parties is essentially a contract between the names which derives supporting by the court superadding its seal to the contract.
But all the same the consent terms retain all the elements of a contract to which the court 's imprimatur is affixed to give it the sanctity of an executable court 736 order.
We must, however, point out that the court will not add its seal to the compromise terms unless the terms are consistent with the relevant law.
But, if the law vests exclusive jurisdiction in the court to adjudicate on any matter, e.g. fixation of standard rent, the court will not add its seal to the consent terms by which the parties have determined the standard rent unless it has applied its mind to the question and has satisfied itself that the rent proposed by consent is just and reasonable.
In such a case it is the independent satisfaction of the court which changes the character of the document from a mere contract to a court 's adjudication which will stop the tenant from contending otherwise in any subsequent proceedings and operate as resjudicata.
If the standard rent is fixed solely on the basis of agreement between the parties, such a decree in invitum will not preclude the tenant from contending in any subsequent proceeding that the rent is excessive and require the Court to fix the standard rent.
Therefore, the character of the consent decree will depend on the nature of the dispute resolved and the part played by the court while superadding its seal to it.
Under clause (a) of section 12 (3) of the Act, if the conditions stated therein are satisfied, the court has to pass a decree to evict the tenant from the demised premises.
So also under clause (b) of that sub section, if the tenant fails to pay or tender in court the standard rent and permitted increases due on the first date of hearing of the suit or on or before such date as the court may fix, the court has to pass a decree for ejectment.
In the present case the suit was governed by section 12(3) of the Act and even if we assume that it fell within the purview of clause (b), the tenant was liable to be evicted as admittedly the tenant had failed to pay or tender in court the standard rent and permitted increases due to the landlord as is obvious from clause (2) of the consent terms.
It is for this reason that the tenant suffered a decree for eviction and agreed to deliver possession of the suit premises by 10th October, 1970.
By clause (2) of the consent terms the tenant further agreed to pay to the landlord by 10th October, 1970 the entire amount due including legal fees and expenses from the date of the suit till delivery of possession.
Clause (3) of the consent terms carries the crucial term that the tenant is given a concession, and that concession is that if he pays the entire amount mentioned in clause (2) by 10th October, 1970, the landlord will not execute the decree for possession.
That has given rise to the question whether clause (1) of the consent decree is in the nature of a penalty for non payment of the outstanding dues upto 10th October, 1970 or clause (3) of the consent decree is merely a concession given to the tenant if he complies with the terms or requirements of that provision.
Now as pointed out earlier the ejectment suit was filed on the allegation that the tenant had neglected to pay the rent and other charges in respect of the demised 737 premises.
The suit was, therefore, founded on the right to evict conferred by section 12(3) of the Act.
We will assume that it was a case to which clause (b) to that sub section was attracted.
It is evident from the terms of the compromise that even on the date of the compromise in July 1970 the tenant was in arrears of rent.
If the suit had gave to trial the landlord may have secured a decree in ejectment for the tenant 's failure to comply with the requirements of clause (b) of section 12(3) of the Act.
By clause (1) of the compromise decree it was, therefore, provided that the tenant will vacate and deliver possession of the demised premises by 10th October, 1970.
Failure to deliver peaceful possession by that date would entitle the landlord 'to take possession by execution ' of the decree.
Clause (2) indicates the rate at which the arrears will be calculated and clause (4) describes those rates as standard rent.
Clause (4) describes those rates as standard rent.
Clause (3) which is the crucial clause gives a concession.
What is that concession? It is that if the tenant pays up the entire amount of arrears, i.e., the amount involved in the suit meaning thereby the claim of arrears set out in the suit, future mesne profits, electricity and water charges, the rent of the godown, cost of the suit, by 10th October, 1970, the landlord will not execute the decree for possession.
Counsel for the appellant argued that as the tenant had failed to clear the arrears of rent and other charges payable under the terms of the lease, he was liable ton be evicted under clause (b) of section 12(3) of the Act.
That is reflected in clause (1) of the compromise terms.
However, the landlord gave a concession by clause (3) to the effect that if the entire arrears are cleared by 10th October, 1970, he would not execute the decree for possession.
This, counsel argued, does not show that the decree for possession was provided for as in terrorism to be construed as a penalty and not a concession.
Counsel contended that while a penal stipulation on cannot be enforced, a grant of a concession cannot undo the main operative part of the eviction decree unless it is shown that the tenant had done all that was necessary to avail of the concession.
Counsel for the tenant, however, insisted that the provision for delivery of possession is in the nature of a penalty and was, therefore, unenforceable.
He supported the judgment of the High Court and submitted that the appeal should be dismissed with costs.
It is settled law that unless the terms of contract are ambiguous the intention of the parties must be gathered from the terms themselves.
It is only where the terms are ambiguous and capable of more than one meaning that evidence aliunde can be permitted to gather the intention of the parties.
In our view, the terms forming the basis of the consent decree in the instant case are clear and unambiguous and do not call for extrinsic material to gather the intention of the parties.
Two questions, therefore, arise for consideration, namely, (i) did the parties to the compromise intend to create or continue the relationship of landlord and tenant? 738 and, (ii) is the Clause providing for eviction penal in character? Now.
as pointed out earlier by clauses (1) and (2) of the compromise terms, the tenant is required to deliver vacant possession of the demised premises to. ,ether with arrears of rent etc.
by 10th October, 1970.
It is further provided that if the tenant fails to deliver possession and defaults in paying the arrears due from him by 10th October, 1970, the landlord will be entitled to recover both possession and arrears of rent, etc., by executing the decree.
Thus by the first two clauses of the consent terms, the landlord secured a decree for possession as well as arrears of rent, etc. , giving a grace period to the tenant to comply therewith by 10th October, 1970.
Thereafter by clause (3) of the consent terms, the tenant is given a concession, in that, if he pays the entire arrears of rent, mesne profits, electricity and water charges, cost of the suit, etc.
by 10th October, 1970, the landlord agrees not to execute the decree for possession.
In other words on the fulfillment of the obligation to clear the entire arrears of rent and other charges by 10th October, 1970, the tenant is given a concession that the decree for possession passed against him will not be put to execution.
Such a clause cannot, in our opinion, be said to be penal in character.
It is necessary to understand when a clause in the contract can be described as penal in character.
Let us illustrate by taking two concrete situations.
A plaintiff files a suit to recover Rs. 20,000 with interest and costs from the defendant.
They enter into a compromise, the terms whereof are as under: Situation 1: The defendant shall pay to the plaintiff a sum of Rs. 15,000 and costs on or before 31st December, 1993.
If, however, he fails to pay the said amount of Rs. 15,000 with costs within the time stipulated, the plaintiff will be at liberty to recover the entire sum of Rs. 20,000 with interest and costs from the defendant by executing the decree.
The latter clause of such a decree will clearly be in terrorem and, therefore, penal in character.
No court will execute the same.
Situation 2: The decree provides that the defendant shall pay Rs. 20,000 with interest and costs to the plaintiff.
However, if the defendant pays Rs. 1 5,000 and costs on or before 3 1 st December, 1993 to the plaintiff, the plaintiff will treat the decree as fully satisfied and will not claim the balance amount from the defendant.
In such a case the latter clause operates as a concession and the 739 plaintiff waives his right to the balance amount.
Such a decree will be executable to the full extent if the defendant fails to avail of the concession by paying Rs. 15,000 and costs on or before 3 1 st December, 1993.
From the above two illustrations it should become clear that if the defendant is required to suffer the consequence for his failure to abide by the terms by a stipulated date such a consequence would be penal in nature but on the other hand if the defendant gets some benefit by complying with the requirement by the stipulated date such a clause granting benefit can never be treated as penal in character.
Applying this test to the decree in question, it is obvious that by the first two clauses of the consent terms a decree for possession of the demised premises as well as arrears of rent, etc.
is passed and the tenant.
is given a grace period upto 10th October, 1970 to comply with the same failing which the landlord is given the right to put the decree to execution and obtain possession of the premises and recover the arrears of rent, etc.
through court.
By clause (3) of the consent terms, however, the tenant is granted a concession that if he pays the entire rent etc.
due from him by 10th October, 1970, the landlord will not put the decree to execution for recovery of possession.
This stipulation is clearly to secure his dues i.e. arrears of rent, etc.
Depending on the situation in which a landlord is placed, he may grant the concession to the tenant to ensure that the huge amount of arrears is not lost.
If he grants such a concession and agrees that if the entire arrears is cleared by a. stipulated date he will not insist on possession that will not render the clause penal in nature.
In a given situation where the tenant is in financial difficulty and is not in a position to comply with the requirement of section 12(3) of the Act, he can request the landlord to grant him a concession in the nature of relief against forfeiture.
If such a concession is to be read as penalty rendering the decree nonexecutable even where the tenant fails to satisfy the requirements of availing the concession, no landlord will in future grant such a concession, thereby causing hardship in deserving cases.
We are, therefore, of the opinion that the First Appellate Court as well as the High Court were in error in treating clause (3) of the consent terms as penal in character and incapable of execution.
If the condition precedent for availing of the benefit or concession under clause (3) of the consent terms is satisfied, the relationship of landlord and tenant continues but if the tenant fails to comply with the condition precedent for availing of the benefit or concession the forfeiture operates and the tenant becomes liable for eviction under the decree.
The High Court has placed reliance on the Full Bench decision in Krishnabai vs Hari, 8 BLR 8 13 and Gajanand Govind vs Pandurang Keshav, 53 BLR 100.
in 740 taking the view that the Executing Court can rant relief against forfeiture on the strength of section 114 of the .
The High Court seems to think that in execution of a consent decree, such as the one with which we are concerned, it is open to the Executing Court to go behind the decree by invoking section 114, T.P.Act, notwithstanding section 12(3) of the Act.
In our view After the enactment of clause (b) to section 12(3) which is a special provision incorporating the equity provision contained in section 1 14,T.P.Act, in a modified form, cases governed under the Act must be resolved in accordance with section 12(3) of the Act and not under section 1 14, T.P.Act The landlord 's right to seek eviction has been drastically reduced and circumscribed by section 12 and 13 of the Act.
Similarly the tenant must also seek protection from eviction by complying with the requirements of the Act.
If such is not the legal position, section 12(3) (a) of the Act which mandates the Court to pass a decree for eviction if the requirements of that clause are satisfied would be rendered wholly nugatory.
Same would be the position in the case of application of section 12(3) (b) of the Act because that clause precludes the passing of the decree if the tenant satisfies the requirements of that provision.
It must be remembered that after the enactment of the Act the landlord 's right to reenter on expiry of the lease is curtailed by the provisions of the Act which has made special provisions granting protection from eviction if the tenant abides by his obligations under the Act.
Under the Act a tenant is allowed to continue in possession notwithstanding the termination of the contractual tenancy if he abides by the provisions of the Act.
If he fails to abide by the requirement of section 12(3) of the Act, he must take the consequences flowing therefrom.
There is no question of granting him double protection.
That is what this Court clarified in Pradesh Kumar Bajpai vs Binod Behari Sharkar, ; That was a case arising under the provisions of the U.P. (Temporary) Control of Rent and Eviction Act, 1947.
The question which was seriously debated at the Bar before this Court was whether in addition to the safeguards provided to the tenant under the said Act, the tenant was also entitled to the benefit of section 1 14, T.P.Act.
The right of the landlord to have the tenant evicted was restricted under the said rent restriction legislation.
As that law had restricted the power of the landlord to evict the tenant except in accordance with the provisions therein contained, the terms of the contract and the provisions of the T.P.Act, it was urged, were no longer attracted.
Clause (a) of section 3(1) inter alia provided that the suit may be filed with the permission of the District magistrate when the tenant is in arrears of rent for more than three months and has failed to pay the same to the landlord within one month of the service upon him of the notice of demand.
Dealing with this contention this Court held that once the requirements of the rent legislation are satisfied, the tenant cannot claim the double protection of invoking the provisions of the T.P.Act or the terms of the contract and the provision of 741 section 114, T.P.Act, cannot be read into the rent legislation.
This Court concluded thus : "In the case before us, it is not indispute that after the Rent Act came into force, the landlord cannot avail himself of clause 12 which provides for forfeiture, even if the tenant neglected to pay the rent for over two months.
The landlord cannot enter into possession forthwith without notice.
The only remedy for him is to seek eviction under the provisions of the Rent Act.
In such circumstances the tenant cannot rely on section 114of the and claim that he should be given an opportunity to pay the arrears of rent, even though the requirements of section 3(1) had been fulfilled.
" It is, therefore, obvious that the tenant cannot avail of the benefit of section 114, T.P.Act since his case was governed by the provisions of section 12(3) (b) of the Act.
For the foregoing reasons, we are of the opinion that the executing court was right in issuing a warrant for possession under order 21 Rule 35 of the Code against the tenant since the tenant had failed to take advantage of the concession clause by clearing the arrears of rent, mesne profits, etc.
by 10th October, 1970.
The First Appellate Court as well as the High Court were in error in holding that the decree was not executable as clause (3) thereof was in the nature of a penalty.
We set aside the order of the First Appellate Court as well as the High Court and remit the matter to the executing court to proceed further in accordance with law.
We may, however, make it clear that if there have been subsequent developments between, the parties creating any de novo relationship that will not be affected by this order.
In the facts and circumstances of the case, we make no order as to costs.
U.R. Appeal allowed.
| The appellant landlord filed an eviction suit for possession of the demised premises mainly on the ground of arrears of rent under Section 12(3) of the Bombay rent Act, 1947.
The suit was settled between the parties.
By the terms of the compromise, possession would be given by the tenant to the landlord by 10 October 1970, or the landlord may recover possession by execution based on this decree; but, if the tenant paid the entire arrears in full by 10 October 1970, the landlord would not execute the decree for possession.
The tenant failing to pay the entire arrears as stipulated the landlord decree holder filed execution proceedings.
The executing Court issued a warrant for possession but the Appellate Court set aside the order and dismissed the prayer for eviction.
The High Court remanded the matter to the Appellate Court to determine the character of the compromise terms.
That court again allowed the appeal and dismissed the execution proceedings altogether.
On appeal, the High Court agreed with the Appellate Court.
It found 730 that clause permitting eviction was penal in nature and therefore, not enforceable.
The questions before this court were:did the parties to the compromise intend to create or continue the relationship of landlord and tenant; whether the compromise terms in the consent decree were penal in nature or merely gave a concession; and whether Section 114 Transfer of Property Act could be invoked while executing a decree for possession, notwithstanding Section 12(3) of the Bombay Act.
Allowing the appeal, this Court, HELD: It is well settled that a decree passed on the basis of a compromise by and between the parties is essentially a contract between the parties which derives sanctity by the court superadding its seal to the contract.
But all the same the consent terms retain all the elements of a contract to which the court 's imprimaturs is affixed to give it the sanctity of an executable court order.
The court will not add its seal to the compromise terms unless the terms are consistent with the relevant law.
(735 H) If the law vests exclusive jurisdiction in the court to adjudicate on any matter, the court will not add its seal to the consent terms unless it has applied its mind to the question.
In such a case it is the independent satisfaction of the court which changes the character of the document from a mere contract to a court 's adjudication which will stop the tenant from contending otherwise in any subsequent proceedings and operate as resjudicata.
(736 B) The character of the con sent decree will depend on the nature of the dispute resolved and the part played by the court while superadding its seal to it.
(736 C) (2) If a defendant is required to suffer the consequence of his failure to abide by terms stipulated, such consequence would he penal in nature.
But if the defendant gets some benefit by complying with a requirement, such as clause can never be penal in character.
(739 B) (3) Admittedly the tenant had failed to pay or tender in court the 731 standard rent and permitted increases due to the landlord.
(736 E) The clause in the consent terms whereby, upon payment of the entire rent etc.
due from the tenant, by a stipulated date was dearly to secure his dues i.e. arrears of rent etc.
This is in the nature of a concession.
Where a landlord grants a concession and agrees that if the entire arrears is cleared by a stipulated date, he will not insists possession that will not render the clause penal in nature.
(739 E) (4) If the condition precedent for availing of the benefit of concession under clause (3) of the consent terms is satisfied, the relationship of landlord and tenant continues but if the tenant fails to comply with the condition precedent for availing (of the benefit or concession the forfeiture operates and the tenant becomes liable for eviction under the decree.
(739 G) (5) After the enactment of clause (b) to section 12(3) which is a special provision incorporating the equity provision contained in section 114, T.P. Act, in a modified form, cases governed under the Act must he resolved in accordance with section 12(3) of the Act and not under section 114, T.P. Act.
The landlord 's right to seek eviction has been drastically reduced and circumscribed by sections 12and 13 of the Act.
Similarly the tenant must also seek protection from eviction by complying with the requirements of the Act.
(740 B) If such is not the legal position, Sections 12 (3) (a) and 12 (3) (b) would be rendered wholly nugatory.
Under the Act a tenant is allowed to continue in possession notwithstanding the termination of the contractual tenancy if the abides by the provisions of the Act.
If he fails to abide by the requirement of section 12(3) of the Act, he must take the consequences flowing therefrom.
There is no question of granting him double protection.
(740 C E) Krishnabai vs Hari, 8 BLR 813 and Gajanand Govind vs Pandurang Keshav, 53 B.L.R. 100, referred to.
(840 B) Pradesh Kumar Bajpai vs Binod Behari Sharkar, [1980] 3S.C.R. 93, relied on.
(840 H)
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Subsets and Splits